text:
    Johnny Eric HOLDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4917.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Johnny Holder appeals an order denying him a trial on the issue of whether he should be released from involuntary civil commitment. The trial court found that he did not establish probable cause to believe that his condition has so changed that it is safe for him to be at large. We disagree and reverse.

Holder was committed to the Florida Civil Commitment Center (FCCC) in July of 2007 pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act. His commitment was predicated on two incidents. The first occurred when he was twelve years old and involved a three-year-old girl; the second occurred when he was sixteen and involved “consensual” sex with a thirteen-year-old girl. Holder is now twenty-five years old.

Holder was initially evaluated in 2007 by the Department of Children and Families’ multidisciplinary team. He was diagnosed with paraphilia not otherwise specified, cannabis abuse, conduct disorder, antisocial personality disorder, depressive disorder, and borderline intellectual functioning. The doctors who evaluated Holder concluded that he met the commitment criteria for sexually violent predators. On June 22, 2007, a jury found Holder to be a sexually violent predator and he was civilly committed to a treatment facility.

In 2012, the State sent Holder an annual notice of right to clinical examination and right to petition for release, as required by statute. § 394.918(l)-(2), Fla. Stat. (1999). It attached the FCCC’s annual review report, also required by statute. Id. The report contained a discussion of Holder’s participation in various treatment programs — much of which was positive — but noted that Holder had yet to complete the first phase of a comprehensive treatment program. It also reported that he received seven incident reports related to disciplinary behavioral management during the prior year. The report concluded: Holder “has yet to fully address relevant treatment issues (i.e.: sexual interests, distorted attitudes and behaviors, socio-affec-tive issues and self-management) that are associated with his offending history. Therefore, it is recommended that Mr. Holder continue treatment at the Florida Civil Commitment Center.”

In support of release, Holder submitted the reports of two psychologists, Dr. Peter Bursten and Dr. Gregory DeClue. These reports both concluded that Holder did not continue to meet the criteria for civil commitment as a sexually violent predator. Dr. Bursten’s report first noted that Holder’s second offense involved consensual sex with someone of comparable age, which did not reflect sexual deviance. Thus, Holder had not displayed sexual deviance for over ten years. Second, it noted that Holder was administered a penile plethys-mograph and a polygraph in 2008, the results of which indicated that Holder did not maintain any patterns of sexual deviance. Given this information, Dr. Bur-sten’s report found that there was ample evidence to support that Holder’s “mental abnormality” and diagnosis of paraphilia had changed and that he no longer maintained patterns of sexual deviance. The report concluded: “In this case, it is of utmost importance to differentiate between (general) behavioral difficulties and the presence of a Sexual Disorder that renders an individual LIKELY to sexually re-offend.”

Dr. DeClue’s report was more detailed. It cited three reasons for its conclusion that Holder’s condition had significantly changed. First, it noted that Holder could no longer be diagnosed with paraphilia because he exhibited no signs of paraphilic urges or fantasies leading to sexual arousal. Second, the criteria for applying the STATIC — 99 risk assessment — an actuarial test used to determine the likelihood that a sex offender will reoffend — to juvenile offenders had changed since Holder’s commitment. Under the revised rules, Holder’s likelihood of recidivism within five years was less than 13%, whereas it was 39% in 2007. Dr. DeClue appended statistical studies to the report to support these findings. Third, there was no evidence Holder ever engaged in sexually deviant behavior or fantasies during his adult life; this exhibited a change in behavior since his admission. Dr. DeClue’s report also noted that Holder had completed various treatment programs and had passed four GED examinations. The report concluded that “available evidence clearly shows that Johnny Holder’s mental abnormality or personality disorder has so changed that it is safe for him to be at large.”

The trial court considered the evidence and found that probable cause did not exist to believe that Holder’s condition had so changed that it was safe for him to be at large and that he would not engage in acts of sexual violence if released. Thus, it ordered that Holder “shall remain in custody of the Department of Children and Families in a secure facility.” In so concluding, the trial court repeated the findings of Dr. DePass’s report, which it apparently accepted as true. It dismissed Holder’s reports, stating, “[t]he Court finds that the Defense expert’s reports are insufficient to demonstrate probable cause.”

The trial court’s determination of the legal issue of probable cause is subject to a de novo standard of review. Chukes v. State, 90 So.3d 950, 954 (Fla. 5th DCA 2012) (citing State v. Glatzmayer, 789 So.2d 297 (Fla.2001)).

The Involuntary Civil Commitment of Sexually Violent Predators Act (“the Act”) provides the procedures for civilly committing sexually violent predators. See generally §§ 394.910-.932, Fla. Stat. (1999). The Act requires annual mental examinations of persons committed under the Act, and the reports from those examinations are to be provided to the circuit court. Id. § 394.918(1). Committed persons may also retain a qualified professional to examine them, id., and may petition the court for release, id. § 394.918(2). The court is then to “hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged.” Id. § 394.918(3). If the court determines that probable cause exists, “the court shall set a trial before the court on the issue.” Id.

At the limited probable cause hearing, the petitioner bears the burden of proof. Westerheide v. State, 888 So.2d 702, 705 (Fla. 5th DCA 2004). However, in making a probable cause determination, the court must assume the petitioner’s evidence is true. Chukes, 90 So.3d at 954 (citing In re Commitment of Allen, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006)). The trial court must consider only the evidence presented by the petitioner; it must not make credibility determinations or weigh the petitioner’s evidence against that presented by the State. Chukes, 90 So.3d at 954 (citing Allen, 927 So.2d at 1074; Westerheide, 888 So.2d at 706). The trial court’s task is “not to make a final determination on the conflicting evidence,” but rather, it is to “determine whether there is sufficient evidence to cause a person of ordinary prudence to conscientiously entertain a reasonable belief that the committed person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” Chukes, 90 So.3d at 954 (citation omitted).

Three of our recent opinions are instructive. In Chukes, the evidence presented at the hearing consisted of the FCCC’s annual review report and a report from Chukes’s independent examiner, Dr. Carr. Id. at 950. The FCCC’s report found that Chukes was progressing in his treatment, but that he would benefit from consistently applying himself toward obtaining his GED and from further treatment. Id. It also found that Chukes “ha[d] yet to fully address relevant treatment issues that are associated with his offending history,” and recommended that he continue treatment in the FCCC. Id. Dr. Carr’s report, on the other hand, found that staying at the FCCC any longer would be unproductive for Chukes and concluded that Chukes was unlikely to engage in acts of sexual violence if released. Id. The report noted that Chukes’s offense occurred when he was fourteen to sixteen years old, his offense was not predatory, no force or threats were used on the victim, and the results of the STATIC-99 test reflected that he had a low risk of reoffending. Id. at 955. It further noted that Chukes passed a polygraph, which included questions concerning deviant thoughts, and that he had demonstrated no evidence of ongoing antisocial behavior. Id. Lastly, Dr. Carr wrote: “It is worth noting that ... the risk instrument used in these evaluations has changed remarkably [since Chukes’s commitment], resulting in lower predictions of recidivism. In my opinion, this individual would be highly unlikely to be referred for commitment if his initial evaluation occurred at this time.” Id. The trial court determined that Chukes had not established probable cause; we reversed, holding that Chukes presented sufficient evidence at the limited probable cause hearing to be entitled to a full trial. Id. at 956.

In Spivey v. State, 100 So.3d 1254 (Fla. 5th DCA 2012), the evidence presented at the limited probable cause hearing was the FCCC’s annual report and a report by Spivey’s independent psychologist, Dr. Le-porowsky. Id. at 1256. The FCCC’s report found that Spivey was progressing, but that he would benefit from further treatment and recommended that he continue treatment at the FCCC. Id. at 1257. Dr. Leporowsky’s report found that Spi-vey’s behavior had changed in positive ways, he had passed two polygraphs, and he had developed a “Relapse Prevention Plan.” Id. It concluded that Spivey was unlikely to engage in acts of exhibitionist behavior if discharged and recommended he be released. Id. At the hearing, the court commented on the fact that Spivey had not completed his treatment program. Id. The trial court concluded that probable cause did not exist. We reversed, holding that Dr. Leporowsky’s report was adequate to establish probable cause. We noted that the Act “contains no requirement that the committed person must complete the treatment program established by the Florida Civil Commitment Center.” Id. at 1256.

