text:
    John Larry OWENS, Appellant, v. Jennifer Ann Ward OWENS, Appellee.
    No. 1D12-5648.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    John Larry Owens, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001) (“Appellant’s failure to provide either a transcript or proper substitute, such as a stipulated statement of the facts, defeats the appellate court’s ability to review either the factual or legal basis for the trial court’s decision.”); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Zachary J. KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3082.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Zachary J. Knight, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 7, 2013, judgment and sentence in Levy County Circuit Court case number 38-2011-CF-775A. 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.

PETITION GRANTED.

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


text:
    ODYSSEY HEALTHCARE OF MARION COUNTY, INC., d/b/a, Odyssey Hospice, Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. 1D13-3420.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      David C. Ashburn of Greenberg Traurig, P.A., Tallahassee, for Petitioner.
    Tracy Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order is vacated and the cause is remanded for further proceedings.

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


text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a, Tampa General Hospital, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, and HCA Health Services of Florida, Inc., d/b/a, Regional Medical Center Bayonet Point and HCA Health Services Of Florida, Inc., d/b/a, Blake Medical Center, Respondents.
    No. 1D13-3517.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Jeffrey L. Frehn of Radey Thomas Yon & Clark, P.A., Tallahassee, for Petitioner.
    Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee, for Respondents.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order is vacated and the cause is remanded for further proceedings pursuant to Shands Jacksonville Medical Center, Inc. v. State, Department of Health, 123 So.3d 86 (Fla. 1st DCA 2013).

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


text:
    HOSPICE OF PALM COAST, INC., d/b/a, Odyssey Health Care (“Odyssey”), Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. 1D13-3606.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    David C. Ashburn of Greenberg Traurig, P.A., Tallahassee, for Petitioner.
    Tracy Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order is vacated and the cause is remanded for further proceedings.

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


author: WOLF, J.

text:
    Marshall R. CASSEDY, Jr., Appellant, v. ALLAND INVESTMENTS CORPORATION, a dissolved Florida corporation, Paul M. Earnhart, William K. Pinkerton, Appellees.
    No. 1D13-0311.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.

      Kenneth W. Sukhia of Sukhia Law Group PLC, Tallahassee, for Appellant.
    Ronald A. Mowrey and Mark Mason of Mowrey Law Firm, PA, Tallahassee, for Appellees.
   WOLF, J.

Appellant, Marshall R. Cassedy, Jr., challenges a final order denying him damages in an action for accounting. We determine the final order appears to have applied the wrong burden of proof for determining the legitimacy of certain expenditures made by appellees. This error is particularly apparent in light of the lack of any evidence to demonstrate that many of the contested expenditures were made for legitimate business purposes. We, therefore, reverse for the trial court to reconsider its determination based on the correct burden of proof.

I. Facts and Procedural History

Below, appellant filed an action for an accounting in which he sought (1) an accounting of how appellees spent $315,000 that appellant invested in appellees’ business venture; and (2) a return of any funds that appellees diverted for personal use or were otherwise not used for legitimate business expenses.

The trial court initially granted summary judgment in favor of appellees, finding the accounting action was barred by the statute of limitations. This court reversed, finding the trial court improperly granted summary judgment based on the statute of limitations. Cassedy v. Alland Invest. Corp., 982 So.2d 719 (Fla. 1st DCA 2008) (Cassedy I).

On remand, the trial court entered an order granting partial summary judgment in favor of appellant, finding (1) he was entitled to an accounting; and (2) appel-lees were barred from asserting a statute of limitations defense, citing Cassedy I.

The trial court then held a bench trial to determine whether appellant was entitled to damages. The parties presented evidence including expert and non-expert testimony concerning the propriety of expenditures made by appellees. It would serve no purpose to detail that evidence here, except to note that there were a number of questionable expenditures that were not properly documented in accordance with accepted accounting principles. In fact, for a number of items, appellees could not provide any explanation as to why the expenditures were made.

The trial court entered a final judgment denying appellant relief. The court stated that after a trial on the merits and consideration of the pleadings:

Although the method of record keeping, decision making, and choices on how money was spent by [appellees] Earn-hart and/or Pinkerton is certainly open for criticism, this Court cannot find that there was a breach of fiduciary duty pursuant to Florida law.
For the potential claim under Chapter 517 violations of Florida Statutes, this Court finds that the statute of limitations would have run in 2004. This action was not filed until 2006.
This is, at the end of the day, nothing more than a business that failed, with no monies remaining to be returned to the investors. The Court does not take lightly the impact this decision has on [appellant], but finds it is the only outcome supported by the law and facts in this case.

It is therefore, ORDERED AND ADJUDGED:

That [appellant] shall take nothing on his Complaint, and [appellees] shall go hence without day.

Appellant filed a motion for rehearing. He argued his cause of action was not for a breach of fiduciary duty, but instead it was an action for an accounting, in which ap-pellees had the burden to prove their expenditures were reasonable. Further, he argued he did not raise any “potential claim” under chapter 517. The court denied the motion.

II. Analysis

Here, appellant argues the trial court erred in denying him relief by finding there was no breach of fiduciary duty. He asserts the only cause of action he raised was for an accounting, which is a separate and distinct action from a breach of fiduciary duty and carries a different standard of proof. We agree with appellant. While the trial court found this was “nothing more than a business that failed,” the court did not address whether appel-lees met their burden to prove the expenditures were legitimate.

We note the only issue properly before this court is whether the trial court correctly denied appellant monetary relief based on the evidence presented. Appel-lees failed to file a cross-appeal in order to challenge the trial court’s partial summary judgment in which the court found appellant was entitled to an accounting, and the action was not barred by the statute of limitations. We, therefore, decline to revisit those issues.

“The elements of a cause of action for breach of fiduciary duty are (1) the existence of a duty, (2) breach of that duty, and (3) damages flowing from the breach.” Crusselle v. Mong, 59 So.3d 1178, 1181 (Fla. 5th DCA 2011) (citations omitted).

In contrast, an action for an accounting is a separate and distinct cause of action that may be available where a fiduciary duty exists. See Nayee v. Nayee, 705 So.2d 961, 963 (Fla. 5th DCA 1998).

“Accounting is ordinarily a two-step proceeding, the first step being to determine the plaintiffs light to an accounting. The second is to determine the appropriate amount. The court may then enter a money judgment for such amount.” New World Fashions, Inc. v. Lieberman, 429 So.2d 1276, 1277 (Fla. 1st DCA 1983) (citation omitted).

Once the right to an accounting is established, the other party has the burden to prove, by competent, substantial evidence, that the money was properly handled. See Technical Acoustics, Inc. v. Enter. Nat. Bank of Jacksonville, 672 So.2d 596, 597 (Fla. 1st DCA 1996) (affirming the trial court’s disallowance of some expenses claimed by a lien holder in an action for an accounting, noting “Florida law places the burden of proof on the proponent of each credit”); Beclcewnan v. Greenbaum, 439 So.2d 233, 236 (Fla. 2d DCA 1983) (“Once appellant’s right to the accounting and the five percent of net profits [from the sale of a building] was determined, the appellees had the burden of establishing each credit or deduction [from the gross profit] by competent and substantial evidence” found in the business records and accounts.).

In a similar context, the Second District held that in an action for an accounting against a trustee, “ ‘[i]f the trustee fails to keep clear, distinct, and accurate accounts, all presumptions are against him and all obscurities and doubts are to be taken adversely to him’.... ‘The burden of proof is upon him to show that the money expended was a proper disbursement.’ ” Traub v. Traub, 135 So.2d 243, 244 (Fla. 2d DCA 1961) (emphasis added) (quoting Benbow v. Benbow, 117 Fla. 37, 157 So. 512, 519 (1934) (finding trustee’s testimony regarding payments for services rendered to preserve property held in trust consisted of only estimates and thus was insufficient to carry his burden)).

In light of the foregoing, we find appellant is correct that a cause of action for breach of fiduciary duty is a separate and distinct cause of action from an accounting, with a different burden of proof. Here, because the trial court found appellant was entitled to an accounting, a determination that is unchallenged, appellees had the burden to prove by competent, substantial evidence that their expenditures were proper and legitimate.

We also agree with appellant that the trial court failed to rule specifically on appellant’s cause of action for an accounting. It is clear that appellant raised only one cause of action, which was for an accounting, not a breach of fiduciary duty. As discussed above, once the right to an accounting was established, the burden shifted to appellees to prove by competent, substantial evidence that the expenditures were proper. See Beckerman, 439 So.2d at 236. It is unclear from the court’s order whether the court properly considered this action and applied the correct burden of proof. The trial court’s determination that this was simply a business that failed did not adequately address whether the expenditures that preceded the failure were proper business expenditures.

