author: COHEN, C.J.

text:
    Bernard CHEREMONT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1360
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora H. Hall, Assistant Attorney General, Daytona Beach, for Appel-lee.
   COHEN, C.J.

Bernard Cheremont appeals from his conviction for misdemeanor battery. He argues that the trial court abused its discretion in denying his request for a brief recess to secure the presence of a key witness. We agree and reverse for a new trial.

This case began on a park basketball court where Cheremont and the victim, Isaiah Walter, were involved in a pick-up basketball game. Following a heated exchange, Cheremont punched Walter, knocking him to the ground. Walter’s head hit the ground, causing him to lapse into a seizure. Walter suffered significant injuries, including a broken cheekbone and dislocated jaw as a result of being struck.

Charged with aggravated battery causing great bodily harm, Cheremont claimed to have acted in self-defense. The trial lasted two days, from Thursday morning to early Friday afternoon. The State presented four witnesses, only two of whom had actually witnessed the altercation. The State rested its case on Friday morning.

After the State rested, the defense indicated it wished to call two witnesses, Cher-emont and his friend, Chris Athias, who was also playing basketball at the time of the altercation. Athias traveled from Pensacola to testify and was present throughout the week preceding trial. Although At-hias was present at the courthouse on Thursday, when trial recommenced on Friday morning, he was not at the courthouse. As a result, defense counsel elected to call Cheremont to testify first, while sending Cheremont’s mother to pick up Athias. Cheremont’s testimony ended at approximately 11:25 a.m. Defense counsel requested a short recess to secure Athias’s presence, asserting that his testimony would support Cheremont’s claim of self-defense. Despite no objection from the State, the trial court denied the request to continue the proceedings. Instead, the court reviewed the jury instructions with the parties and required the State to begin its closing argument. Shortly thereafter, the trial court recessed the proceedings until 1:30 p.m. for a lunch break. The jury ultimately found Cheremont guilty of the lesser included offense of misdemeanor battery.

The sole issue Cheremont raises on appeal is the trial court’s refusal to allow the defense a brief recess to secure Athias’s presence. We agree that the failure to allow a short recess in this case requires reversal.

A trial court’s ruling on a motion to continue is reviewed for abuse of discretion. Jenkins v. State, 872 So.2d 388, 390 (Fla. 4th DCA 2004). The court should grant the defendant’s motion to continue to secure the presence of a witness if the defense demonstrates: “(1) prior due diligence to obtain the witness’ presence; (2) that substantially favorable testimony would be forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.” T.J.M. v. State, 925 So.2d 440, 440 (Fla. 5th DCA 2006) (citing Jenkins, 872 So.2d at 388).

Cheremont met that burden in this case. It is undisputed that Athias traveled from Pensacola to testify and had been in attendance throughout the week, waiting for the case to be called for trial. He was at .the courthouse throughout the first day of trial. According to Cheremont, Athias’s testimony would have supported Chere-mont’s theory that he was acting in self-defense. Defense counsel informed the trial court that efforts were being made to secure Athias’s presence and requested a brief recess in order to do so. Notably, the State did not object. Finally, and perhaps most importantly, the trial court’s refusal to allow the recess denied Cheremont the opportunity to present witness testimony in support of his defense. Thus, there is no question that Cheremont was prejudiced by the trial court’s denial of his request. See Jenkins, 872 So.2d at 389 (“There are few rights more fundamental than the right of an accused to present witnesses in his or her own defense.” (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973))). Accordingly, we conclude that Cheremont is entitled to a new trial in which he has the opportunity to present witness testimony to support his defense.

REVERSED AND REMANDED FOR A NEW TRIAL.

BERGER, J., and JACOBUS, B.W., Senior Judge, concur.

      . Walter was prone to seizures prior to this incident.

      . Moreover, a solution was apparent—recess for lunch early and return at 1:00 p.m. rather than 1:30 p.m., allowing Cheremont an opportunity to secure Athias’s presence. If the witness was still not at the courthouse, closing arguments could have proceeded at that point. We emphasize that the delay in the proceedings would have been minimal in this case. Generally, witnesses are expected to be available when called, and a trial court is not obligated to keep a jury and court personnel waiting to secure the presence of witnesses. Yet, there is a balance to be achieved between keeping a trial docket flowing in a timely manner and allowing for a minor delay in proceedings to accommodate unforeseen circumstances.


source: Caselaw Access Project

author: PER CURIAM. ROWE, J.,

license: Public Domain

text:
    AT & T COMMUNICATIONS and Sedgwick CMS, Appellants, v. Victoria Murray ROSSO, Appellee.
    CASE NO. 1D16-3971
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017

      Thaddeus A. Harrell of Hinshaw & Culbertson LLP, Fort Lauderdale, for Appellants.
    Barbara B. Wagner of Wagenheim & Wagner, P.A., Fort Lauderdale, and Richard B. Berman of Richard B. Berman, P.A., Lauderhill, for Appellee.
   PER CURIAM.

The Employer/Carrier (E/C) in this workers’ compensation ease challenges the Judge of Compensation Claims’ (JCC’s) award of claims for authorization of lawn care, home renovations, attendant care for at least four hours per day, and an evaluation and treatment by a podiatrist together with the authorization of a custom AFO brace and an evaluation of the need for specialized shoes. We affirm the award for lawn care because competent, substantial evidence (CSE) supports the JCC’s finding that such care will improve Claimant’s compensable conditions of depression and anxiety. See Delong v. 3015 W. Corp., 558 So.2d 108 (Fla. 1st DCA 1990) (affirming JCC’s finding of no medical necessity for lawn care where physician admitted that such care would not improve claimant’s condition or aid in his recovery). We also affirm the awards for attendant care, a podiatrist, an AFO brace, and evaluation of the need for specialized shoes because the E/C have shown no error in the JCC’s determination that the E/C forfeited the right to contest medical necessity for these items by failing to timely respond to a written request by an authorized health care provider. See § 440.13(3)(d), Fla. Stat. (2016). But we reverse the award for home renovations for the reasons that follow.

In workers’ compensation, the E/C may be responsible for providing an accessible living environment under the statutory requirement for the furnishing of “medically necessary apparatus.” See Timothy Bowser Constr. Co. v. Kowalski, 605 So.2d 885, 888 (Fla. 1st DCA 1992) (citing § 440.13(2)(a), Fla. Stat. (Supp. 1988); Diamond R. Fertilizer v. Davis, 567 So.2d 451, 455 (Fla. 1st DCA 1990); Aino’s Custom Slip Covers v. DeLucia, 533 So.2d 862 (Fla. 1st DCA 1988)). Thus, the issue here is whether the record contains CSE to support a finding of medical necessity for the specific home renovations that were awarded by the JCC.

Claimant, who was seventy-three years of age at the time of the final hearing, sustained a workplace injury to her low back on February 10, 1989. Following authorized spinal fusion surgery in 2014, Claimant developed a dropped foot. She currently uses a cane to ambulate and reports problems with balance and frequent falls. Claimant subsequently hired Ms. Litwin, a registered nurse with rehabilitation experience and training, to prepare a home assessment. In the home assessment report that followed, Ms. Litwin made numerous recommendations for home renovations including ramp access, outdoor motion sensor lighting, door widening, smooth flooring, and kitchen/bathroom modifications. In the order on appeal, the JCC awarded all the home renovations recommended by Ms. Litwin.

