text:
    Tilakia BEAMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-590.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant stole a debit card from an acquaintance, whom she had assisted by activating the card for use. She then used the card for little more than a month to make purchases and withdraw money from the account in 28 transactions amounting to more than $1,500. When the card was reported missing, she was ultimately identified and arrested. Rather than grand theft, the State charged her with engaging in an organized scheme to defraud. The jury found her guilty. On appeal the issue is whether her month long use of the stolen debit card constitutes an “organized fraud” within the meaning of § 817.034(4)(a), Fla. Stat. (2007).

In Pizzo v. State, 945 So.2d 1203, 1207 (Fla.2006), the court explained that in order to convict for organized fraud the State must prove the following elements: (1) engaging in or furthering a systematic ongoing course of conduct; (2) with either intent to defraud or to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act; (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one’s own use or to the use of another person not entitled thereto. The court noted that all of the elements of grand theft are included in the offence of organized scheme to defraud and that the only difference between the two is that an “organized scheme” contains the additional element of “a systematic, ongoing course of conduct with the intent to defraud or take property.” 945 So.2d at 1207.

We agree with the State that using a stolen debit card over the course of a month in 28 separate transactions can fairly be described as “an ongoing course of conduct.” We further agree that her use of the card was necessarily accompanied by an implied representation that she was lawfully entitled to use the card for each transaction to obtain money or goods for herself. Finally, we think it equally apparent that each transaction was undertaken by her to appropriate the proceeds from the account for her own use even though she was not entitled to do so. The evidence thus constitutes a prima facie case of violating § 817.034(3).

Defendant testified at trial and admitted assisting the cardholder with activating the card for use. She further admitted to making the transactions in evidence. Her defense was that the cardholder told her she could keep the card and use it as needed. That testimony was directly contradicted by the cardholder who testified she neither knew of nor authorized defendant’s retention and use of the card. The verdict makes clear that the jury believed the cardholder.

The Legislature has the power to criminalize the same acts in different ways, without any impropriety in making conduct involved in one case subject to prosecution either as several instances of grand theft or in sum as an organized scheme to defraud. When charged as an organized scheme to defraud, multiple acts of grand theft become lesser included offenses and must be so recognized. Pizzo, 945 So.2d at 1206 (grand theft is lesser offense of organized fraud which adds an additional element of a systematic, ongoing course of conduct with intent to defraud or take property). Pizzo makes clear that an offender cannot be convicted constitutionally of both organized scheme to defraud and grand theft for the same conduct. Id.; see also Pineda v. State, 3 So.3d 1289 (Fla. 4th DCA 2009) (dual conviction for both organized scheme to defraud and grand theft for same conduct is double jeopardy violation); Raines v. State, 19 So.3d 331 (Fla. 2d DCA 2009).

It follows that defendant’s conviction must be

Affirmed.

WARNER and LEVINE, JJ., concur.

      . These charges included several purchases at Wal-Mart and other stores, ranging from $6 to $140, as well as cash withdrawals in the amounts of $102, $32, $400, $80, $200, $60, $200.

      . “Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud." The term "scheme to defraud” is defined as an "ongoing course of conduct with intent to defraud one or more persons _" § 817.034(3)(d), Fla. Stat. (2007).


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Kevin Jon APPLEGATE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1534.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      Kevin Jon Applegate, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Kevin Jon Applegate appeals the summary denial of his timely motions to withdraw plea. The trial court erred in treating the motions as ones under Florida Rule of Criminal Procedure 8.850 and in failing to appoint conflict-free counsel to Mr. Applegate. Consequently, we reverse.

Mr. Applegate entered a plea to various offenses. The trial court sentenced him to seven years in prison. Twelve days later, Mr. Applegate filed pro se motions to withdraw his plea. Allegedly, his trial counsel coerced him into taking the plea, his counsel was ineffective, and the relationship with counsel was adversarial. He asked for conflict-free counsel and an evidentiary hearing. Because Mr. Applegate alleged deficient performance by his counsel, the trial court treated Mr. Applegate’s motions as postconviction claims under rule 3.850 and summarily denied relief on the merits.

The trial court should have addressed Mr. Applegate’s motions under Florida Rule of Criminal Procedure 3.170(O. See Cella v. State, 831 So.2d 716, 717 (Fla. 5th DCA 2002) (holding that rule 3.170(i) was proper vehicle to challenge plea where defendant filed motion claiming defendant did not understand consequences of plea within thirty days of sentence); cf. Murray v. State, 909 So.2d 998, 999 (Fla. 2d DCA 2005) (holding that where motion to withdraw plea filed within thirty days of sentence did not state whether it was filed pursuant to rule 3.170(Z) or rule 3.850, court erred in disposing of it under rule 3.850).

A motion under rule 3.170(i) is “a critical stage of the proceedings at which a defendant is entitled to counsel.” Cunningham v. State, 937 So.2d 1150, 1151 (Fla. 2d DCA 2006) (citing Smith v. State, 849 So.2d 485, 486 (Fla. 2d DCA 2003); Meeks v. State, 841 So.2d 648, 648 (Fla. 2d DCA 2003)). “ ‘[O]nce a defendant indicates his desire to avail himself of the rule 3.170(0 procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.’ ” White v. State, 15 So.3d 833, 835 (Fla. 2d DCA 2009) (quoting Smith, 849 So.2d at 485-86). Mr. Applegate was entitled to conflict-free counsel to represent him and to adopt or revise his motions to withdraw. See Council v. State, 9 So.3d 721, 722-23 (Fla. 2d DCA 2009); Newsome v. State, 877 So.2d 938, 939-40 (Fla. 2d DCA 2004) (holding motion to withdraw plea claiming trial counsel coercion and deficient performance alleged permissible rule 3.170(i) ground to withdraw plea and was facially sufficient to warrant a hearing with defendant present and counsel to represent him); Smith, 849 So.2d at 486; Tuhey v. State, 972 So.2d 1029, 1030 (Fla. 4th DCA 2008) (holding it was error for court to deny appointment of counsel to assist in preparation of facially sufficient motion to withdraw plea).

We reverse the order summarily denying Mr. Applegate’s rule 3.170(7) motions and remand for the trial court to appoint conflict-free counsel and to reconsider the merits of his claims.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.

      . Mr. Applegate's motions contained detailed factual allegations. Our record indicates that within days of sentencing, Mr. Applegate learned that his trial counsel had been suspended temporarily from the practice of law.

