author: GROSS, J.

text:
    ANAKARLI BOUTIQUE, INC., a Florida corporation, Appellant, v. Nahomi ORTIZ, Appellee.
    No. 4D14-2188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.

      John Arrastia, Jr., Arrastia Capote & Phang LLP, Miami, for appellant.
    Gustavo A. Bravo, Bravo Law, Plantation, for appellee.
   GROSS, J.

This is an appeal from an order denying a motion for temporary injunction in a case involving the violation of a non-compete agreement. The circuit court denied a temporary injunction because the non-compete period had run, mostly during the appeal of an earlier ruling. Once again, we reverse for the trial court to decide the motion for temporary injunction on the merits.

This is the second visit of the case to this court. See Anarkali Boutique, Inc. v. Ortiz, 104 So.3d 1202 (Fla. 4th DCA 2012). Anarkali I was also an appeal from an order denying a temporary injunction. That case sets forth the non-eompete/non-solicitation agreement,- which applied for a period of 2 years after appellee was no longer engaged as “an employee” with the company, the appellant in this case. Id. at 1203. In 2011, appellee left the company and opened her own business near the company’s location. The company’s complaint for injunctive relief alleged (1) the existence of legitimate business interests justifying the agreement’s restrictive covenants, (2) that the restrictive covenants were reasonably necessary to protect the company’s established interests, and (3) the elements necessary to obtain a temporary injunction. Id. at 1204; see § 542.335(1), Fla. Stat. (2012). There was an' evidentiary hearing. Id. The circuit court denied the motion for temporary injunction, ruling that the two-year non-compete period began to run when appellee became an independent contractor and “expired before [she] left to start her business.” Id. at 1205.

We reversed, holding that the two-year non-compete period did not begin to run until appellee left the company. Id. We remanded to the circuit court to make the factual findings as to whether the company “proved section 542.335’s requirements” along with the elements of a temporary injunction. Id. at 1206. We indicated that the court could “review the record” or hold a further hearing. Id.

On remand, the circuit court requested that the transcript of the evidentiary hearing be provided for the court’s consideration. Without further hearing, the court denied the motion for temporary injunction as moot, reasoning that the two-year non-compete period, measured from the date appellee left the company, had expired on November 22, 2013. Obviously, much of this two year period was consumed by the appeal in Anarkali 1.

It would be stunningly unfair if the law held that a valid non-compete clause could be nullified because the non-compete period was devoured by the time it took to appeal an erroneous ruling on the interpretation of the clause. Where there has been a delay in the entry of a non-compete injunction enforceable under section 542.335(l)(c), the party seeking to enforce the non-compete clause is entitled to receive the benefit 6f its bargain, which is the enforcement of the full non-compete period specified in the agreement between the parties. See Orkin Exterminating Co. v. Bailey, 550 So.2d 563, 565 (Fla. 4th DCA 1989); Kverne v. Rollins Protective Servs. Co., 515 So.2d 1320, 1321-22 (Fla. 3d DCA 1987); Mut. Benefits Corp. v. Goldenberg, 709 So.2d 204 (Fla. 4th DCA 1998); Capelouto v. Orkin Exterminating Co. of Fla., 183 So.2d 532, 534 (1966). Such enforceability assumes that the trial court has found the “contractually specified restraint” not to be “overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest” of the party seeking to enforce the restraint. § 542.335(l)(c), Fla. Stat. (2012).

Once again, we reverse the circuit court’s order denying a temporary injunction and remand for a determination of “whether the company proved section 542.335’s requirements or the elements of a temporary injunction.” Anarkali I, 104 So.3d at 1206. The trial court may review the record or, given the length of time that has passed since the original hearing, hold a further hearing.

Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

      . The notice of appeal in Anarkali I was filed on April 13, 2012, and the mandate issued on March 1, 2013. Appellee sought discretionary review in the Florida Supreme Court on March 11, 2013; the Supreme Court declined to accept jurisdiction on October 30, 2013.

      . Section 542.335(l)(c), Florida Statutes (2012), sets the boundaries for the enforcement of a restrictive covenant:
      A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is over-broad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is over-broad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rodney VANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3149.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Rodney Vance petitions this court for mandamus relief to compel the circuit court to dispose of his pending petition for writ of mandamus. Although filed in his criminal case, that petition seeks to compel his retained trial counsel, the Public Defender for the Fourth Judicial Circuit, and the Public Defender for the Second Judicial Circuit to comply with his requests under the Public Records Act for copies of discovery materials in his criminal case.

We are advised that the circuit court has issued an order to show cause directing the Offices of the Public Defenders and retained counsel to respond to Vance’s petition below, and we conclude that under the unusual circumstances of this case, intervention by this court is unwarranted at this point. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002); see also Lassiter v. Martin, 99 So.3d 1000 (Fla. 1st DCA 2012). The circuit court itself recognized in its order to show cause that Vance is entitled to a prompt disposition of his claim. However, it appears that the cause for any delay in fulfilling Vance’s request for records is not due to a refusal to comply with the Public Records Act, but rather an inability to locate the records requested. We are confident that the circuit court will promptly address the merits of Vance’s petition below once it has had the opportunity to resolve the threshold question of whether any of the parties to whom Vance’s requests were directed in fact have the records he seeks.

Because of the need for the circuit court to resolve this factual issue, we find that its order to show cause is not a departure from the essential requirements of section 119.11(1), Florida Statutes (2014), which provides for accelerated consideration and case priority for claims seeking to enforce the Public Records Act, and therefore deny Vance’s alternative request that we undertake certiorari review of the order to show cause. We nonetheless direct that petitioner’s claim be expedited and resolved as promptly as circumstances permit.

PETITION FOR WRIT OF MANDAMUS DENIED.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ„ concur.


text:
    Bradley BRUCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3147.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Michael Jerome Titus, Assistant Conflict Counsel, Office of. Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As appellate counsel contends on appeal, Appellant’s motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), is deemed denied given that the trial court did not rule on the motion. See Fla. R. Crim. P. 3.800(b)(2)(B); Bass v. State, 122 So.3d 1002, 1003 (Fla. 1st DCA 2013) (“Sixty days after the motion [to correct sentencing error filed pursuant to rule 3.800(b)(2)] was filed, the trial court’s jurisdiction ended and the motion was deemed denied.”). As to the merits of Appellant’s motion, we agree with appellate counsel that the written judgment erroneously cites Appellant’s aggravated battery conviction as a violation of section 787.01(l)(a)3., Florida Statutes, instead of section 784.045(l)(a). We also agree that the trial court erred in imposing a $415 court cost pursuant to section 775.083(2), Florida Statutes, instead of the statutorily authorized fee of $50 for a felony. We, therefore, reverse and remand for correction of the written judgment and sentence to reflect the correct statute and statutory cost. As we explained in Harrison v. State, 146 So.3d 76, 78 (Fla. 1st DCA 2014), “If other authorized costs were consolidated in this $415.00 assessment, the trial court may reimpose the authorized sums following the appropriate procedure.”

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ„ concur.


text:
    Nelson HARLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0182.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Nancy A. Daniels, Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 29, 2013, order denying motion for clarification of sentence issued in Gadsden County Circuit Court case number 1988-CFA-012. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

BENTON, ROBERTS, and RAY, JJ., concur.


text:
    Bobby Wayne TURMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2015.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Bobby Wayne Turman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 22, 2014, order on defendant’s amended motion for postconviction relief filed in Santa Rosa County Circuit Court case number 2010-CF-0465. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

BENTON, ROBERTS, and RAY, JJ., concur.


text:
    Torrie SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3583.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Torrie Smith, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order dated May 7, 2014, denying petitioner’s motion to correct illegal sentence in Leon County Circuit Court case number 2000-CF-004195, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ„ concur.


text:
    Richard D. HUMISTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3642.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Richard D. Humiston, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied pursuant to Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

BENTON, ROBERTS, and RAY, JJ., concur.


text:
    Renee Desiree McCARTNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3914.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2014.
    Renee Desiree McCartney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 21, 2014, judgment and sentence in Santa Rosa County Circuit Court case number 2012-CF-1376. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BENTON, ROBERTS, and RAY, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Alexander Angel AGREDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3486.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Alexander Agreda appeals four convictions premised on his possession of contraband that was discovered in a traffic stop. We reverse because there was no legal basis for the stop, and thus the trial court erred by denying Agreda’s motion to suppress.

The facts were developed at a suppression hearing in which the State presented the testimony of a detective from the Highlands County Sheriffs Office. The detective testified that on the day in question he was conducting an “interdiction” on U.S. Highway 27. The road was a divided highway with two lanes in each direction, and the speed limit was 65 miles per hour. The detective was parked in the median in an unmarked car. Around noon, he saw a car traveling under the speed limit. The car was in the curb lane, and there were several vehicles behind it.