In support of her finding of medical necessity for the renovations, the JCC stated she relied on certain evidence from the treating psychologist and pain management physician as well as testimony from an unauthorized orthopedic surgeon. But the evidence identified by the JCC does not constitute CSE of the medical necessity for the numerous home renovations awarded here. For example, the cited report from the authorized psychologist contains a recommendation identified only as “per home study,” which imparts no information whatsoever about the medical necessity of any particular home renovation. The JCC also improperly relied on the testimony from the orthopedic surgeon who only stated that he agreed with some of the suggestions in the home assessment report, but never identified which ones.

Furthermore, the JCC misplaced her reliance on the pain management physician’s apparent deference to the opinions of Ms, Litwin. Ms. Litwin’s opinion testimony, while arguably sufficient to show how a properly accessible environment may be provided, is insufficient to establish the medical necessity for the specific accommodation or assistance because she is not a physician. In this way, this case is analogous to DeLueia. In DeLucia, the JCC placed Lawrence Forman & Associates, a rehabilitation company, in charge of the claimant’s rehabilitation, home modification, vehicle purchase, and further medical care. 533 So.2d at 864. The only supporting evidence for the award was the testimony of Lawrence Forman himself. This Court reversed the sleeping scope of award, for all but the award of rehabilitative oversight, based on the finding that “although Forman was apparently competent to testify concerning his rehabilitation services, his testimony whs not sufficiently substantial to provide the solé support for such a far ranging award. .'..” Id. at 863-64.

Even assuming that the authorized pain management physician here could properly defer to Ms. Litwin regarding the medical necessity of any home renovations, it is not entirely clear that he did so. He was never really questioned about the specific home renovations, and when asked generally about Ms. Litwin’s recommendations, he responded that he believed a re-evaluation was indicated with the approval of the authorized orthopedic surgeon who performed Claimant’s surgery. The JCC, however, did not attempt to reconcile this testimony with her finding that the pain management physician deferred to the existing recommendations from Ms. Litwin.

Finally, we note that the JCC originally found insufficient evidence of medical necessity for the home renovations, but upon rehearing reversed her finding based on Claimant’s argument that a liberal construction in her favor should apply to this 1989 date of accident. A liberal construction, however, does not mean the JCC must give a claimant the “benefit of the doubt” in weighing conflicting evidence or ignore evidence indicating a claimant is not entitled to benefits. See Uniweld Prods., Inc, v. Lopez, 511 So.2d 758 (Fla. 1st DCA 1987). Here, the JCC’s explanation for changing her original ruling certainly suggests that she reconsidered the evidence with the assumption that Claimant should be given the “benefit of the doubt.” It is unnecessary to address that potential error because the evidence ultimately relied upon by the JCC does not constitute CSE of the requisite medical necessity in support the award of home renovations.

Accordingly, we AFFIRM in part the order below, but REVERSE the award of home renovations.

LEWIS and B.L. THOMAS, JJ., CONCUR; ROWE, J., CONCURS IN RESULT WITH OPINION.

ROWE, J.,

concurring in result.

Under the law in effect for this date of injury, Claimant is entitled to- medically necessary remedial treatment, care, and attendance, as well as professional or nonprofessional custodial care,, as the nature of the injury may require. See § 440.13(2)(a)-(b), Fla. Stat. (1989). The applicable case law establishes that lawn care services may be awardable under this statutory authority if the medical evidence shows that a claimant’s injury will improve with the provision of services. See Delong v. 3015 W. Corp., 558 So.2d 108 (Fla. 1st DCA 1990) (affirming denial of lawn care services where medical evidence did not establish that avoiding yard work would improve claimant’s compensable back injury); see also S. Indus. v. Chumney, 613 So.2d 74, 77 (Fla. 1st DCA 1993) (affirming award of lawn care where claimant’s medical needs included dust-free environment); Polk Cty. Bd. of Comm’rs v. Varnado, 576 So.2d 833, 839 (Fla. 1st DCA 1991) (affirming the JCC’s finding of no evidence of medical necessity for lawn care under De-long). It is this standard of medical necessity that distinguishes such services from the “quality of life” benefits that are not awardable as medical benefits and are more properly addressed through indemnity payments. See, e.g., Marlowe v. Dogs Only Grooming, 589 So.2d 990 (Fla. 1st DCA 1991) (holding that supportive services, such as driving claimant to various non-medical places, constitute “quality of life” activities indemnified under disability compensation rather than attendant care). Thus, it is not sufficient for a claimant to show that the provision of lawn care services will be beneficial to the claimant’s overall well-being; rather, lawn care services may be awarded only when those benefits are medically necessary and will aid in the claimant’s recovery or improve his or her compensable injury. Delong, 558 So.2d at 109.

Here, the authorized treating pain management physician testified that Claimant’s compensable back injury would not be improved by avoiding lawn care activities. The only testimony regarding the medical necessity for the lawn care services came from Claimant’s authorized treating psychologist who opined that a well-maintained lawn is likely to improve Claimant’s compensable depression and anxiety. However, this testimony did not constitute competent, substantial evidence of the medical necessity of the lawn care services. Because the psychologist is not a “physician” or “doctor” under the statute, she was not competent to testify as to medical necessity. See § 440.13(l)(b), Florida Statutes (1989) (limiting the definition of “physician” to physicians licensed under chapter 458, duly licensed osteopaths, chiropractors, podiatrists, optometrists, and dentists). However, no objection was raised on that basis; thus, any challenge to her qualification to express a medical opinion has not been preserved. For this reason, I concur in the result reached by the majority in this case.

       In 1990, the legislature adopted language stating that neither the facts nor the law is to be liberally construed in favor of either party. § 440.015, Fla. Stat. (1990). This Court previously determined that it was unnecessary to decide if this language had any retroactive effect because the statute was “directed to precluding a [JCC] from giving a ‘benefit of the doubt' ” to either party "when drawing inference from predicate facts, a practice heretofore condemned by this court in Uniweld Prods., Inc. v. Lopez, 511 So.2d 758 (Fla. 1st DCA 1987).” Schafrath v. Marco Bay Resort, Ltd., 608 So.2d 97, 104 (Fla. 1st DCA 1992). Essentially, the Schafrath court found that the 1990 amendment did not change the existing law. In any event, we do not need to address the reactivity of the 1990 amendment because the E/C have not argued its application here.


author: PER CURIAM.

text:
    Susan K. DOUGHERTY, Appellant, v. DEPARTMENT OF REVENUE and Joseph P. Dougherty, Appellees.
    Case No. 5D16-4063
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 2, 2017
    Rehearing Denied May 19, 2017
    Susan K. Dougherty, Miami, pro se.
    Pamela Jo Bondi, Attorney General,-Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee, Department of Revenue.
    Jason M. Gordon, Cocoa Beach, for Ap-pellee, Joseph P. Dougherty.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

SAWAYA, PALMER, and EDWARDS, J.J., concur.


author: SILBERMAN, Judge.

text:
    Carlos SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1197
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017
    Carlos Smith, pro se.
    Pamela J,o Bondi, Attorney General,’ Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Carlos Smith appeals the order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Mr. Smith asserted two grounds for relief based on ineffective assistance of counsel. We affirm without comment the postconviction court’s denial of ground one, but we reverse the postconviction court’s denial of ground two and remand for further proceedings.

The State charged Mr. Smith with armed burglary with a dangerous weapon, to-wit: a firearm, and aggravated assault with a deadly weapon, to-wit: a firearm. The jury found Mr. Smith guilty as charged on both counts, but the jury also found, under those same counts, that Mr. Smith did not actually possess a firearm.

