text:
    Gerrod Antonio JONES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4104
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of aggravated battery and raises three issues on appeal. We find one issue requires reversal and therefore do not discuss the other two.

Appellant correctly contends that the trial court erred in excluding his testimony describing a prior instance when the victim in the instant case threatened appellant with a machete. We have held that when a defendant raises self-defense, it is error to exclude evidence of specific acts of violence committed by a victim against a defendant during a prior confrontation. Angelo v. State, 204 So.3d 594 (Fla. 1st DCA 2016); Savage v. State, 99 So.3d 1001 (Fla. 1st DCA 2012). Under the circumstances of this case we cannot find this error to be harmless. Hughes v. State, 36 So.3d 816 (Fla. 1st DCA 2010).

REVERSED and REMANDED for a new trial.

WOLF, ROWE, and WINSOR, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEVY COUNTY TRANSIT/GALLAGHER BASSETT SERVICES, Appellants, v. Antoinette KOKENZIE, Appellee.
    CASE NO. 1D17-3098
    District Court of Appeal of Florida, First District.
    Opinion filed December 21, 2017

      Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellants.
    Mark N. Tipton, Ocala, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the employer/carrier (E/C) challenges the portion of the order entered by the judge of compensation claims (JCC) on remand from Levy County Transit/Gallagher Bassett Servs. v. Kokenzie, 220 So.3d 1251 (Fla. 1st DCA 2017) (Kokenzie I), finding the claimant entitled to attorney’s fees for defeating the fraud defense asserted by the E/C. We dismiss the appeal for the reasons that follow.

In Kokenzie I, we affirmed the JCC’s rejection of the fraud defense asserted by the E/C but we reversed the award of temporary partial disability (TPD) benefits to the claimant because the JCC’s finding that the workplace injury was the major contributing cause of the claimant’s injuries was not supported by competent substantial evidence. Id. at 1252. We remanded “for entry of an order consistent with th[e] opinion,” id. at 1253, and on remand, the JCC entered an order rejecting the fraud defense and denying the claim for TPD benefits. The order also granted the claimant’s claim for attorney’s fees for successfully defeating the fraud defense, but reserved jurisdiction to determine the amount of the fee award if the parties were unable to agree upon the amount.

On appeal, the E/C argues that JCC erred in determining that the claimant was entitled to attorney’s fees because the claimant failed to secure any past benefits and no future benefits will ever be due because the claimant failed to prove that the injury was work-related. The claimant responds that we lack jurisdiction to review the portion of the order determining her entitlement to fees because the JCC reserved jurisdiction on the amount of the fees.

Although the E/C may well be correct on the merits, we agree with the claimant that we lack jurisdiction to review the issue at this time. Indeed, this court has repeatedly held that a determination of entitlement to attorney’s fees is not ap-pealable where jurisdiction is reserved to determine the amount of the fees. See, e.g., Stanley Steemer Int’l v. Smith, 139 So.3d 507 (Fla. 1st DCA 2014); Dep’t of Corr. v. Ferguson, 98 So.3d 669, 670 (Fla. 1st DCA 2012); Polk Cty. Bd. of Cty. Comm’rs v. Lyon-Spires, 85 So.3d 582 (Fla. 1st DCA 2012); Zampell Refractories, Inc. v. Welch, 61 So.3d 1160 (Fla. 1st DCA 2011); Dep’t of Children & Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999); Se. Recycling v. Cottongim, 728 So.2d 342, 342-43 (Fla. 1st DCA 1999); Wometco Enters. v. Cordoves, 650 So.2d 1117 (Fla. 1st DCA 1995). Although the other portions of the order entered on remand are appealable, see Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 914 n. 1 (Fla. 1st DCA 1999), they were not challenged by either party. Accordingly, because this appeal only concerns the determination of entitlement to attorney’s fees, we dismiss the appeal for lack of jurisdiction.

DISMISSED.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


author: PER CURIAM. LAMBERT, J.,

text:
    Ricky Ewing AKIN, Appellant, v. Cassandra R. JACOBS, Appellee.
    Case No. 5D17-1246
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017
    Gregory W. Eisenmenger, of Eisenmen-ger, Blaue & Peters, P.A., Viera; for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Ricky Akin appeals the final judgment of injunction for protection against stalking entered in favor of Cassandra Jacobs following an evidentiary hearing. We reverse because there was a lack of competent substantial evidence presented to support an injunction against-stalking.

The parties , previously worked in different departments at the Kennedy Space Center. Jacobs filed a petition for injunction for protection against stalking pursuant to section 784.0485, Florida Statutes (2016), alleging that she received harassing letters anonymously sent through the mail over the course of the last year, her work space was vandalized with a. substance “spewed” on her chair and office equipment, and that shortly before filing the petition, she learned through an investigation conducted by her employer that Akin had been tracking Jacobs’ and her boyfriend’s social'media pages and acquired personal information about Jacobs and her daughter.

Stalking is the offense of “willfully, maliciously, and' repeatedly following], harassing], or cyberstalk[ing] another person.” § 784.048(2), Fla. Stat. (2016). By definition, the statute requires, that a petitioner allege and prove two separate instances of stalking. David v. Schack, 192 So.3d 625, 627-28 (Fla. 4th DCA 2016) (citing Roach v. Brower, 180 So.3d 1142, 1144 (Fla. 2d DCA 2015)). “Each incident of stalking must be established by competent substantial evidence ....”, Laserinko v. Gerhardt, 154 So.3d 520, 522 (Fla. 6th DCA 2015) (quoting Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014)). In the present ease, there were no allegations contained in the petition or evidence presented .at the evidentiary hearing of Akin either “following” or “cyberstalking” Jacobs under this statute. Therefore, to obtain the instant injunction against stalking, Jacobs had to prove at least two separate instances of being willfully and maliciously harassed. The term “harass” is defined in this statute as to “engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048(1)(a), Fla. Stat. (2016). Furthermore, “[i]n determining whether each incident of harassment [has caused] ‘substantial emotional distress’ ... to support a finding -of stalking, ‘courts use a reasonable person standard, not a subjective standard.’” Plummer v. Forget, 164 So.3d 109, 110 (Fla. 5th DCA 2015) (quoting Laserinko, 154 So.3d at 521-22).

Jacobs’ evidence ' at the hearing was lacking. Notably, none of the letters that Jacobs alleged to have been sent by Akin were admitted into evidence. Also, Jacobs did not testify to suffering substantial emotional distress. See Klemple v. Gagli-ano, 197 So.3d 1283, 1286 (Fla. 4th DCA 2016) (finding the evidence insufficient to constitute the “harassment” prong under the statute where petitioner did not testify to any emotional distress). Jacobs did call one witness to testify, an investigator employed by Kennedy Space Center who investigated Jacob's’ separate complaint that she filed with her employer against Akin on these allegations. Much of this witness’s testimony concerned a videotape, letters, and a report that he reviewed but did not prepare, none of which were admitted into evidence. Akin’s counsel interposed hearsay and best evidence rule objections to much of this witness’s testimony, which the trial court incorrectly overruled. An injunction cannot be based on hearsay evidence. See id. at 1286. Finally, the evidence presented at the hearing that Akin may have smeared tuna fish on Jacobs’ work station was speculative. See Realauction.com, LLC v. Grant St. Grp., Inc., 82 So.3d 1056, 1059 (Fla. 4th DCA 2011) (“Speculative testimony is not competent substantial evidence.”).

Accordingly, we reverse the final judgment, of injunction for protection against stalking, with directions to dismiss the petition.