      . "A defendant who pleads guilty or nolo con-tendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e)...." Fla. R.Crim. P. 3.170(0- One of the grounds rule 9.140(b)(2)(A)(ii)(c) specifies is "an involuntary plea, if preserved by a motion to withdraw plea.”


author: LAGOA, Judge.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FRIEDMAN CHIROPRACTIC CENTER, P.A., etc., Respondent.
    No. 3D09-1036.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Lara J. Edelstein, for petitioner.
    Samóle, Berger & Hicks and Martin I. Berger, Miami, for respondent.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   CONFESSION OF ERROR

LAGOA, Judge.

United Automobile Insurance Company (“United”) petitions this Court for a second-tier writ of certiorari quashing the circuit court appellate division’s order dismissing United’s certiorari petition for lack of jurisdiction. In the petition before the appellate division, United sought relief from the county court’s order compelling its medical expert witness to produce a list of IME and peer review reports that he prepared within the last three years as well as financial information pertaining to his earnings from United or third party vendors.

Based on the authority of Buck v. Chin, 19 So.3d 1132 (Fla. 3d DCA 2009), and the respondent’s proper confession of error, we grant the petition for writ of certiorari and quash the order of the circuit court appellate division. In Buck, 19 So.3d at 1134, this Court granted certiorari review of a similar discovery order and held:

Beyond [the] limits [set forth in Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) ], production by an expert witness of financial and business records may be compelled “only under the most unusual or compelling circumstances” ordinarily only “[w]hen it is disclosed or made apparent to the trial court that [the expert] witness has falsified, misrepresented, or obfuscated the required data.”

Id. at 1134 (quoting Elkins v. Syken, 672 So.2d 517, 521 (Fla.1996)) (citation omitted). Here, it is undisputed that the record contains no such compelling circumstances to support the discovery ordered by the court below. Accordingly, we grant the petition, quash the dismissal and remand the cause to the appellate division for further consistent proceedings.

Petition granted; order quashed.

      . Rule 1.280(b)(4)(A)(iii) states as follows:
      A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:

        1. The scope of employment in the pending case and the compensation for such service.
      2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
      3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
      4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
      An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.


author: NORTHCUTT, Judge.

text:
    Christopher Ruben BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1504.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      Christopher Ruben Brown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Christopher Ruben Brown seeks review of the order denying his motion for post-conviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. Brown’s motion raised ten claims, all but one of which were summarily denied by the circuit court. Because the court erroneously determined that Brown failed to allege prejudice on four of his claims, we reverse for it to reconsider claims one, four, six, and seven. We also reverse the summary denial of claims two and nine and remand for the court to strike those claims as facially insufficient and to give Brown leave to amend them. We affirm the denial of Brown’s remaining claims without comment.

On April 14, 2005, Brown was convicted by a jury of aggravated battery on a law enforcement officer, aggravated fleeing to elude, resisting a law enforcement officer with violence, providing a false name to a law enforcement officer, and having no valid driver’s license. The trial court sentenced Brown to thirty years in prison as a prison releasee reoffender. This court affirmed Brown’s judgment and sentence on May 19, 2006. See Brown v. State, 929 So.2d 1061 (Fla. 2d DCA 2006) (table decision). The mandate issued on June 9, 2006.

The State’s theory at trial was that Officer Rosa stopped Brown’s vehicle for a defective taillight, Brown fled the scene, and in so doing he drove his vehicle over Officer Rosa’s foot. A police chase followed, and Brown’s vehicle collided with a pursuing patrol car driven by Officer Pem-berton. Brown, who sustained injuries as a result of the collision, exited his vehicle and fled on foot. He was caught near a residence by deputies after a brief foot chase.

The defense theory was that Brown had been targeted by the officers. According to the defense, Officer Rosa pulled Brown over because Officer Rosa was enamored of Brown’s girlfriend, Sharona Buckalew. When Officer Rosa approached Brown’s vehicle, he smashed Brown’s windshield with his flashlight, maced Brown, and threatened “to beat the crap out of him.” Brown contended that he fled the scene in his vehicle to escape Officer Rosa’s attack. Officer Rosa shot out the tires on Brown’s vehicle, and Brown eventually lost control and collided with Officer Pemberton’s patrol car. Brown fled on foot toward a residence in an attempt to get witnesses on the scene. The officers beat Brown when they caught up to him in retaliation for ruining their “Yankees” patrol car, which had been donated by George Stein-brenner, owner of the New York Yankees baseball franchise. Brown pursued this defense without the testimony of Bucka-lew, who could not be located, and without any forensic evidence from his vehicle, which had been auctioned off in forfeiture proceedings. In fact, Brown was the sole defense witness.

On November 22, 2006, Brown filed a motion for postconviction relief pursuant to rule 3.850 in which he raised ten claims of ineffective assistance of counsel. The circuit court subsequently entered an order denying Brown’s motion in part and dismissing it in part. The court found each of Brown’s claims to be legally insufficient for failing to address the prejudice prong as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court denied relief on claims one through seven and claims nine and ten and dismissed claim eight without prejudice to Brown’s right to file an amended claim within thirty days. Brown filed a timely amendment to claim eight, and the court denied part of the claim and granted an evidentiary hearing on the remainder of the claim. The court denied the remainder of claim eight on March 5, 2008.

Claims That Require Reconsideration

Claim One

In this claim, Brown maintained that his trial counsel was ineffective for failing to preserve evidence. Brown alleged that his vehicle, which was asserted to be the deadly weapon for purposes of the charged aggravated battery of Officer Pemberton, was auctioned off in forfeiture proceedings. Brown alleged that his counsel was ineffective for failing to seek a court order to preserve the vehicle as evidence because it could have been used to verify Brown’s version of the events leading to the charges in the case. Brown set forth in detail the type of evidence he contended would have been retrieved from his vehicle and how this evidence would have helped his defense. He claimed that his counsel’s omissions “substantially prejudiced [Brown] to the extreme of going to trial on credibility evidence that would have otherwise been spoiled had [Brown’s] more compelling evidence been preserved.”

The circuit court summarily denied relief on this claim based on its finding that Brown failed to allege prejudice under Strickland, 466 U.S. 668, 104 S.Ct. 2052. The court relied on Duckett v. State, 918 So.2d 224 (Fla.2005), to support this holding. In Duckett, the supreme court held that a claim was legally insufficient for failing to address prejudice based on the defendant’s “vague assertion that he was ‘denied an adversarial testing.’ ” Id. at 235. In this case, however, Brown specifically set forth the evidence that would have been retrieved from his vehicle and how it could have been used to aid his defense at trial. Brown’s defense was that he was fleeing from Officer Rosa, who intended to beat him up for personal reasons. Brown’s defense largely relied on his account of the events, and the evidence Brown alleged would have been retrieved from his vehicle would have been essential to his credibility. Accordingly, Brown did effectively allege prejudice, and the circuit court erred in summarily denying relief on this ground.