In ground two of his postconviction motion, Mr. Smith alleged that his trial counsel provided ineffective assistance by not filing any motions or objecting to the verdicts rendered by the jury. Mr. Smith argued, somewhat ineptly, that the only weapon alleged to have been used in either offense was a firearm and that the jury’s findings that he did not possess a firearm negated its findings that he committed either armed burglary with a dangerous weapon or aggravated assault with a deadly weapon. Mr. Smith argued that had trial counsel filed the appropriate posttrial motion, the trial court would have been required to reduce the convictions to burglary of a dwelling and simple assault.

In summarily denying ground two of Mr. Smith’s motion, the postconviction court interpreted Mr. Smith’s claim as asserting that his trial counsel was ineffective for failing to object to the trial court’s imposition of the firearm enhancement under section 775.087(1), Florida Statutes (2011), which would constitute an unlawful sentence given the jury’s findings that he did not possess a firearm. The postconviction court denied this claim, finding that Mr. Smith’s sentence was not enhanced under section 775.087.

The postconviction court alternatively interpreted Mr. Smith’s claim as asserting that his trial counsel was ineffective for failing to file a motion for new trial. The postconviction court denied this claim based on the fact that counsel did file a motion for new trial, arguing that the jury instructions for aggravated assault and armed burglary misled the jury.

However, the postconviction court did not address the actual argument made by Mr. Smith: that his trial counsel was ineffective for not challenging his convictions based on the jury’s inconsistent findings. This is a facially sufficient claim for relief. See Proctor v. State, 205 So.3d 784 (Fla. 2d DCA 2016) (holding that the jury’s finding that the appellant did not possess a firearm negated the deadly weapon element of aggravated assault, resulting in a legally inconsistent verdict and remanding for the trial court to enter a judgment on the lesser included offense); Gerald v. State, 132 So.3d 891 (Fla. 1st DCA 2014) (holding that the jury verdict of guilty of aggravated assault with a deadly weapon was truly inconsistent with the jury’s specific finding that the appellant did not possess a firearm, the only weapon alleged to be involved in the assault).

We remand this cause to the postconviction court to reconsider ground two of Smith’s postconviction motion, on its merits, in light of Proctor and Gerald.

Affirmed in part, reversed in part, and remanded for further proceedings.

CASANUEVA and SALARIO, JJ., Concur.

      . We note that Proctor, 205 So.3d at 785-86, and Gerald, 132 So.3d at 892, are both direct appeals of judgments and sentences from convictions for aggravated assault with a deadly weapon where the facts showed'that the acts were perpetrated by lone defendants who could not have been convicted as principals under section 777.011, Florida Statutes (2011), for offenses involving the possession of a firearm by another. Because the limited record information before us does not establish whether Mr. Smith could properly have been convicted as a principal without actual possession of a firearm, the postconviction court will need to consider this question in addressing his claim on remand.


author: WINSOR, J.

text:
    Sheridan Landell VENEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1294
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017
    Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, for Appellee.
   WINSOR, J.

After more than twenty years of marriage, Sheridan and Lisa Marie Veney separated. They nevertheless remained on friendly terms for a while, even occasionally going out together. One day, they ran into each other at the mall, exchanged hellos, and embraced. But the next day, Sheridan says, he “lost it.” That day, Sheridan killed Lisa Marie, shooting her five times outside an Applebee’s.

Sheridan never denied the killing. He told the jury that after his wife disparaged him at dinner, something “happened in the blink of an eye.” His defense was that he never planned to kill his wife—it just happened. Sheridan’s lawyer therefore asked the jury to return a verdict of manslaughter.

Rejecting Sheridan’s defense, the jury found premeditation and returned a guilty verdict for first-degree murder. Sheridan, now serving a life sentence, makes only one argument on appeal: he contends there was insufficient evidence of premeditation, meaning the trial court should have granted a motion for judgment of acquittal on that score. He asks us to reduce his conviction to second-degree murder.

We review de novo an order denying a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). In doing so, we view the evidence in the light most favorable to the State, and if we conclude any “rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt,” we must affirm. Id.

Sheridan insists everything happened quickly, that he simply overreacted to a slight, and that accordingly there was no evidence he formed any premeditation. But the supreme court has held that “[pjremeditation can be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’” DeAngelo v. State, 616 So.2d 440, 441 (Fla. 1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla. 1991)). And courts have repeatedly held that circumstantial evidence is sufficient to establish premeditation. See Hutchinson v. State, 882 So.2d 943, 955-56 (Fla. 2004) (finding sufficient evidence of premeditation based in part on the defendant’s use of a pump-action shotgun, which required the user to pulí the pump before aiming and firing each time), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla. 2008); Floyd v. State, 850 So.2d 383, 396-97 (Fla. 2002) (finding sufficient evidence of premeditation when the defendant threatened the victim the day before the attack, brought a gun with him to the victim’s home, and argued with her for a significant period of time before shooting her); Asay, 580 So.2d at 613 (concluding jury could have found that the defendant made a conscious decision to shoot the victim based on the defendant’s statements, the nature of the wound inflicted, and the circumstances surrounding the shooting); Fennell v. State, 959 So.2d 810, 814 (Fla. 4th DCA 2007) (finding sufficient evidence of premeditation based on the amount of force necessary to activate the handgun’s trigger, the lack of evidence that the shooting was the result of a close-contact fight, and testimony that the defendant made threatening statements to the victim prior to the shooting).

In this case, the jury heard evidence from which it could conclude beyond a reasonable doubt that Sheridan’s crime was premeditated. There was evidence that Sheridan kept a loaded gun in his pocket and told his wifé right before the shooting that she should leave, lest he “reach in his pocket.” There was evidence that after his wife insulted him and walked away, Sheridan got up from the table and followed her through the restaurant. There was evidence that after Sheridan first shot his wife, he paused before firing the remaining four bullets. And there was evidence that Sheridan suggested to detectives that as he shot his wife, he planned to commit suicide, saying “I didn’t plan on having this conversation with you-all,” and “I was going to take myself out as well and we’d never have this conversation.”

Premeditation does not take much time at all, and the evidence at trial, viewed in light most favorable to the State, Pagan, 830 So.2d at 803, was sufficient to support the jury’s verdict.

AFFIRMED.

RAY and MAKAR, JJ., CONCUR.


text:
    John GAY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2152
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017
    John Gay, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand.

In 1990, Appellant was convicted of a number of offenses, including capital sexual battery and attempted capital sexual battery, in a number of cases. He was sentenced to life imprisonment for the capital sexual battery convictions and for the attempted capital sexual battery conviction. He filed the instant motion to correct illegal sentence in August 2015, alleging that his life sentence for attempted sexual battery exceeds the statutory maximum for the offense. The trial court denied the motion without explanation. This Court reversed and remanded, holding as follows:

The trial court failed to attach any portion of the record refuting the appellant’s claim or demonstrating why a life sentence for attempted capital sexual battery is legal. Accordingly, we reverse and remand for the trial court to attach portions of the record refuting appellant’s claim or to grant relief.

Gay v. State, 186 So.3d 1137, 1138 (Fla. 1st DCA2016).