After all the vehicles passed by his location, the officer pulled onto the road and proceeded in the same direction. He passed the vehicles in the left lane and pulled into the curb lane behind the lead car. The detective paced the car for half a mile and determined that it was traveling 45 miles per hour. He did not see the car drift or weave in its lane, nor did he notice anything to indicate that there was a mechanical problem with the car or a medical problem with the driver. The traffic was light, and nothing prevented vehicles from passing in the left lane. Nonetheless, the detective testified that the car’s low rate of speed was impeding the flow of traffic, so he conducted a traffic stop.

After the stop, the detective learned that the driver had a suspended license. Agre-da, who was a passenger in the car, admitted that his license was also suspended. He then spontaneously told the detective that he had a gun, which the detective retrieved without incident. In a subsequent search of the car, crack cocaine and a pipe were discovered on the passenger side.

Agreda argued that there was no legal basis for the traffic stop and, therefore,, that the contraband should be suppressed. The circuit court disagreed, ruling that it was “objectively reasonable” for the detective to stop the car to determine whether something was wrong with the driver. After this ruling, Agreda entered a no contest plea and. reserved the right to appeal the denial of his dispositive motion to suppress. Pursuant to the plea, he was convicted and sentenced to prison for felon in possession of a firearm, unlawful carrying of a concealed weapon, possession of cocaine, and possession of paraphernalia.

Agreda repeats his argument on appeal, contending that there was no lawful basis for the traffic stop. We afford a presumption of correctness to a trial court’s factual findings in a suppression ruling as long as the findings are supported by competent, substantial evidence; we review de novo the application of the law to the facts. See Connor v. State, 803 So.2d 598, 605-08 (Fla.2001).

We start first with the detective’s stated reason for the stop. The detective testified that the car was impeding the flow of traffic. State traffic laws provide that “[n]o person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” § 316.188(5), Fla. Stat. (2011). The detective recounted that five vehicles were following behind the car. But he also acknowledged that there were two lanes headed in that direction, separated by a median from two lanes in the other direction. The left lane was empty, traffic was otherwise light, and the detective himself had no difficulty pulling past the vehicles to reach the lead car. While the posted speed was 65 miles per hour, the minimum speed on this part of the highway was 40 miles per hour. See § 316.183(2). Thus, at 45 miles per hour, the subject vehicle was traveling within the permissible range. Manifestly, the vehicle was not being driven at such a slow speed as to impede or block the normal flow of traffic in violation of section 316.183(5).

The circuit court held the stop was lawful based on the detective’s concern that the car’s slow speed was caused by a possible medical problem with the driver. The detective testified that his “only other concern ... was a possible medical condition.” But on cross-examination, he testified that there was nothing to indicate anything was wrong with the driver. And on redirect, the following exchange occurred:

Q. Okay. Did you have any protecto-ral reasons to stop the vehicle or was it solely on the traffic infraction?
A. Yes, [s]ir. The sole reason for stopping the vehicle was it was impeding the flow of the traffic. There was no pre-indicated or protectoral reasons to stop the vehicle.

We recognize, as did the circuit court, that a “legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). The detective acknowledged that this could be a possible reason to stop a car, just as he acknowledged that a vehicle malfunction could warrant a stop and safety check. But the detective denied that he stopped the car for these reasons. The circuit court’s reliance on this basis was, therefore, not supported by competent, substantial evidence.

The detective’s subjective intentions aside, the circumstances of this case simply did not present an objective basis for a stop pursuant to law enforcement’s so-called community caretaking function. See Holland v. State, 696 So.2d 757 (Fla.1997) (adopting test of objective reasonableness for traffic stops as. enunciated in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). “Even a stop pursuant to an officer’s community caretaking responsibilities ... must be based on specific articulable facts showing that the stop was necessary for the protection of the public.” Majors v. State, 70 So.3d 655, 661 (Fla. 1st DCA 2011). Although the car was traveling below the speed limit, its speed was within the legally permissible range. The detective’s concern about the driving speed was based in part on his observation that people generally drove over the speed limit, not under it. On appeal, the State points to this testimony and asserts that the car was actually traveling 30 miles per hour less than the normal practice. But it would be a strange world indeed if under the Fourth Amendment a search and seizure could be justified by the subject’s failure to engage in typical law-breaking behavior.

Here, the detective observed nothing to objectively suggest that there was a problem with the car or driver. In the absence of something more than simply driving more slowly than most motorists, the stop here was not justified. See Faunce v. State, 884 So.2d 504 (Fla. 1st DCA 2004) (invalidating stop when car, on dirt road at night, was traveling twenty miles below speed limit but was not swerving or giving indication of mechanical trouble); cf. Bailey v. State, 319 So.2d 22 (Fla.1975) (upholding stop, although suppressing evidence for other reasons, when car was weaving and traveling below posted speed on Florida Turnpike); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999) (concluding that stop was justified when car was traveling below speed limit and continually correcting after drifting over the line).

The circuit court erred by denying the motion to suppress, and we reverse Agre-da’s convictions. Given the dispositive nature of the motion, Agreda must be discharged on remand. See Jacoby v. State, 851 So.2d 913 (Fla. 2d DCA 2003) (ordering discharge of defendant when denial of dispositive motion to suppress was reversed on appeal).

Reversed and remanded with directions.

ALTENBERND and VILLANTI, JJ., Concur.


author: KELLY, Judge.

text:
    K.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-67.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

K.A. challenges the disposition order that finds she committed the delinquent acts of improper exhibition of a weapon and simple battery and places her on probation. We remand for correction of the order to reflect the length of probation K.A. is required to serve for the battery charge.

The trial court adjudicated K.A. delinquent for improper exhibition of a weapon, a first-degree misdemeanor. The court placed K.A. on probation but failed to specify the length of the probationary term. A court may place an adjudicated delinquent child on probation for a period that “may not exceed the term for which sentence could be imposed if the child were committed for the offense.” § 985.435(5), Fla. Stat. (2012); see also A.W. v. State, 787 So.2d 149, 149 (Fla. 2d DCA 2001). A first-degree misdemeanor is punishable by a term of imprisonment not exceeding one year. § 775.082(4)(a), Fla. Stat. (2012). Therefore, the longest K.A. could have been placed on probation for improper exhibition of a weapon was one year. “A disposition order that provides for an indeterminate period of commitment that exceeds the statutory maximum for the offense constitutes an illegal disposition.” M.J.Y. v. State, 811 So.2d 700, 701 (Fla. 2d DCA 2002). Since K.A. was adjudicated delinquent in December 2012, her probation for improper exhibition of a firearm should have terminated in December 2013.

As for the battery charge, the court withheld an adjudication of delinquency. Section 985.35(4) allows a trial court to withhold adjudication and place a child who “has committed a delinquent act” on probation, but unlike section 985.435(5), this section does not provide for a limitation on the length of the probation. R.F. v. State, 42 So.3d 333, 334-35 (Fla. 2d DCA 2010) (noting that when the trial court withholds adjudication of delinquency, it may impose probation until a juvenile’s nineteenth birthday). It is not clear from the record whether the trial court intended to place K.A. on an indefinite period of probation or whether it was an oversight that the length of probation was not specified. Accordingly, we reverse and remand for determination of the length of K.A.’s probation for the simple battery charge. See J.M.W. v. State, 935 So.2d 630, 632 (Fla. 2d DCA 2006) (remanding for the trial court to clarify its intention concerning the length of probation upon withholding adjudication).

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

DAVIS, C.J., and LaROSE, J., Concur.


text:
    Daryl COMOLLI, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-652.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Daryl Comolli appeals from the order revoking his probation. He argues that the evidence was insufficient to support the finding that his failure to keep his electronic monitoring device charged was a willful and substantial violation of a term of his probation. We agree and reverse.

At the violation of probation hearing, a records custodian from the electronic monitoring company that monitors probationers’ GPS tracking devices explained that the company is alerted when a probationer’s monitoring unit is not sufficiently charged or when the probationer’s ankle bracelet is' too far from the monitoring unit. Comolli’s probation officer testified that a monitoring device needs to be charged for at least four hours a day. Every time an alarm occurs, a probation officer will contact the offender and ascertain the reason for the alarm. Over a two-month period, the monitoring company notified the probation office that it had been alerted on three occasions that Comolli was not-properly charging his monitoring device. The device never, completely lost power. When Comolli was contacted as to his whereabouts, he was at an approved location on each occasion. Two additional alarms occurred when Comolli stepped out of range of the monitoring device. Comolli explained to the monitoring company that the first “bracelet gone” alarm occurred at the construction site where he was working and he walked away from the device for two minutes. The second “bracelet-gone” incident occurred when Comolli accidentally stepped out of range of the device for two or three minutes while doing yard work.