Claim Four

In this claim, Brown alleged that his trial counsel was ineffective for failing to conduct a reasonable pretrial investigation to collect evidence. Brown claimed that counsel failed to discover the identity of a witness who was at the scene when Brown was stopped by Officer Rosa. Brown recounted that he had learned that this witness was Richard Homsher. He alleged that he had spoken with Homsher and that Homsher would testify that Brown’s taillights were working at the time of the stop and that Brown “did nothing to provoke Rosa pulling and firing his firearm.”

The circuit court summarily denied relief on this claim based on its finding that Brown had failed to effectively allege prejudice. However, Brown’s allegations that Homsher would have corroborated his testimony that he was not pulled over for a defective taillight and that Brown “did nothing to provoke Rosa pulling and firing his firearm” established that Homsher’s testimony would have benefited Brown. While the State correctly argues that this claim was otherwise facially insufficient because it failed to allege that Homsher was available to testify at trial, this was not the basis for the court’s denial of the claim. Thus, the postconviction court erred in summarily denying Brown’s claim for failure to effectively allege prejudice.

Claim Six

In this claim, Brown alleged that his trial counsel was ineffective for failing to investigate and discover the name of the agency that sold Brown his vehicle. Brown alleged that he bought the vehicle on the same day that the incident occurred and that the agency’s representative could have testified that his taillights were in working order. The circuit court summarily denied relief on this claim based on its finding that Brown failed to effectively allege prejudice. However, the prejudice alleged by Brown was that this information could have been used at trial to discredit Officer Rosa’s testimony that he stopped Brown because he had a defective taillight. Accordingly, the postconviction court erred in summarily denying relief on this claim.

Claim Seven

In this claim, Brown alleged that his trial counsel was ineffective for failing to investigate and discover evidence to establish that Officer Rosa shot out the tires on Brown’s vehicle. Brown alleged that counsel should have checked the police ammunition files to find this evidence. The circuit court summarily denied relief on this claim based on its finding that it was conclusory and failed to effectively address prejudice. However, the court erred in making this determination. Brown alleged deficient performance by counsel for failing to investigate evidence that would have impeached the testimony of Officer Rosa, a key witness whose credibility was central to the State’s case. Brown also alleged that this evidence would have supported his theory that he did not intentionally hit Officer Pember-ton’s police cruiser but lost control after his tires were shot out. Accordingly, the postconviction court erred in summarily denying relief on this claim.

Claims That Require Striking

Claim Two

In this claim, Brown alleged that his trial counsel was ineffective for failing to investigate Officer Pemberton’s police cruiser. Brown recounted that Officer Pemberton testified that his cruiser was at a standstill when it was hit by Brown’s vehicle during the police chase and that it was knocked backward ten to fifteen feet. Brown did not explain exactly what evidence would have been retrieved from Officer Pemberton’s vehicle; it can be inferred from Brown’s entire motion that he believed an examination of the vehicle would have shown that Officer Pember-ton’s account of the accident was false. However, it is not clear how Officer Pem-berton’s police cruiser would have established that fact.

The circuit court summarily denied relief on this claim based on its determination that Brown had not effectively alleged prejudice. We find no error in this determination. However, as the State concedes, the postconviction court should have stricken, not denied, this claim. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). The State also properly concedes that the court was required to provide Brown leave to amend this facially insufficient claim. See id. Accordingly, we reverse with directions for the court to strike this claim and provide Brown leave to amend.

Claim Nine

In this claim, Brown alleged that his trial counsel was ineffective for misadvis-ing Brown that Sharona Buckalew was not available because she was somewhere in Texas. Brown contended that Buckalew was still in Florida at the time of trial. The circuit court summarily denied relief on this claim, finding that it was eoncluso-ry and failed to effectively allege prejudice. From the entire context of Brown’s motion, it appears that Brown attempted to allege that defense counsel misinformed him about the whereabouts of the only witness who could corroborate his testimony regarding Officer Rosa’s motive for stopping and threatening him. However, because Brown did not explain how counsel should have known Buckalew’s location, we conclude that the circuit court did not err in determining that the claim was facially insufficient. However, the State properly concedes that the court should have stricken, not denied, this claim under Spera. On remand, the court should strike this claim and provide Brown leave to amend.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    Maurice Donnell WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4566.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Joshua R. Heller, Assistant Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. The issue of the appropriate amount of restitution was not properly preserved for appellate review, and no fundamental error is presented. Mapp v. State, 18 So.3d 33 (Fla. 2d DCA 2009).

KAHN, BENTON, and CLARK, JJ., concur.


text:
    Keith M. DURAN, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, o/b/o, Rachel M. ASHE, Appellee.
    No. 1D09-4597.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Keith M. Duran, pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On appellee’s proper confession of error, the final order of the lower tribunal is quashed and this cause is remanded for further proceedings.

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


text:
    Samuel E. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6019.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Samuel E. Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of counsel is denied on the merits.

WOLF, KAHN, and ROBERTS, JJ., concur.


text:
    Ryan LEE, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2846.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    William Carr Smith of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Aeuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Michael DEYOT, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2825.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Shawn BURKE, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2774.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Kristen BERRY, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2747.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Martha F. Barrera, Senior Attorney, Advocacy Center for' Persons with Disabilities, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    David SAMAR, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2745.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Martha F. Barrera, Senior Attorney, Advocacy Center for Persons with Disabilities, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Eber JOSEPH, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2734.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Kele S. Williams of University of Miami Children & Youth Law Clinic, Coral Gables, for Appellant.
    John Beranek of Ausley <& McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Stephen GENUARDI, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2719.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Martha F. Barrera, Senior Attorney, Advocacy Center for Persons with Disabilities, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Aeuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Angela BEAVER, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2717.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Mary Bland Love and Michael D. Kendall of Gobelman, Love, Gavin, Wasilenko, & Broughan, L.L.C., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Jamane WOODS, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2690.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Kelly McCARTY, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2686.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Martha F. Barrera, Senior Attorney, Advocacy Center for Persons with Disabilities, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Terry CORNWELL, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2675.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Staphrone SLADE, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2619.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    William Carr Smith of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    William T. BAIN, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2613.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Jonathan K. Cole of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Thomas SCHWEDER, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2523.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Katherine DeBriere of Florida Institutional Legal Services, Newberry, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s i'equest for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Ray LEGGETT, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-1719.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2009.
    Jonathan K. Cole of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


author: COPE, J.

text:
    Graciela SOLARES and Elvis Cruz, Appellants, v. The CITY OF MIAMI and Miami-Dade County, Appellees.
    No. 3D09-1760.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Richard L. Williams and Linda L. Carroll, Miami, for appellants.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lee Kraftchick and Robert A. Duvall, Assistant County Attorneys, for appellees.
    Before COPE, WELLS and CORTINAS, JJ.
   COPE, J.