On remand, the trial court denied Appellant’s motion, holding that the life sentence for attempted capital sexual battery is legal because it was an upward departure sentence based on the fact that the sentencing guidelines did not provide for the scoring of the capital sexual battery. However, under the law in effect at that time, a trial court cannot impose a sentence longer than the statutory maximum, even if it imposes an upward departure sentence, as the length of any upward departure sentence is limited to the statutory maximum for the crime. See § 921.001(5), Fla. Stat. (1989) (“Sentences imposed by trial court judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions.”); Shelton v. State, 739 So.2d 1235, 1236-37 (Fla. 4th DCA 1999) (“While we recognize that a plea agreement may support a departure sentence, the departure sentence must be within the statutory maximum.”); cf. State v. Williams, 667 So.2d 191, 192 (Fla. 1996) (“We ... hold that a departure sentence imposed pursuant to a valid plea agreement does not require written reasons, provided, of course, that the sentence does not exceed the statutory maximum .... ”). Attempted capital sexual battery is a first-degree felony punishable by up to thirty years’ imprisonment. §§ 775.082(3)(b); 777.04(4)(a); 794.011(2), Fla. Stat. (1989). Thus, the trial court was limited to imposing an upward departure sentence of no more than thirty years for Appellant’s attempted capital sexual battery conviction.

Accordingly, we reverse and remand the denial of Appellant’s motion for the trial court to resentence Appellant within the thirty-year statutory maximum for his attempted capital sexual battery conviction in case 89-5930. See Jordan v. State, 143 So.3d 335, 339 (Fla. 2014); Gay v. State, 607 So.2d 454, 456 (Fla. 1st DCA 1992).

REVERSED and REMANDED.

B.L. THOMAS, RAY, and KELSEY, JJ., CONCUR.


text:
    Pierre Michel DARBOUZE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2556
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Pierre Michel Darbouze, in proper person.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Pierre Michel Darbouze appeals an order denying as untimely his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Based on the record before us and the State’s proper and commendable confession of error that his motion was timely because the trial court incorrectly calculated the date Dar-bouze’s judgments and sentences became final, we reverse and remand for further proceedings.

Reversed and Remanded.


text:
    Herbert KING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2569
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   PER CURIAM.

Herbert King appeals the denial of his request to vacate his plea agreement. We affirm. The record reflects that the trial court properly considered the content of the plea agreement. In addition, King was not prevented from filing a 3.850 motion contesting any part of his plea agreement or sentence after the denial of his request to vacate. Any such claims are now time-barred.

Affirmed.


text:
    Adelmo ROSALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2465
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Adelmo Rosales, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 124 So.3d 757 (Fla. 2012).


author: LOGUE, J.

text:
    UNKNOWN PERSON IN POSSESSION OF the SUBJECT PROPERTY, a/k/a Lazareth Fracis, a/k/a Nazareth Solomon, Appellant, v. MTGLQ INVESTORS, LP, Appellee.
    No. 3D16-2524
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      The Strauss Law Firm, P.A., and David A. Strauss (Fort Lauderdale), for appellant.
    eXL Legal, PLLC, and Nicole Ramirez (St. Petersburg), for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   ON CONFESSION OF ERROR

LOGUE, J.

In conjunction with the filing of the plaintiffs complaint in the underlying residential foreclosure case, a summons was issued in the name of, and directed to be served upon, an individual identified as “UNKNOWN PERSON(S) IN POSSESSION OF THE SUBJECT PROPERTY.” The Return of Service, however, indicated that the summons and complaint were allegedly served upon a person named “La-zareth Fracis,” who is in actuality the appellant, Nazareth Solomon,

The appellant subsequently filed a motion to quash service of process alleging that service of process was improper and no action had been properly commenced against him. The trial court denied the motion and this appeal followed.

Based upon our independent review of the record and the appellee’s proper and commendable confession of error, we reverse the trial court’s order and remand with instructions that service of process upon the appellant be quashed. See Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002). We note that doing so is without prejudice to the appellee’s ability to perfect service upon the appellant in accordance with the Florida Rules of Civil Procedure.

Reversed and remanded with instructions.


author: LUCK, J.

text:
    King KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-627
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and LUCK, JJ.
   LUCK, J.

Defendant King Knight raises one issue in this appeal from his conviction and sentence for sexual battery: the trial court erred by allowing the victim of Knight’s rape and beating to testify that she saw a therapist, and couldn’t go out at night, in the days and weeks after the attack. Knight contends that the probative value of this evidence was substantially outweighed by its unfair prejudice, and therefore was inadmissible under section 90.403 of the Florida Statutes. Because Knight did not object at trial to this part of the victim’s testimony on “prejudice” grounds, the issue was not preserved for appeal. See Datus v. State, 126 So.3d 363, 366 (Fla. 4th DCA 2013) (“[A]n objection on relevance grounds only will not preserve an argument of unfair prejudice on appeal.”); Andrews v. State, 82 So.3d 979, 982 n.2 (Fla. 1st DCA 2011) (“Appellant failed to object at trial on undue prejudice grounds pursuant to section 90.403, Florida Statutes (2008). As a result, he waived any possible undue prejudice argument on appeal.”); Reynolds v. State, 660 So.2d 778, 780 (Fla. 4th DCA 1995) (“By defense counsel’s simply objecting to testimony on the grounds that it is ‘cumulative,’ without more, the trial court is not alerted to the fact that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.”) Because admitting the victim’s testimony that after the rape she went to a therapist and couldn’t go out at night was not fundamental error, we affirm. See Johnson v. State, 40 So.3d 883, 887 (Fla. 4th DCA 2010) (reviewing under harmless error analysis the erroneous admission of post-assault victim behavior).

Affirmed.

      . "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice ....”§ 90.403, Fla. Stat.

      . This is the relevant part of the victim’s testimony:
      [Prosecutor] How did you feel when you got home?
      [Ms. Brown] I was still in shock. I was still upset, scared to go out. I don't go out at night. I cannot go out at night.
      [Prosecutor] Did they ever recommend any kind of services to you when you are at Jackson Memorial hospital?
      [Ms. Brown] I did—they—
      [Defense counsel] Objection, relevance.
      [The court] Overruled.
      [Prosecutor] You can answer.
      [Ms. Brown] They did.
      [Prosecutor] What did they offer you? [Defense counsel] Objection, hearsay.
      [The court] Sustained.
      [Prosecutor] Did you go to any therapy after this?
      [Ms. Brown] Yes, I did.
      [Prosecutor] Was that here [in] Miami?
      [Ms. Brown] Yes, it was.
      [Prosecutor] Do you still have effects from this incident in your life?
      [Defense counsel] Objection, relevance.
      [The court] Sidebar.

      [The court] What’s the relevance?
      [Prosecutor] The relevance is they’re saying this is a consensual act, if it is a consensual act, why is she bothering to go to therapy? Why is she still changing her life as a result of what happened to her?
      [The court] Either you—I'm not sure how— after is relevant what happened during. [Prosecutor] It’s relevant to the truth of what she’s saying

      [The court] The objection is overruled; you may proceed.
      [Prosecutor] Ms. Brown, can you tell the members of the jury what’s changed in your life as a result of this?
      [Ms. Brown] I can't go out at night. Wherever I go, I go with a crowd of people. And I’m basically home with the children, my grandchildren, my husband. I don’t go anywhere.


author: CALLOWAY, J.

text:
    STATE of Louisiana v. Codi CAMPBELL
    2016 KA 1349, 2016 KA 1350
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017
    Bertha M. Hillman, Louisiana Appellate Project, Covington, Louisiana, Attorney for Appellant Defendant-Codi Campbell Camille A. Morvant, II, District Attorney, René C. Gautreaux, Joseph S. Soig-net, Assistant District Attorneys, Thibo-daux, Louisiana, Attorneys for Appellee State of Louisiana
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

      . Hon. Curtís A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

li>The State of Louisiana charged the defendant, Codi Campbell, by bill of information with distribution of cocaine, a violation of La. R.S. 40:967. The defendant pled not guilty and, following a jury trial, the jury found the defendant guilty as charged. Thereafter, the State filed a habitual offender bill of information and, following a hearing, the trial court adjudicated the defendant a third-felony habitual offender. The trial court sentenced the defendant to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.

