text:
    Ronald Pak ZERN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3058
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017
    Rehearing Denied May 2, 2017

      Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In Zern v. State, 191 So.3d 962 (Fla. 1st DCA 2016), we reversed Appellant’s judgment and sentence based on the trial court’s failure to hold a proper competency hearing after receiving the appointed experts’ conflicting reports on Appellant’s competency, and we remanded for a retroactive determination of Appellant’s competency at the time of trial. On remand, the trial court held an evidentiary hearing at which the experts’ reports were introduced and lay and expert testimony was presents ed regarding Appellant’s competency. At the conclusion of the hearing, the trial court orally found that Appellant “was competent on November 12, 2013, and was competent to proceed at the time of trial” (emphasis added). However, the order memorializing this ruling only stated that “on November 12, 2013, [Appellant] was competent to proceed to trial.” The court also re-entered Appellant’s original judgment and sentence. See id. at 965 (“If the court finds that Appellant was competent at the time of trial, it must enter a nunc pro tunc written order memorializing this finding with no change in the judgment.”).

On appeal, Appellant argues that the trial court abused its discretion in finding that he was competent at the time of trial because there was no evidence of his competency at that time. We disagree. Although the experts’ reports significantly pre-dated the trial and were insufficient on their own to establish Appellant’s competency at the time of trial, see, e.g., Brockman v. State, 852 So.2d 330, 333-34 (Fla. 2d DCA 2003), the evidence presented at the evidentiary hearing on remand also included conflicting testimony from the experts regarding their opinions of Appellant’s competency at the time of their additional evaluations of him shortly before trial. This testimony was competent substantial evidence from which the court could—and did—find that Appellant was competent at the time of trial. See Huggins v. State, 161 So.3d 335, 345 (Fla. 2014) (“[Wjhere there is evidentiary support for the trial court’s resolution of conflicting expert testimony, this court will not disturb the trial court’s competency determination.”).

Accordingly, we affirm the trial court’s retroactive competency determination and Appellant’s re-entered judgment and sentence. However, we remand for the trial court to conform the written order to its oral ruling that Appellant “was competent ... at the time of trial.” Appellant need not be present for this ministerial act.

AFFIRMED and REMANDED with directions.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.

      1. This was the date of the pre-trial competency hearing described in our prior opinion that did not go forward after defense counsel stipulated that Appellant was competent. See Zern, 191 So.3d at 964.

      . Although the additional evaluations were focused on Appellant’s sanity at the time of the offense, the experts specifically testified at the evidentiary hearing on remand regarding their opinions of Appellant’s competency at the time of these evaluations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.R.T., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0962
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 4, 2017
    Robert Wesley, Public Defender, and Aaron Zeilberger, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

C.R.T. petitions for a writ of habeas corpus alleging that his two concurrent thirty-day sentences to secure detention for contempt of court violate section 985.037(2), Florida Statutes (2017). We grant the petition.

On March 17, 2017, the juvenile court held Petitioner in direct contempt of court in both his pending cases, (16-CJ-000132-A-OR and 15-CJ-005460-A-OR), for “yelling and cussing at the court and his mother.” In each case, he was sentenced to concurrent thirty-day sentences in secure detention.

On March 29, 2017, Petitioner admitted to violating his probation in both cases. The court revoked and terminated the probationary terms and sentenced him to new terms. The court set aside the release order and ordered that Petitioner remain detained until the thirty-day contempt sentences were completed. This was error.

“A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.” § 985.037(2), Fla. Stat. “There is no ambiguity on the face of the statute; trial courts are explicitly authorized to sentence a juvenile to up to five days in secure detention for a first act of contempt, and up to fifteen days in secure detention for each additional act of contempt.” J.M. v. Gargett, 101 So.3d 352, 356 (Fla. 2012). Petitioner’s maximum possible sentence in the case with the previous contempt (16-CJ-000132-A-OR) was fifteen days. Petitioner’s maximum possible sentence in the case without a previous contempt (15-CJ-005460-A-OR) was five days. Accordingly, both thirty-day sentences are illegal and Petitioner, who has been held for seventeen days, is entitled to immediate release,

PETITION GRANTED.

ORFINGER, BERGER and EDWARDS, JJ., concur.


text:
    Armand N. PERREAULT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3713
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.
    Armand N. Perreault, pro se.
   PER CURIAM.