This is an appeal of an order denying a temporary injunction. We dismiss the appeal as moot.

Graciela Solares and Elvis Cruz brought an action for declaratory and injunctive relief against Miami-Dade County and the City of Miami. The lawsuit challenges various aspects of the agreement between Miami-Dade County, the City of Miami, and the Florida Marlins to build a baseball stadium to be used by the Marlins.

On June 12, 2009, the plaintiffs-appellants Solares and Cruz served an emergency motion for temporary injunction. The emergency motion asked the trial court to enter an injunction to stop Miami-Dade County’s pending sale of the Series 2009A Refunding Bonds and Series 2009B Taxable Refunding Bonds until the lawsuit could be decided. The County served a response and the plaintiffs served a reply. At a hearing on June 18, 2009, the trial court denied the temporary injunction, and the plaintiffs have appealed.

The plaintiffs did not request an emergency stay from this court pending appeal. In the meantime, the refunding bonds have been sold to third persons who are not parties to this litigation.

The purpose of the emergency motion for temporary injunction was to prevent a sale of the bonds until the lawsuit could be decided. The bonds have now been sold. The appeal of the order denying the emergency motion for temporary injunction is moot. See San Francisco Residence Club, Inc. v. 7027 Old Madison Pike, LLC, 583 F.3d 750 (11th Cir.2009).

The plaintiffs argue that the issue is not moot. The plaintiffs argue that the County is using proceeds of the refunding bonds for an illegal purpose. That argument makes no difference. The relief requested in the trial court was that the trial court “enter a temporary injunction and enjoin the County from proceeding with the issuance and sale of the Series 2009 Refunding Bonds.” The issuance and sale have occurred, and the bonds are now held by persons who are not parties to this litigation. The suggestion that an injunction should be issued regarding the use of the proceeds of the bonds sale was not raised in the emergency motion.

In dismissing the appeal as moot, we do not express any opinion on any other issue in the case, or any other issue raised in the briefs on appeal.

Appeal dismissed.


text:
    L.D.J., Appellant, v. The DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D09-1728.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Joseph P. George, Criminal Conflict and Civil Regional Counsel, and Kevin Coyle Colbert, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See J.C. v. Fla. Dep’t of Children & Family Servs., 937 So.2d 184, 186-87 (Fla. 3d DCA 2006).


text:
    The STATE of Florida, Appellant, v. Alfonso LEYVA, Appellee.
    No. 3D09-1071.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

While sympathetic to the trial court’s desire to impose what the court felt was a fair sentence under the circumstance of this case, the fact remains that this is a downward departure sentence imposed over State objection without downward departure reasons. We are obliged to reverse. State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006).


author: CORTIÑAS, J.

text:
    The STATE of Florida, Appellant, v. Maxie SMITH, Appellee.
    No. 3D08-2400.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.
    Before COPE, CORTINAS, and LAGOA, JJ.
   CORTIÑAS, J.

As in State v. Roberts, 963 So.2d 747 (Fla. 3d DCA 2007), State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006), State v. Brownell, 922 So.2d 244 (Fla. 3d DCA 2006), and State v. Mendez, 835 So.2d 375 (Fla. 3d DCA 2003), we reverse the downward departure sentence entered pursuant to a court-initiated agreement with the defendant, in which the State did not participate, as it was unaccompanied by oral or written reasons justifying the departure. See State v. Barr, 947 So.2d 1277 (Fla. 3d DCA 2007); State v. Alma, 947 So.2d 637 (Fla. 3d DCA 2007); State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002); State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002), review denied, 832 So.2d 105 (Fla.2002).

The sentence is therefore reversed with directions to enter sentence within the guidelines or to permit the defendant to withdraw his plea.

Reversed and remanded.


text:
    Angela ARMSTEAD, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2772.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Bess BACON, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2694.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Mary Bland Love and Michael D. Kendall of Gobelman, Love, Gavin, Wasilenko, & Broughan, L.L.C., Jacksonville, for Appellant.
    John Beranek of Ausley <& McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Bettie BUCHANAN, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2691.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Larry BAILEY, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2668.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    William Carr Smith of Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Jason DAILEY, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2672.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    David GEHR, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2670.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1382, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Gilberto NAVARRO, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2630.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Martha F. Barrera, Senior Attorney, Advocacy Center for Persons with Disabilities, Tallahassee, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Henry SPENCER, Jr., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2585.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332, 2009 WL 3151088 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Angela POWELL, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-3230.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Valarie Linnen, Jacksonville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Edwin LIEUPO, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-2904.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Nancy E. Wright of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washing ton v. DeBeaugrine, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    John O. WILLIAMS, Appellant, v. The STATE of Florida, COMMISSION ON ETHICS, Appellee.
    No. 1D09-2562.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    John 0. Williams, pro se, Appellant.
    Philip Claypool, General Counsel, and Daniel A. Carlton, Jr., Staff Attorney, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Rosenzweig v. Dep’t. of Transp., 979 So.2d 1050, 1056 (Fla. 1st DCA 2008) (holding that a claim of error, even in the administrative context, cannot be raised for the first time on appeal); Arza v. Fla. Elections Convm’n, 907 So.2d 604, 606 (Fla. 3d DCA 2005) (holding that appellant could not challenge agency decision on appeal, where no challenge had been made below).

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


text:
    Enrico THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6308.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Enrico Thompson challenges his habitual felony offender sentence arguing it is unconstitutional because a jury was not asked to find as fact that he had committed the requisite number of prior convictions so as to be subject to habitual felony offender sentencing. This question has been settled. See, far example, Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001); Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001). While appellant suggests that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is of questionable authority, we find no basis to find a constitutional infirmity in the procedure utilized in the instant case. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)(re-quiring a jury to find a fact used as a basis for exceeding the statutory maximum sentence except for the fact of a prior conviction). We AFFIRM.