We, therefore, REVERSE and REMAND for the trial court to determine whether appellees met their burden of proof to demonstrate the legitimacy of each expenditure.

VAN NORTWICK and CLARK, JJ., concur.


author: WETHERELL, J.

text:
    Patricia A. MOULIOM, Appellant, v. NORTHEAST FLORIDA STATE HOSPITAL, Appellee.
    No. 1D13-3807.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.

      Nancy A. Daniels, Public Defender, Julie C. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    J. Melton Bessinger, Institution Counsel, MacClenny, for Appellee.
   WETHERELL, J.

Appellant, Patricia Mouliom, seeks review of the final administrative order continuing her involuntary inpatient placement under the Baker Act. The order was entered after a hearing at which Ms. Mouliom was not present. Ms. Mouliom contends that conducting the hearing in her absence amounts to fundamental error. We agree and reverse.

In June 2013, the administrator at the Northeast Florida State Hospital filed a petition pursuant to section 394.467(7), Florida Statutes, to continue Ms. Moul-iom’s involuntary inpatient placement at the facility. A hearing was held on the petition by an administrative law judge (ALJ) on July 11, 2018. Ms. Mouliom was not present at hearing, but she was represented by an assistant public defender as required by section 394.467(7)(c). At the outset of the hearing, the following colloquy occurred:

THE COURT: Alright, [hospital employee], did you speak to Patricia Moul-iom this morning?
[HOSPITAL EMPLOYEE]: Yes sir.
THE COURT: And was she aware of today’s hearing?
[HOSPITAL EMPLOYEE]: Yes sir.
THE COURT: And what was her response to being asked to come?
[HOSPITAL EMPLOYEE]: She wasn’t coming.
THE COURT: OK. Was she prevented physically, in any way, from appearing?
[HOSPITAL EMPLOYEE]: No sir.
THE COURT: Alright.
[MS. MOULIOM’S COUNSEL]: I would waive her presence, your honor.
THE COURT: Alright.

The ALJ, apparently satisfied with the explanation of Ms. Mouliom’s absence from the hearing and her counsel’s waiver of her appearance, proceeded to conduct the hearing on the merits of the petition. The ALJ heard testimony from a doctor at the facility and from Ms. Mouliom’s mother. The doctor testified that Ms. Mouliom continues to meet the criteria for involuntary inpatient placement because is she grossly psychotic, has poor self-care, and is aggressive. Ms. Mouliom’s mother testified about her concerns regarding Ms. Moul-iom’s treatment at the facility. After the hearing, the ALJ entered an order continuing Ms. Mouliom’s involuntary inpatient placement at the facility for another six months, until January 11, 2014. This appeal followed.

Even though Ms. Mouliom’s attorney affirmatively waived her presence at the hearing, we are not precluded from considering the issue raised in this appeal because “a denial of the due process right to be present at an involuntary commitment hearing is fundamental error which may be raised on appeal even if not preserved below.” Register v. State, 946 So.2d 50, 50-51 (Fla. 1st DCA 2006). We review this issue under the de novo standard of review. See Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010) (“This Court reviews a defendant’s unpreserved claim that a trial court committed fundamental error de novo.”).

. [2] This court has held that “[a] patient has a fundamental [due process] right to be present at a commitment proceeding.” Brown v. State, 953 So.2d 688, 688 (Fla. 1st DCA 2007) (citing Register, supra). This right was recognized in the context of an initial commitment hearing held by the circuit court under section 394.467(6), but the right is not limited to such hearings. The patient also has a fundamental right to be present at the periodic hearings held by an ALJ under section 394.467(7) to consider whether to continue the patient’s commitment.

The patient can waive the right to be present at the hearing, but for such a waiver to be valid, the ALJ “must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary.” Register, 946 So.2d at 50. Here, the ALJ conducted an inquiry, and the issue we must determine is whether the inquiry was sufficient to allow the ALJ to find that Ms. Mouliom knowingly, intelligently, and voluntarily waived her right to be present at the hearing. Ms. Mouliom contends that the inquiry in this case was not sufficient. We agree.

The colloquy quoted above reflects that Ms. Mouliom was made aware of the hearing and that she voluntarily chose not to attend. However, there is no indication in the colloquy that Ms. Mouliom knew of her right to be present at the hearing or the purpose of the hearing. Without such knowledge, Ms. Mouliom could not have knowingly and intelligently waived her right to be present. See Johnson v. State, 750 So.2d 22, 28 (Fla.1999) (holding that the defendant did not waive his right to be present during a critical stage of the proceedings where the trial court made no inquiry as to the defendant’s understanding of his right to be present); Turner v. State, 530 So.2d 45, 49 (Fla.1988) (“A defendant cannot knowingly and intelligently waive a right of which he is unaware.”); and cf. State v. Williams, 731 So.2d 635, 636-37 (Fla.1999) (holding that a defendant waived his right to be present during jury selection where defense counsel stated that he discussed the right to be present with the defendant and the defendant waived the right).

Additionally, the ALJ did not make any inquiry into Ms. Mouliom’s mental state on the morning of the hearing and whether she had the ability to comprehend the right that she was waiving. This is significant because proceedings under section 394.467(7) necessarily involve patients with mental health issues, and without some indication that Ms. Mouliom had the ability to comprehend the right that she was waiving, the ALJ could not determine that the waiver was knowingly and intelligently made.

We are mindful that proceedings under section 394.467(7) are typically brief and do not involve all of the formalities of a criminal trial. However, the liberty interests at stake in the proceeding are no less important. Accordingly, when the patient is not present at the hearing, it is imperative that the ALJ conduct an adequate inquiry of the facility staff or the patient’s counsel to determine whether the patient knowingly, intelligently, and voluntarily waived his or her presence. At a minimum, the inquiry must ensure that the patient received notice of the hearing; that no one prevented the patient from attending the hearing; that the patient was aware of his or her right to be present at the hearing and of the nature and purpose of the hearing; and that the patient’s mental state was such that he or she could comprehend the right being waived. Such an inquiry is necessary even if, as here, the patient’s presence is waived by his or her counsel, see Register, 946 So.2d at 50-51, and upon conclusion of the inquiry, the ALJ should make an explicit finding on the record as to whether the patient knowingly, intelligently, and voluntarily waived his or her presence at the hearing.

In sum, because the record does not contain sufficient evidence to support the ALJ’s implicit finding that Ms. Mouliom knowingly, intelligently, and voluntarily waived her right to be present at the commitment hearing, we reverse the order on appeal and remand for further proceedings consistent with this opinion, if necessary.

REVERSED and REMANDED.

CLARK and RAY, JJ., concur.

      . Ch. 394, pt. I, Fla. Stat. (2012).

      . We note that this would not necessarily preclude the ALJ from conducting the proceeding without the patient because section 394.467(7)(b) authorizes the ALJ to waive the patient's presence at the hearing if the patient’s attorney does not object and the ALJ "finds that attendance at the hearing is not consistent with the best interests of the patient.” However, no such finding was made in this case.

      . Ms. Mouliom sought a "remand for a new hearing on continued involuntary placement." However, because this case was not expedited, the term of the commitment authorized by the order on appeal will likely have expired by the time this opinion becomes final and the mandate issues. That does not render this case moot, see Godwin v. State, 593 So.2d 211 (Fla. 1992), but a new hearing will obviously be unnecessary if Ms. Mouliom has been released. Likewise, if Ms. Mouliom's commitment has been continued based upon a subsequent petition, there is no need to hold a new hearing on the June 2013 petition if Ms. Mouliom was present at the hearing on the subsequent petition or her presence was validly waived.


author: PER CURIAM. THOMAS, J.

text:
    Jeremiah HIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4995.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

ROBERTS and CLARK, JJ., concur.

THOMAS, J., dissents with opinion.

THOMAS, J.

Dissenting.

I respectfully dissent. The admission of the collateral-crime evidence here constituted fundamental error. Everett v. State, 124 So.3d 938 (Fla. 1st DCA 2013). I would reverse for a new trial.


text:
    Kevin CREWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4749.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Kevin Crews, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Kevin L. Crews presents a timely claim that his appellate counsel was ineffective for failing to pursue the issue that the trial court’s written order revoking probation, finding that petitioner had committed all violations alleged in the violation of probation affidavit, differed from its oral pronouncement, which was based on petitioner’s admission to a violation of a single condition by his commission of a new law offense. We agree with petitioner that the written revocation order is erroneous in that it finds petitioner in violation of conditions for which the trial court made no pronouncement of guilt and to which he did not offer an admission. See, e.g., Kemp v. State, — So.3d - (Fla. 1st DCA 2013) (affirming revocation of probation but remanding to correct revocation order to reflect only the violation admitted as its basis). We further conclude that appellate counsel was deficient for failing to pursue this issue.