We affirm the order dismissing Mr. Perreault’s motion for postconviction relief, in which he claimed to have discovered new evidence about the cause of the victim’s death in connection with his conviction for first-degree murder. Our affirmance is without prejudice to any right Mr. Per-reault may have to timely file such a motion based upon opinions that his expert may develop following our decision in Perreault v. State. 203 So.3d 999 (Fla. 2d DCA 2016).

Affirmed.

WALLACE, LaROSE, and KHOUZAM, JJ., Concur.


text:
    Cindy Rose COOK, Appellant, v. Kevin Craig COOK, Appellee.
    Case No. 2D16-555
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.

      Roy W. Foxall of Roy W. Foxall, P.A., Fort Myers, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Cindy Rose Cook appeals a final judgment dissolving her marriage to Kevin Craig Cook, arguing on appeal that the trial court erred in failing to award her permanent alimony. We reverse because the trial court failed to include specific findings of fact relating to alimony in the final judgment as required by section 61.08, Florida Statutes (2015).

The parties’ eighteen-year marriage is considered a long-term marriage for purposes of determining alimony. See § 61.08(4). Section 61.08(8) provides that a trial court may award permanent alimony following a long-term marriage if the award is appropriate after considering the factors set forth in subsection (2). Subsection (2) provides that “[i]n determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” (Emphasis added.)

In the present case, the trial court failed to make any factual findings regarding the Wife’s need and the Husband’s ability to pay alimony as required by section 61.08(2). The only finding that the trial court made regarding alimony is the following: “There was no competent substantial evidence to support the wife’s request for alimony. The Court has reviewed the Wife’s alimony claim in accordance with Florida Statute 61.08.”

The failure of a trial court to include statutorily required findings of fact to support its denial of alimony is error. Staton v. Staton, 710 So.2d 744, 745-46 (Fla. 2d DCA 1998); see Abbott v. Abbott, 187 So.3d 326, 329 (Fla. 1st DCA 2016) (reversing final judgment of dissolution of marriage where “the trial court failed to make any findings of fact with regard to the Former Wife’s need for alimony and the Former Husband’s ability to pay, the parties’ incomes and expenses, and the factors listed in section 61.08 (2) (a)-(j)”). But see Wright v. Wright, 135 So.3d 1142, 1144 (Fla. 5th DCA 2014) (noting that a trial court’s omission of these findings from the final judgment is only harmful if the absence of such findings impedes appellate review).

There is no transcript of the trial in the record on appeal; however, the trial court approved the Wife’s “Statement of the Evidence and Proceedings.” The statement of the evidence indicates that the Husband receives a monthly disability retirement payment of $5146.43, which is not taxed. Although the statement of the evidence does not note the Husband’s expenses, his financial affidavit reflects that his monthly expenses are $4866.00, which leaves him with a monthly surplus of $280.43. Consequently, the Husband appears to have the ability to pay alimony.

As to the Wife, the statement of facts notes that she works at Advance Auto Parts where she earns a net monthly income of $894.66, and her monthly expenses are $2780.50. Therefore, the Wife has a monthly deficit of $1885.84 and appears to have a clear need for alimony. See Doganiero v. Doganiero, 106 So.3d 75, 77-78 (Fla. 2d DCA 2013) (holding that award of $100 a month in durational alimony was woefully insufficient where trial court imputed a $52,000 income to the husband and a $24,000 income to the wife). We note that the trial court’s omission of findings hampers meaningful appellate review in this case, as it is difficult to discern why the trial court concluded, after considering the parties’ incomes, that there was “no competent substantial evidence” to support the request for alimony to the Wife. See id. at 78.

We reverse the final judgment and remand for the trial court to make appropriate findings as required by section 61.08. However, the trial court may, if necessary, reopen the evidence to address the issue of alimony. All other portions of the final judgment of dissolution are affirmed.

Affirmed in part; reversed and remanded in part.

VILLANTI, G.J., and CASANUEVA and KELLY, JJ., Concur.

      . The parties were married in June 1996, and the Wife filed a petition for dissolution of marriage on May 7, 2015,

      . If the trial court finds that one party has a need for alimony and the other party has the ability to pay alimony, then the trial court must consider ten factors listed in section 61.08(2) in determining what type and the amount of alimony to award.


author: SILBERMAN, Judge.

text:
    Michael W. SCIAME, Appellant, v. Virginia C. SCIAME, Appellee.
    Case No. 2D15-5663
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017

      Mark A. Neumaier, Tampa, for Appellant
    Blair H. Chan, III, Tampa, for Appellee
   SILBERMAN, Judge.