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


author: DAVIS, Judge.

text:
    Marcus William BASSETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2601.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2009.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Marcus William Bassett challenges the conviction and sentence entered after he pleaded no contest to manslaughter. We affirm the August 10, 2007, judgment and sentence without comment. However, the State properly has conceded error related to the imposition of certain costs and the lack of properly entered orders accurately reflecting those costs. Accordingly, we remand for the limited purpose of correcting those errors.

Bassett was sentenced to five years’ prison to be followed by five years’ probation. As part of his sentence he was ordered to pay certain costs and fees. While this appeal was pending, Bassett filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) seeking to challenge the imposition of certain costs and fees that were imposed. The trial court partially granted this motion, struck four of the originally imposed costs, and ordered the clerk of the circuit court to prepare an amended judgment and sentence.

Although an amended judgment and sentence was entered reflecting the stricken costs, neither an amended costs order nor an amended order of probation appears in the record. Accordingly, Bassett filed a second rule 3.800(b) motion arguing that based on the originally granted rule 3.800(b) motion, the trial court should have filed an amended costs order, an amended final judgment and sentence, and an amended order of probation. The trial court subsequently entered an amended final judgment and sentence reflecting the changes in costs previously ordered by the trial court and additionally ordered the clerk to file an amended order of probation.

The record reflects neither the entry of an amended costs order nor the entry of an amended order of probation. Additionally, the amended costs reflected within the judgment and sentence added additional costs that were not originally imposed. The State has properly conceded error. See Redilla v. State, 929 So.2d 613, 613-14 (Fla. 2d DCA 2006) (remanding for entry of amended probation order to reflect amended costs and for the striking of costs that were not originally imposed). Accordingly, we affirm Bassett’s judgment and sentence but remand for correction of the errors identified in this opinion regarding the amended costs and the entry of the necessary orders reflecting such. On remand, the trial court should strike the costs that were not originally imposed and enter an amended costs order, an amended judgment and sentence, and an amended order of probation reflecting the correct costs. See Owens v. State, 1 So.3d 405 (Fla. 2d DCA 2009); Redilla, 929 So.2d at 614.

Affirmed; remanded with directions.

KELLY and CRENSHAW, JJ., Concur.


text:
    Larry L. JOHNSON, Appellant, v. BAY COUNTY-ROAD DIVISION and USIS, Appellees.
    No. 1D09-3126.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2009.
    Michael J. Valen of Thomas J. Ueber-schaer, P.A., Pensacola, for Appellant.
    Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Palm Beach County Sch. Dist. v. Ferrer, 990 So.2d 13 (Fla. 1st DCA 2008).

KAHN, BENTON, and ROBERTS, JJ., concur.


author: SALTER, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Petitioner, v. Gaea J. GARRITY, Respondent.
    No. 3D09-2092.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Richard A. Sherman, Sr., Fort Lauder-dale; Law Offices of Patricia E. Garagozlo, and Daniel P. Stiffler, for petitioner.
    Justin C. Leto, Miami, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SALTER, J.

Nationwide Mutual Fire Insurance Company seeks a writ of certiorari quashing a circuit court order denying a motion for judgment on the pleadings. The underlying complaint by the respondent, Ms. Garrity, sought recovery under a $50,000 uninsured motorists endorsement for bodily injuries sustained in a single-vehicle automobile accident in which she was the passenger and Nationwide’s insured was the driver. Ms. Garrity had already received from Nationwide the full policy limit ($100,000) under the liability provisions of the policy.

The pertinent clause in the uninsured motorists endorsement in the policy is not ambiguous. It states:

We will not consider as an uninsured motor vehicle: ... (d) any motor vehicle owned by, or furnished for the regular use of [the insured] or a relative; nor (e) any motor vehicle insured under the liability coverage of this policy unless your auto is being operated by a non-family member causing bodily injury to you or a relative.

On the face of the pleadings, it was undisputed that the vehicle in the accident was owned by the insured, that it was insured under the liability coverage of the policy, and that the vehicle was operated by the insured, causing injury to a person who was not a named insured or a relative of a named insured. Here, as in Travelers Insurance Company v. Warren, 678 So.2d 324 (Fla.1996), the respondent may not obtain a further recovery under the uninsured motorists endorsement and the existing pleadings.

We must nevertheless deny the petition, as Nationwide has not established the irreparable harm that is a requisite element of such an application. The prospect that Nationwide may be put to the expense and inconvenience of a trial does not satisfy this element. Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142, 1145 (Fla. 3d DCA 1996). Any misinterpretation or misapplication of the policy provisions in a final judgment in the case can be remedied in a plenary appeal.

Nor may we treat the trial court’s order as a judgment determining the existence or nonexistence of insurance coverage and appealable under Florida Rule of Appellate Procedure 9.110(m). That provision requires an explicit ruling on coverage in a case in which a claim has been made against the insured. Here, the respondent’s claim was only asserted against the insurer, not the insured. See USAA Cas. Ins. Co. v. Jones, 946 So.2d 1127 (Fla. 1st DCA 2006).

Petition denied.


author: SHEPHERD, J.

text:
    3031 INVESTMENT CORPORATION, Appellant, v. OCEAN BANK, Appellee.
    No. 3D09-2362.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Buchanan Ingersoll & Rooney, Richard A. Morgan and Kelly A. McGovern, Miami, for appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stephanie Reed Tra-band and Mark R. King, Miami, for appel-lee.
    Before COPE, GERSTEN, and SHEPHERD, JJ.
   SHEPHERD, J.

Affirmed. See KeyBank Nat’l Ass’n v. Knuth Ltd., 15 So.3d 939 (Fla. 3d DCA 2009); Ateo Constr. & Dev. Corp. v. Beneficial Sav. Bank, 523 So.2d 747, 750 (Fla. 5th DCA 1988) (“[A] court of equity should appoint a receiver unless the mortgagor makes it clear that the real property covered by the mortgage will sell for enough to pay the debt and charges due the mortgagee and thus affords ample and entirely adequate security.”).


text:
    Marcus L. BLACKMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2879.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We have for review the negotiated plea agreement and sentence of the appellant, Marcus Blackmon. Blackmon argues that his pleas of guilty were improperly accepted because he was incompetent at the time. We agree and reverse.

Blackmon was charged with two counts of burglary of a conveyance. The trial court adjudicated him incompetent to proceed and ordered the Department of Children and Families to provide competency-restoration and treatment.

At a later hearing, Blackmon entered into a negotiated plea of guilty to one count of burglary of a conveyance and one count of attempted burglary of a conveyance. Blackmon was sentenced as a habitual felony offender to one year plus one day in prison on both counts, running concurrently. Prior to entering these pleas, no hearing was held adjudicating Black-mon competent to proceed.