Petitioner concedes and we agree that this error does not entitle him to reversal of either his conviction or his sentence. However, had this issue been properly pursued on appeal, he would have been entitled to have his revocation order corrected to reflect the basis on which his probation was revoked. Accordingly, we GRANT the petition and REMAND to the lower tribunal with directions to enter an amended revocation order conforming with the oral pronouncement basing the revocation of probation on petitioner’s admission to the violation of condition 5 of his probation.

LEWIS, C.J., and SWANSON, J., concur.

BENTON, J., dissents.


text:
    Darryl Maurice YOUNG, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3762.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    Darryl Maurice Young, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus, which presents a claim properly brought in the Circuit Court for Leon County, is denied. The fact that petitioner has been barred from further pro se appearances in that forum is of no consequence. See Pett-way v. State, 776 So.2d 930 (Fla.2000).

Based on petitioner’s extensive pro se activities before this court since 2006, virtually all of which involved the filing of excessive, unnecessary, and frivolous motions and pleadings that have occupied an inordinate amount of judicial resources, we directed petitioner to show cause why sanctions, including but not limited to a prohibition on further pro se appearances before this court, should not be imposed. Having considered petitioner’s response to this order, we find that good cause to forego the imposition of sanctions has not been demonstrated, and that the interests of judicial administration require that we act to curtail any further abuses.

Accordingly, because Darryl Maurice Young has misused the judicial process to the detriment of other litigants with legitimate claims, he is hereby barred from future pro se appearances in this court. The clerk of the court is directed to reject any future filings by Darryl Maurice Young or by any party on his behalf unless signed by a member in good standing of The Florida Bar. In any active case before the court in which Young is appearing pro se, he is directed to secure the appearance of counsel within 30 days, failing which any such case will be subject to dismissal.

In addition, we direct the clerk to forward a certified copy of this opinion to Young’s correctional institution for consideration of administrative disciplinary proceedings pursuant to section 944.279(1), Florida Statutes (2013), and the rules of the Department of Corrections.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Hannah MOORE, f/k/a Hannah Zavis, Former Wife, Appellant, v. Jerome McINTOSH, Former Husband, Appellee.
    No. 1D13-3176.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.
    E. Jane Brehany, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The trial court erred as a matter of law by modifying the parties’ custody arrangement after finding that the parties’ relocation to different cities in Okaloosa County, which resulted in each of them living twenty miles from their child’s school in Oka-loosa County, constituted a substantial change of circumstances.

Courts have repeatedly found that relocation does not itself constitute a substantial change of circumstances warranting modification of custody. See Ragle v. Ragle, 82 So.3d 109 (Fla. 1st DCA 2011) (moving to a new home 28 miles from the father’s previous home characterized as a “minor relocation”); Ogilvie v. Ogilvie, 954 So.2d 698 (Fla. 1st DCA 2007) (relocation from New York to Florida); Sotomayor v. Sotomayor, 891 So.2d 559 (Fla. 2d DCA 2004) (relocation from New York to Florida, when visitation agreement contemplated that the parents would live in the same city); Zugda v. Gomez, 553 So.2d 1295 (Fla. 3d DCA 1989) (relocation from Florida to Michigan).

When the parties’ settlement or visitation agreement expressly prohibits a move, thus establishing that the parties had previously litigated the issue, the party who seeks to relocate must show a substantial change in circumstances to justify the relocation. Mize v. Mize, 621 So.2d 417, 420 (Fla.1993) (visitation order provided that “[b]oth parties are expressly forbidden to move [the child] from the State of Florida without the express permission of this Court”). In contrast, in the case at bar, the Marital Settlement Agreement incorporated into the Final Judgment of Dissolution provides:

It is further anticipated that the parties shall continue to reside in close proximity to one another, i.e., in the same school district. If either party chooses to relocate outside the school district, then the relocating party shall give the other party at least ninety days written notice of same. This will allow enough time to negotiate a stipulated resolution of related issues or the time to attend mediation or obtain judicial relief.

Although this expresses a hope that the parties would remain in close proximity to each other, the possibility of relocation is expressly contemplated. Moreover, both parents are still in the same Okaloosa County School District.

REVERSED and REMANDED.

PADOVANO, ROWE, and OSTERHAUS, JJ., concur.


text:
    Joan SCULLY, Petitioner, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Respondent.
    No. 1D13-4501.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2014.

      Neil Chonin and Alice K. Nelson of Southern Legal Counsel, Inc., Gainesville, for Petitioner.
    Kevin D. Johnson, Marquis W. Heilig and Whitney M. Buescher of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Respondent.
   WETHERELL, J.

Petitioner, Joan Scully, seeks certiorari review of an order denying her motion for a protective order and authorizing Respondent, Shands Teaching Hospital and Clinics, Inc. (Shands), to obtain discovery of her medical and psychiatric records. We grant the petition in part.

In October 2011, Scully was voluntarily admitted to a psychiatric hospital as a result of an adverse reaction to a medication for her psychiatric condition. At the time, Scully was employed by Shands as a licensed clinical social worker. After her discharge from the psychiatric hospital, Shands would not allow Scully to return to work until she was evaluated by the Professional Resource Network (PRN). In November 2011, PRN advised Shands that Scully was “able to practice with reasonable skill and safety,” but also noted that she was “in the process of establishing a contract [] with [PRN].” Shands refused to allow Scully to return to work without providing a copy of the contract. Scully refused to do so, and in December 2011, she resigned from Shands.

In August 2012, Scully filed a complaint against Shands alleging that she was constructively discharged in violation of the Florida Civil Rights Act based upon a perceived disability. During the course of discovery, Shands sought production of records from PRN and various providers who treated or evaluated Scully. Scully objected to the production and sought a protective order. The trial court denied the protective order and allowed the discovery. Scully timely sought review of the order in this court by Sling a petition for certiorari, which “seeks reversal [of the trial court’s order] to the extent that the Order permits [Shands’] non-party subpoenas to [PRN], Leslie Sahler LCSW,[] and [PRN evaluator] Leslie Parsons, D.O.”

Where, as here, an order permits discovery of medical or other records that are protected by constitutional or statutory privileges, this court has jurisdiction to review the order because the harm caused by the erroneous production of such records cannot be remedied on appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); James v. Veneziano, 98 So.3d 697, 698 (Fla. 4th DCA 2012). However, relief is warranted only if the order departs from the essential requirements of the law. See Mullins v. Tompkins, 15 So.3d 798, 800 (Fla. 1st DCA 2009).

Scully first contends that the trial court departed from the essential requirements of law because the records sought by Shands are not relevant and are protected from discovery by the psychotherapist-patient privilege. We disagree. Scully placed her medical and psychiatric condition at issue in this case through her disability discrimination claim and her request for emotional distress damages. Accordingly, the trial court properly determined that the records were discoverable. See § 90.503(4)(c), Fla. Stat. (2012) (excepting from the psychotherapist-patient privilege “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim”); cf. Poston v. Wiggins, 112 So.3d 783, 786 (Fla. 1st DCA 2013) (quashing portion of order allowing discovery of defendant’s post-accident medical records because the defendant was not seeking affirmative relief and her post-accident medical condition was irrelevant to the issues in the case).

Scully alternatively contends that the trial court departed from the essential requirements of law by allowing discovery of the records without limiting the scope of the production or conducting an in camera review. On this point, we agree. Although the requests for production directed to PRN and Dr. Parsons focused on records involved in the November 2011 determination that Scully was fit to practice, the request directed to Ms. Sahler sought “[a] full and complete copy of any and all medical records and information regarding [Scully]” without any temporal limitation. The trial court did not limit the scope of the records that Ms. Sahler was required to produce to a period more temporally-related to the claims at issue in this case, nor did it require an in camera review to ensure that only relevant records are produced. By failing to do so, the trial court departed from the essential requirements of law. See, e.g., James, 98 So.3d at 698 (holding that trial court must conduct in camera review to limit disclosure of medical records to those relevant to litigation); Smith v. Smith, 64 So.3d 169 (Fla. 4th DCA 2011) (requiring trial court to review wife’s mental health records in camera prior to releasing them to husband if wife waived psychotherapist-patient privilege); Barker v. Barker, 909 So.2d 333 (Fla. 2d DCA 2005) (quashing broad order for production of entire medical record and remanding for in camera inspection to prevent disclosure of information not relevant to litigation); Bergmann v. Freda, 829 So.2d 966 (Fla. 4th DCA 2002) (directing trial court to conduct in camera review of medical records to determine if good cause exists for disclosure where plaintiff requested any and all medical records).