FACTS

On April 10, 2014, Sergeant Derek Champagne, with the Lafourche Parish Sheriffs Office, set up a controlled drug purchase, using a reliable confidential informant (Cl) he had worked with on several occasions. The Cl called the defendant, and the defendant agreed to meet the Cl at a designated location to sell him crack cocaine. The Cl was wearing an audio device and a small video camera. Sergeant Champagne was riding with the Cl and Sergeant Adam Dufrene, with the La-fourche Parish Sheriffs Office. Sergeant Dufrene drove the Cl to Palmisano Drive in Bayou Blue, Houma, and dropped him off. The Cl walked around the block and met the defendant. The Cl gave the defendant $40, which was serialized drug task force money. The defendant gave the Cl some rocks of crack cocaine, which amounted to .1221 grams. Several detectives in the area monitored the transaction. The Cl left the defendant and met Sergeant Champagne at a designated location, where the Cl turned over the drugs the defendant had sold him.

| ^ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues his sentence is unconstitutionally excessive. A thorough review of the record indicates the defendant did not make or file a motion to reconsider sentence based on any specific ground following the trial court’s imposition of the sentence. Under La. C.Cr.P. articles 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having this assignment of error reviewed because he failed to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/96), 667 So.2d 1141, 1143 (en banc per curiam). The assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The defendant has three prior convictions: a December 7, 2005 conviction for possession of cocaine, under docket number 462075 in Terrebonne Parish; an October 22, 2008 conviction for distribution of cocaine, under docket number 444371 in Lafourche Parish; and an October 22, 2008 conviction for possession with intent to distribute cocaine, under docket number 450426 in Lafourche Parish.

      . After the trial court sentenced the defendant, defense counsel stated, "Just note our objections.” Defense counsel's objection did not constitute an oral motion to reconsider sentence as contemplated by La. C.Cr.P. art. 881.1 (B) (the motion “shall set forth the specific grounds on which the motion is based.’’). Moreover, a general objection to a sentence without stating specific grounds, including excessiveness, preserves nothing for appellate review. See State v. Bickham, 98-1839 (La.App. 1 Cir. 6/25/99), 739 So.2d 887, 891.


author: MOORE, J.

text:
    Lovie Mullen HAMMOND, Plaintiff-Appellant v. John Floyd HAMMOND, Defendant-Appellee
    No. 51,316-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      LAW OFFICES OF MASON L. OS-WALT, By: Mason L. Oswalt, Counsel for Appellant
    JOHN FLOYD HAMMOND, In Proper Person
    Before MOORE, LOLLEY, and COX, JJ.
   MOORE, J.

_JjLovie “Beth” Hammond appeals a judgment that awarded her and her ex-husband, John Hammond, joint custody of the couple’s two minor sons but omitted any mention of her claims for child support, the dependent tax credit and spousal support. Finding an abuse of discretion, we amend the judgment and, as amended, render.

PROCEDURAL BACKGROUND

Beth and John got married in March 2005, in Arkansas, and eventually moved to Ouachita Parish, where most of her family (and none of his) was from. They had two boys together, born in 2002 and 2009. John left the matrimonial domicile in June 2014 and moved to Oklahoma.

Beth filed a petition for Art. 102 divorce in August 2015. She requested joint custody of the boys with herself as primary domiciliary parent, child support, the dependent tax credit and spousal support. She attached a detailed plan of implementation. She alleged that John had picked up the boys for a six-week vacation in June 2014 but had never brought them back to West Monroe.

John answered and reconvened in November 2015, seeking an Art. 103 divorce. He demanded primary custody of the boys but did not submit a plan of implementation.

Pursuant to Fourth Judicial District rules, the matter was referred to a Hearing Officer Conference (“HOC”) on November 18, 2015, before Hearing Officer Chuck Traylor. Hearing Officer Traylor made extensive findings of fact, recommending joint custody with Beth as the domiciliary parent, subject to standard alternating-weekend visitation, alternating holidays, and split three-week periods during the summer. He also made |2detailed findings of fact regarding the parties’ financial situations, recommending that John pay child support of $628.00 per month, in two equal installments, that Beth receive the dependent tax credit, that John pay interim periodic spousal support of $300.00 per month, and that child and spousal support debts be made retroactive to the date of judicial demand.

John objected to the HOC recommendation, particularly the designation of Beth as domiciliary parent, the unworkable alternating-weekend visits (Elk City, Oklahoma, is an almost nine-hour drive to West Monroe, each way), the award of spousal support, retroactivity of the child support, and various particulars of the visitation plan.

On December 17, 2015, Judge Robert Johnson signed a “temporary order” making the HOC report the order of the court “pending the final disposition of issues by the court.” At some point, the case was reassigned to Judge Alvin Sharp.

The parties appeared for trial on May 25, 2016. In a very brief, morning session, Judge Sharp granted them a divorce and allowed Beth to resume using her maiden name.

After a recess, the court stated it would address visitation, custody and child support. Several witnesses testified, but only two are germane to the | .¡appeal. John testified that he was still living in Elk City, Oklahoma, working in the oilfield; he introduced some pay stubs and his 2015 Form 1040, showing an adjusted gross income of $34,500 and claiming the two boys as dependents. He admitted he had not paid any child support under the court’s temporary order. Beth testified that she was still working at Hilton Garden Inn for $8.25 an hour, had lived in a homeless shelter and was currently in a Section 8 apartment in West Monroe. She also testified that she was receiving food stamps and drawing Medicaid for.the boys, was driving a 14-year-old Ford Taurus that an uncle had given her, had no credit cards, bank accounts or other assets, and had asked John for support, but all he ever sent her was half of the couple’s final income tax refund.

On June 7, Judge Sharp filed reasons for judgment in this “action sounding in child custody.” He carefully discussed the evidence as to each Art. 134 factor and attached an “Article 134 Check Sheet” that gave John a score of 27 and Beth, 35. He rendered judgment awarding primary domiciliary custody to Beth. In a departure from the HOC report, however, he ruled simply thát John would have “reasonable visitation” during the school year and for a majority of the summer. Neither the judgment nor the reasons for judgment mentioned child support, the dependent tax credit or interim spousal support.

Notice of judgment was mailed to counsel on June '8, 2016. Beth’s lawyer, Paul Henry Kidd Jr., died on June 12. She retained a new lawyer, Mason Oswalt, who moved to substitute and enroll on August 4. On the 14same date, he filed the instant motion for devolutive appeal, and has filed a timely appellate brief.

On December 20, John’s lawyer, Bobby Underwood, moved to withdraw as counsel of record, on grounds that “he has not been retained to represent the appellee” in the appeal. This court granted the motion and extended John’s briefing deadline to January 11, 2017; however, the court has never received any appellee brief.

DISCUSSION

Beth now contends that the judgment is erroneous because it makes “no mention of child support or interim spousal support, nor does it address the income tax dependency issue.” She designates three assignments of error, one addressing each claim. She suggests that “whether by oversight, or-with the-intent of ratifying its previous temporary order,” the court failed to rule. She shows that parents owe an obligation of support;' maintenance and education of their children, La. C.C. art. 224; child support may not be waived, Durfee v. Durfee, 44,281 (La.App. 2 Cir. 5/13/09), 12 So.3d 984; a spouse who fails to pay child support is normally denied the dependent tax credit, La. R.S. 9:315.18 B; and the standards for interim spousal support, La. C.C. art. 113.