Florida Rule of Criminal Procedure 3.210(a) states:

A person accused of an offense or a violation of probation or community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.

“An individual adjudicated incompetent is presumed to remain incompetent until adjudicated restored to competence.” Samson v. State, 853 So.2d 1116, 1116 (Fla. 4th DCA 2003) (citations omitted). To proceed against an incompetent defendant, the trial court must hold a competency hearing and enter a written order finding the defendant competent to proceed. See Macaluso v. State, 12 So.3d 914, 915 (Fla. 4th DCA 2009) (citations omitted).

In the present case and almost identical to the circumstances in both Ma-caluso and Samson, the trial judge did not conduct a competency hearing, did not take the testimony of any examining physicians and did not enter a written order stating that Blackmon was restored to competence. Therefore, he remained incompetent to proceed and his negotiated pleas and subsequent sentence must be reversed. See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Catinella v. State, 732 So.2d 444, 445 (Fla. 4th DCA 1999).

Reversed and remanded for further 'proceedings consistent with this opinion.

MAY, DAMOORGIAN and CIKLIN, JJ., concur.


author: JOHNSON, Justice.

text:
    Melvin LeBLANC, Naomi Faulkin, Lucille Moore, Ronald Newman, Delilah Hall, Marlene Dumas, and Betty Washington v. Dwayne THOMAS, Chief Executive Officer, Medical Center of Louisiana at New Orleans, Dr. Larry Hollier, Chancellor, LSU Health Sciences Center—New Orleans, LSU Health Sciences Center—New Orleans, and Dr. Michael K. Butler, Acting Chief Executive Officer, LSU Health Care Services Division.
    No. 2008-CC-2869.
    Supreme Court of Louisiana.
    Oct. 20, 2009.
    Taylor, Porter, Brooks & Philips, LLP, Harry Joseph Philips, Jr., Baton Rouge, William Shelby McKenzie, Kati Desrou-leaux, Tom Samuel Easterly, Preston Joseph Castille, Jr., Baton Rouge, for Applicant.
    Tracie L. Washington, Thomas Welch Milliner, New Orleans, William Patrick Quigley, Calvin Johnson, The Jupiter Law Firm, Steven Mark Jupiter, New Orleans, Rosenfeld & Rafik, P.C., Stephen Rosen-feld, Hagens, Berman, Sobol & Shapiro, LLP, Leonard W. Aragon, for Respondent.
   JOHNSON, Justice.

_JjWe granted this writ application to address the proper venue and the application of LSA-R.S. 13:5104 in a suit where a state agency is no longer a party to the lawsuit. Initially, the Plaintiffs filed suit against several Defendants, who allegedly closed the state hospital in New Orleans, known locally as Avery C. |2Alexander Charity Hospital of New Orleans (“Charity Hospital”), without seeking legislative approval, in violation of LSA-R.S. 17:1619.3(B).

In this class action suit, the Plaintiffs argue that venue is proper in Orleans Parish under LSA-R.S. 13:5104 because the operative facts giving rise to this cause of action all occurred in New Orleans, and Charity Hospital, which is the subject matter of this case, is located in New Orleans. In response, the Defendants filed, among other exceptions not at issue in this writ application, a Dilatory Exception of Lack of Procedural Capacity and a Declinatory Exception of Improper Venue, arguing that the only proper venue for this suit is East Baton Rouge Parish where the LSU Board of Supervisors is located, because the suit involves an administrative decision by a state agency. The trial court denied both exceptions. The court of appeal denied the writ as it related to the Exception of Improper Venue, but granted the writ as it related to the Exception of Lack of Procedural Capacity, and dismissed LSU HSC-NO as a party to the litigation, leaving only the individually-named administrators as Defendants. The Plaintiffs did not seek review of the court of appeal decision. The Defendants then filed a writ application with this Court, which we granted. LeBlanc v. Thomas, 08-2869 (La.2/13/09), 2 So.3d 432.

FACTS AND PROCEDURAL HISTORY

In this class action suit, the Plaintiffs, who are residents of Orleans Parish and the surrounding area, filed the instant suit in Civil District Court for the Parish of | ^Orleans against LSU HSC-NO and the individually-named administrators of the Medical Center of Louisiana, the LSU Health Sciences Center and the LSU Health Care Services Division. In the Petition for Injunctive and Declaratory Relief, the Plaintiffs sought a determination that Charity Hospital was illegally closed after Hurricane Katrina in violation of LSA-R.S. 17:1519.3(B) and requested that the court reopen it or the Defendants timely submit a plan detailing how and under what schedule the care terminated by Charity Hospital’s closure will be replaced. Initially, in their petition, the Plaintiffs alleged that venue was proper in Orleans Parish pursuant to LSA-R.S. 13:5104, stating:

The operative facts giving rise to this case all occurred in New Orleans, Louisiana, and Charity Hospital — the subject matter of this complaint — is located in New Orleans. Plaintiffs, moreover, are residents of New Orleans and have been denied health care in New Orleans. Plaintiffs are low income and do not have the means to adjudicate this case in any other venue. In fact, many Plaintiffs have medical conditions that make traveling long distances extremely difficult, if not impossible. Likewise, Plaintiffs’ attorneys are located in New Orleans and are handling this case on a pro bono basis.

The Plaintiffs specifically allege that the Chancellor of LSU HSC-NO issued the order to close Charity Hospital and that his employees followed his instructions and Lclosed the building. Additionally, the Plaintiffs allege that venue was proper in Orleans Parish because the Defendants, in their official capacities as managers of Charity Hospital, located in New Orleans, made an administrative decision in Orleans Parish to close the hospital without legislative approval.

In response, the Defendants filed several exceptions, including a Declinatory Exception of Improper Venue, pursuant to LSA-C.C.P. art. 925, and a Dilatory Exception of Lack of Procedural Capacity pursuant to LSA-C.C.P. art. 926. In the Exception of Lack of Procedural Capacity, the Defendants argued that LSU HSC-NO lacked procedural capacity, and that the Board of Supervisors of Louisiana State University & Agricultural and Mechanical College (“the Board”) was the proper party to sue. The Defendants pointed out that in 1997, the Louisiana State University Health Services Division Act granted authority to the Board to own and operate the state hospitals. See, LSA-R.S. 17:1519.2. The Act specifically made the Board responsible for the operation and management of the LSU HSC-NO. Interestingly, prior to 1997, Charity Hospital did have the authority to sue or be sued under LSA-R.S. 46:759. However, LSA-R.S. 46:759 was repealed by Act No. 3, Section 8 of 1997. Particularly, Section 8 of Acts 1997, No. 3 repealed Part II, “Charity Hospital of Louisiana in New Orleans,” containing LSA-R.S. 46:751 to 46:776 and | ^abolished the Louisiana Health Care Authority and transferred Charity Hospital to the Louisiana Board of Supervisors to be operated by Louisiana Medical Center.