Accordingly, we grant the petition in part and quash the trial court’s order insofar as it orders production of records from PRN, Ms. Sahler, and Dr. Parsons without limiting the scope of the records that must be produced or requiring an in camera review of the records before they are turned over to Shands. The case is remanded for the trial court to conduct an in camera review of the records produced by these providers to prevent disclosure of information that is not relevant to this litigation. In all other respects, the petition is denied.

GRANTED in part; DENIED in part; ORDER QUASHED in part and REMANDED for further proceedings.

CLARK and RAY, JJ., concur.

      . PRN serves as consultant to the Department of Health and provides for early identification, intervention and appropriate treatment services for licensed professionals who are unable to perform their professional duties and responsibilities with skill and safety after becoming impaired as a result of physical conditions, mental or emotional problems or chemical dependency/abuse. See § 456.076, Fla. Stat. (2012).

      . The parties refer to the contract as a "monitoring contract.” The record is not entirely clear on the purpose of such a contract, although it appears that its purpose is to identify any conditions, limitations, or restrictions on the licensee’s practice.

      . Ms. Sahler is a psychotherapist who has treated Scully since 1990.

      . The petition does not seek "reversal” of the order as to the other providers subject to Shands' non-party subpoenas: Cynthia J. White, M.D.; Gary L. Kanter, M.D.; Richard A. Greer, Dr. [sic], M.D.; Stewart Marchman Act Behavior Healthcare; and University of Florida.


author:
PER CURIAM.
     JOHNSON, C.J.,

text:
    In re James H. CARTER, Jr.
    No. 2013-B-2005.
    Supreme Court of Louisiana.
    Oct. 11, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_J¿This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James H. Carter, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

Respondent was admitted to the practice of law in Louisiana on April 13,1984 and in Georgia on April 1, 1990. He became ineligible to practice law in Louisiana on August 3, 2002 due to his failure to comply with mandatory continuing legal education (“MCLE”) requirements. He did not become eligible again until April 26, 2010.

In July 2009, Mary Alice Scarborough contacted respondent regarding a judgment that had been rendered against her in favor of VGM Leasing. Respondent advised Ms. Scarborough that he was an inactive member of the Louisiana State Bar Association (“LSBA”) who could give her legal advice, and he agreed to defend her against the VGM Leasing judgment.

2In defending Ms. Scarborough, respondent gained a delay of the seizure and sheriffs sale of her home. He also negotiated Ms. Scarborough’s $52,662 purchase of the judgment from VGM Leasing in order for her to collect the entire judgment from her co-debtors, D.C. Scarborough and Lynda and Michael Mathis.

Thereafter, respondent located and identified immovable property owned by the Mathises in Caddo Parish. He then associated with another attorney to prevent the judgment against the Mathises from lapsing, to seize their property, and to collect from them. Respondent also worked with the other attorney to negotiate a collection settlement with the Mathis-es to avoid the sheriffs sale of their property. As a result of respondent’s efforts, Ms. Scarborough was able to collect more than $68,000 from the judgment and net an approximate profit of $16,000 from the collection.

On March 29, 2010, respondent submitted a bill to Ms. Scarborough for the above legal services. When Ms. Scarborough refused to pay the bill, respondent filed a petition on open account against her in Shreveport City Court, alleging his entitlement to collect the attorney’s fees.

In an opinion dated May 11, 2011, the Shreveport City Court judge found that Ms. Scarborough had benefited from respondent’s legal services. However, the judge noted that respondent was not duly licensed to practice law at the time said services were provided and that respondent could not recover fees for legal services rendered during the time he was not eligible to practice law.

DISCIPLINARY PROCEEDINGS

In March 2012, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated Rule 5.5 (engaging in the unauthorized practice of law) of the Rules of Professional Conduct. Respondent initially failed to answer the formal charges, and the factual allegations therein were deemed |sadmitted. Thereafter, respondent opposed the deemed admitted order, and it was recalled, allowing the matter to proceed to a formal hearing on the merits. Prior to the hearing, respondent and the ODC agreed to the above stipulated facts.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Respondent testified in accordance with his stipulations but expressed concern that, in 2002 while actively practicing law in Georgia, he contacted the LSBA and was told to simply check “inactive” on his bar dues statement, which would eliminate his need to comply with Louisiana’s MCLE requirements. Because he had no intention of returning to Louisiana at that time, he went inactive with the LSBA beginning in 2002.

In 2007, respondent returned to Louisiana to care for his father, who had suffered a severe stroke. When his father’s condition stabilized, respondent opened a law office in Shreveport to handle his Georgia practice. In 2008, Ms. Scarborough, respondent’s friend, asked him for help with a judgment against her. He informed her that his license to practice law in Louisiana was inactive and that he “could not file a lawsuit or appear for her in court” (his understanding of inactive). He did, however, agree to act for her in a manner he believed was permissible, consisting of negotiating a purchase of the judgment and then assisting other counsel by investigating the location of assets to be seized from other co-debtors. Respondent authored letters to counsel for the judgment creditor and represented on his letterhead, which did not indicate his practice was limited to the State of Georgia, that he represented Ms. Scarborough. To his credit, respondent successfully negotiated a purchase of the judgment by Ms. Scarborough, and he later (in conjunction with other Louisiana counsel) assisted in pthe collection efforts against other co-debtors but did not take any action in legal proceedings.

In August 2009, respondent sent a letter to the LSBA, inquiring about how to reactivate his status. Respondent satisfied the Georgia MCLE requirements, which were sufficient to meet Louisiana’s requirements for the years 2002 to 2009. While respondent’s Louisiana MCLE requirements were met, such does not retroactively transform his inactive status to active for that period of time and, thereby, cure the charges raised by the ODC.

When respondent contacted the LSBA in 2009, he also learned that, to his surprise (and he claims without notice of any kind), he had been removed entirely from the rolls of the LSBA. He was advised of actions necessary to remedy the problem, and he did so at the first opportunity. His concern was that the failure to provide him with proper notice was a failure of constitutional due process protections. Apparently, what occurred was that the notification, if sent at all, was sent to an incorrect address. The record is devoid of what actually occurred, and no documents from the LSBA were introduced.

The committee declined to adopt the ODC’s suggestion that respondent knew he was ineligible to practice law because of respondent’s valid concerns regarding the actions of (or the failure to act by) the bureaucracy of the LSBA. The committee was not willing to penalize respondent for what may have been an unverified clerical error. However, even if all actions had been taken correctly (including those by the LSBA), respondent would still have been “inactive” from 2002 to 2009, which includes the period of time when the actions alleged in the instant matter took place. As such, the committee considered respondent’s due process concerns to be of no moment in these proceedings.

When respondent was first contacted by Ms. Scarborough, his status with the LSBA was inactive. Respondent maintains that he acted in good faith and did not | ¡¡understand the limitations of Rule 5.5. He was dealing with his aging father’s emotional, stressful, and very challenging medical condition while attempting to practice law hundreds of miles away from his Georgia clients and office. The committee disagreed with the ODC’s suggestion that respondent’s “failure to show remorse” should be an aggravating factor because respondent’s zealous and emotional insistence that his actions were in good faith is no more an aggravating factor than a criminal defendant’s insistence on his 5th Amendment privilege can be deemed “uncooperative.”

On March 29, 2010, before he became active with the LSBA, respondent sent Ms. Scarborough a bill for his legal services. She declined to pay the bill because respondent had informed her at the beginning of the representation that he was inactive and unable to help her in formal legal proceedings. Respondent filed a collection lawsuit against Ms. Scarborough on August 23, 2010, after he became active with the LSBA. Ms. Scarborough’s counsel in the lawsuit then filed a disciplinary complaint against respondent. There is no dispute that respondent was in an “inactive” status with the LSBA while he represented Ms. Scarborough in 2008.

Based on these facts, the committee determined that respondent rendered legal services in Louisiana while he was not active and, therefore, eligible to practice law in the state. Specifically, respondent provided legal consultation and advice to Ms. Scarborough and negotiated a matter with a third party on her behalf. He attempted to collect a fee for these legal services provided while he was inactive, and his activities constituted the practice of law, in violation of Rule 5.5 of the Rules of Professional Conduct.