In this postdissolution enforcement proceeding, Michael W. Sciame, the Former Husband, challenges the trial court’s interpretation of a provision in the parties’ marital settlement agreement (MSA) that equitably distributes his pension plan. The Former Husband argues that there is a latent ambiguity in the provision and that the court erred by failing to take parol evidence regarding the parties’ intent. The Former Husband also argues that the court erred in requiring him' to elect survivor benefits in order to secure the portion of the pension awarded to Virginia C. Sciame, the Former Wife. Because any error as to the taking of parol evidence was invited and the argument that the Former Husband now makes as to that issue was not made in the trial court, we affirm the trial court’s interpretation of the provision. But we conclude that the court did not have the authority to require the Former Husband to elect survivor benefits and reverse the amended final judgment of dissolution solely as to that portion of the judgment.

The parties were divorced in 2007 by way of a final judgment of dissolution that incorporated the MSA. The MSA contains a provision dealing with the equitable distribution of the Former Husband’s pension plan. The enforcement proceeding arose because the Former Husband’s monthly pension payment had increased as a result of his delayed retirement. The Former Wife filed a petition to enforce the final judgment in which she asserted that she was entitled to fifty percent of the pension payment valued as of the date of his actual retirement and not an earlier date contained in the MSA.

At the hearing on the petition, the parties asserted different interpretations of the provision to support their respective positions. Each argued that the contract’s plain language was unambiguous. Despite the fact that each party was advocating a different interpretation of the provision, the parties insisted there was no need for the court to take parol evidence. Indeed, the Former Husband argued, “There is no basis I believe for any parol evidence to come in, and I’ve put in case law on that,”

The court entered an amended final judgment of dissolution and noted that “[b]oth parties agree that the language of [the provision] is unambiguous and parole [sic] evidence is not necessary to determine the meaning of the provision.” The court rejected the parties’ proposed interpretations and concluded that the provision was unambiguous and fully enforceable as written.

On appeal, the Former Husband has changed his position and argues for the first time that the provision is ambiguous and that parol evidence is necessary to aid in its interpretation. We reject this argument because the Former Husband failed to make this argument to the trial court. See Franklin v. Patterson-Franklin, 98 So.3d 732, 733 (Fla. 2d DCA 2012). “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Id. at 738 (quoting Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2005)). Additionally, “a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make.” Gupton v. Vill. Key & Saw Shop, 656 So.2d 475, 478 (Fla. 1995). Thus, we affirm the equitable distribution of the pension plan.

The trial court also ordered the Former Husband to elect survivor benefits to secure the award. The Former Husband argues that the court was without jurisdiction to require this election because the MSA does not contain a provision requiring security for the pension award. We agree that adding such a provision in an enforcement proceeding effectively modified the equitable distribution award without authority. See Padot v. Padot, 891 So.2d 1079, 1085 (Fla. 2d DCA 2004).

We therefore affirm the amended final judgment of dissolution with the exception of the requirement that the Former Husband elect survivor benefits.

Affirmed in part, reversed in part, and remanded.

SLEET and BADALAMENTI, JJ., Concur.


author: SUAREZ, C.J.

text:
    Pastor Paul IGBINADOLOR, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D16-1992
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.
    Pastor Paul Igbinadolor, in proper person.
    Greenberg Traurig, P.A. and Michael D. Starks (Orlando); Greenberg Traurig, P.A. and Patrick G. Broderick (West Palm Beach), for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   SUAREZ, C.J.

Pastor Paul Igbinadolor seeks to set aside the Final Judgment of Foreclosure and the foreclosure sale. We dismiss the appeal of the Final Judgment as this Court is without jurisdiction to hear the matter. The appeal of the Final Judgment was untimely filed more than thirty days after the June 19, 2013 rendition of that judgment. We similarly dismiss the appeal as untimely filed as to the March 31, 2016 foreclosure sale, where no objection was filed within ten days of date of sale pursuant to section 45.031(8), Florida Statutes (2016).

Dismissed.