After a hearing, the trial court denied the Defendants’ exceptions. In oral reasons for judgment, the trial court stated:

It’s the court’s belief that the Health Sciences Center New Orleans is, in fact, an agency of the State, and it’s an agency located here in New Orleans, that the cause of action arose here, and they could be sued here.

The Fourth Circuit Court of Appeal dismissed LSU HSC-NO as a party to the lawsuit after concluding that LSU HSC-NO lacked the procedural capacity to sue or be sued. The court of appeal relied on Boston v. Tanner, 29 F.Supp.2d 743 (W.D.La.1998) in concluding that LSUMC (now LSU HSC) was not a proper defendant, stating:

For the purposes of analyzing the claims presented in this case, LSUMC, as an entity in and of itself, cannot be distinguished from the Board of Supervisors because the Board of Supervisors is the operative arm of the medical center. Article 8, section 7of the Louisiana Constitution of 1974 created the Board of Supervisors and charged it with supervising and managing the institutions administered through its system. LSUMC was established under the administration of the Board of Supervisors and, therefore, the correct defendant is the Board of Supervisors and any reference to the Board of Supervisors includes LSUMC.

Id. at 745.

The court concluded “it is clear that the legislature placed in the [LSU Board of Supervisors], and not the individual institutions under its control, the juridical power to sue and be sued.” While acknowledging that the Chancellor of LSU HSC-NO may be able to exercise the power to sue and be sued on behalf of the Board, the court held that LSU HSC-NO itself had no authority to act.

|,¡Because the Defendants failed to raise Exceptions of Lack of Procedural Capacity on behalf of the individual Defendants in the trial court, this argument was not considered. The court of appeal also denied the Exception of Improper Venue, relying on this Court’s decision in Colvin, stating:

In Colvin v. Louisiana Patient’s Compensation Fund Oversight Board, 06-1104 (La.1/17/07), 947 So.2d 15, plaintiffs sought declaratory and monetary relief against the PCFOB for negligent adjustment and administration of their malpractice claims....
[T]he Supreme Court adopted the test established by this court in Avenal v. State, Dept. Of Natural Resources, 95-0836 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, that “the place where the operative facts occurred which support plaintiffs entitlement to recovery is where the cause of action arises for venue purposes under La. R.S. 13:5104(A).” Colvin, p. 13, 947 So.2d at 24 (internal citations and brackets omitted.)
Accordingly, the [Supreme] Court ruled that the proper venue was East Baton Rouge Parish as “the operative facts which support plaintiffs’ entitlement to recovery, i.e., the PCFOB’s administrative decision not to settle their claims, all occurred in East Baton Rouge Parish.” Id., p. 14, 947 So.2d at 24.

Applying Colvin, the court of appeal found no error in the trial court’s decision to deny the exception of improper venue. The court of appeal found that the Defendants failed to present factual evidence as to where the operative facts occurred, i.e., whether the decision to close the hospital was made in East Baton Rouge Parish or Orleans Parish, and whether the Board of Supervisors or the Chancellor of LSU HSC-NO actually made the decision to not reopen the facility.

On March 6, 2009, the Plaintiffs amended their petition, which once read:

|776. Defendant Larry Hollier, Chancellor, LSU Health Sciences Center-New Orleans is sued in his official capacity. Mr. Hollier resides in New Orleans.

The amended pleading now reads:

76. Defendant Larry Hollier, Chancellor, LSU Health Sciences Center-New Orleans is sued in his official capacity as the statutorily designated agent of the Louisiana State University (LSU) Board of Supervisors under La. R.S. 17:1519.5. Dr. Hollier resides in New Orleans.

DISCUSSION

Since the Plaintiffs did not seek review of the appellate court’s decision to dismiss LSU HSC-NO as a party to the litigation, the only issue before this Court is whether the court of appeal erred in denying the Defendants’ Exception of Improper Venue.

The Defendants argue that the lower courts have erroneously interpreted the venue statute LSA-R.S. 13:5104 to find that venue is proper in Orleans Parish. The Defendants argue that under LSA-R.S. 13:5104 venue is only proper in East Baton Rouge Parish, where the state agency that has the authority to make an administrative decision to close Charity is located. The Defendants argue that venue is mandatory in East Baton Rouge Parish, according to Colvin, id., irrespective of which employee of the state agency made the decision to close the facility, or where that person may be domiciled. The Defendants further argue that the Plaintiffs’ cause of action based on the Defendants’ alleged failure to obtain legislative approval prior to the closure of Charity Hospital was an omission which could have only occurred in East Baton Rouge Parish.

|RThe Plaintiffs allege that the Defendants misconstrue the Court’s holding in Colvin. The Plaintiffs maintain that the Court did not find as a matter of law that any lawsuit contesting a decision by a state agency or employee requires that the suit be brought in East Baton Rouge Parish, as the Court clearly stated that venue is a factual matter. Id.

This Court has determined that the Louisiana Civil Code of Procedure “articles governing venue are based on legislative considerations for allocating cases, according to the particular action and the particular parties, among the various parishes which have an interest in the action ...” Underwood v. Lane Memorial Hospital, 97-1997 (La.7/8/98), 714 So.2d 715, 716. This Court has recognized venue as a “convenience factor as opposed to a jurisdictional factor.” Id.

In determining the proper venue, the general principles of venue are usually analyzed to determine the proper parish where an action may be tried before a judge or a jury. See, LSA-C.C.P. art. 42. The general rules of venue provide a “home base” where the defendant must be sued, which is subject to the numerous exceptions. Id. This Court has determined that a suit against a state agency is not governed by the general rules of venue or its exceptions; instead, LSA-R.S. 13:5104 governs, unless a more specific venue governing a specific state agency is found elsewhere in the statutes. Colvin, 947 So.2d at 22.

LSA-R.S. 13:5104 provides, in pertinent part, that:

A. All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises. [Emphasis added.]

RThis Court noted in Colvin, swpra, that in determining the parish where the cause of action arises, we must focus on the place where the “operative facts occurred which support plaintiffs entitlement to recovery.” Prior to determining where the operative facts occurred, the first pre-requi-site of LSA-R.S. 13:5104 must be met, i.e., the suit must be filed against the State of Louisiana or a state agency. Here, the only state agency named in this suit, LSU HSC-NO was dismissed from the suit.