In determining the mitigating factors present, the committee noted that respondent has practiced law since 1984 without a blemish, except the instant complaint, on his professional record. The committee further noted that | ^respondent left Louisiana in 1989 because of “a vicious and gruesome murder of family friends in Shreveport, in which he had no part or involvement, but for which he was relentlessly pursued by investigating authorities.” When his law practice became unprofitable as a result of the murder investigation, respondent relocated to Washington State and later to Georgia. The actual murderer confessed in 2006, thereby exonerating respondent.

The committee went on to note that, after respondent returned to Louisiana in 2007, and while under, the family stress of caring for a sick parent and professional stress of satisfying client demands in Georgia, he failed to say no to an old friend in difficult straits when he should have referred her to competent (and active) Louisiana counsel. The committee believes respondent was genuinely seeking to assist an old friend and did so, not to her injury and in no way to deceive or take advantage of her, but to her great benefit and profit.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to two years of probation with the condition that he attend the LSBA’s Ethics School.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation. Respondent specifically objected to the committee’s finding that he violated Rule 5.5. The ODC specifically objected to the recommended sanction as unduly lenient and suggested that a suspension from the practice of law for one year and one day is warranted. Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct to the facts. The record demonstrates 17that respondent violated Rule 5.5 by rendering legal consultation and advice to Ms. Scarborough and by negotiating or transacting with third parties on her behalf at a time when his status with the LSBA was “inactive” and/or “ineligible.”

In his defense, respondent maintains that he was in compliance with Rule 5.5(c)(1), which states:

A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.

However, the record clearly demonstrates that respondent engaged in the practice of law as defined under Rule 5.5(e)(3) prior to the involvement of other counsel on Ms. Scarborough’s behalf. Respondent clearly misunderstood the restrictions placed on inactive and ineligible attorneys and what actually constitutes the practice of law under Rule 5.5(e)(3). Respondent honestly believed that he could negotiate on Ms. Scarborough’s behalf and advise her as long as he did not file any pleadings or otherwise make appearances in court.

The record reveals that there was some confusion regarding respondent’s actual status with the LSBA (whether he was inactive or ineligible) at various | Rtimes and whether he received proper notification from the LSBA regarding his status. However, that is of little significance here because respondent was either one or the other between August 3, 2002 and April 26, 2010 and, therefore, could not have rendered legal services unless he did so pursuant to Rule 5.5(c). Since respondent began performing legal services for Ms. Scarborough in July 2007 (and possibly as early as May 2007) but did not engage the assistance of licensed Louisiana counsel until March or April 2009 (or possibly later), he clearly violated the Rules of Professional Conduct as charged.

The board further determined that respondent negligently violated duties owed to the legal profession by engaging in the practice of law while he was inactive or ineligible to practice in Louisiana and before engaging the assistance of other licensed Louisiana counsel. In aggravation, the board found that respondent has substantial experience in the practice of law (admitted 1984). The board also found the following mitigating factors present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

Turning to the issue of an appropriate sanction, the board cited the case of In re: Fazande, 09-0938 (La.l0/20/09), 23 So.3d 247, wherein the court suspended an attorney from the practice of law for six months, with all but thirty days deferred, followed by one year of supervised probation with conditions, for negligently practicing law while ineligible, in addition to other professional and ethical misconduct. The board noted that Fazande involved additional charges not present in the instant matter and that the several mitigating factors present in Fazande do not appear to be as compelling as those found here.

|nIn light of the above, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to two years of probation with the condition that he attend the LSBA’s Ethics School.

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

DISCUSSION

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

Before we address the merits, we would like to address the apparent confusion regarding respondent’s status with the LSBA between August 3, 2002 and April 26, 2010. Respondent intended to go inactive with the LSBA during this time period by not reporting his Georgia CLE credits to the LSBA. However, the result of his failure to report his Georgia CLE credits to the LSBA was, instead, that he was deemed ineligible to practice law in Louisiana for failing to fulfill MCLE requirements. Additionally, between October 1, 2008 and April 21, 2010, respondent was ineligible to practice law in Louisiana for failing to pay his bar dues and the disciplinary assessment and failing to file his trust account disclosure statement. He claims the latter ineligibility period was due to the LSBA’s failure to mail renewal forms and notices of ineligibility to his correct address. With |inrespect to the instant proceedings, it is irrelevant whether or not respondent was given proper notice of the latter ineligibility period as he was concurrently ineligible to practice law due to his failure to fulfill MCLE requirements, of which he was or should have been aware because he intentionally did not report his Georgia CLE credits to the LSBA.

Turning to the merits, the record of this matter supports a finding that respondent practiced law while ineligible to do so. This misconduct amounts to a violation of the Rules of Professional Conduct as alleged in the formal charges.

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

We agree with the hearing committee and the disciplinary board that respondent acted negligently for two reasons. First, he believed his status with the LSBA was inactive when, in fact, he was actually ineligible to practice law. Second, believing he was inactive, respondent mistakenly thought that his inactivity allowed him to provide limited legal services to Ms. Scarborough. Whatever respondent’s beliefs, his actions amounted to a violation of the Rules of Professional Conduct because he was practicing law while ineligible to do so. Respondent’s actions violated duties owed to his client and the legal profession. It appears that those actions caused no actual harm. However, the potential for harm was significant, and because of this potential, we find suspension is the baseline _J_ysanction in this matter. The record supports the aggravating and mitigating factors found by the disciplinary board.

Turning to the issue of an appropriate sanction, we find guidance, as did the board, from the case of In re: Fazande, 09-0938 (La.10/20/09), 23 So.3d 247. In Fazande, an attorney represented a client while he was ineligible to do so and at the direction of a third party, without the client’s knowledge or consent. We found the attorney’s conduct to be grossly negligent and suspended him from the practice of law for six months, with all but thirty days deferred, followed by one year of supervised probation with the condition that he attend the LSBA’s Ethics School. We also find guidance from the ease of In re: Oldenburg, 09-0991 (La.10/16/09), 19 So.3d 455, wherein an attorney practiced law while ineligible to do so. We determined that the attorney acted knowingly because of his history of short periods of ineligibility for failure to comply with his professional obligations. Additionally, the attorney had a prior disciplinary record. Under these circumstances, we suspended the attorney from the practice of law for six months, with all but thirty days deferred, followed by two years of unsupervised probation with conditions, including attendance at the LSBA’s Ethics School.

Respondent’s misconduct is not as egregious as the misconduct found in Fazande and Oldenburg. As such, we agree with the committee and the board that a fully deferred suspension is appropriate in this matter.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for six months, fully deferred, subject to two years of probation with the condition that he attend the LSBA’s Ethics School.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that James H. JjgCarter, Jr., Louisiana Bar Roll number 8375, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation. As a condition of probation, respondent is ordered to attend the Louisiana State Bar Association’s Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, C.J., dissents in part and assigns reasons.

VICTORY, J., recused.

JOHNSON, C.J.,

dissents in part and assigns reasons.

|, While I agree respondent’s actions violated the Rules of Professional Conduct, I reject the sanctions imposed as too lenient.

       Victory, J. recused.

      . Respondent's status with the Louisiana State Bar Association has been inactive since July 1, 2013.

      . Rule 5.5(e)(3) provides:
      For purposes of this Rule, the practice of law shall include the following activities:
      (i) holding oneself out as an attorney or lawyer authorized to practice law;
      (ii) rendering legal consultation or advice to a client;
      (iii) appearing on behalf of á client in any hearing or proceeding, or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, hearing officer, or governmental body operating in an adjudicative capacity, including submission of pleadings, except as may otherwise be permitted by law;
      (iv) appearing as a representative of the client at a deposition or other discovery matter;
      (v) negotiating or transacting any matter for or on behalf of a client with third parties;
      (vi) otherwise engaging in activities defined by law or Supreme Court decision as constituting the practice of law.


text:
    In re Heidi M. VESSEL.
    No. 2013-B-2277.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent made inappropriate comments to employees of the East Baton Rouge Parish Family Court clerk’s office. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Heidi M. Vessel, Louisiana Bar Roll number 29015, be publicly reprimanded.

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


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 13-PDB-058.
    No. 13-OB-2308.
    Supreme Court of Louisiana.
    Nov. 15, 2013.
   ORDER

On the showing made, we are unable to determine whether the disciplinary board acted arbitrarily, capriciously or unreasonably in approving the dismissal of the complaint against respondent. Supreme Court

Rule XIX, § 30(C). However, given the allegations made by the complainant, we believe the disciplinary board erred in not directing that the matter be investigated further pursuant to Supreme Court Rule XIX, § 30(A), particularly as relates to respondent’s obligations under Rules 1.4 and 1.15 of the Rules of Professional Conduct. Accordingly, this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation pursuant to Supreme Court Rule XIX, § 11(B).