Comolli testified that he had difficulty charging his device for four hours because occasionally he did not have electricity at his home and could not go elsewhere for that length of time because of his curfew. He could not go to friends’ houses where children lived because of the term of probation prohibiting him from being around minors. He could not charge the device at the probation office because he was at work during the hours the probation office was open. Sometimes he went to a nearby gas station or strip mall and used an outdoor outlet to charge his device for an hour or two.

On appeal from a ruling on a request to revoke probation, the appellate court must first assess whether the finding of a willful and substantial violation is supported by competent, substantial evidence. Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013). If the greater weight of the evidence supports a finding of a willful and substantial violation, the appellate court must then consider whether the trial court abused its discretion in revoking the appellant’s probation. Id. at 623. “A defendant’s failure to comply with a probation condition is not willful where his conduct shows a reasonable, good faith attempt to comply, and factors beyond his control, rather than a deliberate act of misconduct, caused his noncompliance.” Soto v. State, 727 So.2d 1044, 1046 (Fla. 2d DCA 1999).

In this case, the evidence of Comol-li’s failure to abide by the “Electronic Monitoring Equipment Assignment Rules” is insufficient to constitute a willful and substantial violation of probation. The record shows that Comolli’s monitoring device was not fully charged on only three occasions. The unit never completely lost power, and there were no allegations that Comolli was in an unauthorized location or that he deliberately removed or damaged his monitoring device. Comolli was completely “off the radar” only on two occasions when he briefly stepped out of range of the monitoring device. The State' failed to show that Comolli’s failure to comply with the monitoring rules were deliberate acts of misconduct.

As this court has stated, “[t]he purpose of the electronic monitoring of probationers, community controlees, and parolees is not punitive.” Correa v. State, 43 So.3d 738, 745 (Fla. 2d DCA 2010). Instead, the electronic monitoring enables officers to supervise probationers subject to certain restrictions more efficiently at a lower cost and helps to discourage behavior that is likely to lead to violations of supervision. Id. “Of course, intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed.” Id. But where the subject unintentionally fails to operate the equipment properly, the noncompliance with the rules does not rise to the level of a willful and substantial violation of probation. Id.; see also Garcia v. State, 701 So.2d 607, 609 (Fla. 2d DCA 1997) (“A violation of probation will not be found where the violation is due to negligence or ineptitude.”); cf. Soliz v. State, 18 So.3d 1094, 1097 (Fla. 2d DCA 2009) (affirming a revocation of probation based on the failure to submit to electronic monitoring where the defendant had twenty-one “bracelet gone” alerts and ten insufficient battery charge alarms).

Accordingly, because the record fails to support a willful and substantial violation of probation, we reverse the order revoking Comolli’s probation.

Reversed.

DAVIS, C.J., and VILLANTI, J„ Concur.


text:
    Gail MARVIN, Appellant, v. UNIVERSITY HOSPITAL/Broadspire Services, Inc., Appellee.
    No. 1D14-1686.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellee.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals a summary final order dismissing his claims for permanent total disability (PTD) benefits under Florida Administrative Code Rule 60Q-6.116(2) (the “two-dismissal” rule) which states that a second voluntary dismissal operates as an adjudication on the merits. Because our review of the record reveals no evidence of any voluntary dismissals, we REVERSE and REMAND for further proceedings on the pending PTD claims.

BENTON, CLARK, and ROWE, JJ„ concur.


author: FERNANDEZ, J.

text:
    M.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3012.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

M.M., a juvenile, appeals his conviction for possession of drug paraphernalia. We reverse because the State failed to present evidence demonstrating that the residue from M.M.’s pipe was a controlled substance. Additionally, the State failed to present evidence to prove that M.M. had possession of paraphernalia with the intent to use it to consume a controlled substance.

During the State’s case-in-chief, law enforcement officers Ray Quintero and Peter Delgado testified that they drove to M.M.’s apartment building after they received a dispatch call. Officer Quintero knocked on the apartment door, while Officer Delgado remained on the first floor observing the interactions. M.M. answered the door, holding a pipe in his hand. When the door opened, Officer Quintero could smell marijuana inside the apartment. He did not see M.M. smoking marijuana, nor was there any smoke emanating from the pipe. There was no marijuana discovered on M.M.’s person. Although the pipe M.M. was holding contained residue, the officer did not test the residue at the scene, or later at a laboratory, to confirm that it was a controlled substance.

Officer Delgado admitted that the pipe M.M. held could also be used to smoke tobacco. Marijuana was found in the apartment. M.M.’s sister, Dunia Piloto, admitted possession of it and was charged separately. The State did not introduce any other evidence during its case-in-chief.

At the close of the State’s case, M.M. moved for a judgment of dismissal because there was no evidence presented that linked the pipe to an illegal substance. M.M. argued there was no testimony that the pipe contained, or was around, marijuana. The State responded that circumstantial evidence provided the requisite inT tent and connected the pipe to marijuana. The trial court denied M.M.’s motion.

During the defense’s case-in-chief, M.M. called his sister to testify. Piloto identified the residue in the pipe as marijuana, but claimed that she was the only one who smoked it in the apartment. She also took responsibility for the marijuana found in the apartment. Piloto testified that the pipe belonged to her and that it was never in M.M.’s possession. The trial court ultimately found M.M. guilty of possessing drug paraphernalia.

On appeal, M.M. contends that the State failed to prove the charges against him by the end of its case-in-chief, when M.M. moved for dismissal. We agree with M.M. that the trial court should have granted his motion for dismissal. The State did not establish that the residue in the pipe was a controlled substance, and it did not establish M.M’s constructive possession. Consequently, the State failed to establish a prima facie case of possession of paraphernalia with the intent to use, pursuant to section 893.147(1), Florida Statutes (2013).

Section 893.147(1) requires the State prove beyond a reasonable doubt that M.M. used or had in his possession with intent to use drug paraphernalia, and that M.M. had knowledge of the presence of the drug paraphernalia. See Lawson v. State, 666 So.2d 193, 194 (Fla. 2d DCA 1995). The State cannot establish the requisite intent without evidence linking the presence of an illegal substance to the alleged paraphernalia. See Goodroe v. State, 812 So.2d 586, 587-88 (Fla. 4th DCA 2002) (finding that a combination of factors such as residue not being tested, no evidence residue was a controlled substance, and lack of possession of illegal drugs upon arrest, was insufficient for satisfying the intent element).

To determine whether the State’s evidence was sufficient to deny M.M.’s motion for dismissal, we will only consider the evidence presented during the State’s case-in-chief. See State v. Pennington, 534 So.2d 393, 395 (Fla.1988) (opining that “[i]f at the close of the evidence for the State or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may ... enter a judgment of acquittal.”).

First, the State failed to establish that the residue in the pipe was a controlled substance. An officer with experience in narcotics can testify as to the identity of cannabis without any further scientific testing. See Brooks v. State, 762 So.2d 879, 892-94 (Fla.2000); Pama v. State, 552 So.2d 309, 311 (Fla. 2d DCA 1989) (finding that the State proved a substance was cannabis based on the testimony of an experienced law enforcement officer who examined and identified the substance); A.A. v. State, 461 So.2d 165, 165-66, n. 1 (Fla. 3d DCA 1984) (holding that an officer’s testimony sufficiently established the identity of a substance as marijuana-based on its appearance, odor, and packaging).

The officers testified about the existence of the pipe and about the residue inside the pipe, but they failed to positively identify that residue as a controlled substance. See Goodroe, 812 So.2d at 587; see also T.E.D., III v. State, 627 So.2d 118 (Fla. 5th DCA 1993) (finding evidence insufficient to prove possession, as the “alleged paraphernalia tested negative for any controlled substance and the record is devoid of any evidence that appellant possessed it with intent to use it for the illegal purposes set forth in section 893.147(1)”). As in T.E.D., the State failed to offer evidence that linked the pipe to an illegal substance or activity, and it likewise failed to establish the requisite intent required under section 893.147(1).

The State asks this Court to rely on circumstantial evidence and irrelevant testimony to establish that the residue in the pipe was marijuana. The State looks to circumstantial evidence, namely the testifying officers’ general observations, to establish the identity of the residue as marijuana. We find no support for this proposition. The testifying officers, although qualified based on their training, failed to conclusively identify the residue as marijuana during their testimony. This omission is critical.