REVERSED and REMANDED.

COHEN, C.J., AND EVANDER, J., concur.

LAMBERT, J., concurs and concurs specially, with opinion.

LAMBERT, J.,

concurring and concurring specially, with opinion.

I concur with the.majority opinion. The result of this appeal may well have been different if the letters that Jacobs asserts were regularly sent to her by Akin were actually admitted into evidence. Because the letters were not actually ¿dmitted into evidence, there was no competent evidence in the record about the content of.the letters or how they would cause a reasonable person to suffer substantial emotional distress. Moreover, and as pointed out in the majority opinion, there is no actual testimony or evidence from Jacobs or her witness that Jacobs suffered from emotional distress, let alone substantial emotional distress as required by section 784.048(2). Simply put, Jacobs, an unrepresented litigant, failed to meet her evidentiary burden of proving stalking with competent substantial evidence.

I write to address a separate issue mentioned briefly by Akin in his appellate brief. Akin contends that the trial court’s “active participation” in the case violated-his right to due process, speculating that the nature of the court’s involvement was possibly due to Akin being represented by counsel and Jacobs being unrepresented. Akin made no further argument in his brief on this issue nor, for that'matter, raised an objection below to what he now contends were the trial court’s improprieties, thus waiving the issue for appellate review. See Johnson v. State, 114 So.3d 1012, 1013-14 (Fla. 5th DCA 2012) (“In order to preserve improprieties of a trial judge for appellate review, an objection must be made contemporaneously with the prejudicial conduct or comments.”). Nevertheless, Akin’s observation bears some mention.

Preliminarily, neither Jacobs nor Akin was required to be represented by counsel in this proceeding. See § 784.0485(1)(d), Fla. Stat. (2016) (“[A] cause of action for an injunction [against stalking] does not require a party to be represented by an attorney.”). Moreover, as to unrepresented petitioners, judges are encouraged to assist them in understanding the process of obtaining these type of injunctions and not to employ an unduly rigid approach so as to impede a pro se litigant’s ability to obtain this relief. See In re Eriksson, 36 So.3d 580, 593-94 (Fla. 2010). Here, however, the trial judge did more than simply assist Jacobs in understanding the process of pursuing this injunction. Jacobs was the first witness at the hearing, and the trial judge asked her every question, including many that led to objections being raised by Akin’s counsel. When Jacobs’ only other witness was called to testify, the judge asked every question of this witness. Finally, after Akin’s counsel cross-examined this witness, Jacobs came back on the stand, and the judge again asked her all of the remaining questions, eliciting information that arguably assisted Jacobs in obtaining her injunction.

A trial judge serves as a neutral arbiter in proceedings. Chastine v. Broome, 629 So.2d 293, 295 (Fla. 4th DCA 1993). “While it is permissible for a trial judge to ask questions deemed necessary to clear up uncertainties as to issues that appear to require it,” Asbury v. State, 765 So.2d 965, 966 (Fla. 4th DCA 2000) (quoting J.F. v. State, 718 So.2d 251, 252 (Fla. 4th DCA 1998)), the judge “must not enter the fray by giving ‘tips’ to either side.” Id, (quoting Chastine, 629 So.2d at 295). In my view, the trial judge in this case went far beyond simply “clearing' up” issues and instead became an active participant in the proceedings below, thus casting a shadow upon the fairness of the proceeding. And while I am confident that the trial judge had no improper motive and further recognize that the Florida Supreme Court has encouraged trial judges to provide some assistance to pro se litigants to help them understand the process, trial judges should nevertheless be wary of becoming advocates for the pro se party to the detriment of the opposing party who is represented by counsel, thereby placing the represented party in the untenable position of appearing before a trial judge who seemingly helps the pro se litigant prove his or her case.

      . Jacobs’ petition indicates that Akin was also arrested regarding the allegations in the petition. That criminal prosecution is not affected by our decision in this appeal.


text:
    V.W., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION and United Health Care, Appellees.
    Case No. 5D17-632
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017
    V. W., St. Johns, pro se.
    Tracy Cooper George, and Amy E. Miles, of Agency for Health Care Administration, Tallahassee, for Appellee Agency for Health Care Administration.
    Seann M. Frazier, and Marc Ito, of Parker Hudson Rainer & Dobbs, LLP, Tallahassee, for Appellee United Health Care.
   PER CURIAM.

Appellant appeals a final order from the State of Florida Department of Children and Families Office of Appeal Hearings denying her request to receive additional homecare hours. We note that conflicting evidence was presented as to whether additional care would be beneficial and whether it was medically necessary. We affirm because the appealed order was based upon competent, substantial evidence, and the hearing officer’s determination that additional hours of homecare were not medically necessary is not contrary to law. See Palm Beach Cty. Canvassing Bd. v. Harris, 722 So.2d 1273, 1283 (Fla. 2000); U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012).

AFFIRMED.

ORFINGER, LAMBERT, and EDWARDS, JJ., concur.


text:
    PENNYMAC LOAN SERVICES, LLC, Appellant, v. Sandra FRANCIS, Appellee.
    Case No. 5D16-3155
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2017
    Nancy M. Wallace, of Akerman LLP, Tallahassee, William P. Heller, of Aker-man LLP, Fort Lauderdale, Eric M. Levine and Adam G. Schwartz, Akerman LLP, West Palm Beach, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, and Richard Shuster, of Shuster & Saben, LLC, Satellite Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s involuntary dismissal of this mortgage foreclosure complaint. See DeLong v. Lakeview Loan Servicing, LLC, 222 So.3d 662, 663 (Fla. 5th DCA 2017) (holding that Department of Veterans Affairs regulations included in a promissory note and mortgage are conditions precedent to foreclosure) (citing Palma v. JPMorgan Chase Bank, 208 So.3d 771, 775 (Fla. 5th DCA 2016)).

AFFIRMED.

SAWAYA, ORFINGER and WALLIS, JJ., concur.


author: Kuntz, J.

text:
    Kurt GARDNER, Appellant, v. The STANDARD FIRE INSURANCE COMPANY and Allstate Fire and Casualty Insurance Company, Appellees.
    No. 4D17-1546
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Shelly J. Stirrat of Appellate Services, PLLC, West Palm Beach, and Jack M. Sobel of Schwed, Adams, Sobel & McGinley, PA, Palm Beach Gardens, for appellant;
    Gabriel C. Dobrin of Law Offices James W. Kehoe, III, Fort Lauderdale, for appellee- The Standard Fire Insurance Company.
   Kuntz, J.

The Plaintiff appeals an order transferring venue to Manatee County. In this lawsuit against two uninsured motorist insurers, one of the defendants filed a motion to transfer venue pursuant to Florida Rule of Civil Procedure 1.060, and, later, a motion to transfer for forum non conve-niens, .The court granted the motion to transfer venue based upon Rule Í.060, and based upon that ruling denied the forum non conveniens motion as moot. Because the other defendant has an office in Palm Beach County, venue was proper in the county. Therefore, we reverse the court’s order transferring venue.

Background

The Plaintiff, a resident, of Broward County, and an at-fault and uninsured driver, who is a resident of Hillsborough County, were involved in a car accident on Interstate 75 in Manatee County, The Plaintiff filed uninsured motorist claims with his insurance companies, which are both foreign corporations. When both companies denied the claims, the Plaintiff filed' a lawsuit in Palm Beach County,

The two insurers took different approaches in response to the lawsuit. Defendant Allstate answered the complaint, while defendant Standard Fire moved to transfer venue based on Florida Rule'of Civil Procedure 1.060. Standard Fire later filed a separate motion to transfer for forum non conveniens.