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Brady HARRINGTON.
    No. 12-887.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.
    Michael Harson, District Attorney, Fifteenth Judicial District Court, Ted L. Ayo, Assistant District Attorney, Abbeville, LA, for Appellee, State of Louisiana.
    Beth S. Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Brady Harrington.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

1 ,This matter is consolidated with docket number 12-886. For the reasons set forth in State v. Brady J. Harrington, 12-886 (La.App. 3 Cir. 2/13/13), 129 So.3d 38, Defendant’s conviction and sentence of five years at hard labor for obstruction of justice in violation of La.R.S. 14:130.1 is affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: PAINTER, Judge.

text:
    STATE of Louisiana. v. Christopher K. MAYEUX.
    No. 12-994.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2013.

      J. Reed Walters, District Attorney, Jena, LA, for Appellee, Christopher K. Mayeux.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

| defendant, Christopher K. Mayeaux, appeals his conviction for battery on a police officer and the lack of clarity of his sentence as to credit for time served. For the following reasons, we affirm the conviction and remand for clarification of the amount of credit given for time served.

FACTS

Defendant was an inmate at the LaSalle Correctional Center (LCC) on July 18, 2011. He was involved in a fight with the victim in lockdown cell 103 where Defendant was placed after fighting with deputies in the hallway upon returning from court on that date.

Defendant was charged by bill of information with battery of a police officer while in the custody of the Department of Corrections, a violation of La.R.S. 14:34.2(B)(2). Defendant was arraigned and entered a plea of not. Following trial by jury, Defendant was found guilty and sentenced to serve eighteen months at hard labor without benefit of probation, parole, or suspension of sentence, to run consecutively with any sentence he was serving at the time of the incident. A motion for appeal was filed and granted.

Defendant is now before this court asserting three assignments of error. Defendant contends that the evidence is insufficient to support his conviction, that the trial court erred in its charges to the jury, and that the record is unclear as to what credit he is to receive for time served prior to the imposition of sentence.

| ^DISCUSSION

Error Patent

In accord with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find none.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a reasonable doubt all of the elements of the offense of battery of a police officer while in the custody of the Department of Corrections.

When reviewing the sufficiency of the evidence on appeal, an appellate court considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have determined that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Grajfagnino v. King, 436 So.2d 559 (La.1983). An appellate court will not second guess credibility determinations beyond this sufficiency evaluation insofar as the trial court or jury fulfills the role of the fact finder in weighing the credibility of witnesses. See id. Notwithstanding this standard, the record must indicate that the State satisfied its burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Borne, 11-869, p. 8 (La.App. 3 Cir. 12/7/11), 101 So.3d 46, 51.

In order for the State to obtain a conviction for battery of a police officer, it must prove the elements of the crime beyond a reasonable doubt. Battery of a police officer has three elements: the intentional use of force upon a police officer, without the consent of the officer, when the offender knows or should reasonably know that the victim is a police officer acting within the performance of his duty. LSA-R.S. 14:34.2.

State v. Ceaser, 02-3021, p. 3 (La.10/21/03), 859 So.2d 639, 643. The State was also required to prove that Defendant was “under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or [was] being detained in any jail, prison, [or] correctional facility.” La. R.S. 14:34.2(B)(2).

| ^Sergeant Calvin Deason testified that he was employed at LCC. On July 18, 2011, Defendant returned from court and created a disturbance. As a result of Defendant’s actions, he was restrained by several deputies and sprayed with mace. Defendant then showered, was given clean clothes, seen by the nurse, and taken to lockdown cell 103. Defendant was still upset, cursing, and belligerent.

Sergeant Deason testified that thirty or forty-five minutes after Defendant was placed in lockdown, he reported to a disturbance in lockdown cell 103. Sergeant Deason used the flap in the door to ask Defendant what was wrong. Defendant had settled down and stated that he wanted to speak to someone with rank, and Sergeant Deason told Defendant to back up against the wall. Sergeant Deason then opened the door, with mace in hand, and took a step inside. Sergeant Deason testified that at that time, Defendant came running at him swinging both hands and hit him. Sergeant Deason testified that he then sprayed Defendant with mace, Defendant was again taken to the shower, given clean clothes, and was seen by the nurse. Sergeant Deason stated that the incident was witnessed by Deputies Miller, Posey, and Malloy.

Sergeant Deason suffered a scratch to his shoulder, and his shirt was torn. He testified that he no longer had the shirt, and no photographs were taken of him. Sergeant Deason further testified that the nurse treated his scratch. He testified that it was policy to check an inmate’s fingernails but that he did not recall how long Defendant’s fingernails were.

Sergeant Deason testified that he did not think there were any surveillance cameras in the area where his altercation with Defendant occurred. If there were cameras, he did not request that the video be preserved.

Lieutenant Curtis Buekelew testified that Defendant was a DOC inmate, and that he transported Defendant to court in Grant Parish on July 18, 2011. When | ¿Defendant returned from court, he was upset. Lieutenant Buekelew also described an altercation that occurred when Defendant was brought back to LCC.

Billie Norman, a nurse at LCC, testified that she treated Sergeant Deason on July 18, 2011. She stated that Sergeant Dea-son was treated for bleeding from the left forearm due to a tear or cut that was approximately an inch and a half in length. Norman testified that she treated Sergeant Deason immediately after the altercation that occurred in the hallway. Norman testified that she did not recall treating an injury to Sergeant Deason’s chest, and, if she had, it would have been in her report.

Norman was further questioned as follows:

Q Ms. Norman, are you, are you aware that there was a second altercation.
A There were, there was a second altercation and there was [sic] several altercations with Mr. Mayeux over a period of time. But refreshing my memory on this, I only, I’m going by the records that I wrote on one of the altercations before the two officers were brought to the infirmary.

Norman testified that she did not witness what occurred at the lockdown cell.

Norman testified that she treated a guard involved in the first altercation with Defendant for lacerations that looked like claw marks probably caused by fingernails.

Detective Tracy Clark testified that he was asked to determine if there was any video surveillance in the area where the incident involving Sergeant Deason occurred. Detective Clark was first informed that the area was void of surveillance. However, there was in fact a video camera inside lockdown cell 103. Detective Clark asked for a copy of the video from the date in question. He was subsequently informed that any video had been taped over, if one had existed. On cross-examination, Detective Clark testified that he was informed that there was no video |sof the events occurring when Defendant was removed from a van upon returning to LCC. He was not told that there was no video in the segregation area. Detective Clark testified that videos are taped over after one month.

Defendant testified that he had a prior conviction for simple burglary. On July 18, 2011, Defendant was a DOC inmate and was incarcerated because his parole had been revoked that day for charges that were later dismissed.

Defendant admitted that he was resisting the commands of Lieutenant Buckelew and that he was cursing and screaming. Defendant testified that he was sprayed with mace, put in the shower, sprayed with mace again, put in the shower again, then escorted to a cell. Defendant testified that he still had wet clothes on when he was brought to the cell. Defendant admitted that he was still cursing in the lockdown cell.

Defendant testified that he was asking for clean clothes when Sergeant Deason opened the door and started spraying him with mace. Defendant denied running at Sergeant Deason and attacking him. Defendant then testified that he did not scratch Sergeant Deason and that he bit his fingernails. Defendant testified that he never hit Sergeant Deason.

In his brief to this court, Defendant contends that the pivotal question is whether the State proved beyond a reasonable doubt that he intentionally used force of violence against Sergeant Deason. Defendant notes that he and Sergeant Dea-son presented inconsistent testimony, and that the case turned on the credibility call made by the jury.

Defendant contends that Sergeant Dea-son’s testimony conflicts with that of Defendant and Norman. Defendant notes that Norman testified that she treated Sergeant Deason for a small tear on his forearm after a scuffle in the foyer, and Sergeant Deason testified that he was treated following an incident in the [ filockdown cell for a scratch to his chest/shoulder area. Defendant notes that Sergeant Deason could not explain how the scratch occurred in light of LCC’s routine inspection of inmates’ fingernails. Defendant argues that the testimony of Norman and Sergeant Deason contain irreconcilable conflicts on a central issue in the case. Defendant notes that, although injury is not necessary for battery, Sergeant Dea-son testified that he was scratched on the chest when struck inside the cell while Norman testified that he had a slight tear to his forearm from a scuffle in the foyer.