In addition, the State argues that Photo’s testimony, which identified the residue as marijuana, is relevant. Again, we do not agree because Piloto testified after the close of the State’s case-in-chief and after M.M. had already moved for dismissal. See State v. Pennington, 534 So.2d 393, 394 (Fla.1988).

Second, the State did not show that M.M. had constructive possession of the marijuana found at the apartment. To establish constructive possession of a substance, the State must prove: “(1) the accused’s dominion and control over the contraband, (2) the accused’s knowledge that the contraband is within his or her presence, and (3) the accused’s knowledge of the illicit nature of the contraband.” See T.W. v. State, 666 So.2d 1001, 1002 (Fla. 5th DCA 1996) (finding that T.W. did not have constructive possession of a controlled substance because the State did not present evidence indicating that it was hers or that she had knowledge of its presence).

The record reflects the State introduced no evidence to establish M.M’s control and dominion over the marijuana found. In addition, the State, just as in T.W., failed to establish, with independent evidence, M.M.’s knowledge of the marijuana confiscated from the apartment.

We thus conclude that the State failed to meet its burden of proof before M.M. moved for dismissal. We therefore reverse, vacate M.M.’s conviction, and remand this case to the trial court with instructions to discharge M.M.

Reversed and remanded with instructions.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Petitioner, v. Ken ELLIS, as Personal Representative of the Estate of Betty Owen, Respondent.
    No. 1D14-3796.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola; Stephanie E. Parker, John F. Yarber and John M. Walker, of Jones Day, Atlanta, GA; Robert B. Parrish, David C. Reeves and Jeffrey A. Yarbrough, of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, for Petitioner.
    John S. Mills and Courtney Brewer, of The Mills Firm, P.A., Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Petitioner seeks certiorari review of the circuit court’s August 19, 20Í4, Order Denying Defendant R.J. Reynolds Tobacco Company’s Motion to Quash Subpoena of Dr. James N. Figlar. Although the ruling is now moot, we address the petition because it involves an issue that is capable of repetition yet evading review. See Kelley v. Rice, 800 So.2d 247 (Fla. 2d DCA 2001). We conclude, however, that petitioner has failed to demonstrate that the challenged ruling results in irreparable harm. See e.g., Alcon Const. Co., Inc. v. Williams, 12 So.3d 921 (Fla. 1st DCA 2009); Mariner Health v. Griffith, 898 So.2d 982, 984 (Fla. 5th DCA 2005). Accordingly, the petition for writ of certiorari is denied.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


author: KNOLL, J. VICTORY, J., HUGHES, J.,

text:
    STATE of Louisiana v. David E. BENDER.
    No. 2013-K-1794.
    Supreme Court of Louisiana.
    Sept. 3, 2014.

      James D. Caldwell, Attorney General; Orleans Parish District Attorney’s Office, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Scott Gerard Vincent, Assistant District Attorney; for applicant.
    Holli Ann Herrle-Castillo, for respondent.
   KNOLL, J.

| iThis case requires us to determine whether the District Court’s failure to observe the strictures of a rule jurispruden-tially created by the Fourth Circuit in State v. Knighten, 609 So.2d 950 (La.App. 4 Cir.1992), constitutes a violation of the defendant’s equal protection and due process rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requiring a reversal of the jury’s guilty verdict. Following voir dire, defendant raised Batson challenges relative to three of the State’s peremptory strikes. After hearing the State’s proffered race-neutral reasons, the District Court denied defendant’s Batson challenges. Citing the State’s failure to follow the so-called “Knighten rule,” the Court of Appeal reversed defendant’s conviction and sentence and remanded the case for a new trial. We granted this writ to address the propriety of Knighten. State v. Bender, 13-1794 (La.3/14/14), 134 So.3d 1184. Because we find the “Knighten rule” undermines the well-established Batson framework this Court has adopted and repeatedly applied, we reverse the judgment of the Court of Appeal, reinstate defendant’s conviction and sentence, and overrule Knighten insofar as it | establishes the “Knighten rule.”

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The State charged defendant with one count of simple burglary of a vehicle. Trial commenced in Orleans Parish on October 18, 2011. During voir dire, defense counsel raised a Batson challenge after the State struck three African-American prospective jurors, Charlene Joseph, Tessa Johnson, and Curtis Adams. At that point, without specifically finding defendant had established a pattern of purposeful discrimination, the District Court asked the State to articulate reasons for the strikes. Relevant to the issue before us, the State’s proffered basis for exercising a strike against Ms. Joseph was her prior convictions. During voir dire, neither the State nor defense counsel questioned Ms. Joseph about having a prior criminal record, and Ms. Joseph did not volunteer any information on this score. After the District Court accepted the State’s explanation as race-neutral, defense counsel responded:

Judge, just for the record, the fact that Ms. Joseph has convictions is information that the District Attorney has access to that defense does not.
And I would object as to Mr. Bender’s due process rights under the United States constitution as to the [Sjtate having access to that information.

Thereafter, a jury composed of four African-American jurors and two Caucasian jurors found defendant guilty as charged. On appeal, defendant challenged the District Court’s denial of his Batson challenge of Ms. Joseph, arguing the State’s use of Ms. Joseph’s prior convictions as a race-neutral reason for a peremptory |3strike violated the “Knighten rule.” The Court of Appeal reversed defendant’s conviction and sentence, and remanded the case for a new trial, finding pursuant to Knighten the District Court erred by accepting the State’s proffered explanation as a legitimate race-neutral reason, over defendant’s objection, without requiring the State to provide evidence of those records to the defense attorney. State v. Bender, 12-1682 (La.App. 4 Cir. 7/17/13), 120 So.3d 867.

DISCUSSION

The issue before us is whether a violation of the Fourth Circuit’s “Knighten rule” mandates a reversal of the jury’s verdict under the United States Supreme Court’s holding in Batson, which was originally adopted by this Court in State v. Collier, 553 So.2d 815 (La.1989), and was codified by the Legislature in Louisiana Code of Criminal Procedure article 795. Under Batson, an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a, person’s race. State v. Elie, 05-1569, p. 5 (La.7/10/06), 936 So.2d 791, 795. The Batson analysis involves a three-step framework. As we have long held, it is the opponent of a peremptory strike, as the party alleging that he has been the victim of intentional discrimination, who carries the ultimate burden of persuasion. State v. Green, 94-0887, p. 28 (La.5/22/95), 655 So.2d 272, 290 (quoting Batson, 476 U.S. at 94 n. 18, 106 S.Ct. at 1722 n. 18). Applying this framework to the instant case, it is clear the District Court did not err in denying defendant’s Batson challenge.

First, the party raising the Batson challenge must make a prima facie case of racial discrimination. Green, 94-0887 at p. 24, 655 So.2d at 287-88; La.C.Cr.P. art. 795(C). If the defendant is unable to make out a prima facie case of racial discrimination, then the Batson challenge fails, and it is not necessary for the prosecutor to articulate “race-neutral” explanations for his strikes. Id. In this case, however, because the District Court asked the State to articulate race-neutral ^reasons for its challenged peremptory strikes, our analysis begins with the second step in the Batson inquiry. See Green, 94-0887 at p. 25, 655 So.2d at 288 (“[A] trial judge’s demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose.”).

In the second Batson step, the burden of production or going forward shifts to the prosecutor, who must offer a “race-neutral” explanation for his exercise of peremptory strikes. Id.; La.C.Cr.P. art. 795(C). The Batson explanation does not need to be persuasive, and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral. Elie, 05-1569 at p. 5, 936 So.2d at 795. In the instant case, the State offered a legitimate race-neutral reason for striking Ms. Joseph, that is, that Ms. Joseph had prior convictions. See State v. Thompson, 516 So.2d 349, 354 (La.1987), cert. denied, Thompson v. Louisiana, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988), reh’g denied, 488 U.S. 976, 109 S.Ct. 517, 102 L.Ed.2d 551 (1988). Once the State offers a race-neutral explanation for the strike, it has fulfilled its burden of production. La.C.Cr.P. art. 795(E) (“The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral or gender neutral reason is given.”). Neither Batson nor its progeny require the State to produce anything further.

Finally, once the State provides its legitimate race-neutral reason, “the trial court ... then [has] the duty to determine if the defendant has established purposeful discrimination.” Green, 94-0887 at p. 27, 655 So.2d at 289 (quoting Batson, 476 U.S. at 98, 106 S.Ct. at 1724) (emphasis added). As this Court held in Green,

[T]he proper inquiry in the final stage of the Batson analysis is not whether the State has disproved the existence of purposeful discrimination suggested by the defendant’s prima facie case; rather, the question is whether the defendant’s proof, when weighed against the prosecutor’s proffered “race-neutral” reasons, is strong enough to persuade the trier-of-fact that such discriminatory intent is present.