After both sides briefed Standard Fire’s motions, the court held a hearing and issued a written order granting the motion to transfer, relying on Geico General Insurance Co. v. Graci, 849 So.2d 1196, 1199 (Fla. 4th DCA 2003). The court then denied the motion to transfer for forum, non conveniens as moot; however, it noted in the written order that the Plaintiffs arguments for transferring on this ground were not persuasive.

The Plaintiff now appeals the court’s order, arguing Palm Beach County is a proper venue for this lawsuit.

Analysis

At first glance, it is easy to understand why the court transferred this action. A lawsuit was filed against two foreign insurers arising from an automobile accident that occurred in Manatee County between residents of Hillsborough County and Bro-ward County. With the exception of the location of the Plaintiffs attorney, there is no clear connection to Palm Peach County.

However, the analysis is not so simple. In Florida, chapter 47, Florida Statutes (2016), governs the determination of proper venue, which is generally found in section 47.011. However, when the defendant is a corporation, section 47.051 controls:

Actions against domestic corporations shall be brought only ip the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

Additionally, in cases involving multiple defendants, section 47.021 provides that “[a]ctions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.”

We now apply those controlling statutory provisions to the ease before us. The circuit court relied upon Grad to support its conclusion that venue was proper only in Manatee County. In Grad, the plaintiff filed suit in St. Lucie County against her uninsured motorist insurer for claims arising out of an automobile accident that occurred in Martin County. 849 So.2d at 1197-98. The insurer moved to transfer venue to Martin County, and filed an affidavit stating that it did not maintain an office or agent in St. Lucie County. Id. at 1198. The circuit court denied the motion to transfer venue and, on appeal, we reversed. Id. As correctly noted by the circuit court in our case, in Grad we explained that the plaintiffs cause of action was for a determination of an entitlement to damages caused by an automobile collision — not a breach of the insurance contract. Id. at 1199.

However, in Grad we also noted that “[o]f the several venue selections authorized by either section 47.011 or section 47.051, Fla. Stat., the only one which would be applicable is the county where the cause of action accrued.” Id. at 1198. There was only one defendant in Grad and the one defendant did not have an agent in the forum county.

But the circumstances here are different. There are two defendants in this case, Allstate and Standard Fire. One defendant, Standard Fire, filed an affidavit stating it does not have an agent or office in Palm Beach County. However, the other defendant, Allstate, filed an answer to the Plaintiffs complaint within which it specifically admitted that it has an agent in Palm Beach County.

Here, unlike in Grad, there are other provisions to the venue statute applicable beyond where the cause of action accrued. Specifically, with regard to foreign corporations, the statute provides that venue is proper “where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.” § 47.051, Fla. Stat. (2003); see also Fla. Gamco, Inc. v. Fontaine, 68 So.3d 923, 928 (Fla. 4th DCA 2011). And, as noted above, section 47.021, Florida Statutes (2016), provides that in cases with multiple defendants the cause of action may be brought in any venue where any defendant resides.

Therefore, pursuant to sections 47.021 and 47.051, Florida Statutes, venue is proper in any county where either defendant has an agent or other representative. Allstate answered the complaint and admitted it has an agent in Palm Beach County. As such, venue was proper in Palm Beach County and the court erred in granting the motion to transfer venue.

Finally, because the circuit court did not decide Standard Fire’s separate motion to transfer venue for forum non conveniens on the merits, neither do we. However, based upon our reversal of the order transferring venue, we vacate the order on forum non conveniens, as it is no longer moot.

Conclusion

One of the defendants admitted that it has an agent in Palm Beach County. Therefore, venue was proper in Palm Beach County and the court’s order granting Standard Fire’s motion to transfer venue is reversed.

Reversed and remanded for further proceedings.

Gross and Levine, JJ., concur.


author: Per Curiam.

text:
    GMAC MORTGAGE, LLC, Appellant, v. Ryan WALLACH and Sabrina Wallach, Appellees.
    No. 4D16-2978
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]
    James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, for appellant.
    Mark L. Pomeranz of Pomeranz & Associates, P.A., Hallandale, for appellees.
   Per Curiam.

GMAC Mortgage, LLC appeals the dismissal of a mortgage foreclosure action filed against the appellees. We affirm the trial court’s dismissal without comment, but reverse the trial court’s award of attorney’s fees to the appellees. Nationstar Mortg. LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017).

Affirmed in part, reversed in part and remanded.

Conner, Forst and Klingensmith, JJ., concur.


author: Gross, J.

text:
    GOZZO DEVELOPMENT, INC., and Gregory Gozzo, an individual, Appellants, v. Anne M. ESKER, Appellee.
    No. 4D16-3734
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    Michael A. Monteverde and Daniel B. Allison of Bressler Amery & Ross, P.C., Fort Lauderdale, for appellants.
    Tara S. Pellegrino and. Jacqueline S. Miller of Broad and Cassel LLP, West Palm Beach, for appellee.
   Gross, J.

This case involves a civil contempt arising out of a construction defects case commenced in 2005. We affirm the finding of contempt in all respects. Because the compensatory fine imposed included losses not caused by the underlying contempt, we reverse for a new hearing on the amount of the compensator fine imposed.

After nine years of litigation, the circuit court issued an order setting a non-binding summary jury trial and mediation. Appellant Gregory Gozzo was affiliated with both a remodeling company and a developer that had been named as defendants.

Gozzo attended the summary jury trial as the representative of the remodeling company and the developer. The summary jury trial produced a favorable outcome for the plaintiffs.

At the later mediation,' the defendants sent a woman who was not a corporate representative and who did not have the authority to settle on behalf of the defendants.

The circuit judge issued an order to show cause to the defendants as to why they should not be held in contempt for failing to comply with the court’s order regarding the person who was required to attend mediation. For each party to the lawsuit, the mediation order required the presence of a person with authority to settle the case.

At the hearing on the order to show cause, Gozzo explained that the woman he sent to the mediation was a home health aide who had served as a caregiver for Gozzo’s elderly father during the time pri- or to his father’s death, had' worked sixteen-hour days, and was always on time. Gozzo acknowledged that she never held a position with the company but testified that he gave her verbal authority to settle. The home health aide said that Gozzo told her nothing about the case until after her attendance at mediation and that she- did not have authority to. settle. Gozzo. testified that he did not attend the mediation because he had “other things” to do and “other business” on his plate.

The circuit court found the defendants in contempt; as sanctions, the court struck defense pleadings and ruled that the plaintiff was entitled to recover attorney’s fees and costs “related” to (1) preparation for and attendance at the summary jury trial, (2) attendance at mediation, (3) preparation of motions for sanctions and preparation for and attendance at all.hearings related to those motions, and (4) depositions taken in advance; of the contempt hearing.

The defendants-appealed the portion of the order striking the pleading. This court affirmed the imposition of the sanction. See Gozzo Development, Inc. v. Professional Roofing Contractors, Inc., 211 So.3d 145 (Fla. 4th DCA 2017).

A successor judge presided over the hearing on the plaintiffs attorney’s fees and costs. That judge entered judgment for $122,518.78 in attorney’s fees and $32,735.91 in costs, plus pre-judgment interest.