Lastly, in Sherman v. State, 107 So.3d 1225 (Fla. 5th DCA 2018), Sherman presented the reports of two mental health experts, Dr. Carr and Dr. Cauley. Dr. Carr found that there was no evidence of “ongoing sexually deviant thoughts or behavior” during Sherman’s ten years of civil commitment, and that Sherman showed no appreciable “ongoing antisocial behavior.” Id. at 1226. Dr. Carr indicated that based on the updated STATIC-99, Sherman would not qualify for civil commitment. Id. Dr. Carr also found that Sherman’s failure to participate in a specific sex-offender treatment group was offset by Sherman’s participation in various other programs, including Moral Recognition Therapy (MRT), religious studies, Alcoholics Anonymous, and also by his acquisition of a GED. Id. Dr. Cauley’s report explained that the MRT Sherman completed “taught him to recognize criminal thinking and to develop new, noncriminal coping and interacting skills.” Id. Both reports concluded that Sherman’s condition had changed and that he would no longer be a menace to society. Id. The trial court held that Sherman had not presented sufficient evidence to establish probable cause. Again, we reversed, holding that the two reports were sufficient evidence, under Chukes and Spivey, to warrant a trial. Id.

As noted, Holder submitted two psychologists’ reports, one from Dr. Peter Bursten and one from Dr. Gregory De-Clue. Those reports were sufficient to establish probable cause to believe that Holder’s condition has so changed that it is safe for him to be at large and he would not engage in acts of sexual violence if discharged. In accepting the report that recommended continued commitment and rejecting those that recommended release, the trial court improperly engaged in a weighing of the conflicting reports. Predicting future behavior is an inexact science at best; however, Holder has met his burden and must be allowed his day. in court.

REVERSED AND REMANDED.

GRIFFIN and LAWSON, JJ., concur.

      . §§ 394.910-932, Fla. Stat. (1999).

      . Florida law establishes that consent is not a defense to lewd or lascivious offenses committed upon or in the presence of persons less than sixteen years of age. See § 800.04(2), Fla. Stat. (2008) ("Neither the victim’s lack of chastity nor the victim's consent is a defense to the crimes proscribed by this section.”).

      . The State has argued that Holder should not be released because he has not completed his treatment. For the reason stated in Spivey, this argument is unpersuasive. The standard is not whether the offender has completed treatment; rather, it is whether his condition has changed such that it is safe for him to be at large.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeanna M. SMILEY, Appellant, v. John Kenneth SMILEY, Appellee.
    No. 5D13-1947.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Jeanna M. Smiley, Deland, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jeanna M. Smiley appeals from an order denying a contempt motion alleging violations of a superseded 2005 child custody and contact order by her former husband. Because the order which Appellant alleges her former husband violated was modified in 2010 to give the former husband sole custody because of Appellant’s incarceration, the trial court properly denied the contempt motion. The issues that Appellant seeks to argue on appeal will necessarily be addressed when the trial court hears Appellant’s petition to modify the 2010 order, which is currently pending below.

AFFIRMED.

TORPY, C.J., SAWAYA and LAWSON, JJ., concur.


text:
    Helga RONCO and Thomas Modic, Appellant, v. SUNTRUST MORTGAGE, INC., Appellee.
    No. 5D12-4513.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.130(a)(3)(e)(i); Koniecpolski v. Stelnicki, 571 So.2d 577 (Fla. 5th DCA 1990) (explaining that appellate court lacks jurisdiction to review order denying motion to quash service of process via publication where there is no claim by the appellant that personal jurisdiction was ever acquired).

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Andrew McCOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4881.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Andrew McComas, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny the motion for rehearing en banc but sua sponte grant rehearing, withdraw our prior opinion, and substitute the following in its place.

McComas was convicted of armed burglary of a dwelling, dealing in stolen property, grand theft (of several items), possession of a firearm by a convicted felon, and grand theft of a firearm. For the armed burglary of a dwelling conviction, McCo-mas was sentenced to twenty years in prison with a ten-year minimum mandatory as a habitual felony offender. He was given concurrent prison sentences of less duration for all of the other convictions.

The dealing in stolen property conviction involved the sale of the firearm that was the subject of one of the grand theft charges, and both crimes were part of one scheme or course of conduct. In such instances, section 812.025, Florida Statutes (2011), prohibits convictions for both grand theft and dealing in stolen property. The State concedes in its response to the Motion for Rehearing that it was error to convict McComas of both offenses. In Haywood v. State, 73 So.3d 824, 825 (Fla. 5th DCA 2011), this court held that the less serious conviction for grand theft must be reversed. See also Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981). Accordingly, we reverse the conviction and sentence (five years in prison) for grand theft involving theft of the firearm and remand this case to the trial court to correct the judgment. The convictions and sentences for the other offenses previously mentioned are affirmed.

AFFIRMED in part, REVERSED in part; REMANDED.

SAWAYA, COHEN and BERGER, JJ, concur.


author: ORFINGER, J.

text:
    AEGIS, LLC., etc., Appellant, v. Mohamed MAWJI, Fatema Mawji, et al., Appellees.
    No. 5D13-1645.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.

      Eric C. Boughman, of Pohl & Short, P.A., Winter Park, for Appellant.
    No Appearance for Appellees.
   ORFINGER, J.

Aegis, LLC (“Aegis”) appeals the trial court’s order dismissing its lawsuit against Mohamed Mawji, Fatema Mawji, Gulam-abbas Mawji, and eAegis, Inc. (collectively, “Mawji”) for lack of prosecution. We reverse.

Aegis filed its case in July 2010. Substantial record activity occurred through November 2011. The next record activity did not occur until September 2012, when Aegis filed its designations of email addresses. Despite these filings, in December 2012, Mawji filed its motion to dismiss for failure to prosecute. Mawji’s motion cited Florida Rule of Civil Procedure 1.420(e), quoting the pre-2006 version of the rule, which states:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person ... unless ... a party shows good cause ... why the action should remain pending....

This rule was substantially revised, effective January 1, 2006. The current rule provides:

In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months ... any interested person ... the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice ... the action shall be dismissed ... unless a party shows good cause....

Fla. R. Civ. P. 1.420(e) (2013).

The notice required by the rule did not precede Mawji’s motion to dismiss. Further, while Mawji’s motion noted that Aegis filed papers with the court in September 2012, it asserted that these were “passive” papers not designed to advance the case, citing Metropolitan Dade County v. Hall, 784 So.2d 1087 (Fla.2001). Following a hearing, the trial court entered an unelaborated order dismissing the action for failure to prosecute.

Neither Mawji’s motion nor the trial court’s order correctly applied the appropriate version of rule 1.420(e) or the decisional law that has developed since the rule was revised. Mawji did not provide the required sixty-day notice, nor did they, or the trial court, recognize at least three instances of record activity preceding dismissal. Whether such filings were active or passive is irrelevant under the bright-line test established by the supreme court in Wilson v. Salomon, 923 So.2d 363 (Fla.2005). Any filing of record during the applicable time frame is sufficient to preclude dismissal without requiring the court find that the filing is intended to affirmatively move the case toward resolution on the merits. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 791 (Fla.2011). The revised rule was intended to establish “a bright-line test that will ordinarily require only a cursory review of the record by the trial court.... [T]his bright-line rule [is] appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active.” Wilson, 923 So.2d at 368. That did not occur here.

The motion to dismiss for lack of prosecution lacked merit and the order dismissing the case must be reversed.

REVERSED.

BERGER and WALLIS, JJ., concur.

      . If Mawji’s counsel had bothered to check, counsel would have easily discovered that this case has been abrogated. See London v. Baxter Healthcare Corp., 965 So.2d 307 (Fla. 3d DCA 2007) (recognizing abrogation). It is puzzling why Mawji’s counsel quoted an outdated rule and abrogated case law. At the least, this certainly calls into question counsel’s research skills, and, perhaps, demonstrates an effort to mislead the trial court.


text:
    Michael D. CREWS, Secretary, Department of Corrections, Petitioner, v. Raymond MALARA, Respondent.
    No. 1D13-0673.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.

      Pamela Jo Bondi, Attorney General; Susan A. Maher and Jamie M. Braun, Assistant Attorneys General, Tallahassee, for Petitioner.
    Raymond Malara, pro se, Respondent.
   PER CURIAM.

This petition for writ of certiorari seeks review of an order of the circuit court which granted a petition for writ of mandamus which challenged a prison disciplinary action. We grant the petition.