Defendant additionally notes that, although he had been belligerent and calmed down only long enough to ask to speak to someone with authority and there was a flap in the door through which Sergeant Deason could have spoken to him, Sergeant Deason opened the cell door with mace in hand and with three other officers standing just outside the cell. Defendant then argues that what is left unanswered is why a seasoned correctional officer would open the door of the cell of an inmate who had been belligerent. Defendant asserts that the officer would not have done so. Defendant contends that the State failed to prove he had the requisite intent to commit a battery.

Defendant further notes that the physical evidence, including the surveillance video and Sergeant Deason’s shirt, was not preserved. Additionally, no pictures were taken of Sergeant Deason’s injuries. Furthermore, none of the officers accompanying Sergeant Deason to lockdown cell 103 were called as witnesses at trial. Defendant contends that these items were in the control of the State, and that the State did not produce them. Accordingly, he argues that there is a presumption that the evidence would not have aided the State’s case. In support of this argument, Defendant cites La.R.S. 15:432, which provides:

|7A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth.

The State notes that there was no video surveillance available to either it or Defendant, that there was inconsistent testimony regarding the location of Sergeant Dea-son’s scratch, and that this issue was placed directly before the jury and aggressively argued by both parties. The State points out that the jury had the opportunity to examine the inconsistencies in the case, the unavailability of a videotape, the testimony of Sergeant Deason as well as Defendant, and Defendant’s criminal history. After considering all of the evidence, the jury chose to believe Sergeant Deason. The State asserts that the jury’s determination was rational and is entitled to great weight. Furthermore, viewing the evidence in the light most favorable to the State, it was proven beyond a reasonable doubt that Defendant committed the charged offense.

In State v. Farhood, 02-490, p. 9 (La. App. 5 Cir. 3/25/03), 844 So.2d 217, 224, the fifth circuit stated that:

The clear language of the statute indicates that the party against whom the presumption is sought must be in control of the witness and fail to call him, in order for the presumption to arise. See, State in the Interest of J.G., 94-194 (La. App. 5 Cir. 7/26/94), 641 So.2d 633, 636. If the witness is equally available to both sides, the presumption does not arise. State v. Simms, 381 So.2d 472, 476 (La.1980). In such cases, this Court has found that the defendant was not entitled to an instruction on the State’s failure to call a witness. State v. Jackson, 527 So.2d 1039, 1043 (La.App. 5 Cir.1988).

[sIn State v. Humphries, 463 So.2d 804, 807 (La.App. 2 Cir.1985) (footnote omitted), the second circuit stated that:

Even if the state’s failure to call these witnesses would have entitled defendant to the presumption, she is not entitled to its recognition on appeal because there is no indication in the record, as designated for appeal, that she attempted to get the presumption before the jury. If she could have established the state’s control of the witnesses she could have submitted the presumption to the jury by requesting a special instruction. See LSA-C.Cr.P. art. 807; State v. Amaud, 412 So.2d 1013 (La.1982); State v. Joseph, 407 So.2d 712 (La.1981). Defendant apparently did not request such a charge. An omission in the jury charges which the trial judge was not requested to supply provides no grounds for complaint on appeal. State v. Brown, 242 La. 384,136 So.2d 394 (1962).

In State v. Barfield, 11-515 (La.App. 3 Cir. 11/23/11), 81 So.3d 760, writ denied, 11-2818 (La.4/13/12), 85 So.3d 1246, the defendant was under house arrest and equipped with an ankle bracelet. On May 16, 2010, the defendant left home. Subsequently, police located the ankle bracelet but did not retain the monitoring device’s rubber strap, which had been cut through. Additionally, police viewed video from the store where the ankle bracelet had been left and identified the defendant as one of the individuals depicted on the video recording. Police later requested the video footage and were informed that the pertinent footage had been recorded over. The defendant was convicted of simple escape.

On appeal, the defendant alleged that the trial court erred in refusing to include his requested jury instruction that, as a legal presumption, any evidence under the control of the State was not entered into evidence because it would not have aided the State in the prosecution of the case. The defendant alleged that the ankle strap to the monitoring device and video from the store were both within the control of the State. In its ruling, this court stated the following:

In the instant case, the State had an opportunity, though brief, to preserve the ankle strap and the surveillance video by taking them into its custody; however, as in [State u] Ballay [, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, writ denied, 00-908 (La.4/20/01), 790 So.2d_y.3,] and [State v.] Amaud [, 412 So.2d 1013 (La.1982) ], the State failed to do so. As the State did not have custody or control of the evidence, the presumption set forth in La.R.S. 15:432 did not apply. Thus, the trial court did not err in refusing to include the legal presumption in its jury instructions.

Id. at 773.

Based on these cases, Defendant is not entitled to a presumption regarding evidence or witnesses that Defendant asserts were under the control of the State. The State never had control of any video or Sergeant Deason’s shirt. Additionally, there is no proof in the record that the witnesses at issue were not equally available to both sides.

The only element of battery of a police officer while in the custody of the Department of Corrections contested by Defendant is whether he intentionally used force or violence against Sergeant Deason. Sergeant Deason testified that Defendant hit him when he entered lockdown cell 103, and Defendant denied this allegation. In State v. Helou, 02-2302, p. 9 (La.10/23/03), 857 So.2d 1024, 1030, the supreme court found that the defendant’s act of striking the victim in the nose with his fist constituted the use of force or violence upon the victim.

“The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’ ” La.R.S. 14:11. Battery of a police officer is defined as “a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.” La.R.S. 14:34.2(A)(1). Battery is defined, in pertinent part, as “the intentional use of force or violence upon the person of another.” La.R.S. 14:33. Battery of a police officer is a general intent crime. La.R.S. 14:10(2). “In general | mintent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. State v. Howard, 94-23 (La.6/3/94), 638 So.2d 216.” State v. Bourque, 09-1092, p. 7 (La.4/7/10), 33 So.3d 1092, 1097, unit denied, 10-1062 (La.12/10/10), 51 So.3d 722.

Regardless of discrepancies regarding the location and timing of any injury to Sergeant Deason, the jury heard the testimony of Sergeant Deason, Norman, and Defendant. Sergeant Deason’s testimony was not rife with internal contradiction, and the jury chose to believe his testimony. This court will not second-guess that credibility determination. Furthermore, in State v. Bernard, 39,579, p. 6 (La.App. 2 Cir. 4/6/05), 899 So.2d 818, 822, the second circuit stated that the testimony of the victim alone was sufficient to support the defendant’s conviction of second degree battery.

Viewing the evidence in the light most favorable to the prosecution, the State proved beyond a reasonable doubt that Defendant hit Sergeant Deason. Accordingly, Defendant’s conviction for battery of a police officer while in the custody of the Department of Corrections should be affirmed.

Jury Charges

In his second assignment of error, Defendant contends that the trial court erred in its charges to the jury, arguing that the charges were insufficient to instruct the jury of its duty in this case and permitted it to consider arbitrary factors in its determination of both guilt and credibility of the witnesses, resulting in a violation of his right to due process and to a jury trial.

Defendant alleges that the trial court failed to define the term reasonable doubt, which allowed the jurors to convict him despite possessing a higher degree of doubt than was constitutionally required for acquittal. The following instruction was given to the jury regarding reasonable doubt:

|nA person accused of a crime is presumed by law to be innocent until each and every element of the crime necessary to constitute guilt is proven beyond a reasonable doubt. The defendant is not required to prove his innocence and therefore, he begins the trial with a clean slate. The burden of proof is upon the State. In considering the evidence you must given [sic] the defendant the benefit of every reasonable doubt arising out of the evidence or of the lack of evidence.

Defendant asserts that the jury was not given sufficient information to properly render a verdict in this case, depriving him of his right to due process and a jury trial. Defendant asserts that this court should not speculate as to whether the jury understood what was meant by reasonable doubt, which would be improper according to Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,124 L.Ed.2d 182 (1993).

Defendant also alleges that the jury was given incorrect and insufficient instructions on how it should weigh the testimony of witnesses. The following instruction was given to the jury:

As the sole judges of the credibility of the witnesses, and the weight them testimony deserves, you should carefully consider the testimony given and the circumstances under which the witnesses testify. In evaluating the testimony of a witness, you may consider the ability and opportunity to observe and to remember the matter about which the witness testified, the manner while testifying, any reasons the witness may have for testifying in favor or against the State, or the defendant, and the extent to which the evidence is supported or contradicted by other evidence. The testimony of a witness may be discredited by showing that the witness may benefit in some way by the defendant’s conviction or acquittal, that the witness is biased or prejudiced, or that the witness has some other reasons or motive for not telling the truth. These are circumstances you may consider along with all other evidence in deciding whether or not you believe any or all of the testimony of a witness. Inconsistencies or discrepancies in the testimony of a witness or between different witnesses! ] may or may not cause you to discredit such testimony. Two or more persons witnessing an incident may see or hear it differently. Innocent miscollection, like the failure of recollection, is not an \12uncommon experience. In weighing the effect of any discrepancy, always consider whether it pertains to a matter of importance or to an unimportant detail and whether it results from innocent error or intention [sic] falsehood.