A, trial court .whose decree has been violated has “the power to impose a compensatory fine to the extent of the damages suffered by the injured party,” South Dade Farms, Inc. v. Peters, 88 So.2d 891, 899 (Fla. 1956). The contempt that is punished must actually .cause the loss being compensated. To the extent that such causation is absent,- a fine is punitive rather than compensatory. “[T]here must always be concern as to the extent a sanction is punitive. That is because the procedural safeguards for punitive sanctions are more stringent than for remedial sanctions.” Huber v. Disaster Solutions, LLC, 180 So.3d 1145, 1149 (Fla. 4th DCA 2015); see Nical of Palm Beach, Inc. v. Lewis, 981 So.2d 502 (Fla. 4th DCA 2008).

Where contempt arises from the willful violation of a court order, the Supreme Court has long required that contemptuous conduct cause the loss being recompensed by a compensatory fine. In Hanna v. Martin, 49 So.2d 585, 587-88 (Fla. 1950), the Supreme Court reversed that portion of a damage award not caused by the violation of an injunction order; the Court held that the measure of damages for disobeying the injunction order “should be limited to the actual damages sustained” by the party aggrieved by the violation of the order. Id. at 587.

Thus, “if compensation is intended, the [compensatory] fine must be based on evidence of the injured party’s actual loss” and the loss must be “suffered as a result of the contemptuous conduct” in violating the court’s order. Parisi v. Broward County, 769 So.2d 359, 366 (Fla. 2000) (internal citations omitted) (emphasis in original); see also Levey v. D’Angelo, 819 So.2d 864, 868 (Fla. 4th DCA 2002).

The compensatory fine imposed here was flawed because it included attorney’s fees and costs related to the summary jury trial. The defendants’ contempt — the willful failure to attend and participate in the mediation — could not have caused damages incurred prior to the contempt. We therefore reverse the award of attorney’s fees and costs and remand for a new hearing, where compensation is limited to attendance at and preparation for the mediation, preparation of motions for sanctions and preparation for and attendance at all hearings related to those motions, depositions taken in pursuit of the contempt sanction, and preparation for the new damages hearing.

Affirmed in part, reversed in part, and remanded.

Warner and Taylor, JJ., concur.


text:
    Wilbert HOLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-411
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]

      Wilbert Hollins, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, foh appellee.
   Per Curiam.

The defendant appeals from the trial court’s order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We affirm.

The defendant was convicted of attempted first degree murder with a firearm and kidnapping. On the attempted first degree murder conviction, the trial court imposed an upward departure sentence of life with a three-year mandatory minimum for the firearm. On the kidnapping conviction, the trial court imposed a consecutive habitual felony offender sentence of life with a fifteen-year mandatory minimum.

We affirmed the convictions, but reversed the upward departure sentence for attempted first degree murder, and remanded with directions to impose a guidelines sentence. Hollins v. State, 608 So.2d 546 (Fía. 4th DCA 1992).

On remand, the trial court sentenced the defendant to forty years for attempted first degree murder, consecutive to the habitual offender sentence of life for kidnapping. We affirmed that sentence. Hollins v. State, 636 So.2d 519 (Fla. 4th DCA 1994).

The defendant later filed a rule 3.800(a) motion to correct illegal sentence. In his motion, the defendant argued that his consecutive sentences were illegal under Hale v. State, 630 So.2d 521 (Fla. 1993). In Hale, our supreme court held that once the sentences from multiple crimes committed during a single criminal episode have been enhanced through the habitual offender statutes, the sentences must run concurrently. Id. at 524-25. The trial court summarily denied the defendant’s motion.

This appeal followed. We initially recognize we have relied on Hale to hold that a non-habitual offender sentence cannot run consecutively to a habitual offender sentence that exceeded the statutory maximum for the degree of felony subject to enhanced sentencing. See, e.g., Peel v. State, 970 So.2d 946, 946 (Fla. 4th DCA 2008). But see Mills v. State, 23 So.3d 186 (Fla. 1st DCA 2009) (“[Consecutive HFO and non-HFO sentences imposed for crimes committed during a single criminal episode are legal if the aggregate sentence is less than that which could have been imposed if all HFO eligible convictions had been enhanced and ordered to run concurrently.”) (emphasis added).

However, the defendant’s rule 3.800 motion here was facially insufficient. He failed to allege how the court records demonstrate that his crimes were committed during the same criminal episode. See Fla. R. Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief .... ”).

Accordingly, we affirm the denial of the defendant’s motion on the ground discussed above. Our affirmance is without prejudice to the defendant filing another rule 3.800(a) motion if he can allege how the court records demonstrate that his crimes were committed during the same criminal episode. The remainder of the defendant’s arguments in his initial brief were not, raised in his motion, and thus were not preserved.

Affirmed without prejudice.

Gerber, C.J., Warner and Kuntz, JJ., concur.


text:
    Tyler MOOK, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2179
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T,. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We affirm appellant’s conviction for attempted second degree murder. We reverse the award of costs to the state for bringing two witnesses from Tennessee to testify at appellant’s sentencing. The circuit court determined that the witnesses’ proposed testimony was inadmissible and did not permit them to testify. The award of costs was an abuse of discretion because the costs were not “reasonably and necessarily related to the prosecution of the crime for which appellant was convicted.” Diodato v. State, 150 So.3d 867, 868 (Fla. 4th DCA 2014) (quoting Leyritz v. State, 93 So.3d 1156, 1158 (Fla. 5th DCA 2012)); see also § 938.27(1), Fla. Stat. (2015).

Affirmed in part, reversed in part.'

Warner, Gross and Taylor, JJ., concur.


author: Forst, J.

text:
    M.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1754
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]

      Carey Haughwout, Public Defender, and Virginia Murphy,- Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West -Palm Beach, for appellee. .. ,
   Forst, J.

Appellant M.S., a juvenile, appeals from the circuit court’s final judgment that- he was guilty of disrupting an educational institution in violation of section 877;13; Florida Statutes (2016), for which the court withheld adjudication. This charge, and the charge of affray (not relevant to this appeal), stemmed from Appellant’s fight with another student in the school hallway while changing class periods. Appellant argues that the court erred in denying his motion for judgment of dismissal because the State did not present sufficient evidence to support a conviction of disrupting an educational institution. We agree with Appellant and thus reverse and remand for entry of a judgment of dismissal on this count.

Background

At the adjudicatory hearing, the State presented the following evidence. While changing class periods, , Appellant approached another student in the hallway and they -engaged in a tense verbal exchange. After pushing each other, the two began to scuffle and other students gathered around the scene making it difficult to pass through the hallway. One of the onlookers pulled the backpack off of the other student during the fight. The physical altercation lasted for less than one minute before school officials arrived, broke up the fight, and chased the onlookers away.

At the close of the State’s evidence, Appellant’s counsel moved for a judgment of dismissal. The trial court denied the motion because of the crowd of onlookers the scene created and because the number of officials that reported to the scene were “a little bit more than necessary to'-:.', just monitor the hallways.” The court entered an order finding the State proved beyond a reasonable doubt that Appellant committed disruption of an educational institution as charged. After a disposition hearing, the court withheld adjudication of delinquency and placed Appellant on probation.

Analysis

Our standard of review is summarized in S.B. v. State, 31 So.3d 968 (Fla. 4th DCA 2010):

Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo. When moving for a judgment of acquittal; a defendant adrpits both the facts adduced, as well as every conclusion favorable to the State that a finder of fact could fairly and reasonably infer from the evidence. Evidence is sufficient to sustain a conviction if a rational trier of fact 'could find the existence of the elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the State.