As a general rule, when a judgment is silent with respect to any demand which was an issue in the case under the pleadings, such silence constitutes an absolute rejection of such demand. Sun Finance Co. v. Jackson, 525 So.2d 532 (La. 1988); Schaeffer v. Schaeffer, 40,562 (La.App. 2 Cir. 10/26/05), 914 So.2d 631. When the district court implicitly rejects a demand by silence, the standard of review is whether the court abused its discretion. Soileau v. Soileau, 2003-1282 (La.App. 3 Cir. 4/7/04), 870 So.2d 584; Goss v. Goss, 95-1406 (La.App. 3 Cir. 5/8/96), 673 So.2d 1366; Leny v. Friedman, 372 So.2d 721 (La. App. 4 Cir.), writ denied, 375 So.2d 943 (1979).

When the district court denies child support or spousal support, the appellate court finds this action to be erroneous, and the record is otherwise complete, the appellate court is authorized, under La. C. C. P. art. 2164, to “render any judgment which is just, legal, and proper upon the record on appeal.” State v. Battson, 36,336 (La.App. 2 Cir. 9/18/02), 828 So.2d 132; Patton v. Patton, 37,401 (La.App. 2 Cir. 9/24/03), 866 So.2d 66.

The instant record exposes an abuse of discretion and manifest error in the denial of Beth’s claims for child support, the.dependent tax credit and interim spousal support. The HOC made detailed factual findings concerning the parties’ financial situations, resulting in the recommendations outlined above. Notably, John objected to aspects of the HOC report, but did not challenge the HOC’s findings as to the parties’ income and expenses, and disputed the tax credit chiefly because he sought custody. The district court made the HOC report the order of the court. At trial, the testimony and documentary evidence entirely corroborated the HOC’s findings, and neither side seriously disputed the other’s income and expenses. In short, there was no evidence on which to reject Beth’s claims for child support, the tax credit and interim spousal support, or even to modify the HOC report and the temporary judgment as to these claims. The judgment will be amended to reinstate these awards.

| (¡This court notes that the award of interim spousal support ordinarily ends when judgment of divorce is rendered. La. C.C. art. 113 A. It is subject to an extension of 180 days, only for good cause shown. La. C.C. art. 113 B; Hogan v. Hogan, 49,979 (La.App, 2 Cir. 9/30/15), 178 So.3d 1013, writ denied, 2015-2018 (La. 1/8/16), 182 So.3d 953. On this record, we find good cause for one extension, and render judgment accordingly.

The parties are reminded that the award of child support may be modified if one of the parties shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award. La. R.S, 9:311 A(l); Stogner v. Stogner, 98-3044 (La. 7/7/99), 739 So.2d 762; Watson v. Watson, 39,458 (La.App. 2 Cir. 3/2/05), 894 So.2d 1263. Either party may seek modification of the child support award if he or she meets these requirements.

CONCLUSION

For. the reasons expressed, the judgment is affirmed insofar as it awarded joint custody of the minor children, named Beth the primary domiciliary parent and awarded reasonable visitation to John. The judgment is amended to provide as follows:

IT IS HEREBY ORDERED, adjudged and decreed that the defendant, JOHN FLOYD HAMMOND, shall pay the plaintiff, LOVIE MULLEN HAMMOND, child support in the amount of $628.00 per month, retroactive to date of judicial demand, August 13, 2015, and payable in equal installments on the 5th and 20th day of each calendar month.

IT IS FURTHER ORDERED, adjudged and decreed that the right to claim the children as dependents for tax purposes is assigned to the plaintiff, LOVIE MULLEN HAMMOND.

IT IS FURTHER ORDERED, adjudged and decreed that the defendant, JOHN FLOYD HAMMOND, shall pay the plaintiff, LOVIE MULLEN HAMMOND, interim spousal support in the amount of $300.00 per month, retroactive to date of judicial demand, August 13, 2015, through |7November 21, 2016, and payable in equal installments on the 5th and 20th day of each calendar month.

All costs are to be paid by John Mullen Hammond.

JUDGMENT AMENDED AND, AS AMENDED, RENDERED.

      . The hearing officer documented that John worked as a contractor's helper making $2,814.50 a month, but had recently switched to an oilfield job paying $11.50 an hour and had no monthly records yet. The hearing officer felt that John would not have moved to a lower-paying job, so he imputed $2,814.50 as John’s monthly income. He further found that John claimed monthly expenses of $1,229, which he deemed reasonable, including a pri- or child support order of $404 a month. This left John with a monthly surplus of $1,500 before considering child support in this case. The hearing officer then documented that Beth worked as a housekeeper at a motel, making $808 and taking home $731 a month, and found her claimed monthly expenses of $1,228 reasonable, leaving her with a monthly deficit of $500. John's share of the combined income was 67%. Applying this percentage to the basic support obligation of R.S. 9:315.19, the hearing officer found John's share of the support obligation was $628 a month.

      . This court noticed, on its own motion, that the appeal was apparently untimely, under La. C. C. P. art. 3943, and ordered Mr. Oswalt to show cause why it should not be dismissed. In light of the unique and tragic circumstances, and in the absence of any showing of prejudice, the court allowed the appeal to proceed by order of December 7, 2016.


author: GARRETT, J.

text:
    J. Granger HARRISS, IV, Plaintiff-Appellee v. ARCHIVES GRILL, LLC, James Keefer, Sarah Eve Keefer, and Patrick D. Bell, Defendants-Appellants
    No. 51,298-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      JAMES KEEFER Appellant, In Proper Person
    SARAH EVE KEEFER Appellant, In Proper Person
    J. GRANGER HARRISS, IV Appellee, In Proper Person
    Before WILLIAMS, DREW, and GARRETT, JJ.
   GARRETT, J.

|]The defendants, James and Sarah Keefer, appeal from a trial court order denying their “Motion to Dismiss and Order to Stop Garnishment.” For the following reasons, we affirm the trial court ruling.

FACTS

This case arose from a lease dispute between the plaintiff, J. Granger Harriss, IV, and the defendants, Archives Grill, LLC (“Grill”), James and Sarah Keefer, and Patrick D. Bell. The Grill executed a lease with Harriss for restaurant space in the Mid-City Plaza building (“MCP”) in Shreveport. Harriss is the majority owner of MCP. The lease was to run from June 3, 2010, through November 30, 2012. The rent was $3,000 per month, with a six-month abatement. It contained an acceleration clause in the event of a default. The Grill was to pay the gas and electricity bills. The Keefers operated the restaurant. They both signed a lease guaranty agreement for all the obligations under the lease on June 3, 2010.

In February 2011, Mr. Keefer accepted a job with the Department of Defense (“DOD”) that required him to move to Georgia. The Keefers talked with Harriss about getting out of the lease and having Bell take over. On April 30, 2011, Bell also signed a guaranty on the existing lease. The Keefers executed a promissory note for the payment of past-due rent. Although it appears that the parties discussed a possible agreement releasing the Keefers from their obligation under the guaranty, no final agreement was ever reached or signed. The Keefers left Shreveport and moved out of state. Bell did not pay the obligations under the lease. In May 2011, Harriss discovered that substantially all of the property had been removed from the space without giving notice of intent to vacate.

|2On May 23, 2011, Harriss filed the instant suit against the Grill, the Keefers, and Bell, claiming they defaulted on the lease. Harriss sought to collect past-due rent of $10,999.96, and accelerated rent through the end of the term of $54,000. He also claimed that a $540.95 electric bill was due. Pursuant to the guaranty agreements, Harriss sought judgments against the Keefers and Bell.