Inmate Malara exhausted his administrative remedies as to a prison disciplinary action. His final appeal to the Secretary of the Department of Corrections (DOC) was denied and filed with the agency clerk on March 5, 2010. Malara filed a petition for writ of mandamus in the circuit court which had a service date of April 5, 2010. This would have been within the 30-day time limit of section 95.11(8), Florida Statutes; however, the date stamp on the face of the petition indicated that it was provided to prison officials on April 6, 2010, which would have been one day late. The date stamp contains Malara’s initials and the initials of a second person, presumably a DOC employee. DOC filed a motion to dismiss in the circuit court arguing that Malara’s petition for writ of mandamus was filed outside the 30-day time limit of section 95.11(8). The circuit court denied the motion to dismiss stating that it was constrained by the holding in Thompson v. State, 761 So.2d 324 (Fla.2000), and was required to accept the petition as timely based on the certificate of service. Ultimately, the circuit court granted Malara’s petition for writ of mandamus.

DOC now argues that Malara’s petition for writ of mandamus was untimely filed in the circuit court and subject to dismissal under section 95.11(8), because the official date stamp showing when the petition was provided to prison officials for mailing was dated and initialed by Malara on April 6, 2010, beyond the 30-day statute of limitations of section 95.11(8). We agree.

Section 95.11(8), Florida Statutes (2010), provides that “[a]ny court action challenging prisoner disciplinary proceedings conducted by the Department ... must be commenced within 30 days after final disposition of the prisoner disciplinary proceedings through the administrative grievance process under chapter 33, Florida Administrative Code.” This time period is jurisdictional and, thus, a mandamus petition filed more than 30 days after the final disposition of a disciplinary proceeding must be dismissed. See, e.g., Hale v. McDonough, 970 So.2d 362, 364-65 (Fla. 3d DCA 2007); see also § 95.11(8), Fla. Stat. (2010) (“Any action challenging prisoner disciplinary proceedings shall be barred by the court unless it is commenced within the time period provided by this section.”). In Whitfield v. Department of Corrections, 107 So.3d 1210 (Fla. 1st DCA 2013), an inmate submitted an administrative grievance appeal to the DOC Secretary, but because the appeal was received one day after the applicable deadline, the appeal was returned with “no action” on April 18, 2011. The inmate did not seek judicial review within 30 days of that date, but “embarked on a second round of grievances and appeals within the Department challenging the Secretary’s determination that his original appeal was untimely.” Id. at 1211. When the second round of administrative review was unsuccessful, the inmate filed a petition for writ of mandamus in the circuit court on September 14, 2011. This court held that the inmate’s pursuit of additional, unauthorized administrative grievances did not toll or otherwise extend the jurisdictional time limits for seeking judicial review. Because the inmate’s mandamus petition seeking judicial review of his disciplinary action was not filed within the 30-day statutory time limit, this court held that the circuit court lacked jurisdiction to consider the petition. Id. at 1213.

In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court adopted the “mailbox rule” for incarcerated litigants and held that a petition or notice of appeal filed by pro se inmate was deemed filed at the moment in time when the inmate lost control over the document by entrusting its further delivery or processing to agents of the state. In Haag v. State, 591 So.2d 614 (Fla.1992), the Florida Supreme Court adopted the “mailbox rule.” In Thompson v. State, 761 So.2d 324 (Fla.2000), the inmate was housed at a correctional institution which did not maintain outgoing mail logs. The Florida Supreme Court held that the presumption of timely filing by inmate existed if the legal document contained a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date and that the presumption shifted to the state the burden to prove that the document was not timely placed in prison officials’ hands for mailing. The Thompson court stated that, “[sjhould the State wish to have a means of verifying or objecting to an inmate’s assertion that his or her pleading was actually placed in the hands of prison or jail officials on a particular date, we leave it to the State to create and implement the mechanism for doing so.” Thompson 761 So.2d at 326. The “mailbox rule” for inmate filings is now codified in rule 9.420(a)(2), Florida Rules of Appellate Procedure.

Following Thompson, DOC promulgated rule 33-210.102(8)(g), Florida Administrative Code, which provides in pertinent part:

Inmates shall present all outgoing legal mail unsealed to the mail collection representative to determine, in the presence of the inmate, that the correspondence is legal mail, bears that inmate’s return address and signature, and that it contains no unauthorized items.... [T]he mail collection representative shall stamp the document(s) to be mailed and the inmate’s copy, if provided by the inmate. The date stamp shall be in the following format: “Provided to (name of institution) on (day, month and year blank to insert date) for mailing, by (officer’s initials).” The mail collection representative shall then have the inmate initial the document(s) next to the stamp and have the inmate seal the envelope in the mail collection representative’s presence. For confinement areas, the staff member who picks up the legal mail each day shall stamp the documents, have the inmate place his or her initials next to the stamp, and have the inmate seal the envelope in the staff member’s presence. The use of mail drop boxes for outgoing legal mail is prohibited.

Because DOC has established a procedure for tracking the date that legal mail changes hands for purposes of establishing jurisdictional timeframes in court proceedings as suggested in Thompson, DOC has a mechanism to rebut the presumption that the inmate’s assertion that his pleading was actually placed in the hands of prison or jail officials on a particular date. Malara has presented no evidence to show the DOC’s procedures under the rule did not operate as intended. The date stamp affixed to the face of Malara’s petition as required by rule 33-210.102(8)(g) clearly states that the petition was turned over to prison officials outside the 30-day time limit of section 95.11(8). Malara himself initialed the daté stamp as required by rule 33-210.102(8)(g), so the presumption must be that the date stamp properly reflects the date on which the prisoner turned his petition over for mailing. Because the petition was untimely under section 95.11(8), the petition should have been dismissed by the circuit court.

Accordingly, the final order of the circuit court is quashed and the cause is remanded for further proceedings.

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


text:
    Marwan D. KELLY, Appellant, v. Sabrina HALL, Appellee.
    No. 5D13-541.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2013.
    Joy Ragan, Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and William H. Branch, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hickman v. Milsap, 106 So.3d 513 (Fla. 5th DCA 2013).

SAWAYA and EVANDER, JJ., and THOMAS, P.V., Associate Judge, concur.


text:
    Cory SCHARMAN, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D13-2321.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.

      Cory Scharman, pro se, Appellant.
    Barbara Debelius, Assistant General Counsel, Department of Corrections, for Appellee.
   PER CURIAM.

Cory Scharman appeals the dismissal of his petition for a writ of habeas corpus. We affirm, but without prejudice to the seeking of other relief.

Scharman, an inmate in the custody of the Department of Corrections, filed a ha-beas petition in the circuit court for Holmes County alleging that credit was not properly awarded for time previously served when he was sentenced following revocation of probation. Upon receipt of the petition, the trial court ordered the Department to respond, and thereafter, the Department moved to dismiss the petition for failure to first seek administrative relief. The trial court dismissed the petition on the ground that appellant did not exhaust his administrative remedies.

The relief sought by appellant — an award of credit for time previously served — is not a matter which the Department can provide. Scharman has not argued that the sentencing court did award credit upon revocation but that DOC has not applied such. See Morgan v. State, 99 So.3d 999, 1000 (Fla. 1st DCA 2012) (explaining that, if the defendant is entitled to prison credit, the trial court is required to check the box on the sentencing form indicating that the defendant is entitled to such credit, and once the court does so, the defendant must raise problems with the application of such credit with DOC).

A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. See Bradley v. State, 631 So.2d 1096 (Fla.1994); State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994); § 921.0017, Fla. Stat. A defendant is entitled to such credit even when it results in a “windfall” requiring immediate release. See Cook v. State, 645 So.2d 436, 438 n. 5 (Fla.1994). However, a defendant may be denied such credit when the post-violation sentence is a result of a negotiated plea agreement and a subsequent grant of prison credit would negate the agreed-upon sentence. See Dortly v. State, 107 So.3d 1229 (Fla. 1st DCA 2013); Fulcher v. State, 875 So.2d 647, 649 (Fla. 3d DCA 2004). The failure to award credit for time served prior to release on probation is a matter which may be raised in a motion filed on the authority of rule 3.800(a), Florida Rules of Criminal Procedure. See Dortly, 107 So.3d at 1230.

While the trial court incorrectly dismissed the petition for the failure to exhaust administrative remedies, we affirm the result without prejudice to the seeking of appropriate relief.