Id. at 969-70 (citations omitted); accord H.N.B. v. State, 223 So.3d 308, 310 (Fla. 4th DCA 2017).

Applying this standard of review, we agree with Appellant’s argument that the trial court erred in denying his motion for judgment of dismissal as to this charge.

Section 877,13(l)(a), Florida Statutes (2016), states: “It is unlawful for any person ... [kjnowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.” Violating this statute requires specific intent. See H.N.B., 223 So.3d at 310 (“The statute is designed to prohibit acts that are specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity .... ” (emphasis omitted) (quoting T.T. v. State, 865 So.2d 674, 676 (Fla. 4th DCA 2004))); L.T. v. State, 941 So.2d 551, 552 (Fla. 2d DCA 2006) (“This offense contains a specific intent element .... ”); A.M.P. v. State, 927 So.2d 97, 100 (Fla. 5th DCA 2006) (“[T]he prohibited conduct requires some sort of purposeful interference with school activities.”).

Case law distinguishes mere run-of-the-mill physical altercations between students from other actions which are intended to and actually disrupt or interfere with a school’s administration. See H.N.B., 223 So.3d at 311-12 (“[N]ot every school fight, and not every event which draws other students’ attention, amounts to disrupting an educational institution in violation of section 877.13(l)(a).”); A.M.P., 927 So.2d at 100 (“A broad interpretation of the statute would turn virtually every infraction of school rules into a criminal act to the extent that the infraction occurred on school grounds, during school hours, and required the attention of school officials.”).

In the instant case, two students were engaged in a physical altercation that lasted less than one minute before official intervention. This fight created a group of onlookers who crowded the hallway, but they were immediately chased away by school officials, and there is no evidence that any of the students were late to class. These facts do not demonstrate the type of flagrant or provocative behavior that rises to the level of specific intent to disrupt the function of the school. The evidence that there was an unplanned short fight between two students is, standing alone, generally insufficient to show the intent required to violate the statute. See H.N.B., 223 So.3d at 309 (finding no statutory violation even though the fight on school grounds caused students to crowd around, because, despite the disturbance, the incident “had not disrupted the bus service or the serving of breakfast”); T.H. v. State, 797 So.2d 1291, 1292 (Fla. 4th DCA 2001) (finding there was no evidence of knowing or intentional conduct designed to disrupt a school function or activity in a case involving a fight over a girl at school before class began, as “[t]he fuel for the fight was jealousy”); L.T., 941 So.2d at 552-53 (finding insufficient evidence of a violation when the juvenile joined an on-going fight, even with evidence that “she ‘knew’ she was disrupting the school campus,” because that is “not evidence that she specifically intended to do so”); A.M.P., 927 So.2d at 99-100 (finding no intent to disrupt and that the function of the school was not disrupted where the juvenile was fighting in a bathroom, intentionally bumped the assistant principal with her shoulder, and caused the assistant principal to spend several hours handling the situation).

In reaching its decision to ■ deny Appellant’s motion to dismiss the disrupting charge, the trial court emphasized the fact that several school officials were needed to address the incident and move the onlookers along.. However, the use of school resources is not determinative of the intent of the student. In a similar case, the lower court rejected the State’s argument that, because school administrators had “to break up this fight and they had to engage in their time and basically divert all their attention to the defendant’s conduct!, it was] certainly a disruption in the educational institution [as otherwise, the .administrators] would be going about their ordinary course of business to be administering the school.” A.M.P., 927 So.2d at 99. The Fifth District Court of Appeal agreed with the lower court that, despite testimony that a couple of hours were spent dealing with the situation, there “was no evidence offered of any intent to disrupt and no evidence that the function of the institution was disrupted.” Id. at 100.

In the instant case, there was no evidence that Appellant intended to disrupt the school, or that this fight caused a more than de minimis disruption or interference with the school’s administration or function. Although disciplinary action by the school itself appears to be supported, the second degree misdemeanor conviction, of disruption of a school function is not.

Conclusion

The State failed to establish that Appellant knowingly disrupted or interfered with his school’s administration or functions beyond a de minimis (if any) impact. Accordingly, we reverse and remand for entry of a judgment of dismissal on this count. ■ '

Reversed and remanded for entry of judgment óf dismissal.

Levine and Kuntz, JJ., concur.

      . As such, this case is distinguishable from cases where education disruption convictions were affirmed. See, e.g., S.H.B. v. State, 355 So.2d 1176, 1178-79 (Fla. 1977) (the juvenile’s conviction was based on findings that he ran through the halls while class was in session, creating a situation where students in class were gathering at the doors to view the occurrence; ignored requests that he return to class; refused to leave school grounds when instructed by the principal; and loudly used obscenities toward a teacher); J.J. v. State, 944 So.2d 518, 519-20 (Fla. 4th DCA 2006) (the juvenile was found to have incited two other students to fight in the cafeteria; resisted a school employee's numerous attempts to control his behavior; disrupted the serving of breakfast; and was forcibly escorted by two other school employees from the cafeteria); T.T., 865 So.2d at 675-76 (finding the juvenile yelled, screamed, and stood up during a school award ceremony, refusing to leave after a police officer’s orders, resulting in his forcible removal by two officers); M.M. v. State, 997 So.2d 472, 473 (Fla. 5th DCA 2008) (the juvenile’s disorderly behavior was found to have disrupted and interfered with the bus schedule); M.C. v. State, 695 So.2d 477, 479 (Fla. 3d DCA 1997) (there was a violation where the juvenile stormed into the main office of the school, waving her hands and insulting a school police officer in a loud and threatening manner for arresting her brother moments earlier, thus inciting a group of students to join in her protest).


text:
    Natalie FERNANDES, as Wife, and Personal Representative for the Estate of Joseph Fernandes, Appellant, v. SOVEREIGN HEALTHCARE OF PORT ST. LUCIE, LLC, Owner, Current Licensee and a Delaware Corporation d/b/a Tiffany Hall Nursing and Rehab Center, and Southern Healthcare Management, LLC, a Delaware Corporation, Appellees.
    No. 4D17-136
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]
    Marc D. Johnson of Larson Johnson, P.L., Tampa, and Stanford R. Solomon of The Solomon Law Group, P.A., Tampa, for appellant.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, and Robin N. Knanal of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for appellees.
   Per Curiam.

Appellant Natalie Fernandes offered each of the Appellees a proposal to settle her wrongful death action. The settlement proposals were rejected by Appellees. At trial, Fernandes was the prevailing party. Her subsequent motion for attorney’s fees and costs was denied as a result of the trial court finding the settlement' proposals to be unacceptably ambiguous;

We affirm all aspects of the final judgment as it relates to Fernandes’ motion for attorney’s fees. However, as recognized by both parties, we must remand this case to the trial court with instructions • that ⅛ address Fernandes’ motion for costs pursuant to section 57.041(1), Florida Statutes (2014) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in -the judgment .... ”).

Affirmed in part, Reversed and Remanded in part.

Levine, Forst and Kuntz, JJ., concur.


text:
    Joseph CUTRONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-435
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

Per Curiam.

Joseph Cutrone appeals the court’s denial of his motion to correct sentencing error. In the underlying prosecution, the State filed a two-count information charging Cutrone with one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. Cutrone and the State ultimately agreed that Cutrone would enter a plea of no contest as to the charge of possession of a firearm by a convicted felon. In exchange for his plea as to that count'of the information, the State agreed he would be sentenced to 18.15 months imprisonment as a habitual felony offender. After Cutrone orally changed his plea on Count I, the court accepted his plea and orally sentenced him in accordance with the plea agreement. Later, the court issued a written sentencing order in conformity with the agreement and the court’s oral sentence. However, the court’s written judgment reflected a conviction as to both counts of the information. Cutrone’s motion to correct the error in the court’s judgment was denied, and he appeals.