94-0887 at p. 29, 655 So.2d at 290. Thus, while the State is only required to offer a reason for the strike, the defendant raising a Batson challenge must establish proof of discriminatory intent. Here, weighing defendant’s unsupported assertion of discriminatory intent against the State’s proffered race-neutral reason, we conclude the District Court did not err in denying defendant’s Batson challenge.

Although the State’s peremptory strike of Ms. Joseph survives analysis under this well-settled Batson framework, the Court of Appeal reversed the defendant’s conviction and vacated his sentence because, in its estimation, the State failed to observe the strictures of the “Knighten rule,” a jurisprudential rule of its own making. Under Knighten, the Fourth Circuit requires “the prosecutor [who] uses prior arrest records as a purported race-neutral reason in response to a Batson claim ... [to] provide the defense attorney with evidence of those records, if the defense attorney requests further proof of the prior arrest, and that the arrest records be furnished to the trial judge and be put on the record.” 609 So.2d at 957. Batson, however, simply requires the State to produce a race-neutral explanation for its strike, a reason which need not be persuasive provided discriminatory intent is not inherent in the explanation. Elie, 05-1569 at p. 5, 936 So.2d at 795; State v. Nelson, 10-1724, p. 16 (La.3/13/12), 85 So.3d 21, 32-33 (“In rejecting defendants’ proffered race-neutral reasons, the trial court reasoned that defendants failed to rebut the State’s prima facie case of discrimination, essentially finding the defendants’ reasons not persuasive enough. The court erred in putting the burden of persuasion on the defendants. Batson makes clear that the burden is on the opponent of the strike to show purposeful discrimination.”) (internal citations omitted). By requiring the State to produce a prospective juror’s arrest or conviction records, whether these records were requested or not, the Fourth Circuit has turned Batson on its head, effectively transferring the ultimate burden of persuasion to the State, a burden which we have long held belongs to the party, | (ihere, defendant, alleging he has been the victim of intentional discrimination. Green, 94-0887 at p. 28, 655 So.2d at 290. The “Knighten rule” has categorically undermined the Batson framework by unilaterally expanding the State’s burden of production at step two of the Batson inquiry, forcing the State both to produce a race-neutral reason and to make that reason persuasive. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006) (“Although the prosecutor must present a comprehensible reason, [t]he second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices.”) (internal quotations marks omitted); Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (finding prosecutor’s proffered explanation that he struck a juror because he had long, unkempt hair, a mustache, and a beard to be race-neutral). In doing so, the Fourth Circuit has inappropriately assumed a rule-making function which belongs to the Legislature, not to the judiciary. Because the “Knighten rule” is at odds with Batson and its progeny and with Louisiana Code of Criminal Procedure article 795, we overrule Knighten insofar as it establishes the so-called “Knighten rule.”

The defendant would have this Court believe, without these conviction records, he was powerless to prove the State’s discriminatory intent. This is simply erroneous. As the transcript of voir dire reflects, it was fully within defendant’s power to question Ms. Joseph during voir dire about her alleged convictions. Although defense counsel suggested at oral arguments that the District Court was unwilling to allow questioning of members of the venire, the transcript reveals this was not the case. Indeed, following defendant’s objection to the court’s denial of his motion to remove Juror Number Five (Nicole Barron) for cause, the District Court called Ms. Barron back to chambers for further questioning. Because it is the defendant who bears the burden of persuasion on a Batson challenge he raises, it is incumbent upon defense counsel to use the means available to him to carry his [7burden to show the State’s articulated reasons are pretextual. Requiring the State to carry this burden for him is neither necessary nor permitted under Batson.

Accordingly, we reverse the judgment of the Court of Appeal, reinstate defendant’s conviction and sentence, and overrule Knighten only insofar as it pertains to the Knighton “rule.”

REVERSED.

JOHNSON, C.J., dissents.

VICTORY, J., dissents and assigns reasons.

HUGHES, J., concurs with reasons.

VICTORY, J.,

dissenting.

|tI disagree with the majority’s holding that the State need simply assert that a potential juror has prior arrests or convictions to satisfy its burden of production under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). I also disagree with the majority’s belief that requiring the State to produce the arrest or conviction records turns its burden of production into a burden of persuasion in contravention of Batson. In my view, when a party exercises a peremptory challenge based on information known only to him and not observable during voir dire, the factual basis of that information must be disclosed to the other party and the court.

The Supreme Court in Batson held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. State v. Elie, 05-1569 (La.7/10/06), 986 So.2d 791, 795. Under Batson, if the defendant makes a prima facie showing of discriminatory strikes, the burden of production shifts to the State to offer raeially-neutral explanations for the challenged members. The neutral explanation must be one which is clear, ^reasonable, specific, legitimate and related to the particular case at bar. State v. Collier, 553 So.2d 815, 820 (La.1989). The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim. Johnson v. California, 545 U.S. 162, 171, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). Finally, the trial court must decide, in step three of the Batson analysis, whether the defendant has proven purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). In State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 289, we explained that in the third stage of the Batson analysis, “the trial court should examine all of the evidence available; essentially, this involves a comparison of the arguments and facts in support thereof posited in the defendant’s prima facie offering with the ‘race-neutral’ reasons articulated by the prosecutor to determine whether the prosecutor engaged in purposeful discrimination.” Id. at 289. “This comparison must be made in light of the record; although reviewing courts owe the trial judge proper deference in assessing the credibility of in-court testimony, ... simple assertions of ‘good faith’ by the prosecutor are insufficient to counter a valid BaUon challenge.” Id. at 289-90.

As stated, the race-neutral explanation must be one which is clear, reasonable, specific, legitimate and related to the particular case at bar. Collier, supra at 820. While a prior arrest and/or conviction is a sufficient race-neutral reason for the exercise of a peremptory challenge, State v. Thompson, 516 So.2d 349, 354 (La.1987), cert. denied, Thompson v. Louisiana, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988), reh’g denied, 488 U.S. 976, 109 S.Ct. 517, 102 L.Ed.2d 551 (1988); State v. Griffin, 563 So.2d 334, 339 (La.App. 3 Cir.), writ denied, 567 So.2d 100 (La.1990); State v. Williams, 545 So.2d 651, 655 (La.App. 5 Cir.1989), writs denied, 556 So.2d 53 (La.1990), 584 So.2d 1157 (La.1991), that reason still must be legitimate, i.e, based in fact, and not Uniere pretext. Here, the defendant claims that arrest and conviction records are readily available to the State, but not to the defense, and this appears to be the case. Thus, unlike the basis for other race-neutral reasons, such as a potential juror’s facial expressions or attitude, prior arrests and convictions are not observable or known to anyone but the State during voir dire. Therefore, the legitimacy of the reason for the strike is unknown to the trial court or the defense.

The Fourth Circuit fashioned the “Knighten rule” to solve this problem:

We simply cannot tell from this record how the prosecutor determined that the challenged jurors had arrest records. We have no more than unsworn statements of the prosecutor unaided by exhibits of records, affidavits or cross-examination. The fact that the prosecutor did not disclose the alleged arrest information to the defense until her challenges had been made, precluded the defense from developing an adequate record on appeal. As the defense attorney is protecting the constitutional rights of both the defendant and the excluded juror, he must be given the opportunity to show that the prosecutor’s reasons are either not legitimate or merely pretext. Furthermore, the trial judge, in order to properly weigh the evidence, would also need to see the arrest records to be able to make the same determination. Without the prosecutor producing such records, neither the defense attorney nor the judge would be able to determine whether the prosecutor’s reasons satisfy the requirements established in Batson, 476 U.S. at 98, 106 S.Ct. at 1723-1724.
We, therefore, hold that where the prosecutor uses prior arrest records as a purported race-neutral reason in response to a Batson claim, he must provide the defense attorney with evidence of those records, if the defense attorney requests further proof of the prior arrest, and that the arrest records be furnished to the trial judge and be put on the record.

State v. Knighten, 609 So.2d 950, 957 (La.App. 4 Cir.1992).