AFFIRMED.

BENTON and PADOVANO, JJ„ and SENTERFITT, ELIZABETH, Associate Judge, concur.


text:
    Anthony BARRITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1442.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    Anthony Barritt, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Anthony Barritt, appeals an order summarily denying his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with Appellant that the trial court erred in denying his claim, labeled as ground five in his amended motion, that trial counsel was ineffective in failing to advise him of a double jeopardy defense as to the charge of possession of child pornography with intent to promote and the charges of possession of child pornography. According to Appellant’s motion, he would not have accepted the negotiated plea had he been made aware of the defense. Contrary to the trial court’s conclusion that Appellant was barred from raising this claim based upon his negotiated plea, such a plea does not preclude an ineffective assistance of counsel claim based on counsel’s alleged failure to challenge the charged offenses on double jeopardy grounds. See Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004). We, therefore, reverse the order as to the denial of this claim and remand with instructions that the trial court either attach portions of the record conclusively refuting the claim or conduct an evidentia-ry hearing. We otherwise affirm.

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

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

      . See §§ 827.071(4) and (5), Fla. Stat. (2006). The offenses allegedly occurred on or about January 7, 2007.


author: COHEN, J.

text:
    Kristen K. HEDSTROM, Appellant, v. Debra A. HEDSTROM, Appellee.
    No. 5D12-3878.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.

      Timothy M. Goan of Timothy M. Goan, P.A., Palm Coast, for Appellant.
    Michael Sigman of Sigman, Sigman, No-tari & Sigman, Orlando, for Appellee.
   COHEN, J.

Kristen Hedstrom (“Former Husband”) appeals the supplemental final judgment for modification (“Judgment for Modification”) entered on August 29, 2012, which, among other things, reduced the amount he was required to pay in alimony. Former Husband argues that the trial court erred by: (1) awarding a modified amount of alimony that exceeds his ability to pay; (2) basing the modification for the entire retroactive period on his salary at the time of trial; and (3) not applying the reduced amount of alimony retroactively to the date when his income was first reduced.

Former Husband was married to Debra Hedstrom (“Former Wife”) for twenty-two years. The parties’ marriage was dissolved by a final judgment of dissolution of marriage (“Judgment of Dissolution”) on March 3, 2009, which incorporated a marital settlement agreement (“MSA”) agreed upon by the parties. When the parties entered into the MSA, Former Husband was employed as an engineer, earning a gross yearly salary of just over $180,000. Former Wife, on the other hand, was working part-time in retail, grossing approximately $5,100 per year. Among other things, the Judgment of Dissolution required Former Husband to pay permanent periodic alimony in the amount of $3,750 per month.

In May 2009, Former Husband was laid off from his job. He received a severance package that included sixteen weeks of pay in the amount of $49,987.68. On June 11, 2009, he filed a supplemental petition seeking to reduce his alimony payments. Former Husband remained unemployed from May 21, 2009 until January 20, 2011. During this period, he received unemployment compensation and shareholder distributions from a company that he owned. His 2010 and 2011 tax returns indicated that his annual gross income was $61,020 and $101,022, respectively. Also during this period, Former Husband failed to pay Former Wife the required alimony, thereby accruing a substantial arrearage.

On January 20, 2011, Former Husband was hired by a new company at an annual starting salary of $92,500. Ninety days later, he received a raise to $102,500 annually. Former Husband’s July 2012 financial affidavit reflected that his gross monthly income was $8,539; after statutory deductions, which included alimony payments, his net monthly income was $3,385. The affidavit further indicated that his monthly expenses were $4,566.

According to Former Wife’s July 2012 financial affidavit, she was earning approximately $1,000 per month working part-time in retail. Including the alimony she received, her monthly net income was approximately $2,994, which did not cover her monthly expenses.

A trial was held on Former Husband’s petition for modification in August of 2012. The trial court’s relevant findings in the Judgment for Modification can be summarized as follows. Former Husband was laid off from his job, but he received sixteen weeks’ severance pay in the amount of $49,987.68 and ninety days of job placement assistance, which he utilized. He spent a significant portion of the severance package in a reckless fashion and willfully chose to ignore his court-ordered obligations although he had the ability to pay. In 2010, Former Husband received a shareholder distribution of $74,235 and unemployment compensation in the amount of $30,307.42. Former Husband remained unemployed for approximately seventeen months until his current employer hired him on January 20, 2011. In 2011, Former Husband again received a shareholder distribution, this time in the amount of $9,616.00. Thus, for both 2010 and 2011, the trial court found Former Husband’s income to be approximately $105,000.

The court adjudged that there had been a substantial change in circumstances since the entry of the Judgment of Dissolution: Former Husband’s employment involuntarily changed and his income was substantially reduced from $180,000 per year to $102,500 per year. The court found that Former Husband had the ability to pay $2,750 per month in ongoing permanent alimony and Former Wife had a need for $2,960 per month. However, in implementing the modification, the trial court utilized inconsistent dates. At one point, the trial court indicated that Former Husband was entitled to have his alimony obligations reduced to $2,750 beginning January 1, 2010. At another point, the court ruled that the reduction was effective January 1, 2011.

The court also adjudged that there was an arrearage in the sum of $102,416.75 as of August 3, 2012. In calculating the ar-rearage, the court took into account a twenty-month retroactive reduction. The court ordered Former Husband to pay the arrearage in increments of $275 per month, plus the statutory interest.

On appeal, Former Husband first argues that the trial court erred in awarding an alimony amount that exceeds his ability to pay. A trial court’s alimony award is reviewed for an abuse of discretion. E.g., Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980). Under this standard, a trial court’s decision should stand unless no reasonable judge would agree with the decision. Halikman v. Halikman, 43 So.3d 913, 914 (Fla. 5th DCA 2010). We find no abuse of discretion in the trial court’s award.

Former Husband next argues that the court erred in basing the modification for the entire retroactive period on his salary at the time of trial and not taking into consideration the period of time when he was unemployed. He contends that he earned substantially less in 2010 than he was earning at the time of trial; thus, his alimony obligations should have been reduced to a greater extent in 2010 than 2011 and 2012. He believes that the reason the trial court did not grant a greater reduction was because it overstated his 2010 and 2011 income.

Generally, a party seeking modification of alimony obligations must prove a substantial change in circumstances that is permanent in nature. Ferguson v. Ferguson, 921 So.2d 796, 797 (Fla. 5th DCA 2006). However, a temporary modification is appropriate where the court determines that the payor has suffered a reduction in income through no fault of his own and is acting in good faith to return his income to its previous level. McIntosh v. McIntosh, 915 So.2d 742, 743 (Fla. 5th DCA 2005) (citing Dervishi v. Dervishi, 905 So.2d 932 (Fla. 4th DCA 2005)). We have held that if the party cannot prove a permanent change in circumstances — for example, where he is unemployed but seeking new employment — that party is entitled to a suspension of his payment obligations during the period of unemployment. See Bennett v. Dep’t of Revenue, 664 So.2d 33, 34-35 (Fla. 5th DCA 1995). Alternatively, rather than suspending the payment obligations entirely, the court can reduce them. See Hoffmeyer v. Hoffmeyer, 802 So.2d 1212, 1213 (Fla. 2d DCA 2002) (“The trial court’s ruling to reduce [the] alimony from $1700 to $500 provides an appropriate balance by meeting both parties’ basic financial needs while maintaining an incentive for [the payor] to seek other employment.”).

When calculating arrearage during this temporary period of reduced income, a payor’s complete inability to pay requires cessation of arrearage accrual, not mere abatement of payment. Davis v. Davis, 528 So.2d 34, 35 (Fla. 5th DCA 1988). As we explained in Davis, “[to] cause [the payor] to go deeper and deeper and deeper in debt, as the months of his inability to pay [the alimony] continue, potentially puts him in a hole from which he could never be extricated, save a win at the lottery or other bonanza.” Id. Accordingly, “[w]hen an inability to pay support alimony arises the only proper thing to do is suspend payments until the ability is restored.” Id.

In this case, the record reflects that Former Husband was laid off due to no fault of his own. His income was reduced in or around September 2009. Although he was actively seeking new employment, he was not successful in obtaining employment until January 2011. Between September 2009 and January 2011, he earned substantially less than he had previously earned. Allowing arrearage of $3,750 per month, or even $2,750 per month, to accrue between September 2009 and December 2010 would be to ignore Davis.