The Grill failed to answer after being served with process through the Louisiana Secretary of State. With regard to the Keefers, Harriss proceeded against them pursuant to the provisions of the Louisiana long-arm statute, La. R.S. 13:3201 et seq. On July 7, 2011, Harriss filed into the record the |srequired affidavits of mailing of service of process to each of the Keefers through the long-arm statute. The citations and petitions were mailed to the Keefers at an address in Byron, Georgia. Harriss attested that the process was sent by United States certified mail, in envelopes properly addressed to the Keefers, with sufficient postage attached. The exhibits attached to the affidavits show that both certified mail notices were left at the Byron, Georgia, address on June 3, 2011. The envelopes were returned “unclaimed” on June 18,2011.

The Grill and the Keefers did not file an answer, and preliminary defaults were entered on August 15, 2011. A confirmation hearing was held in open court on August 22, 2011, before Judge Leon Emanuel. Harriss filed an affidavit in support of confirmation of default, detailing service of process on the Grill and his attempts to serve the Keefers at their address in Georgia. He noted the affidavits of mailing of long-arm service of process previously filed in the record. The lease, the lease guaranty, and itemization of court costs were included as an exhibit to the affidavit. Harriss obtained a default judgment against the Grill and the Keefers on that date, for $65,901.65, costs of $360.74, and legal interest. Pursuant to La. C.C.P. art. 1913, the clerk of court mailed notices of the default judgment to the Keefers at the address in Byron, Georgia, on that same date.

After the appeal delays ran, Harriss filed a petition to garnish Mr. Keefer’s wages on October 6, 2011. On October 10, 2011, an order was Lsigned making the judgment executory and the clerk of court was ordered to issue a writ of fieri facias. The DOD/Defense Finance and Accounting Service was made garnishee and ordered to answer interrogatories. On November 8, 2011, the DOD filed answers to the interrogatories. At some point, the DOD began sending the wage garnishment payments to the Caddo Parish Sheriffs Office (“CPSO”), pursuant to the court orders.

The Keefers eventually secured the services of an attorney. On April 13, 2012, they filed a pleading in the existing suit record captioned as a “Motion for Rule to Show Cause, for New Trial, and to Stay or Set Aside the Judgment and Garnishment.” They alleged that they never received service of process, and that the judgment against them was based on fraud or ill practices, misrepresentations to the court, and other unspecified acts or omissions. They alleged that the service was returned, not through any action on their part, but because it was not mailed to the current address they claimed to have furnished to Harriss.

The Keefers also alleged they had an agreement with Harriss releasing them from any further obligation under the lease and detailed their version of what they thought had transpired. They asserted that Harriss had a dispute with Bell, and wrongfully sued them for breach of contract. They asked for a new trial, to set aside the garnishment, and to stay the garnishment, pending a hearing on their motions. The trial court did not sign the portion of the ex parte order they submitted to stop the garnishment. A' rule to show cause on the motion was set for a hearing on June 11, 2012. A hearing was not held on that date. It appears that the Keefers did not obtain service upon Har-riss. The matter lay dormant for' several years. The DOD continued to remit the wage garnishment payments to CPSO.

|fiOn January 9, 2015, the Keefers’ attorney filed another pleading captioned “Amended Petition,” reiterating all of their prior claims and asserting cross-claims against Harriss and Bell for damages caused by the garnishment. According to the Keefers, Harriss and Bell had an agreement whereby Bell was substituted as guarantor on the lease and was made the member-manager of the Grill, releasing the Keefers from all obligations. The Keefers claimed that Harriss and Bell breached an agreement to indemnify and hold them harmless in the substitution of Bell on the lease. They asserted that the garnishment was obtained by fraud and ill practices and on insufficient grounds. They demanded a concursus proceeding to determine the ownership of the garnishment funds being held by the CPSO. They again requested a new trial and an injunction to stop the garnishment. Due to the retirement of Judge Emanuel, the .case was assigned to Judge Michael Pitman. A hearing was set by the court for February 23, 2015, but was not held. It appears that the Keefers were unable to serve Harriss.

The Keefers had a dispute with their attorney, dismissed him, and chose to represent themselves. On May 2, 2016, they filed a pleading entitled “Motion to Dismiss and Order to Stop Garnishment,” in which they asked that the court grant their “motion for summary judgment” pursuant to the “Federal Rules of Civil Procedure.” They again sought .dismissal of the default judgment and the garnishment based on their claim that they did not get service of the suit. They did not raise any complaints regarding the substance of the default judgment in their pleading. However, they attached numerous exhibits to their filing, outlining some negotiations for the substitution of Bell on the lease. They did not supply any documentation or proof that a final agreement was ever reached or signed by the parties. Some | flof the emails attached to the pleading actually indicate that the negotiations had broken down. The ex parte order submitted to the court, along with the inartful pleadings, were somewhat unintelligible. The order purported to grant relief without a court hearing and was not signed by the court. Instead, the court generated its own order which appropriately set the matter for a hearing.

The trial court held a hearing on the Keefers’ motions on June 13, 2016. The Keefers traveled to Shreveport and were present in court along with Harriss. Prior to the hearing, Harris filed a legal memorandum in opposition to the motions. The Keefers and Harass argued their positions, but the parties were not sworn to testify.

The Keefers argued that they were never served with process and that they had an agreement with Harriss to be relieved of the lease obligation. They claimed they did not receive a copy of the default judgment and only became aware of the judgment when Mr. Keefer’s wages were garnished. They outlined all of their attempts to attack the default judgment through the efforts of their attorney and claimed that he did not perform satisfactorily in representing their interests. Curiously, they submitted an affidavit from Bell which denied that the Keefers were released from any agreement they had with Harriss or that Bell agreed to meet the Keefers’ obligations.

17Harriss pointed out that a motion to dismiss and a motion for summary judgment were not proper procedural devices considering the posture of this case. He argued that a motion for new trial would be an appropriate method to attack the default judgment. However, since the Keefers failed to file that motion within seven days of the mailing of the notice of the default judgment, as required by law, it was untimely. Harriss also maintained that he complied with all the requirements for entry of a valid default judgment and for service of process under the long-arm statute. He noted that the certified letters came back “unclaimed.” He argued this did not mean the notices did not reach the recipients. Rather, it meant that the notices for the certified mail were left at the address and the Keefers did not go pick up the certified mail from the post office. Harriss pointed to jurisprudence holding that the parties cannot defeat service under the long-arm statute by failing to claim the letters. He introduced into evidence proof that he also utilized the services of a commercial courier to make delivery of the process to the Keefers at the Byron, Georgia, address, which is another method of service provided for under the long-arm statute. See La. R.S. 13:3204 and 3205. The package was returned on June 15, 2011, with a notation, “RECEIVER DID NOT ORDER, REFUSED.” Harriss also presented the testimony of the MCP property manager, Ms. Emery, who stated that there was no agreement to release the Keefers from their obligations under the lease.

|sThe trial court found that the Keefers’ reference to a motion for summary judgment was misplaced because that is a pretrial procedure, and they were seeking to overturn a default judgment. The trial court construed the Keefers’ most recent pleading as a motion for new trial and a motion to dismiss and stop the garnishment. The court noted that a motion for new trial must be filed within seven days of the judgment, and pointed out that the first motion for new trial was filed by the Keefers’ attorney in April 2012, some eight months after the default judgment, and the latest motion for new trial was filed by the Keefers, in proper person, in 2016, more than four years after the judgment. The motion for new trial was denied as untimely. The requests for a motion for summary judgment, and to dismiss and stop the garnishment were all denied. The trial court did not specifically address the merits of the Keefers’ claims attacking the default judgment.