On appeal, the State concedes error. Therefore, the court’s order denying the motion to correct sentencing error is reversed and the case is remanded with instructions to correct the error in the written judgment.

Reversed and remanded. ■

Forst, Klingensmith and liuntz, JJ., concur. .


author: Gerber, C.J.

text:
    Charles JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2840
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   On Appellee’s Motion for Rehearing

Gerber, C.J.

We grant appellee’s motion for rehearing, withdraw our opinion issued on August 30, 2017, and substitute the following opinion in its place.

The defendant appeals from the trial court’s order denying his motion for return of property. The defendant argues the coqrt erred in summarily denying his motion without an evidentiary hearing, because his motion was facially sufficient and his allegations were not refuted. We agree with the defendant’s argument. We reverse for an evidentiary hearing.

Procedural History

The defendant was convicted of burglary of a conveyance, first degree petit theft, criminal mischief over $200 but less than $1,000, driving while license suspended as a habitual offender, and possession of twenty grams or less of cannabis. The burglary, theft, and mischief charges arose from the defendant breaking into a woman’s car and stealing her purse out of the car. The defendant fled in a car which had been rented to the defendant’s girlfriend, but which he did not have permission to drive. The defendant later abandoned the rental car. From the rental car, the police recovered the woman’s cell phone, purse, and items from her purse. The habitual offender and cannabis charges arose from the defendant’s driving away in the rental car, which contained marijuana. The defendant was not convicted of any crime related to using the rental car without permission.

After the defendant served his sentence, he filed a motion for return of property. In the motion, the defendant alleged the police seized his personal property during his arrest, the property was not needed as evidence because he had served his sentence, and the property was not the fruit of criminal activity. The defendant alleged his property as a Samsung cell phone, $15.00, four GPS systems, Cartier glasses, clothing, a red Cartier case, and “all other miscellaneous items not included in this motion.”

The trial court issued an order seeking a response from the state and the police department which arrested the defendant. The police department responded. In the response, the police department argued the defendant’s motion was legally insufficient:

The defendant does not describe all of the property that he seeks the return of with specificity. He first references a Samsung cell phone, this is problematic given that the defendant was convicted of Burglary of a Conveyance and First Degree Petit Theft and a cell phone was listed as one of the stolen items in the State’s Information. ... Additionally, the defendant claims rights to fifteen dollars in United States Currency, four GPS systems, Cartier glasses and case, and clothing. The defendant was in a rented car that his own girlfriend stated was taken without her consent. He then tried to abandon the car by giving the keys to an independent witness who just happened to be putting gas in her own car at the gas station the Defendant pulled into in an effort to evade law enforcement. ... Lastly, the defendant claims rights to “all other miscellaneous items not included in this motion.” This is certainly legally insufficient as there is nothing specific about “miscellaneoús” or addressing items not included in his motion and should be denied.
While, the defendant asserts that the property is not the fruit of criminal activity, his convictions for Burglary of a Conveyance and First Degree Petit Theft suggest otherwise.

The police department attached to its response its probable cause affidavit, inventory, incident report, and the state’s information. The probable cause affidavit stated that the defendant stole the victim’s purse, which contained her cellular phone. The inventory listed, among other items recovered from the vehicle which the defendant was driving, various GPS devices, a Samsung phone, and eyeglasses in a case.

However, the incident report alleged that the police recovered two cellular phones from the vehicle. According to the incident report, the police dialed a phone number on one of the phones, and the burglary victim’s husband answered. The incident report further alleged that the victim’s husband met with the police and identified that phone and the purse as belonging to' the victim. According to the incident report, as the police transported the defendant to the jail, he asked the police to bring Ms phone with him. The incident report then stated: “[The defendant’s] phone was one of the two phones recovered from the [vehicle] during the initial investigation.” The incident report finally states that the police denied the defendant’s request and instead stored his phone as evidence.

The trial court summarily denied, without an evidentiary hearing, the defendant’s motion to return property.

This appeal followed. The defendant argues the court erred in summarily denying his motion without an evidentiary hearing, because his motion was facially sufficient and his allegations were not refuted.

In response, the state essentially raises three arguments: (1) the defendant’s con-clusory allegations asserting that the property is his personal property is insufficient to meet the defendant’s burden, especially given that the property was seized from a vehicle which the defendant did not have permission to drive; (2) although the incident report conceded that one of the recovered phones belonged to the defendant, the incident report did not specify the facts upon which the police determined that the phone belonged to the defendant; and (3) although the state has not pursued forfeiture proceedings against the defendant’s property, the state intends to pursue forfeiture proceedings to satisfy the defendant’s unpaid costs and fees.

Our Review

We are more persuaded by the' defendant’s argument. The procedure for a de-' fendant to move for a return of property was described in Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004), an opinion which we have cited with approval. Sanchez v. State, 174 So.3d 439, 442-43 (Fla. 4th DCA 2015). In Bolden, our sister court described the procedure as follows:

When the defendant seeks the return of seized property as the true owner, the applicable procedure is similar to the.' procedure for the consideration of a motion for postconvictipn relief. First, the defendant must file a facially sufficient motion for the return of property. To be .facially sufficient, the motion must allege that the property at issue was his personal property, was not the fruit of criminal activity, and was not being held as evidence. Implicit in this standard is the requirement that the defendant must specifically identify property at issue. However, the defendant need not establish proof of ownership in order to allege a facially sufficient claim for the return of property.
If the trial court finds that a motion to return property is facially sufficient, it may order the State to respond by citing applicable case law and attaching portions of the -record to refute the defendant’s contention that the property should be returned, after which the motion may be summarily denied. ■ In the alternative, the trial court may hold an evidentiary hearing. At the evidentiary hearing, the trial court must first ascertain whether the property was confiscated by a law enforcement agency in connection with a criminal prosecution and whether the property is still in the agency’s possession. If the State can show' that the property was entered into evidence or that the State intends to pur- ■ sue forfeiture against the property^ the defendant is not entitled to have the property returned. Similarly, the defendant is not entitled to have "the property returned if the State intends in good faith to bring another criminal prosecution at which the items would be admissible in evidence. However, if the State is unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superi- or possessory interest in the property, it should be returned to [the defendant] or "to such person(s) as he may designate.

Id. at 782-83 (emphasis added; footnotes, citations, and' quotation marks omitted).

Here, the defendant’s motion was facially sufficient, except .-for his non-specific claim as to “all other , miscellaneous items not included in [his] motion.” The defendant specifically identified the other property at issue and alleged the property was his personal property, not the fruit of criminal activity, and not being held as evidence because he had served his sentence.

The police department’s response and attachments did not refute the defendant’s allegations. The incident report stated that one phone belonged to the victim and the other phone belonged to the defendant. The police department’s response and attachments do not allege that the defendant’s phone, $15.00, four GPS systems, Cartier glasses and case, and clothing were fruit of criminal activity, still being held as evidence, the subject of forfeiture proceedings, evidence to be admitted in another criminal prosecution, or subject to a superior possessory interest in the property. Bolden, 875 So.2d at 782.