Additionally, the trial court found that Former Husband’s income, for both 2010 and 2011, averaged at least $105,000 annually. This finding is not supported by competent, substantial evidence. In reaching this conclusion, the trial court relied on the fact that Former Husband received $30,307.42 in unemployment compensation during his unemployment. Instead, the evidence reflects that Former Husband did not receive any unemployment compensation in 2010. Former Husband’s uncontroverted testimony, corroborated by his tax returns, reflected that he received $1,119 in unemployment per month until November 2009. Thus, we remand for recalculation of the arrearage.

Former Husband’s last argument is that because his income was reduced beginning September 1, 2009, the trial court should have applied the modification retroactively to that date. Retroactivity is the rule rather than the exception. Acosta v. Renta, 84 So.3d 1223, 1226 (Fla. 3d DCA 2012) (citing DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994)). There is a presumption of retroactivity “unless there is a basis for determining that the award should not be retroactive.” Acosta, 84 So.3d at 1226 (citing Thyrre v. Thyrre, 963 So.2d 859, 862 (Fla. 2d DCA 2007)). Trial courts have discretion to modify alimony retroactively to the date the petition for modification was filed or any date subsequent thereto. Acosta, 84 So.3d at 1226 (citing Ray v. Ray, 707 So.2d 358, 360 (Fla. 2d DCA 1998)). However, trial courts abuse their discretion by failing to grant modification retroactively to the date the petition was filed if the reasons justifying modification existed at that time. See Perdue v. Perdue, 506 So.2d 72, 73 (Fla. 5th DCA 1987).

Former Husband’s tax returns demonstrate that his total yearly income did not drop substantially until 2010, when it was reduced from $180,079 to $61,020. Thus, the trial court found that, in 2009, Former Husband “had ability to pay alimony as [originally] ordered.” Similarly, it found that Former Husband “had an obligation to pay the full amount between August 14, 2009 and January 1, 2010,” and that he “has had and continues to have, since Jan. 1, 2010, the ability to pay [a reduced amount].” Given Former Husband’s tax returns, these findings were within the court’s discretion. However, the court then concluded that Former Husband was entitled to a reduction retroactive to January 1, 2011. This ruling contradicts the court’s finding that Former Husband was able to pay the full amount through 2009 and a reduced amount beginning January 1, 2010. We therefore remand this portion of the judgment for clarification or recalculation.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

LAWSON and EVANDER, JJ., concur.

      . Former Husband's initial brief did not clearly state the issue; we have therefore rephrased it.

      . An affidavit prepared by the Orange County Circuit Court Clerk showed Former Husband’s arrearage to be $149,471.20 as of August 8, 2012. However, the parties stipulated that he paid $35,672.36 directly to Former Wife, which was not reflected in the Clerk's calculations.

      . After an income deduction order was entered against Former Husband in December 2011, he began to regularly make alimony payments in the amount of $3,503.93 per month.

      . Former Husband also argues that the trial court failed to make a specific finding regarding his ability to pay. A party cannot complain on appeal about inadequate findings unless the alleged defect was brought to the trial court's attention in a motion for rehearing. Mathieu v. Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004) (citing Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001)). Here, Former Husband did not bring the alleged defect to the trial court’s attention in a motion for rehearing; thus, the issue was not properly preserved for appeal.

      . He was laid off on May 21, 2009, but taking his severance package into account, his income was not reduced until September 2009.

      . We note, however, that — unlike in Davis— Former Husband did have the ability to pay a reduced amount during this period.

      . In determining that Former Husband had the ability to pay the full amount until the end of 2009, it is likely the court also considered that, soon after losing his job, he took a $6,000 trip to China and purchased an $8,500 engagement ring for his new girlfriend. During this time, Former Husband was giving Former Wife a reduced payment based on advice he received from counsel. The trial court’s characterization of this spending as reckless is reasonable.


author: PER CURIAM. THOMAS, J.,

text:
    ALPHA DATA CORPORATION, a Florida corporation, Appellant, v. HX5, L.L.C., a Florida limited liability company, Timothy Deckert, individually, Margarita Howard, individually, Tracy Allen, individually, Charles Brasfeild, individually, and individually Margarita Howard, Infopro Corporation, an Alabama Corporation, Appellees.
    Nos. 1D12-2886, 1D12-5140
    (Consolidated).
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    M. Hope Keating and Barry Richard of Greenberg Traurig, P.A., Tallahassee; A. Benjamin Gordon and Wesley Levins of Keefe, Anchors & Gordon, P.A., Fort Walton Beach, for Appellant.
    Charles F. Beall, Jr., and Tiffany A. Sullivan of Moore, Hill & Westmoreland, P.A., Pensacola; Richard J.R. Raleigh, Jr. and Andrew D. Dill of Wilmer & Lee, P.A., Huntsville, AL, for Appellees InfoPro Corporation and Charles Brasfeild.
   PER CURIAM.

In this case, which is travelling with Alpha Data Corporation v. HX5, L.L.C., etc., et al., - So.3d -, No. 1D12-2885 (Fla. 1st DCA October 18, 2013), Appellant appeals the trial court’s summary judgment in favor of Appellees on Appellant’s counts of tortious interference with a contract and advantageous business relationship and the court’s award of costs to Appellees. As in the companion case, genuine issues of material fact exist to preclude Appellees’ entitlement to summary judgment. Thus, we reverse the summary judgment and costs award and remand for proceedings consistent with this opinion.

BENTON and CLARK, JJ., concur; THOMAS, J., Dissents with Opinion.

THOMAS, J.,

DISSENTING.

I respectfully dissent from the majority’s decision to reverse the trial court’s summary judgment in favor of Appellees InfoPro and Charles Brasfeild, with respect to ADC’s claim against them for tortious interference with a contract and advantageous business relationship.

ADC’s damages claim is based on the assumption that, had HX5 teamed together with it rather than InfoPro, their joint bid would also have been successful. This is pure speculation and, as I discuss in my opinion concurring in part and dissenting in part in the companion case of Alpha Data Corp. v. HX5, L.L.C., etc., et al., — So.3d -, No. 1D12-2885 (Fla. 1st DCA October 18, 2013), “concerning damages for anticipated loss of profits in a commercial enterprise, the general rule is that such damages are too speculative and dependent upon changing circumstances to warrant a judgment for their loss.” Fla. Outdoor, Inc. v. Stewart, 318 So.2d 414, 415 (Fla. 2d DCA 1975). Thus, because any damages alleged by ADC for the interference alleged here are purely speculative, ADC’s claim must fail, and the trial court properly granted summary judgment.

Furthermore, “within the[ ] elements [of tortious interference] is the requirement that the plaintiff establish that the defendant’s conduct caused or induced the breach that resulted in the plaintiffs damages.” Chicago Title Ins. Co. v. Alday- Donalson Title Co. of Florida, Inc., 832 So.2d 810, 814 (Fla. 2d DCA 2002). As discussed in my opinion in the companion case, the record demonstrates that, even before InfoPro contacted HX5 about pursuing the expiring service contract, relations between ADC and HX5 had been deteriorating. Thus, the record fails to support ADC’s position that it was Info-Pro’s overture that led to any “breach” between the two companies. Nor, if the two companies were in fact drifting apart, could InfoPro’s overture be accurately characterized as “interfering” with the relationship.

For a party to establish a tortious interference claim, “[t]here must be a relationship in existence at the time of any alleged interference.” Bernstein v. True, 636 So.2d 1364, 1366 (Fla. 4th DCA 1994). As in Bernstein, “[tjhere is nothing to indicate that [InfoPro’s] involvement in the second agreement caused the [alleged] first one to fall apart.” Id. at 1367. “In considering the element of causation, Florida courts have held that the plaintiff must plead and prove that the defendant manifested a specific intent to interfere with the business relationship.” Chicago Title Ins. Co., 832 So.2d at 814. Here, there was no evidence that anyone at InfoPro had any specific intent to interfere with the alleged relationship or agreement between ADC and HX5 in general, or with respect to the HUBZone contract in particular.

For the foregoing reason, I would affirm the trial court’s summary judgment and award of costs.


text:
    Willie Edward DOZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2326.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Willie E. Dozier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 23, 2013, order which denied the motion for postconviction relief in Du-val County Circuit Court case number 16-2008-CF-014339-AXXX-MA. 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).