      . To the extent Appellant seeks to challenge the Writ of Possession, his argument is without merit. The foreclosure action terminated Appellant’s verbal leasehold, as he was joined as a party and the record shows that he received notice of the foreclosure proceedings and the Final Judgment at the foreclosed property address. The record also shows that while the foreclosure action was filed in 2009, the Appellant entered into a verbal lease agreement with the mortgagor in 2012, well into the proceedings. As a lessee pendent lite, Appellant did not file any objections to the foreclosure or sale, and ignored the Bank’s proper 30-day Notice of Termination. See § 83.561, Fla. Stat. (2015); see also Redding v. Stockton, Whatley, Davin & Co, 488 So.2d 548, 549 (Fla. 5th DCA 1986) (holding that a foreclosure action is the proper proceeding to terminate a tenant’s possessory interest in a property).


text:
    EL AVILA CHILD DEVELOPMENT CENTER, LLC, Petitioner, v. CITY OF MIAMI, etc., Respondent.
    No. 3D16-1431
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.
    Ehrenstein Charbonneau Calderin, and Jake M. Greenberg and Christopher B. Spuches, for petitioner.
    Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for respondent.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

El Avila Child Development Center, Inc. (“El Avila”) petitioned this Court for second-tier certiorari review of a May 19, 2016 decision of the Miami-Dade Circuit Court appellate division. El Avila had applied to the City of Miami for a zoning exception in order to expand an existing day care facility into a pre-school with a greater population of students. At a quasi-judicial hearing, the Miami City Commission denied El Avila’s application. The circuit court then denied El Avila’s petition for a writ of certiorari to review the Miami City Commission’s decision.

We conclude that the circuit court provided due process to El Avila and did not depart from the essential requirements of law. Custer Med. Ctr. v. United Auto. Ins. Co, 62 So.3d 1086 (Fla. 2010).

Petition denied.


text:
    Juan Francisco VEGA, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 3D16-641 & 3D15-1785
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.
    Juan Francisco Vega, in proper person.

      Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   PER CURIAM.

The trial court properly found the statute at issue to be constitutional. See Westerheide v. State, 831 So.2d 93 (Fla. 2002). We affirm all other points on appeal.

Affirmed.


author: LOGUE, J.

text:
    Ruben ECHEVERRY, Appellant, v. CHRISTIANA TRUST, etc., Appellee.
    No. 3D 16-403
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017
    Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellant.
    Burr & Forman LLP, and Jacqueline Simms-Petredis (Tampa) and Gennifer L. Bridges (Orlando), for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

The appellant seeks review of the trial court’s Second Amended Final Judgment in favor of the appellee and raises issues involving evidentiary and factual disputes. However, there is no transcript of the proceedings. As such, we must affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.”); Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140, 1142 (Fla. 3d DCA 2008) (noting that without a transcript of the trial proceedings, “we are unable to evaluate the evidence and testimony presented at trial to ascertain whether or not the trial court’s findings and reasoning ... were well-founded”); Gleim v. Gleim, 176 So.2d 610, 611 (Fla. 3d DCA 1965) (“It is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned ....”).

Affirmed.


text:
    Francisco RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2339
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   LOGUE, J.

Any error by the trial court in admitting the hearsay statements at issue was, at best, harmless. See § 59.041, Fla. Stat. (2015) (“No judgment shall be set aside or reversed ... on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”).

Affirmed.


text:
    Davy Rodriguez EVANS, DOC #T27342, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5369
    District Court of Appeal of Florida, Second District.
    Opinion filed April 7, 2017
    Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsberg, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa,, for Appellee.
   PER CURIAM.

Davy Rodriguez Evans appeals his judgment, sentence, and order of probation and community control entered after jury trial. We affirm Mr. Evans’s conviction, sentences, and order of probation and community control without further comment. However, the written judgment indicates that Mr. Evans was adjudicated guilty on count four of the original charge of first-degree tampering with a witness involving a second-degree felony, see § 914.22(l)(e), (2)(e), Fla. Stat. (2014), which is inconsistent with the jury’s finding of guilt, and the trial court’s oral adjudication of guilt, on the lesser included offense of third-degree tampering with a witness involving a misdemeanor, see § 914.22(l)(e), (2)(a). Accordingly, we remand for the trial court to correct the apparent scrivener’s error by entering an amended judgment adjudicating Mr. Evans guilty on count four of the lesser included third-degree witness-tampering offense.