We next consider the amended petition, in which Dr. Hollier was sued in his official capacity as Chancellor of the LSU HSC-NO, and the statutorily designated agent for the LSU Board of Supervisors. The U.S. Supreme Court in Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978), stated “Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ” See, Sommer v. State Department of Transportation, 758 So.2d 923, 936 (La.App. 4th Cir.2000). We therefore conclude, based on our jurisprudence, that when Plaintiffs amended their petition and sued Dr. Hollier in his official capacity, they were really suing the LSU Board of Supervisors.

Now, that the LSU Board of Supervisors has been effectively added as party defendant by amended pleadings, we can now consider LSA-R.S. 13:5104(A), and whether a suit against the state agency based on an administrative decision can be brought in any parish other than East Baton Rouge Parish.

According to Colvin, this Court has determined that “when the Plaintiffs are challenging a ministerial [or administrative] action of a state agency ... and the | mconduct complained of occurred in Baton Rouge where the decisions are made,” East Baton Rouge Parish is the only proper venue as “the parish where the decisions are made should review all complaints against that agency rather than have courts all over the state review the actions.” Id. at p. 23. Stated differently, “where a state agency’s ministerial or administrative actions are called into question, East Baton Rouge offers the only appropriate forum, as that is both ‘the district in which the state capital is located’ and ‘the district court having jurisdiction in the parish in which the cause of action arises’.” Anderson v. State, 05-0551(La.App. 3 Cir. 11/2/05), 916 So.2d 431, 435, writ denied, 05-2493 (La.6/2/06), 929 So.2d 1243. This Court ruled that LSA-R.S. 13:5104(A):

[W]ould render exceptionally rare the circumstances under which a state entity who opposes litigation away from home might be required to litigate issues of great import statewide, as opposed to causes of action whose immediate consequences merely reverberate locally.

See, Abshire v. State, through Department of Insurance, 93-923 (La.App. 3 Cir. 4/6/94), 636 So.2d 627, 629-630, writ de nied, 94-1213 (La.6/24/94), 640 So.2d 1332. In Abshire, where the Plaintiffs sued the Department of Insurance for fraud and mismanagement in Rapides Parish, the court found that because the administrative actions of the state agency were challenged, East Baton Rouge Parish was the only appropriate forum in which to sue. 636 So.2d at 629. Also, in Anderson, supra, where the Plaintiffs filed suit against the Governor and the Legislature for failing to properly fund the indigent defender system in Calcasieu Parish, the court held that venue was only proper under LSA-R.S. 13:5104(A) in East Baton Rouge Parish. In Cameron Parish Police Jury v. McKeithen, 02-1202 (La.App. 3 Cir., 10/14/02), 827 So.2d 666, writ denied, 02-2547, 02-2548 (La.10/23/02), 827 So.2d ]n1148, 1149, where suit was filed against the Secretary of State seeking to enforce his ministerial duties, the court held that East Baton Rouge Parish was the proper venue.

On the other hand, this Court clearly explained in Colvin, that there may be instances where suits are filed against state agencies, and the venue is proper in a parish other than East Baton Rouge Parish. These instances exist “where the operative facts occurred which support plaintiffs entitlement to recovery” and the Plaintiffs are not contesting the ministerial or administrative duties of the state agency. See, 947 So.2d at 26.

In this case, the Plaintiffs continue to argue that the cause of action arose in Orleans Parish where the Chancellor, Dr. Hollier resides, where Charity Hospital is located, and where the decision was made to close Charity Hospital. Following our prior decision in Colvin, we conclude that the decision to close Charity Hospital (or not reopen the facility) was an administrative decision. The controlling factor is not the location of the person issuing the order. In cases against state agencies involving administrative decisions, East Baton Rouge Parish is the district having jurisdiction, and the district in which the cause of action arises under LSA-R.S. 13:5104(A). See, Colvin, supra. Accordingly, we find that East Baton Rouge Parish is the proper venue for a suit against a state agency where an administrative decision is involved. For the foregoing reasons, we reverse the court of appeal and grant the Defendants’ Exception of Improper Venue. This action is transferred to East Baton Rouge Parish.

REVERSED and RENDERED.

      . Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor.

      . In the Petition for Injunctive and Declaratory Relief, the named Defendants were: 1) Dwayne Thomas, who was the Chief Executive Office ("CEO”) of the Medical Center of Louisiana at New Orleans, Louisiana State University Hospitals, Health Care Services Division, sued in his official capacity: 2) Lariy Hollier, Chancellor, LSU Health Sciences Center-New Orleans, sued in his official capacity; 3) Michael K. Butler, Acting Chief Executive Officer, Louisiana State University Health Care Services Division, sued in his official capacity; and 4) Louisiana State University Health Sciences Center-New Orleans ("LSU HSU-NO”).

      . According to the Petition, the Plaintiffs “were statutorily entitled to receive medical care at Charity Hospital because they are uninsured and low-income. Further, each has a serious continuing ‘chronic’ medical condition that would have caused them to go to Charity Hospital for care if it had not been closed. The unlawful closure violated their entitlement to care, and they are unable to reasonably obtain equivalent care from any other source."

      . For all intent and purposes, LSU Health Sciences Center and the LSU Health Care Services Division are one and the same. See, LSA-R.S. 17:1519.1, which provides in pertinent part:
      (5) "Health care services division” or “division” means the organizational unit of the LSU Health Sciences Center at New Orleans comprised of the hospitals and administrative personnel immediately responsible for the operation of the division.

      . La. R.S. 17:1519.3(B) provides:
      B. No hospital nor any emergency room may be closed without legislative approval. Such approval may be granted by the legislature either by concurrent resolution or by appropriate action in the General Appropriation Act.

      . LSA-R.S. 17:1519.2 provides, in pertinent part, that:
      A. (1) The board shall own and operate the hospitals set forth in Subsection B, and any successor entities, in its discretion, as more specifically provided in this Subpart.

      B. (1) The LSU Health Sciences Center-New Orleans shall be responsible for the following hospitals, including all programs and facilities thereof:
      (a) Medical Center of Louisiana at New Orleans.

      (2) Operation and management of the LSU HSC-NO hospitals shall be the responsibility of the board pursuant to this Sub-part.

      . The parties have acknowledged and do not dispute that the petition was amended and is part of the pleadings contained in the record before this Court.”