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Gail DAWSON, Petitioner, v. DEUTSCHE BANK NATIONAL TRUST, as Trustee of the Indymac INDX Mortgage Loan Trust 2005-AR18, Mortgage Pass-Through Certificates, Series 2005-AR18 under the Pooling and Servicing Agreement Dated September 1, 2005, Respondent.
    No. 1D13-3701.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Gail Dawson, pro se, Petitioner.
    Rhiannon Dodds Funke of Morris Hard-wick Schneider, LLC, Tampa, for Respondent.
   PER CURIAM.

Finding respondent’s concession of error to be well taken, the order setting the case for trial is quashed and the cause is remanded for further proceedings. See Fla. R. Civ. P. 1.440(a) (providing that an action is at issue after any motions directed to the last pleading served have been disposed of).

PETITION GRANTED.

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Earl Raymond CAMPOS, Appellant, v. Joana Lee VILLENEUVE, Appellee.
    No. 1D13-4139.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Earl Raymond Campos, pro se, Appellant.
    James C. Banks of Banks & Sweeting, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of September 18, 2013, the Court has determined that the order on appeal is neither a final order nor a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.130. Accordingly, the appeal is dismissed for lack of jurisdiction. Appellee’s motion for attorney’s fees, filed on September 30, 2013, is denied.

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Gary K. DENNISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4157.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Gary K. Dennison, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    James Glenn PATTERSON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-4693.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    James Glenn Patterson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    Robert SURDAKOWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4480.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Robert Surdakowski, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    In re William F. HENDERSON.
    No. 2013-B-1301.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|TOn July 27, 2010, respondent pleaded guilty in the 9th Judicial District Court for the Parish of Rapides to one felony count of unauthorized use of a movable valued in excess of $1,000, a violation of La. R.S. 14:68(A), stemming from his conversion of client funds. Prior to the institution of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that his conduct constitutes a violation of Rules 1.15 and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that William F. Henderson, Louisiana Bar Roll number 21291, be and he hereby is disbarred, retroactive to March 31, 2010, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

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


text:
    STATE of Louisiana v. Kendrick SCOTT.
    No. 2012-KP-2458.
    Supreme Court of Louisiana.
    Aug. 30, 2013.
   PER CURIAM.

| (Writ granted; case remanded to the Third Circuit Court of Appeal. Given that relator has shown that he filed his writ application within the delay established by the district court following its September 7, 2012, judgment, the court of appeal erred when it dismissed the pleading based on its failure to comply with Uniform Rules — Courts of Appeal, Rule, 4-3. See, e.g. State v. Goppelt, 08-0576, p. 2 (La.10/31/08), 993 So.2d 1188, 1189 (Rule 4-3 “should be sparingly applied in cases in which a defendant does not unreasonably delay in asserting her constitutional and statutory right to seek supervisory review in the court of appeal of proceedings that have concluded in conviction and sentence”); see also Barnard v. Barnard, 96-0859, p. 1 (La.6/24/96), 675 So.2d 734 (the trial court’s fixing of return date more 30 days from the date of its adverse judgment was not a basis for refusing to consider a writ application when the petitioner complied with the return date fixed). The Third Circuit is therefore ordered to consider the writ application on the merits.


text:
    Wilfred FONTENOT v. STATE of Louisiana through the DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2013-C-1004.
    Supreme Court of Louisiana.
    Sept. 13, 2013.
   PER CURIAM.

| tIn this matter, the claimant was awarded workers’ compensation benefits and medical bills and expenses in connection with a workplace injury. Additionally, the workers’ compensation judge awarded attorney fees in the amount of $10,000, finding that the employer acted arbitrarily and capriciously in terminating the benefits. The employer appealed, arguing the claimant forfeited his workers’ compensation benefits by committing fraud, in violation of La.R.S. 23:1208. Further, the employer sought to have the award of attorney fees overturned or the amount of the award lowered. The court of appeal affirmed the judgment in all respects.

The employer filed the instant writ application, challenging the lower court’s judgment. We find no error in the lower court’s ruling on the forfeiture issue. However, due to the unique facts involved, we find the employer’s actions were not arbitrary, capricious, or without probable cause. Accordingly, we reverse the award of attorney fees.

AFFIRMED IN PART; REVERSED IN PART.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Joseph W. NEATHERY.
    Nos. 2013-KO-0106, 2013-K-0218.
    Supreme Court of Louisiana.
    Sept. 13, 2013.
   In re Neathery, Joseph W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 03-01-0494; to the Court of Appeal, First Circuit, No. 2012 KA 0162.

| denied.

JOHNSON, C.J., would grant with reasons.

KNOLL, J., would grant.

JOHNSON, J.,

would grant the writ application for the following reasons.

Lit is clear that the state should be charged with the three-year delay following defendant’s second appeal in which the District Attorney’s Office simply, and inexcusably, lost track of the case. Given that lapse of time, defendant could reasonably entertain a belief, as he came within days of securing his release on a full term date, that his original concurrent 10-year sentences on two counts of armed robbery measured the full consequences of the court’s verdicts. State v. Severin, 08-0005 at 6, (La.App. 5 Cir. 4/29/08) 985 So.2d 277, 280 (“A defendant has the right to know within a reasonable time whether or not he is going to face enhanced penalties.”) (citing State v. Broussard, 416 So.2d 109, 110 (La.1982) (other citation omitted)).

On this premise, revival of the habitual offender proceedings may not have had a vindictive purpose but it certainly had a vindictive effect. The Defendant had undergone radiation treatment for cancer while incarcerated and completed the reentry program designed by the Department of Corrections when, one day short of his release to live with his aged and infirm grandmother, penitentiary officials told him he was going nowhere except back to East Baton Rouge Parish Prison.


text:
    STATE of Louisiana v. Victor Everatt STEWART.
    No. 2013-KO-0303.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Stewart, Victor Everatt; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 183514; to the Court of Appeal, Second Circuit, No. 47,679-KA.

Denied.


text:
    STATE of Louisiana v. Randall Wayne WOMACK, Jr.
    No. 2013-KO-0304.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Womack Jr., Randall Wayne;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 188,009; to the Court of Appeal, Second Circuit, No. 47,639-KA.

Denied.


text:
    STATE of Louisiana v. Charles Ray DAVIS.
    No. 2013-K-0381.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Davis, Charles Ray; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 4, No. 292,555; to the Court of Appeal, Second Circuit, No. 47,-599-KA.

Denied.


text:
    STATE of Louisiana v. Carl ARNAUD.
    No. 2013-KO-0447.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Arnaud, Carl; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. D, No. 948-06 C; to the Court of Appeal, First Circuit, No. 2012 KA 0758.

Denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Glenetraveronesse COOKS.
    No. 2013-K-0454.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Cooks, Glenetraveronesse; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 07-16(2); to the Court of Appeal, Fifth Circuit, No. 12-KA-287.

Denied.


text:
    STATE of Louisiana v. Michael VERRETT.
    No. 2013-K-0466.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Verrett, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 02-12-0638; to the Court of Appeal, First Circuit, No. 2012 KW 1937.

Denied.


text:
    STATE of Louisiana v. Eric R. BROWN.
    No. 2013-KP-0486.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Brown, Eric R.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 285,217; to the Court of Appeal, Second Circuit, No. 48,-110-KW.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Tommy R. EMMONS, II.
    No. 2013-KP-0578.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Emmons II, Tommy R.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, Nos. 458874, 470774; to the Court of Appeal, First Circuit, No. 2012 KW 2106.

Denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Ronald HOLLIS.
    No. 2013-KP-0580.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. ll-M-3535; to the Court of Appeal, Second Circuit, No. 47,-828-KA.

Denied. Untimely.


text:
    STATE of Louisiana v. Demarien MIMS.
    No. 2013-KP-0591.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Mims, Demarien; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 214,192; to the Court of Appeal, Second Circuit, No. 48211-KW.

Denied.


text:
    STATE of Louisiana v. Rodney WATTS.
    No. 2013-KP-0592.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Watts, Rodney; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 370,023; to the Court of Appeal, First Circuit, No. 2012 KW 2099.

Denied.


text:
    STATE ex rel. Henry E. ARMSTRONG. v. STATE of Louisiana.
    No. 2013-KH-0664.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Armstrong, Henry E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. A, No. 09-F-02231; to the Court of Appeal, Second Circuit, No. 48,208-KH.