(Emphasis added.)

Defendant further alleges that the trial court failed to instruct the jury as to the legal presumption set forth in La.R.S. 15:432, that “evidence under the control of a party and not produced by him was not produced because it would not have aided him.” Defendant asserts that most of the cases reported under La.R.S. 15:432 involve jury instructions concerning situations where witnesses were equally available to both parties. Defendant then asserts that the record does not support a conclusion that the defense was made aware of the presence of the other three deputies outside lockdown cell 103 until Sergeant Deason’s trial testimony

The State addresses Defendant’s claims and also asserts that Defendant failed to raise these issues at trial or make contemporaneous objections.

Reasonable Doubt

Louisiana Code of Criminal Procedure Article 804 provides, in part:

A. In all cases the court shall charge the jury that:
(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.
The court may, but is not required to, define “the presumption of innocence” or “reasonable doubt” or give any other or further charge upon the same than that contained in this article.

[isln State v. Hart, 96-697 (La.3/7/97), 691 So.2d 651, the defendant complained about three of the trial court’s charges to the jury at the conclusion of the guilty phase of his trial, including the instruction regarding reasonable doubt. The supreme court noted that defense counsel failed to lodge a contemporaneous objection to any of the trial court’s jury instructions and that it would not address the defendant’s claim. Id. at 660. See also State v. Gui-dry, 94-678 (La.App. 3 Cir. 12/7/94), 647 So.2d 502; State v. Stewart, 92-2536 (La. App. 4 Cir. 12/15/94), 648 So.2d 15, unit denied, 95-2423 (La.3/21/97), 691 So.2d 75; State v. Isaacs, 95-173 (La.App. 5 Cir. 6/28/95), 658 So.2d 29, writ denied, 95-1948 (La.1/5/96), 666 So.2d 299; State v. Davis, 97-1827 (La.App. 4 Cir. 3/10/99), 732 So.2d 79.

In State v. Smith, 46,343 (La.App. 2 Cir. 6/22/11), 71 So.3d 485, writ denied, 11-1646 (La. 1/13/12), 77 So.3d 950, the defendant argued that the trial court gave an improper jury instruction on the reasonable doubt standard, thereby denying him his right to a fair trial. In its opinion, the second circuit stated that:

Unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. LSA-C.Cr.P. art. 801(C). Although the procedural law set forth in LSA-C.Cr.P. art. 801 states that the failure to assert a timely objection waives the issue on appeal, the jurisprudence has carved out an exception to this rule where such alleged trial errors raise overriding due process considerations. State v. Williamson, 389 So.2d 1328 (La.1980); State v. Lowery, 33,905 (La.App.2d Cir.2/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978. To determine whether such an overriding consideration is implicated, it is necessary to examine the instruction in light of the requirements of the Due Process Clause. In Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243,127 L.Ed.2d 583 (1994), the United States Supreme Court explained:
The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s |14burden of proof. Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.

Id. at 487-88.

The trial court is not required to define reasonable doubt. La.Code Crim.P. art. 804; Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1289, 127 L.Ed.2d 583 (1994). Additionally, defense counsel failed to object to the instructions given or the lack thereof. Accordingly, this portion of Defendant’s assignment of error was not preserved for appeal.

Weight of Witnesses Testimony

Defense counsel failed to object to the jury instructions. Thus, any claim concerning the instruction about the weight to be given the testimony of witnesses was not preserved for appeal.

Presumption

Based on the ruling in Hum-phries, 468 So.2d 804, that an omission in the jury charges which the trial judge was not requested to supply provides no grounds for complaint on appeal, the trial court’s failure to instruct the jury regarding the presumption set forth in La.R.S. 15:432 provides no grounds for complaint, because Defendant did not request such an instruction.

For the reasons asserted herein, this assignment of error presents nothing for review.

Credit for Time Served

11BIn his third assignment of error, Defendant contends that the record is unclear and that the minutes of court are incorrect as to what credit he is to receive for time served prior to the imposition of sentence.

The trial court sentenced Defendant to serve eighteen months at hard labor without benefit of probation, parole, or suspension of sentence and stated the following:

They commence from the date that you were taken into custody or the date of trial. You had given no credit for no time served priori [sic] to the date of, the date you were taken into custody after the, after the hearing in this matter.... The sentence imposed upon you today shall run consecutively to any sentence Mr. Mayeux was serving at the time of the incident. So, that’s [sic] basically means, shows that it’s going to be, run from the date you bond [sic] out. You bonded out upon the expiration of the revoked sentence and the sentence imposed shall commence upon being taken in custody as I indicated earlier.

The minutes of sentencing state that:

The defendant was ordered to serve eighteen (18) months at hard labor with the Department of Corrections without the benefit of probation, parole or suspension of sentence. The defendant will not receive credit for time served from date of conviction through sentencing. ... The sentence is to run consecutive with any other sentence he is currently serving.

Louisiana Code of Criminal Procedure Article 880 provides that:

A. A defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.
B. A defendant shall receive credit only for time in actual custody and only once during any calendar month when consecutive sentences are imposed.
C. No defendant shall receive credit for any time served prior to the commission of the crime.
D. A defendant shall not receive credit for time served under home incarceration.
E. A defendant shall not receive overlapping jail credit, except in the instance of concurrent sentences and then only for time spent in jail on the instant felony.

| ^Defendant asserts that both the statement as to credit for time served and as to which sentence his eighteen-month sentence was to run consecutively to are incorrect. Defendant contends that the record does not show that, at the time of sentence, he was serving any sentence. Further, the trial court ordered the sentence to run consecutively to any sentence Defendant was serving at the time of the incident not at the time of sentence. Defendant also asserts that the trial court’s explanation limited him from receiving credit for time served on his sentence which was also credited to his sentence served on the parole revocation. Defendant asserts that the minutes of court should be amended to correctly reflect the sentence ordered by the trial court.

The State contends that the calculation of time is not before this court, as there was no objection made in the trial court. Additionally, sentencing calculations may be addressed administratively with the Department of Corrections. The State admits that there is some ambiguity in the sentencing transcript when read with the minutes and agrees that Defendant should be “given credit for all time served spent in actual custody prior to the imposition of sentence, but should only be given credit once for time spent for both the instant ease and the prior felony offense.”

The minutes of sentencing do not accurately reflect what occurred at the sentencing hearing. We would normally order the trial court to amend the minutes of sentencing to accurately reflect the sentencing transcript; however, the sentencing transcript is unclear as to the trial court’s intent regarding credit for time served. Thus, this matter is be remanded to the trial court for clarification of whether Defendant was to be given credit for time served and whether the sentence of eighteen months was to run consecutively with any sentence Defendant was serving at the time of sentence or at the time of the incident.

^CONCLUSION

Defendant’s conviction and sentence are affirmed. However, the matter is remanded for clarification of the sentence imposed.

AFFIRMED AND REMANDED FOR CLARIFICATION OF SENTENCE.

      . In Sullivan, the Supreme Court held that an erroneous jury instruction on the nature of reasonable doubt essentially identical to the one given in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), was not subject to harmless error analysis. In Cage, the Supreme Court found that an instruction equating reasonable doubt with a "grave uncertainty” and an "actual substantial doubt” and stating that what was required was a "moral certainty” that the defendant was guilty, was constitutionally defective.

      . In Williamson, 389 So.2d 1328, the jury was given the wrong definition of the charged crime, and the supreme court stated it would address the issue despite the lack of an objection. However, in State v. Belgard, 410 So.2d 720, 727 (La. 1982), the supreme court found the defendant must have objected to the jury charge at trial to preserve a claim of erroneous instruction on the elements of attempted second degree murder. See also State v. Thomas, 427 So.2d 428 (La. 1982); State v. Hongo, 96-2060 (La. 12/02/97), 706 So.2d 419; State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434; State v. Brown, 07-388 (La.App. 3 Cir. 10/3/07), 966 So.2d 1138, writ denied, 07-2159 (La.3/28/08), 978 So.2d 304, and writ denied, 08-326 (La.3/28/08), 978 So.2d 312.