Contrary to the state’s response, , it is not the defendant’s burden at the pleading stage to establish the truth -of the police’s determination that-the phone belonged to the defendant, or that the other specified items in fact belong to him. That opportunity is to be afforded to the defendant at the evidentiary hearing pursuant to Bol-den. Similarly, if the state intends to pursue forfeiture against the property, that also is a subject to be raised at the eviden-tiary hearing pursuant to Bolden. If the defendant has any defenses to the state’s intent to pursue forfeiture at this time, the defendant may raise such defenses at the evidentiary hearing.

Conclusion

Based on the foregoing, we reverse the trial court’s order summarily denying, without an evidentiary hearing, the defendant’s motion for return of property, except for the defendant’s non-specific claim as to “all other miscellaneous items not included in [his] motion.” .We remand for an evidentiary hearing pursuant to Bolden.

Reversed and remanded for evidentiary hearing.

Levine and Conner, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bryan BRADLEY, Appellee.
    No. 4D16-3979
    District Court of Appeal of Florida, Fourth District.
    [December 6, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   Per Curiam.

We affirm the trial court’s imposition of a downward departure sentence. However, we remand for the trial court to file the transcript of the sentencing hearing that is already included in the record on appeal with the clerk of courts for the underlying case. See Jackson v. State, 64 So.3d 90, 92 (Fla. 2011).

Affirmed but remanded with instructions to trial court.

Gross, May and Klingensmith, JJ., concur.-


text:
    Stevie BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3208
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Beckham v. State, No. 3D15-304, 230 So.3d 77, 93-97, 2017 WL 3879292, at *11-14 (Fla. 3d DCA Sept. 6, 2017).


text:
    Timothy STEWART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1932
    District Court of Appeal of Florida, Third District.
    Opinion filed October 11, 2017
    Timothy Stewart, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Strickland v. State, 437 So.2d 150 (Fla. 1983)(holding that attempted first-degree premeditated murder was properly reclassified from a first-degree felony to a life felony, because defendant was charged with, and convicted of, using firearm during the commission of the attempted premeditated murder and the use of the firearm was not an essential element of the crime).


author: Hughes, J.

text:
    STATE of Louisiana IN the INTEREST OF E.S.
    No. 2017-CK-1904
    Supreme Court of Louisiana.
    December 5, 2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ST. TAMMANY

| jWrit denied.

HUGHES, J., additionally occurs and assigns reasons.

Hughes, J.

concurring.

hi concur because there will be an adequate remedy on appeal. However, I note the anomaly that while the trial court and the court of appeal both refer to the juvenile as being both thirteen and fourteen, the state’s petition only charges one count.


author: Hughes, J.,

text:
    STATE of Louisiana IN the INTEREST OF A.T.
    No. 2017-CJ-1954
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE 21st JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA

11 Writ denied.

Hughes, J.,

dissents and would grant the writ.

1 Respectfully, I would grant the writ. This is not a request for a change of custody, but rather a request to at least consider the possibility to achieve reunification. The burden would remain on the mother to perform before the child’s living arrangements are altered.


author: PER CURIAM

text:
    IN RE: Phil C. NUGENT
    NO. 2017-B-1856
    Supreme Court of Louisiana.
    December 5, 2017
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent filed two judicial complaints against a judge, as well as a petition for damages against the judge and respondent’s former wife, and that none of these filings had a factual basis.

Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 3.1, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Phil C. Nugent, Louisiana Bar Roll number 20038, be suspended from the practice of law for a period of eighteen months.

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


text:
    IN RE: Dounnisei Kuo GBALAZEH
    NO. 2017-B-1704
    Supreme Court of Louisiana.
    December 5, 2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Dounnisei Kuo Gbalazeh, an attorney licensed to practice law in Louisiana but currently ineligible to practice,

FORMAL CHARGES

In January 2009, the ODC learned that the Baton Rouge Police Department had issued an arrest warrant against respondent. In February 2009, the ODC sent respondent notice of the associated disciplinary complaint to her primary bar registration' address. The certified mail was returned marked “unable to forward.” On March 5, 2009, the ODC spoke with respondent and advised her of the pending corpplaint. The ODC also advised respondent that her sworn statement had been scheduled for March 10, 2009. Although respondent verbally agreed to appear for the sworn statement, she failed to do so. The criminal charge was later dismissed, but respondent has never responded to the complaint.

| ⅞After respondent was declared ineligible to practice law in Louisiana, the only state in which she- is licensed to practice law, she was indefinitely suspended by the Board of Immigration Appeals (“BIA”) on June 10, 2014.- Thereafter, on two separate occasions (July 10, 2014 and May 20, 2015), respondent attempted to enroll as counsel of record for an immigration client by submitting a signed Form G-28 (Notice of Entry of Appearance as Attorney or Accredited Representative) to the Department of Homeland Security at a time when she was neither eligible to practice law in Louisiana nor authorized to practice as an attorney before the Immigration Courts. The ODC sent respondent notice of the associated disciplinary complaint in June 2015, but she has never responded to the complaint.

DISCIPLINARY PROCEEDINGS

In February 2016, the ODC filed formal charges against respondent, alleging that her conduct, as set forth above, violated the following- provisions of the Rules of Professional Conduct: Rules 5.5 (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct.)

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

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed 1 ^admitted and proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent violated duties owed to her clients, the public, and the legal profession. Her actions were intentional because after she was suspended from practicing before the BIA, she attempted to enter an appearance as attorney of record in proceedings before that agency. She caused actual harm to her clients by delaying the immigration proceedings, to the courts by wasting judicial resources, and to the public by eroding confidence and trust in the legal profession and the legal system. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is suspension.

In aggravation, the committee found a dishonest or selfish motive, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the committee found the absence of a prior disciplinary record and inexperience in the practice of law (admitted 2007).

After also considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee further recommended respondent be assessed with the costs and expenses of this proceeding.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the legal conclusions of the committee are supported by the factual allegations I ¿asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent knowingly, if not intentionally, violated duties owed to her clients and the legal system. Her misconduct caused actual harm to two clients who, presumably, either had to hire another lawyer or go unrepresented in their immigration matters. The board agreed with the committee that the baseline sanction is suspension.

■ The board also agreed with the aggravating and mitigating factors found by the committee, but rejected the finding that respondent was inexperienced in the practice of law. The board noted that respondent received her license seven years before she engaged in the unauthorized practice of law, and nothing in the record suggests that inexperience contributed to her misconduct.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

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

. DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 6(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57.

jjn cases in which the lawyer does, not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, §' 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from' the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent practiced law on two occasions by seeking to enroll as counsel on behalf of immigration clients while she was ■ ineligible to practice law. She also failed to cooperate with the ODC in- the investigation of two disciplinary complaints against her. As such, she- has violated Rules 5.5, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

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

Respondent knowingly, if not intentionally, violated duties owed to her clients and the legal system, causing actual harm. Under the -ABA’s Standards for Imposing | ^Lawyer Sanations, the applicable baseline sanction is suspension. The aggravating and mitigating factors found by the disciplinary board are supported- by the record. ,

In prior cases involving the practice of law by attorneys who are ineligible to do so, we have imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension of one year.and one day. See In re: Hardy, 03-0443 (La. 5/2/03), 848 So.2d 511. In In re: Johnson, 09-0057 (La. 5/22/09), 9 So.3d 835, we disciplined a lawyer whose misconduct was very similar to respondent’s herein. Ms. Johnson represented a client in a domestic matter after she notified the bar association that she wished to assume inactive status. Thereafter, she failed to cooperate with the ODC in its investigation of the complaint filed against her. There were several aggravating factors present, and the sole mitigating factor was Ms. Johnson’s lack of a prior'disciplinary record. Under these circumstances, we imposed a one year and one day suspension from the practice of law.