Denied.


text:
    STATE of Louisiana v. Lawrence F. LANDOR.
    No. 2013-KP-0668.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Landor, Lawrence F.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 419716; to the Court of Appeal, First Circuit, No. 2013 KW 0006.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Earton SMITH v. STATE of Louisiana.
    No. 2013-KH-0677.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Smith, Earton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. F, No. 148, 130-F, 148,-131-F; to the Court of Appeal, Second Circuit, No. 48,267-KH.

Denied.


text:
    STATE ex rel. Leroy DAVIS v. STATE of Louisiana.
    No. 2013-KH-0727.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Davis, Leroy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. C, No. 10913; to the Court of Appeal, Third Circuit, No. KH 13-00028.

Denied.


text:
    STATE ex rel. Rudolph PERKINS v. STATE of Louisiana.
    No. 2013-KH-0728.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Perkins, Rudolph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 00-1361; to the Court of Appeal, Fifth Circuit, No. 13-KH-79.

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


text:
    STATE ex rel. Albert Vernon ROBERTSON v. STATE of Louisiana.
    No. 2013-KH-0769.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Robertson, Albert Vernon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. CR 125727; to the Court of Appeal, Third Circuit, No. 12-889.

Denied.


text:
    STATE ex rel. Jonathan JOHNSON. v. STATE of Louisiana.
    No. 2013-KH-0771.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Johnson, Jonathan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B, No. 117,215; to the Court of Appeal, Second Circuit, No. 47875-KH.

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


text:
    STATE ex rel. Raymond FOBBS v. STATE of Louisiana.
    No. 2013-KH-0772.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Fobbs, Raymond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 386-741; to the Court of Appeal, Fourth Circuit, No. 2013-K-0278.

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


text:
    STATE of Louisiana v. Frederick GRIGSBY.
    No. 2013-KP-0787.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Grigsby, Frederick; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 04-04-0586; to the Court of Appeal, First Circuit, No. 2013 KW 0113.

Denied.


text:
    STATE ex rel. Orlando BROWN v. STATE of Louisiana.
    No. 2013-KH-0790.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Brown, Orlando; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 280,068; to the Court of Appeal, Second Circuit, No. 48,-209-KH.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030. State v. Thomas, 08-2912, (La.10/16/09), 19 So.3d 466.


text:
    STATE ex rel. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2013-KH-0792.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Spencer, Edmond D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 064026; to the Court of Appeal, First Circuit, No. 2013 KW 0115.

Denied. See La.C.Cr.P. art. 930.4(D)


text:
    STATE ex rel. Stephen WINDSOR v. STATE of Louisiana.
    No. 2013-KH-0793.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Windsor, Stephen; — Plaintiff; Applying For, Parish of Orleans, Criminal District Court Div. I, No. 389-171; to the Court of Appeal, Fourth Circuit, No. 2013-K-0290.

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

_


text:
    STATE ex rel. Leonard Emanuel BLACKBURN v. STATE of Louisiana.
    No. 2013-KH-0794.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Blackburn, Leonard Emanuel;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. J, No. 08-CR10-97839; to the Court of Appeal, First Circuit, No. 2013 KW 0105.

Denied.


text:
    STATE ex rel. Gary GIRARD v. STATE of Louisiana.
    No. 2013-KH-0795.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Girard, Gary; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 498-998; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0790.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Eugene RILEY v. STATE of Louisiana.
    No. 2013-KH-0796.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Riley, Eugene; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 11^4614; to the Court of Appeal, Fifth Circuit, No. 13-KH-137.

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


text:
    STATE ex rel. Ricky SCOTT v. STATE of Louisiana.
    No. 2013-KH-0817.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Scott, Ricky; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 10-3674, 10-4755, 10-4447; to the Court of Appeal, Fifth Circuit, Nos. 13-KH-119, 13-KH-140, 13-KH-141.

Denied.


text:
    STATE ex rel. Deeantas HOUSTON v. STATE of Louisiana.
    No. 2013-KH-0818.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Houston, Deeantas; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, Nos. 298205, 300704; to the Court of Appeal, First Circuit, No. 2013 KW 0204.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. James JASMINE v. STATE of Louisiana.
    No. 2013-KH-0819.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Jasmine, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 389-171; to the.Court of Appeal, Fourth Circuit, No. 2013-K-0276.

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


text:
    STATE ex rel. Hebert BATISTE v. STATE of Louisiana.
    No. 2013-KH-0828.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Batiste, Hebert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 506-573; to the Court of Appeal, Fourth Circuit, No. 2013-K-0249.

Denied on the showing made.


text:
    STATE ex rel. Richmond BROCK v. STATE of Louisiana.
    No. 2013-KH-0829.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Brock, Richmond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. B, No. 37,368 C/W 37,369; to the Court of Appeal, Second Circuit, No. 48,144-KH.

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


text:
    STATE ex rel. Gregory MITCHELL v. STATE of Louisiana.
    No. 2013-KH-0854.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Mitchell, Gregory; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 09-4017; to the Court of Appeal, Fifth Circuit, No. 12-KH-533.

Denied.

HUGHES, J., would grant.


text:
    LOUISIANA CONSTRUCTION INDUSTRY, Self Insurers Fund v. SOUTHERN ENVIRONMENTAL OF LOUISIANA, LLC, Joaquin Roque and Stacey Roque as Owners of the Dissolved Limited Liability Company Southern Labor Services, LLC.
    No. 2013-CC-1189.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Roque, Joaquin; Roque, Stacey;— Defendant(s); Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation District 06, No. 11-024778; to the Court of Appeal, First Circuit, No. 2013 CW 0374.

Denied.


text:
    Chad WEHRLIN and Michelle Wehrlin, individually and on Behalf of their Minor Children, Bailey Wehrlin and Korey Miller v. The MANITOWOC COMPANY, INC., H & E Equipment Services, Inc., and XYZ Corporation.
    No. 2013-C-1227.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Chad Wehrlin, et al.; Wehrlin, Michelle;— Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 590,976; to the Court of Appeal, First Circuit, No. 2012 CA 0893.

Denied.

JOHNSON, C.J., and KNOLL, J., would grant.

HUGHES, J„ recused.


text:
    Tammy SIMONEAUX v. LAFAYETTE CONSOLIDATED GOVERNMENT, et al.
    No. 2013-C-1241.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Simoneaux, Tammy; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2011-0925; to the Court of Appeal, Third Circuit, Nos. CW 12-774, CA 12-969.

Denied.


text:
    Peter R. TUFARO, et al. v. Wayne J. LANDRY.
    No. 2013-CC-1277.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Landry, Wayne J.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 118-520; to the Court of Appeal, Fourth Circuit, No. 2013-C-0443.

Denied.


text:
    Michael HAYMAN, M.D. v. Michael E. FEIN, et al.
    No. 2013-CC-1278.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Atoll Asset Management, LLC; Fein, Michael E.; Midway Management Partners, LLC; RAM Capital Resources LLC; Saltzstein, Stephen E.; Shelter Island GP, LLC; Shelter Island Opportunity Fund, LLC; Truk Opportunity Fund, LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 11-12194; to the Court of Appeal, Fourth Circuit, No. 2013-C-0060.

Denied.

HUGHES, J., would grant.


text:
    Richard MADDOX v. BOLLINGER SHIPYARDS, INC.; and Gary C. Hunt d/b/a Gary Hunt Roofing.
    No. 2013-CC-1283.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Maddox, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. E, No. 121129; to the Court of Appeal, First Circuit, No. 2013 CW 0391.

Denied.

WEIMER, J., recused.


text:
    Douglas STEAD and Charlotte Bremermann v. Susan SWANNER, Chandra Sekhar Korrapati, Individually and as the Administrator of the Estate of Srinivas Korrapati a/k/a “BOBBY” Korrapati, Kanaka Durga Korrapati, Srinivas Korrapati a/k/a “BOBBY” Korrapati, and Sri Lakshmi Properties, LLC.
    No. 2013-C-1285.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Bremermann, Charlotte; Stead, Douglas et al.; — Plaintiff/s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 654-944; to the Court of Appeal, Fifth Circuit, No. 12-CA-727.

Denied.


text:
    STATE of Louisiana v. John COBB.
    No. 2013-KK-1292.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Cobb, John; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 13-WFLN-023; to the Court of Appeal, First Circuit, No. 2013 KW 0638.

Denied.