This Court faced a similar issue in Green, supra, when we addressed whether the State’s claim that it was challenging a prospective juror because “he voted in a case in this court ... the jury voted on a police case of a lesser charge,” was sufficient to withstand the Batson analysis. We held that it was not:

Regarding the statement of prior jury service, while we disagree with the court of appeal’s strong pronouncement that it “is contradicted by the record,” we do find that it is not supported by the record. There is nothing in the record demonstrating how the prosecutor became aware of [the potential juror’s] prior jury vote; the question was never asked of [the potential juror] during voir dire, and the prosecutor never articulated or presented documentary evidence showing the basis of his knowledge of [the potential juror’s] vote. Although the State during oral argument was able to present a plausible, and possibly satisfactory, answer to our concerns, the statements of counsel during oral argument are not part of the official record which we review in this case. While we recognize that the defendant has the ultimate burden of persuasion in this case, we find that such an unsupported assertion, which has the appearance of being pulled out of “thin air,”.is simply too insubstantial to resist the prima facie case offered by the defense. (Emphasis added.)

Id. at 291.

Like in Green, there is nothing in the record here supporting the State’s assertion that Ms. Joseph had a prior conviction, and, therefore, no way of knowing whether the reason for the strike was le--gitimate. Thus, I have no problem in principle with the Fourth Circuit’s Knighten rule, as it provides a simple way of requiring the | r,State to produce a legitimate race-neutral reason, allowing a trial court to conduct a proper Batson analysis, and allowing a defendant to challenge a prosecutor’s reason for striking a juror and make a proper record on appeal in a situation where the factual basis of prosecutor’s reason is unknown and unobservable from voir dire. I am sure the State would insist on the same if defense counsel came up with a reason for challenging a juror to which only he was privy.

I point out that there are additional and simpler methods to solve this problem. Rather than relying on the word of the prosecutor, the credibility of the prosecutor’s reason can be tested by any of several simple methods: (1) requiring the State to turn over the record; (2) questioning the challenged juror individually in chambers; (3) asking the entire jury pool at the beginning of voir dire whether there is any reason they might not be comfortable serving, including prior arrests or convictions; or (4) including prior arrests or convictions in the jurors’ questionnaire.

In any event, the real issue in my mind is not whether Knighten was violated or whether Knighten is contrary to Batson. The real issue here is whether the State exercised a peremptory challenge to exclude Ms. Joseph on the basis of race and thus violated Batson. For only a Batson violation requires reversal of the jury verdict, and Batson is violated if the assertion that Ms. Joseph has a prior conviction is not true. If Ms. Joseph actually has a prior conviction, then the State’s race-neutral reason is legitimate. Because trial is over, the only way to know if the strike is | ¡^legitimate is to require the State to go back to the trial court on remand and make a proffer of Ms. Joseph’s conviction record. I would remand this case for that purpose.

For all of the foregoing reasons, I respectfully dissent.

HUGHES, J.,

concurring.

_JjThe majority holds that “we reverse the judgment of the Court of Appeal, reinstate defendant’s conviction and sentence, and overrule Knighten only insofar as it pertains to the Knighten ‘rule’.”

I agree the conviction should be reinstated. The jury consisted of four blacks and two whites. The trial judge specifically found that the defendant did not make a prima facie case of discrimination. The Batson challenge fails. The conviction should be reinstated.

Respectfully, there is no reason to delve into derivative Batson issues which are immaterial and unnecessary to resolve this case. I am less concerned about referring to the holding in the Knighten case as a “rule” than I am about the principle that information that is solely within the possession of one party, when used to determine constitutional rights, should be disclosed.

      . Defendant did not appeal the District Court's denial of its Batson challenge relative to Tessa Johnson and to Curtis Adams. The voir dire transcript indicates there were two jurors with the last name of Adams, one whom the District Court struck for cause (Herman Adams) and another upon whom the State exercised a peremptory strike (Curtis Adams). Because there was some confusion on the part of the District Court concerning which Adams was the subject of the defendant's Batson challenge, the District Court did not require the State to provide reasons for its strike of Curtis Adams. Nevertheless, the State on its own proffered that Curtis Adams' prior convictions were the basis of the strike. Although the State struck both Ms. Joseph and Curtis Adams because of prior convictions, we only review defendant’s Bat-son challenge concerning Ms. Joseph as only this challenge is properly before us.

      . On February 15, 2012, the District Court sentenced defendant to 10 years imprisonment at hard labor. Thereafter, the State filed a habitual offender bill, and following a hearing held on July 30, 2012, the District Court adjudicated defendant a second felony offender, vacated the previous sentence, and resentenced defendant to the enhanced term of 16 years imprisonment at hard labor.

      . The Supreme Court's decision in Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), held that the issue of whether the defendant has established a prima facie case becomes moot if the court requires, and the prosecutor responds, with his race-neutral reasons for excusing the prospective jurors. A trial judge may therefore effectively collapse the first two stages of Batson and rule on the question of discriminatory intent without deciding or even deciding incorrectly, the question of whether the defendant established a prima facie case of purposeful discrimination.

      . State v. Powell, 598 So.2d 454, 462 (La.App. 2 Cir.), writ denied, 605 So.2d 1089 (La.1992) ("It would have been preferable for the prosecutor to place some evidence of [the prospective juror’s] (and his son's) criminal cases on the record.... a potential for abuse [exists] when the prosecutor's explanation is not grounded on anything clearly established on the record.”); but see State v. Kandies, supra, 467 S.E.2d at 77 ("Absent evidence to the contrary, it is not unreasonable for the trial court to assume that the prosecutor is telling the truth with regard to the criminal records of prospective jurors.”).

      . Although not clear from the record, evidently the State has access to the records from the National Crime Information data base or the City of New Orleans Police computer. See State v. Harvey, 358 So.2d 1224 (La.1978) (describing the nature of the subpoenas the defendant issued to get the records).

      . Most recently, we apparently agreed in principle with Knighten when we granted a priority writ application in State v. Smith, 14-1204 (La.5/17/14). There, the trial court ordered the State to turn over the arrest and conviction records of all potential jurors, and we granted the State’s writ, reasoning as follows:
      Writ granted. The Court of Appeal’s ruling is reversed. Its ruling broadens the Knight-en rule, and the ruling itself is premature because (1) the State has not moved to strike a juror,- (2) the defendant has not made a Batson challenge, and (3) the State has not offered a prospective juror’s criminal record as reason for striking a juror. Further proceedings shall be conducted consistent with this ruling.

      . However, the Court found another reason offered for the challenge of this juror was sufficient to overcome the Batson challenge, thus the jury verdict was not affected.

      . There are no other indications in the record of discriminatory’ intent. While the defendant's race is not disclosed, the jury that decided defendant’s case was composed of four African-American jurors and two Caucasian jurors. Even under the most permissive reading of Batson, it is difficult to perceive a discriminatory intent on the prosecutor's part. While Ms. Joseph was the first peremptory strike exercised by the State, there is absolutely no pattern of discrimination throughout the entire voir dire of this case.


text:
    Miochi SUMLING v. DEPARTMENT OF HEALTH.
    No. 2014-C-1423.
    Supreme Court of Louisiana.
    Nov. 7, 2014.
   PER CURIAM.

|,We grant certiorari in this matter in order to reverse the ruling by the court of appeal which had reversed in part the decision of the Civil Service Commission.

Miochi Sumling was a permanent classified employee of the Department of Health of the City of New Orleans. She worked for the Department at a clinic for homeless persons in the city. On January 23, 3012, Ms. Sumling was directed to attend a pre-termination hearing with the Executive Director of the clinic and the Assistant Deputy Director of the Department of Health. Following the hearing, Ms. Sumling was issued a termination letter which informed her that her termination was effective that same day, that a pre-termination hearing had been conducted that morning, and that the pre-termination hearing had been related to several violations of the New Orleans Health Department Employee manual which had happened between December 27, 2011, and January 3, 2012, as well as other incidences which had occurred over the past year, including on June 6, 2011, and August 3 and 4, 2011.

The court of appeal found that the record contained sufficient cause to discipline Ms. Sumling, but that the evidence presented did not merit the imposition of termination.

As stated by the court of appeal:

[A]n appellate court should affirm the Commission’s conclusions as to the existence or cause for dismissal of a permanent employee when 12the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion. Additionally, ... “[t]he decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal ..., and th[e] court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review.” When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. The Commission’s findings of fact cannot be manifestly erroneous where there are two permissible views of the evidence, [citations omitted].

Sumling v. Dep’t of Health, 2013-0346 (La.App. 4 Cir. 6/4/14), 144 So.3d 101, 104 (La.Ct.App.2014).