Affirmed; remanded with directions.

CASANUEVA, MORRIS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Herbert and Leslie GRAHAM, Appellants, v. WELLS FARGO BANK, N.A., Successor by Merger to Wachovia Bank, N.A., Appellee.
    Case No. 2D15-4357
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2017.
    Kevin L. Hagen of Hagen & Hagen P.A., Ft. Lauderdale, for Appellants.
    Monica L. Haddad Forbes, Sara F. Hol-laday-Tobias, and Emily Y. Rottmann, of McGuireWoods LLP, Jacksonville, for Ap-pellee.
   CASANUEVA, Judge.

Herbert and Leslie Graham appeal a final judgment of foreclosure in favor of Wells Fargo Bank, N.A., Successor by Merger to Wachovia Bank, N.A. We find merit only in their argument that the trial court erred in awarding $7790 in attorney’s fees to Wells Fargo without making required findings. The remaining portions of the final judgment are affirmed without comment.

The final judgment of foreclosure awarding Wells Fargo attorney’s fees fails to set forth findings as to the time reasonably expended, the hourly rate, or other factors, if any, considered to explain how the trial court arrived at the amount of fees it awarded as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Because these findings are required, the lack of a transcript does not affect this court’s review of the order on appeal. See Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939-40 (Fla. 4th DCA 1997) (noting that Rowe findings are mandatory and where an order lacks such findings, the lack of a transcript does not preclude appellate review because reversible error is apparent on the face of the order); see also Bayer v. Glob. Renaissance Arts, Inc., 869 So.2d 1232, 1232 (Fla. 2d DCA 2004) (same).

Accordingly, the award of $7790 for attorney’s fees to Wells Fargo is reversed for further proceedings consistent with this opinion.

Affirmed in part; reversed in part.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.

      , The Grahams' brief does not challenge a $2800 fee award to Choice Legal Group.


text:
    Daniel LAMPKIN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-852
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Gray Proctor, Law Office of Gray Proctor, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 17, 2017 order denying Petitioner’s pro se motion for post-conviction relief filed in Case No. 2009-CF-007492, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA and BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Angel Max RIVERA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-654
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Angel Max Rivera, Jasper, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 14, 2016 judgments and sentences in Case No. 06-2014-CF-019471-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., BERGER, WALLIS, JJ., concur.


text:
    Julius E. BLACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3695
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Julius E. Black, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Julius E. Black appeals the denial of two motions for leave to amend his original motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court ruled on the merits of the amendments to the claims included in the motions, we treat the motions as amended motions under rule 3.850. Thus, we consider the orders denying the motions as final appealable orders. However, the appeal of the order denying the first motion was untimely, and this court lacks jurisdiction to review it. The appeal of the order dated September 27, 2016, which denied the second motion to amend, was timely filed. Nevertheless, the trial court lacked jurisdiction to enter that order because the amendment related to a claim in the original rule 3.850 motion that was being reviewed on appeal by this court (case number 5D16-1952) at the time the trial court entered the order. We therefore reverse the order dated September 27, 2016, and remand this case so the trial court may rule upon the second motion to amend when jurisdiction returns to the trial court following the conclusion of the appeal in case number 5D16-4327.

REVERSED; REMANDED.

SAWAYA and PALMER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    C.J.I.-R., Appellant, v. C.M., Appellee.
    Case No. 2D16-1577
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017
    Arthur C. Fulmer, Jr., of Fulmer & Fulmer, P.A., Lakeland (withdrew after briefing), for Appellant.
    C.J.I.-R., pro se.
    C.M., pro se.
   SILBERMAN, Judge.

C.J.I.-R. (the Father) and C.M. (the Mother) are the parents of a daughter born in 2012. The Father appeals a second amended final judgment that establishes paternity, a parenting plan, and child support. The Father raises several issues, only one of which warrants discussion. We reverse and remand solely for the trial court to calculate child support using the correct net income for the Father. We affirm in all other respects.

In determining child support, a trial court’s finding regarding a party’s income must be supported by competent substantial evidence. Hoffman v. Hoffman, 98 So.3d 196, 197 (Fla. 2d DCA 2012); McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008). Here, at the final hearing the Father testified that the Mother’s Exhibit 2, his financial affidavit filed February 11, 2016, was an accurate reflection of his current income. He did not testify to any specific amounts of income or deductions, and the Mother’s counsel did not challenge him on any of the amounts listed. The Father’s financial affidavit entered into evidence shows a monthly tax liability of $575.07 and a net monthly income of $2466.93. But the worksheet attached to the second amended final judgment shows the Father’s monthly tax liability as $468.59, resulting in a net monthly income of $2573.41.