WEIMER and HUGHES, JJ, would grant.


text:
    Conssondra Evette MASON v. BEAUTY MART, Janice Chung as Owner of Beauty Mart and Hanover Insurance Company et al.
    No. 2013-CC-1294.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Chung, Janice; Hanover Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. J, No. 2010-385; to the Court of Appeal, Second Circuit, No. 48,333-CW.

Denied.

VICTORY, J., would grant.


text:
    Deborah Hillebrandt WRAY v. Russell Warren WRAY.
    No. 2013-CC-1295.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Wray, Russell Warren; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, East Baton Rouge Family Court, No. 173,898; to the Court of Appeal, First Circuit, No. 2012 CW 2072.

Denied.

JOHNSON, C.J., and VICTORY and HUGHES, JJ„ would grant.


text:
    Lydia Pipes ROANE, et al. v. Scott Baughman JONES, et al.
    No. 2013-C-1299.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Jones, Leslie; Scott Baughman Jones, et al.; Scott Jones in his capacity as Administrator of the Succession of Edward Allen Jones, Jr.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 43471; to the Court of Appeal, Second Circuit, No. 47,860-CA.

Denied.


text:
    Succession of Joan Triche FLOOD v. Olando FLOOD, Linda S. Melancon.
    No. 2013-C-1303.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Flood, Olando; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 6523; to the Court of Appeal, First Circuit, No. 2012 CA 0561.

Denied.


text:
    Tommy BOLTON, Individually and as Natural Tutor of his Minor Children, Luke Thomas Bolton and Erica Lynn Bolton v. WILLIS-KNIGHTON MEDICAL CENTER and Dr. Edward Paul.
    No. 2013-C-1307.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Paul, Dr. Edward; Willis-Knighton Medical Center, et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 543,842; to the Court of Appeal, Second Circuit, No. 47,-923-CA.

Denied.


text:
    Tommy BOLTON, Individually and as Natural Tutor of his Minor Children, Luke Thomas Bolton and Erica Lynn Bolton v. WILLIS-KNIGHTON MEDICAL CENTER and Dr. Edward Paul.
    No. 2013-C-1308.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Louisiana Patients’ Compensation Fund; — Other; Applying For Writ of Cer-tiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 543,842; to the Court of Appeal, Second Circuit, No. 47,923-CA.

Denied.


text:
    In re SUCCESSION OF Charles John SPITZFADEN III.
    No. 2013-CC-1316.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Stassi II, John A.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 651-593; to the Court of Appeal, Fifth Circuit, No. 13-C-249.

Denied.


text:
    Rendon Joseph FRANCIS v. UNION CARBIDE CORPORATION, et al.
    No. 2013-C-1321.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Continental Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2011-02520; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1397.

Denied.

VICTORY, J., would grant.


text:
    Craig J. LEWKO v. Kurt EYSINK, Administrator.
    No. 2013-C-1333.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Lewko, Craig J.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 2011-0002692; to the Court of Appeal, First Circuit, No. 2012 CA 1015.

Denied.


text:
    Martha HUMBLE and James R. Humble v. PAFFORD EMS, Dianna Nicole Hackler Zach Helton and XYZ Insurance Company.
    No. 2013-C-1368.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Helton, Zach; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 39338; to the Court of Appeal, Second Circuit, No. 47,903-CA.

Denied.


text:
    STATE ex rel. Carlos Martel Lynn SMITH v. STATE of Louisiana.
    No. 2013-KH-1763.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Smith, Carlos Martel Lynn;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 299367; to the Court of Appeal, Second Circuit, No. 48425-KH.

Denied.


text:
    STATE of Louisiana v. Barry EDGE.
    No. 2013-KK-1789.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Edge, Barry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. W-04-3-77; to the Court of Appeal, First Circuit, No. 2013 KW 0760.

Denied.


text:
    Louise CONLEY, Individually and on Behalf of her Deceased Husband, James Conley, and their Children, Glenn Conley, Sr., Rodney Conley, Jacqueline Conley Morris, Katherine Conley Thorn and Garnet Conley Daggs v. PLANTATION MANAGEMENT COMPANY, L.L.C. D/B/A Heritage Healthcare Center-Hammond and Michael J. Kozel, M.D.
    No. 2013-OC-1300.
    Supreme Court of Louisiana.
    Sept. 20, 2013.
   In re Plantation Management Company, L.L.C. D/B/A Heritage Healthcare Center — Hammond;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 2004-002624; to the Court of Appeal, First Circuit, No. 2012 CA 1510.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Kenneth JEFFERSON.
    No. 2013-KK-2246.
    Supreme Court of Louisiana.
    Sept. 23, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 516-285; to the Court of Appeal, Fourth Circuit, No. 2013-K-1167.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Tyrone GIPSON.
    No. 2013-KK-2176.
    Supreme Court of Louisiana.
    Sept. 26, 2013.
   In re Gipson, Tyrone; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 504-973; to the Court of Appeal, Fourth Circuit, No. 2013-K-1028.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Davon JACKSON.
    No. 2013-KP-0920.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Jackson, Davon; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 435-878; to the Court of Appeal, Fourth Circuit, No. 2012-K-1729.

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


text:
    The RETAIL MERCHANTS ASSOCIATION, INC., d/b/a Credit Bureau of Louisiana v. Christopher FORRESTER.
    No. 2013-C-1455.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re The Retail Merchants Association, Inc. d/b/a Credit Bureau of Louisiana;— Plaintiff; Applying For Writ of Certiorari and/or Review Bossier City Court, No. 72304; to the Court of Appeal, Second Circuit, No. 47,936-CA.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Frederick D. REED, Jr.
    No. 2012-KP-2540.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 10-08-0822; to the Court of Appeal, First Circuit, No. 2012 KW 1288.

Denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. David MANES.
    No. 2013-KP-0254.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Manes, David; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. G, No. 39344; to the Court of Appeal, Third Circuit, No. KW 11-01590.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE of Louisiana v. Jonathan Michael TESTON.
    No. 2013-KO-0354.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Teston, Jonathan Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 171938A; to the Court of Appeal, Second Circuit, No. 47,651-KA.

Denied.


text:
    LAKE CHARLES STEVEDORES, L.L.C. v. COOPER/T. SMITH STEVEDORING CORPORATION, et al.
    No. 2013-CC-2110.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Lake Charles Harbor and Terminal District; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2013-1091; to the Court of Appeal, Third Circuit, Nos. CW 13-00849, CW 13-00861, CW 13-00871.

Stay denied. Writ denied


text:
    Cedric D. EDWARDS v. Burl CAIN, Warden.
    No. 2013-KP-0388.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Edwards, Cedric D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 177,994.

Denied.


text:
    STATE of Louisiana v. Louis LAMONICA.
    No. 2013-KP-0464.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Lamonica Louis; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 502220; to the Court of Appeal, First Circuit, No. 2012 KW 2012.

Denied.


text:
    STATE of Louisiana v. Sherman REED.
    No. 2013-KP-0479.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Reed, Sherman; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 500-218; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0578.

Denied.


text:
    Abron J. MICKEL v. Burl CAIN, Warden, Louisiana State Prison, Angola, Louisiana.
    No. 2013-KP-0503.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Mickel, Abron J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 03-5247; to the Court of Appeal, Fifth Circuit, No. 12-KH-918.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Donald PEA v. STATE of Louisiana.
    No. 2013-KH-0702.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Pea, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. H, No. 18478; to the Court of Appeal, First Circuit, No. 2013 KW 0089.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Johnny T. ELLIS v. STATE of Louisiana.
    No. 2013-KH-0709.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Ellis, Johnny T.; — Plaintiff; Applying For, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 507,815; to the Court of Appeal, First Circuit, No. 2012 KA 1064.

Denied.


text:
    STATE of Louisiana v. Dennis DOMING.
    No. 2013-KP-0743.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Doming, Dennis; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 10-2138; to the Court of Appeal, Fifth Circuit, No. 13-KH-80.

Denied.


text:
    STATE ex rel. Roy JOHNSON v. STATE of Louisiana.
    No. 2013-KH-0762.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Johnson, Roy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 08-4836; to the Court of Appeal, Fifth Circuit, No. 12-KH-951.

Denied.


text:
    STATE ex rel. Haywood CEASAR v. STATE of Louisiana.
    No. 2013-KH-0774.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   In re Ceasar, Haywood; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 21,906; to the Court of Appeal, Second Circuit, No. 47,-940-KH.

Denied.