The court of appeal focused upon Ms. Sumling’s conduct during the eight-day period from December 27, 2011, to January 3, 2012, in finding that termination was excessive and lacked a rational basis. As Judge Lobrano noted in his dissent, though,

[WJhile the termination letter sent to Sumling detailed certain incidents that occurred between December 27, 2011 and January 3, 2012, the letter also stated that there were several documented incidents in the year prior to her termination where Sumling did not complete tasks that she knew were her responsibility. That statement is supported by testimony presented at the hearing. Dr. Roberta Berrien, the Medical Director of the clinic, testified that she worked closely with Sumling from November 2011 until her termination on January 23, 2012, and that Sumling’s work performance “wasn’t up to par.” She also stated that during the time that she worked with Sumling, patients were not appropriately prepped for visits, items needed were not in the examination rooms and requested referrals had not been obtained. In her role as supervisor of nurse practitioners, Dr. Berrien regularly heard from them regarding similar deficiencies in Sumling’s work performance. Patrice Williams, the Executive Director of the clinic, testified that Sumling received several warnings in the 1 ½ year period prior to her termination, and Williams had personally spoken to Sumling several times about the fact that she was not performing her job duties well and needed to improve.

Sumling v. Dep’t of Health, 2018-0346 (La.App. 4 Cir. 6/4/14), 144 So.3d 101, 112-13 (La.Ct.App.2014).

Based upon the evidence presented at the hearing regarding Ms. Sumling’s substandard job performance for the one and one-half year period prior to the | ¡¡hearing, it is evident that the Commission’s decision to terminate her employment was not arbitrary and capricious or characterized by an abuse of discretion.

For these reasons, we reverse the decision of the court of appeal and reinstate the decision of the Civil Service Commission terminating Ms. Sumling’s employment.

WRIT GRANTED; REVERSED.

JOHNSON, C.J., dissents.

WEIMER, J., would grant and docket.


text:
    In re Charles Gary WAINWRIGHT.
    No. 2014-OB-2054.
    Supreme Court of Louisiana.
    Nov. 7, 2014.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

| TThis proceeding arises out of an application for reinstatement to the practice of law filed by petitioner, Charles Gary Wainwright, an attorney currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2012, petitioner was suspended from the practice of law for eighteen months for neglecting his clients’ legal matters, failing to communicate with his clients, failing to refund unearned fees, mishandling client funds, engaging in conduct intended to disrupt a tribunal, and engaging in the practice of law while ineligible to do so. In re: Wainwright, 12-1392 (La.6/29/12), 91 So.3d 304. In December 2013, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

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

| .DISCUSSION

After considering the record in its entirety, we will adopt the committee’s recommendation and reinstate petitioner to the practice of law. As found by the committee, the record provides clear and convincing evidence of petitioner’s compliance with the reinstatement criteria. Under these circumstances, petitioner has shown that he possesses the requisite competence, honesty, and integrity to be reinstated to the practice of law. Accordingly, we will reinstate petitioner to the practice of law.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Charles Gary Wainwright, Louisiana Bar Roll number 19858, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.


text:
    STATE of Louisiana v. Kenneth ALEXANDER.
    No. 2014-KP-0401.
    Supreme Court of Louisiana.
    Nov. 7, 2014.
   PER CURIAM.

|!Writ granted; relief denied. The lower courts erred to the extent that they construed relator’s pleading as a motion to correct an illegal sentence, which can be filed any time under La.C.Cr.P. art. 882, rather than an (untimely) application for post-conviction relief. See La.C.Cr.P. art. 930.3; State v. Parker, 98-0256, p. 1 (La.5/8/98), 711 So.2d 694, 695 (unless a pleading captioned as a motion to correct illegal sentence “point[s] to a claimed illegal term in [the petitioner’s] sentence,” it is not cognizable under La.C.Cr.P. art. 882); State ex rel. Stepter v. Whitley, 93-2346 (La.10/13/95), 661 So.2d 480 (“As to all of relator’s other claims, which do not relate to the legality of the sentence itself under the applicable statutes, relator’s application is denied because the court correctly treated these issues as forming the proper basis for an application for post-conviction relief ...”); cf. Smith v. Cajun Insulation, 392 So.2d 398, 402 n. 2 (La.1980). Relator’s application, filed some 18 years after his conviction became final, is time-barred. See La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

| gFurthermore, this Court has construed the provisions of La.C.Cr.P. art. 930.3 and determined that they “provide[] no basis for review of claims of excessiveness or other sentencing error post-conviction.” State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. “An habitual offender adjudication ... constitutes sentencing for purposes of Melinie and La. C.Cr.P. art. 930.3. which provides no vehicle for post-conviction consideration of claims arising out of habitual offender proceedings, as opposed to direct appeal of the conviction and sentence.” State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.

Relator’s application is untimely and the claims raised therein are not cognizable on collateral review.


text:
    In re Steven L. RUSHING.
    No. 2014-B-2053.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Steven L. Rushing, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history.

Respondent was admitted to the practice of law in Louisiana in 1989. He is also a member of the Texas Bar. Respondent has been the subject of two reciprocal discipline proceedings in Louisiana based upon discipline imposed against him in Texas. In In re: Rushing, 11-1995 (La.11/18/11), 74 So.3d 708 (“Rushing I”), respondent was suspended from the practice of law for twenty-four months, with twelve months deferred, for neglect of a legal matter, failure to communicate with a client, knowing disobedience of an obligation under the rules of a tribunal, and conduct involving dishonesty, fraud, deceit or misrepresentation. In In re: Rushing, 12-1172 (La.9/14/12), 98 So.3d 284 (“Rushing II”), respondent was suspended from the practice of law for four years (beginning November 15, 2012 and ending November 14, 2016) and, separately, suspended from the practice of law for six years, with three years deferred (beginning November 15, 2016), for- neglect of two legal matters, failure to communicate with his clients, making | misrepresentations to the clients concerning the status of their cases, and failing to return the clients’ files to them upon request or upon termination of the representation. Respondent remains suspended in Louisiana at this time.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

In February 2013, in the United States District Court for the Eastern District of Texas, respondent was charged in a bill of information with one count of mail fraud in violation of 18 U.S.C. § 1341. The bill of information alleged that between January 2007 and December 2011, respondent devised a scheme to defraud insurance companies and medical providers and used the United States mail to execute the scheme. Respondent allegedly negotiated settlements on behalf of clients whom he represented in personal injury matters. While negotiating final settlement amounts, respondent would represent to his clients and the insurers that he would use a portion of the settlement proceeds to pay some or all of the client’s outstanding medical bills. In reliance upon these representations, and a release of claims executed by respondent’s client, the insurer would send a check to respondent’s office. After receiving the check, respondent would deposit it into his account and disburse his client’s portion of the settlement. Respondent would also execute checks payable to his client’s medical providers, but he did not actually send these checks to the providers and instead converted that portion of the settlement to his own use.

On February 15, 2013, respondent pleaded guilty as charged. In the factual basis, respondent acknowledged that on June 20, 2011, he sent a letter to Farmers Insurance representing that he would use funds from a proposed settlement on behalf of a client to satisfy “any and all hospital, health insurance, and/or | sMedicaid/Medicare liens and/or billing” in order to secure a settlement in the amount of $6,836.00, when in fact, he did not intend to, nor did he ever, pay his client’s liens with the settlement proceeds.

DISCIPLINARY PROCEEDINGS

In August 2013, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations of the formal charges were admitted and proven by clear and convincing evidence, and that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found respondent violated duties owed to his clients, the public, and the profession. His conduct was intentional and caused substantial harm to his clients and the third-party medical providers. The committee further ^determined that under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment.

The committee found no mitigating factors are present. In aggravation, the committee found: a prior disciplinary record, a dishonest or selfish motive, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the committee recommended he be permanently disbarred.

Neither respondent nor the ODC filed an objection to the committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly, if not intentionally, violated duties owed to his clients and the profession. He caused actual and potential injury to his client and the healthcare providers by converting funds meant to pay the healthcare providers out of a settlement. The applicable baseline sanction is disbarment.

The board adopted the aggravating factors found by the committee. The board agreed that no mitigating factors are present.

| .^Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended he be permanently disbarred.

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

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Here, respondent stands convicted of mail fraud stemming from a scheme to convert settlement funds earmarked to pay his clients’ medical providers. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. For purposes of the instant case, Guideline 9 is relevant. That guideline provides:

|fiGUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Respondent was convicted in February 2013 of a serious crime, mail fraud, as defined by Rule XIX, § 19. This conviction was preceded by the two separate suspensions imposed against respondent in our 2012 opinion in Rushing II, both of which exceeded one year in length. Therefore, Guideline 9 is applicable.

Based on this reasoning, we find permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Steven L. Rushing, Louisiana Bar Roll number 19767, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE of Louisiana v. Jeffrey Billy SEPULVADO.
    No. 2014-KO-0719.
    Supreme Court of Louisiana.
    Oct. 3, 2014.
   In re Sepulvado, Jeffrey Billy; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Sabine, 11th Judicial District Court Div. O, No. 68256; to the Court of Appeal, Third Circuit, No. 13-1167.