On June 23, 2016, the trial court signed an order denying the Keefers’ motions and ordering that Harriss be allowed to pursue enforcement of the judgment without further impediment. The Keefers, representing themselves, appealed suspensively. Essentially, they are contending that the trial court erred in denying them relief.

J^TIMELINESS OF APPEAL

Harriss filed a motion with this court to dismiss the appeal as untimely, arguing that the Keefers are appealing from the default judgment entered in August 2011. On October 13, 2016, a writ panel of this court referred the motion to the merits of the appeal.

The delay for seeking a suspensive appeal is set forth in La. C.C.P. art. 2123, which provides in pertinent part:

A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appeal-able order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
La. C.C.P. art. 1974 provides the delay for applying for a new trial:
The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.
La. C.C.P. art. 1913 states in part:
A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant-at the address where personal service was obtained or to the last known address of the defendant.
D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

| mService of process under the long-arm statute has the same legal force and validity as personal service on the defendant in this state. See La. R.S. 13: 3204(C).

It is clear that the Keefers are appealing from the trial court order of June 23, 2016. The Keefers filed their sus-pensive appeal a little more than two weeks after the order was signed. Their motion for suspensive appeal, filed on July 11, 2016, was timely.

The trial court termed the latest pleading filed by the Keefers as a motion for new trial and essentially considered it, along with their initial pleading, which was entitled a motion for new trial. Their second pleading also sought a new trial. All the pleadings attacked the default judgment for insufficient service of process and argued that no obligation was owed under the lease. The court stated that it denied the motion for new trial as untimely and denied the motion to dismiss and the request for an order to stop the garnishment. Normally, a judgment denying a motion for new trial is an interlocutory ruling and is not an appealable judgment. However, courts consider the appeal of a denial of a motion for new trial as an appeal of the judgment on the merits when it is clear that the intent was to appeal the merits of the case. See Harter v. Harter, 50,942 (La.App. 2 Cir. 11/10/16), 208 So.3d 971; 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 15-686 (La.App. 5 Cir. 2/24/16), 187 So.3d 522.

Here, the trial court did not specifically address the merits of the claims made by the Keefers, finding only that they were not asserted timely. However, the trial court told the Keefers that they could appeal the decision. Because we find that the Keefers are appealing, not only from the trial court’s dismissal of their pleadings as an untimely motion for new trial, but _Jjjalso from - the trial court’s refusal to overturn the default judgment, we will consider the appeal.

TIMELINESS OF MOTION FOR NEW TRIAL

As stated above, La. C.C.P. art. 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment, as required by La. C.C.P. art. 1913. The default judgment was entered on August 22, 2011, and the clerk of court mailed notice to the Keefers on that same date. The notice of judgment was not returned. On April 13, 2012, the Keefers’ attorney first filed a motion for new trial, seeking to attack the default judgment. The amended petition filed on January 9, 2015, also sought a new trial. The Keefers filed their own pleading on May 2, 2016, essentially asserting all of the same objections to the default judgment previously asserted. It is clear that none of the pleadings were filed within seven days of the mailing of notice of the default judgment. The .trial court was correct in reasoning that the pleadings before him constituted. a motion for new trial, which was untimely,, and in dismissing the Keefers’ claims on that basis.

Even if the Keefers’ pleadings somehow could be construed as an action to annul the default judgment for vices of form under La. C.C.P. art. 2002 and vices of substance under La. C.C.P. art. 2004, they failed to |12present any evidence or proof of their claims. In an action to annul a judgment based on the validity of service, the burden of proof lies on the claimant to show by a preponderance of the evidence that service was not properly made. State v. $1330,00 in U.S. Currency, 2015-623 (La.App. 3 Cir. 11/12/15), 180 So.3d 513. The party seeking annulment for fraud or ill practices, must show that it was some fraud or ill practice by the other party that prevented him from asserting any defenses that he may have had. Yellowbird Invs., L.L.C. v. Barber, 46,977 (La. App. 2 Cir. 3/14/12), 87 So.3d 970, writ not cons., 2012-0866 (La. 6/1/12), 90 So.3d 422. The record shows that the Keefers were not prevented from presenting any evidence or testimony at the June 2016 hearing. This record is abundantly clear that the trial court made every effort to ensure that the Keefers would have their day in court. When they had their day in court, they inexplicably presented no ^evidence or testimony to support their claims. Rather, they only presented unsubstantiated arguments to the trial court and an affidavit which did not support, their position. Therefore, even if the trial court had considered the merits of their claims, they failed to provide any proof to support those claims.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court. Costs in this court are assessed to the defendants, James Keefer and Sarah Eve Keefer.

AFFIRMED.

      . Harriss is representing himself, but is a member of the Louisiana State Bar Association.

      . La. R.S. 13:3201 provides, in pertinent part:
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state. La. R.S. 13:3204 states, in part:
      A. In a suit under R.S. 13:3201, a certified copy of the citation ... and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

      C. Service of process so made has the same legal force and validity as personal service on the defendant in this state.
      D. For purposes of this Section, a "commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
      (1) Acquires a signed receipt from the addressee, or the addressee’s agent, of the letter or parcel upon completion of delivery.
      (2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.

      . Harriss later obtained a separate default judgment against Bell, which is not at issue here.

      . The trial court questioned the clerk’s office employee present in court who stated that notice of the default judgment was mailed to the Keefers in Byron, Georgia, on August 22, 2011, and that the notice was not returned.

      . The affidavit was objected to by Harriss, but the court made a comment that it was submitted, The document was never marked as filed into evidence. The Keefers supplemented the record with the affidavit. A notation on the evidence envelope states that the document was "found laying [sic] loose in a folder.”

        .See Decca Leasing Corp. v. Torres, 465 So.2d 910 (La. App. 2 Cir. 1985), writ denied, 468 So.2d 1211 (La. 1985).

      . The Keefers were required to furnish a sus-pensive appeal bond, which was set at $26,290.36. This was less than the actual judgment, but the trial court considered that the sheriff was holding $54,880.01 that had been garnished from Mr. Keefer's salary. On September 6, 2016, the Keefers filed a motion for summary judgment, motion to reduce appeal bond, and to void legal interest. They again sought to attack the merits of the default judgment and claimed that the garnishment was ongoing, resulting in the payment of more money than was necessary to satisfy the judgment. On September 12, 2016, the trial court held a hearing on these motions. The Keefers were allowed to participate by telephone. The trial court warned the parties about attempting to have ex parte communications with the court, and about failing to provide the court with a valid address where they could be reached. The Keefers gave the court their address, but requested that it be kept confidential. The trial court refused and denied their motions.
      In conjunction with the suspensive appeal, the trial court later ordered that the funds being held by the CPSO not be released pending the outcome of the appeal.

      . If timely presented, a motion for new trial may be an acceptable procedural vehicle for asserting the nullily of a judgment. See Pollock v. Talco Midstream Assets, Ltd., 44,629 (La.App. 2 Cir. 9/23/09), 22 So.3d 1033. In the instant case, the motion for new trial was not asserted within the time limits of La. C.C.P. art. 1974.

      . La. C.C.P. art. 2002 states, in part:
      A. A final judgment shall be annulled if it is rendered:

      (2) Against a defendant who has not been ' served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

      C, Except-as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
      The comments to this article provide that an action to annul a judgment for vices of form may be asserted collaterally and at any time.
      La. C.C.P. art. 2004 states, in pertinent part:
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      The comments to this article state that these grounds must be asserted in a direct action, not collaterally.