Like Ms. Johnson, respondent was not eligible to practice law when she attempted to enroll as counsel of record on behalf of two immigration clients. Thereafter, she failed to cooperate with the ODC in its investigation of the complaint filed against her in that matter, as well as in an unrelated matter. There are several aggravating factors present, and the sole mitigating factor is the lack of a prior disciplinary record.

Given these facts, and our prior decision in Johnson, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Dounnisei Kuo 17Gbalazeh, Louisiana Bar Roll number 30896, be and she hereby is suspended from the practice of law for one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Resppndent has been ineligible to practice law since October 1, 2008 for failing to failing to pay her bar dues ánd the disciplinary assessment. She is also ineligible to practice law for failing to file her trust account disclosure statement and for failing to comply with the mandatory continuing legal education requirements.


author: 11 GENOVESE, J.,

text:
    Tamara Sue MARLER and Dean L. Marler v. Peggy S. JARRELL aka Peggy Lynn Jarrell, Charles E. Carver and Gina H. Carver
    NO. 2017-C-1408
    Supreme Court of Louisiana.
    December 5, 2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA

11 Writ denied.

CLARK, J., would grant.

HUGHES, J., would grant.

GENOVESE, J„ would grant and assigns reasons,

11 GENOVESE, J.,

would grant for the reasons set forth in Judge Calloway’s dissent.


author: PER CURIAM:

text:
    STATE EX REL. Robert SKIPPER v. STATE of Louisiana
    No. 2016-KH-1666
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE SIXTH JUDICIAL DISTRICT COURT, PARISH OF MADISON

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar’ to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

| ^ATTACHMENT

IN THE SIXTH JUDICIAL DISTRICT COURT IN AND FOR THE

PARISH OF MADISON - STATE OF LOUISIANA

⅜ *.* * * ⅜ * * * ‡ * * iff# * *

JUDGMENT

This matter is befhre the Court on a Writ of Habeas Corpus Pursuant to Louisiana Constitution of 1974, Section 21, and Article 5, Section 2 Habeas Corpus Needful Writ.

In 1973, the Louisiana Supreme Céurt affirmed petitioner's conviction of the murder of J, T. Crockett, Therefore, the time for seeking post-conviction relief has long expired, No exception to the time limitation was alleged by Robert Skipper, as required by La. C. Cr, P. Art. 930.8.

The court also notes that Petitioner has filed numerous repetitive Motions and this ⅛ the latest in a long line of post-conviction pleadings that have been addressed on separate occasions-with writs being sought and denied.

THEREFORE, IT IS ORDERED ADJUDGED AND DECREED, the Writ of Habeas Corpus Pursuant to Louisiana Constitution of 1974, Section 21, aud Article 5, Section 2 Habeas Corpus Need® Writ is hereby denied,

Madam Clerk; Please serve:

Robert Skipper 475027

Louisiana State Penitentiary

Angola, Louisiana 70712

Darrel Vannoy, Warden

Department of Safely and Corrections

Post Office Box 94304

Baton Rouge, Louisiana 70804

Anita Mack

Assistant District Attorney

Post Office Box 1389

Tallulah, Louisiana7l282


text:
    STATE EX REL. Brent AUTHORLEE v. STATE of Louisiana
    No. 2016-KH-1617
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA

PER CURIAM:

h Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P, art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his second application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr,P. art. 930.8. Notably, the legislature in 2013 La. Acts 261 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated, in ' accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Melvin DAVIS v. STATE of Louisiana
    No. 2016-KH-1614
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his fourth application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La. C.Cr.P. art. 980.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La, Acts 251 amended that articlé to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Dana MILES
    No. 2016-KP-1539
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON RÓUGE

PER CURIAM:

^Denied.. Relator fails to show he received ineffective' assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator has not. satisfied his post-conviction burden of proof. See La.C.Cr.P. art. 930.2; La.C.Cr.P. art, 930.8(A)(1); see also State v. Pierre, 13-0873, (La. 10/15/13), 125 So.3d 403.

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see '28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art.-930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing, of a successive application applies,-relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.,


text:
    Benny COUNCIL v. Tameka Collins LIVINGSTON
    No. 2017-CJ-1773
    Supreme Court of Louisiana.
    December 5, 2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

|, Writ denied.

WEIMER, J., would grant and docket.

HUGHES, J., would grant and assigns reasons.

Hughes, J.,

would grant the writ.

|J would grant to address two concerns.

First, the court of appeal references Dr. Bauer, stating “Here, Dr. Bauer described BDC as a ‘very anxious’ and ‘reticent’ three-year-old, who may be confused, frightened, and perhaps traumatized by being taken away from his mother for significant periods of time.”

However, Dr. Bauer’s report states, “It is difficult to determine whether [BDC] is fearful or reticent in response to his mother’s overprotective nature ...” which is quite a different thing all together.

Second, the father has a valid complaint that the recommended increase in unsupervised visitation results in an actual decrease after the last phase of implementation. Hopefully, these discrepancies can be addressed by the trial court.


text:
    STATE of Louisiana v. Cardale GREEN
    No. 2017-K-0435
    Supreme Court of Louisiana.
    December 5, 2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

PER CURIAM:

|;Writ granted. The question of withdrawal of counsel largely rests with the discretion of the trial court, and its ruling will not be disturbed in the absence of a clear showing of abuse of discretion. State v. Cousin, 307 So.2d 326, 328 (La. 1975); State v. Boudoin, 257 La. 583, 588-89, 243 So.2d 265, 267 (1971). Here, the trial court granted a motion by defense counsel to withdraw from the representation in which the state joined. Although counsel contend they did not anticipate the trial court would grant the motion, which they contend they only filed to protect themselves from a professional disciplinary complaint filed by the state, the fact remains that the trial court ruled exactly as requested in the defense motion. In addition, by the time of the hearing on the motion, the court of appeal and this court had denied writs on the state’s challenge to the continued representation by counsel. Under these circumstances, we cannot find the trial court abused its discretion in granting the motion to withdraw. Therefore, the court of appeal erred in finding defendant was denied his right to counsel of choice. State v. Green, 16-0057, pp. 9-14 (La. App. 1 Cir. 2/7/17), 211 So.3d 683, 689-693. Accordingly, we reinstate defendant’s convictions and sentences and remand to the court of appeal for consideration of the pretermitted assignments of error.

^REVERSED AND REMANDED

Weimer, J., would grant and docket.

Hughes, J., would grant and docket,

h Hughes J., would grant and docket.

|! Weimer J., would grant and docket.


text:
    STATE EX REL. Edward ZENO v. STATE of Louisiana
    No. 2016-KH-1611
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court.’ Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La,C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Melvin R. PHILLIPS v. STATE of Louisiana
    No. 2016-KH-1549
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P, art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930,8. Notably, the legislature in 2013 La, Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing.the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, Justice, recused.


text:
    STATE EX REL. Alfred JONES v. STATE of Louisiana
    No. 2016-KH-1548
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment


text:
    STATE EX REL. Torrance HORNSBY v. STATE of Louisiana
    No. 2016-KH-1543
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr,P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8, Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Drew PIZZO v. STATE of Louisiana
    No. 2016-KH-1470
    Supreme Court of Louisiana.
    December 5, 2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P, art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated several applications • for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral! 2 review. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, Justice, recused.

Attachment