Denied.


text:
    STATE ex rel. Brian K. MASSEY v. STATE of Louisiana.
    No. 2013-KH-2850.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Massey, Brian K.; — Plaintiff; Applying for Reconsideration of this court’s action dated August 25, 2014; Parish of Jefferson, 24th District Court Div. K, No. 06-4458; to the Court of Appeal, Fifth Circuit, No. 13-KH-851.

Reconsideration denied.


text:
    STATE ex rel. Clifford C. ABSHIRE, III v. STATE of Louisiana.
    No. 2013-KH-2883.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Abshire III, Clifford C.; — Plaintiff; Applying for Reconsideration of this court’s action dated August 25th, 2014; Parish of Caddo, 1st Judicial District Court Div. E. No. 298,931; to the Court of Appeal, Second Circuit, No. 48,842-KH.

Reconsideration denied.


text:
    STATE ex rel. Kirk D. CHARLES v. STATE of Louisiana.
    No. 2013-KH-2921.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Charles, Kirk D.; — Plaintiff; Applying for Reconsideration of this Court’s action dated August 25 2014 Parish of Jefferson Davis 31st Judicial District Court Div. O, No. CR-604-77.

Reconsideration denied.


text:
    STATE ex rel. Brandon LAVERGNE v. STATE of Louisiana.
    No. 2014-KH-0040.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Lavergne, Brandon; — Plaintiff; Applying For Applying for Reconsideration of this court’s action dated September 12, 2014, Parish of Lafayette, 15th Judicial District Court Div. E, No. 138234; to the Court of Appeal, Third Circuit, Nos. KH 13-00488, KH 13-00695.

Reconsideration denied.


text:
    STATE of Louisiana v. Quentin JAMES.
    No. 2013-KP-2506.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re James, Quentin; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 468225; to the Court of Appeal, First Circuit, No. 2013 KW 1024. •

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Manal GILBERT v. STATE of Louisiana.
    No. 2013-KH-2653.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Gilbert, Manal; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. H, Nos. 05-CR-1798, 06-CR-1990; to the Court of Appeal, Third Circuit, No. KH 13-01033.

Denied.


text:
    STATE of Louisiana v. John SAYLOR.
    No. 2013-KP-2823.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Saylor, John; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 00-3551; to the Court of Appeal, Fifth Circuit, No. 13-KH-625.

Denied.


text:
    STATE ex rel. Caleb PIPPENGER v. STATE of Louisiana.
    No. 2014-KH-0265.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Pippenger, Caleb; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 293,109; to the Court of Appeal, Second Circuit, No. 49,-055-KH.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Thomas WILLIAMS v. STATE of Louisiana.
    No. 2014-KH-0279.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Williams, Thomas; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 326,273; to the Court of Appeal, First Circuit, No. 2013 KW 1565.

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

WEIMER, J., recused.


text:
    STATE ex rel. Tyree YOUNG v. STATE of Louisiana.
    No. 2014-KH-0318.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Young, Tyree; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 370037; to the Court of Appeal, First Circuit, No. 2013 KW 1614.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Cevero GARCIA v. STATE of Louisiana.
    No. 2014-KH-0320.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Garcia, Cevero; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 13063-95; to the Court of Appeal, Third Circuit, No. KH 13-01046.

Denied.


text:
    STATE ex rel. Michael NAVARRE v. STATE of Louisiana.
    No. 2014-KH-0339.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Navarre, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 386-622; to the Court of Appeal, Fourth Circuit, No. 2014-K-0056.

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. Darren KING v. STATE of Louisiana.
    No. 2014-KH-0340.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re King, Darren; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. C, No. 891,309-A; to the Court of Appeal, Second Circuit, No. 49,003-KH.

Denied.


text:
    STATE ex rel. Sherman SINGLETON v. STATE of Louisiana.
    No. 2014-KH-0377.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Singleton, Sherman; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 347-692; to the Court of Appeal, Fourth Circuit, No. 2013-K-1619.

Denied.


text:
    STATE ex rel. Anthony BROWN v. STATE of Louisiana.
    No. 2014-KH-0380.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Brown, Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 152634; to the Court of Appeal, Second Circuit, No. 49105-KH.

Denied.


text:
    STATE ex rel. Isiah SKINNER v. STATE of Louisiana.
    No. 2014-KH-0381.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Skinner, Isiah; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 10-3578; to the Court of Appeal, Fifth Circuit, No. 13-KH-930.

Denied.


text:
    STATE ex rel. Rickey D. STEPHENS v. STATE of Louisiana.
    No. 2014-KH-0407.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Stephens, Rickey D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 264,911; to the Court of Appeal, Second Circuit, No. 49,-090-KH.

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


text:
    STATE ex rel. Kenny R. THOMAS v. STATE of Louisiana.
    No. 2014-KH-0409.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Thomas, Kenny R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 57594-FA; to the Court of Appeal, Third Circuit, No. KH 13-01244.

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. Patrick CHAPLAIN v. STATE of Louisiana.
    No. 2014-KH-0411.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Chaplain, Patrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 506-196; to the Court of Appeal, Fourth Circuit, No. 2014-K-0135.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Kerry Jerrod SANDERS v. STATE of Louisiana.
    No. 2014-KH-0413.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Sanders, Kerry Jerrod; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 295,323; to the Court of Appeal, Third Circuit, No. KH 13-01088.

Denied.


text:
    STATE ex rel. Preston George DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 2014-KH-0421.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Demouchet Jr., Preston George;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 95-141810.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La 4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Joseph SMITH v. STATE of Louisiana.
    No. 2014-KH-0422.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Smith, Joseph; — Plaintiff; Applying For Stay, Parish of Orleans, Criminal District Court Div. I, No. 442-321; to the Court of Appeal, Fourth Circuit, No. 2014-K-0020.

Denied.


text:
    STATE ex rel. Ron S. MARTIN v. STATE of Louisiana.
    No. 2014-KH-0449.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Martin, Ron S.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, Nos. 71609, 77727; to the Court of Appeal, Third Circuit, No. KH 13-01014.

Denied.


text:
    STATE ex rel. Erin HUNTER v. STATE of Louisiana.
    No. 2014-KH-0451.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Hunter, Erin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 322-200; to the Court of Appeal, Fourth Circuit, No. 2014-K-0079.

Denied.


text:
    STATE ex rel. Warren ANTHONY v. STATE of Louisiana.
    No. 2014-KH-0454.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Anthony, Warren; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 482845; to the Court of Appeal, First Circuit, No. 2018 KW 1985.

Denied. 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. Eric M. DENET v. STATE of Louisiana.
    No. 2014-KH-0455.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Denet, Eric M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Júdicial District Court Div. P, No. 96-3245; to the Court of Appeal, Fifth Circuit, No. 14-KH-55.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Ronald Earl WILLIAMS.
    No. 2014-KO-0640.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Williams, Ronald Earl; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 192,591; to the Court of Appeal, Second Circuit, No. 48,528-KA.

Denied.


text:
    STATE of Louisiana v. Christopher WILLIAMS.
    No. 2014-KO-0642.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Williams, Christopher; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 10 CR8 110836; to the Court of Appeal, First Circuit, No. 2013 KA 1168.

Denied.


text:
    STATE of Louisiana v. Derichard W. LAVY.
    No. 2014-K-0644.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Lavy, Derichard W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 10-09-1053; to the Court of Appeal, First Circuit, No. 2013 KA 1025.

Denied.


text:
    STATE of Louisiana v. Waco COLLINS, Jr.
    No. 2014-K-0645.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Collins Jr., Waco; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 304667; to the Court of Appeal, Second Circuit, No. 48,-782-KA.

Denied.


text:
    STATE of Louisiana v. Jonathan M. ROBINSON.
    No. 2014-K-0651.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 13-3104; to the Court of Appeal, Fifth Circuit, No. 13-KA-788.

Denied.


text:
    STATE of Louisiana. v. Jerry SIMMONS.
    No. 2014-KO-0674.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Simmons, Jerry; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, No. 10-0582; to the Court of Appeal, Fifth Circuit, No. 15-KA-258.

Denied.


text:
    STATE of Louisiana v. Reynard Joseph GREGOIRE.
    No. 2014-KO-0686.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Gregoire, Reynard Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 602725; to the Court of Appeal, First Circuit, No. 2013 KA 0751.

Denied.


text:
    STATE of Louisiana v. Ronnie HENDERSON.
    No. 2014-KO-0687.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   In re Henderson, Ronnie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. D, No. 86430; to the Court of Appeal, Second Circuit, No. 43,-806-KA.

Denied.