Thus, the worksheet the trial court used deviated from the evidence and overstated the Father’s net income by $106.48 per month. Therefore, the net income of $2573.41 for the Father that the trial court used to calculate child support is not supported by competent substantial evidence. Accordingly, we reverse and remand for the trial court to recalculate child support using the Father’s net income of $2466.93 shown on his financial affidavit. Otherwise, we affirm the second amended final judgment.

Affirmed in part, reversed in part, and remanded.

MORRIS and BLACK, JJ„ Concur.

      . The Father appealed an amended final judgment, but during the pendency of this appeal this court relinquished jurisdiction to allow the trial court to correct a date in the amended final judgment, and the trial court rendered a second amended final judgment.


text:
    Annette CANTALUPO, Appellant, v. The ISLAND WATER ASSOCIATION, INC., and Lee County Department of Transportation, Appellees.
    Case No. 2D16-363
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017
    Jason W. Gelinas of Morgan & Morgan, Fort Myers, for Appellant Annette Canta-lupo.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee The Island Water Association, Inc.
    No appearance for Appellee Lee County Department of Transportation.
   SILBERMAN, Judge.

In this negligence action, Annette Can-talupo appeals a final summary judgment in favor of The Island Water Association, Inc., in which the trial court determined that Island Water did not have a legal duty to repair the county road around its water valve or warn the public. Cantalupo is also challenging the trial court’s ruling to exclude evidence of subsequent remedial measures. Lee County Department of Transportation is challenging this same summary judgment and order excluding evidence in a related appeal and raises the same issues that Cantalupo raises in-this appeal. For the reasons expressed in our opinion in Lee County Department of Transportation v. Island Water Ass’n, No. 2D16-234, — So.3d - (Fla. 2d DCA April 19, 2017), we reverse and remand for further proceedings.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


text:
    Johnny MCCRAY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3653
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017.
    Johnny McCray, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We previously affirmed the summary denial of Appellant’s postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850 but retained jurisdiction for consideration of the imposition of sanctions.

Appellant has failed to obtain relief in four previous postconviction appeals that he filed in this Court to challenge his judgment and sentence in Escambia County Circuit Court Case 1988-CF-3244. Appellant failed to obtain relief by these motions and in the instant motion on appeal. The instant appeal amounts to an untimely postconviction motion challenging a conviction rendered over twenty-five years ago. Due to Appellant’s apparent abuse of the legal process by his repeated, frivolous pro se filings attacking his judgment and sentence, this Court issued an order directing him to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Appellant has not shown cause for his repeated frivolous filings.

Therefore, because Appellant’s repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this Court concerning Escambia County Circuit Court Case 1988-CF-3244. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Kayla Nichole FOSMIRE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4953
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017.
    Melissa J. Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals her convictions and sentences for two counts of lewd or lascivious exhibition, four counts of promoting sexual performance by a child, and one count of child abuse. We affirm all aspects of Appellant’s convictions and sentences except for the following: we strike the special condition contained in the trial court’s Order of Sex Offender Probation requiring Appellant to pay $1.00 per month to First Step, Inc. of Bay County, Florida, because the trial court failed to orally pronounce that condition at Appellant’s sentencing, see Elmore v. State, 600 So.2d 569, 569 (Fla. 1st DCA 1992); and we remand the written judgment and sentence for correction of a scrivener’s error which designates Appellant’s lewd or lascivious exhibition convictions (Counts I and II) as third-degree felonies when they are in fact second-degree felonies. § 800.04(7) (b), Fla. Stat. (2017) (“An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree .... ”). Because this is a ministerial act, Appellant’s presence is not required. Jackson v. State, 936 So.2d 1172, 1172 (Fla. 1st DCA 2006).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


text:
    FAITH CHRISTIAN FAMILY CHURCH OF PANAMA CITY BEACH, INC., Appellant, v. Dan SOWELL, as Property Appraiser of Bay County, Florida, Appellee.
    CASE NO. 1D17-0462
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017.
    William E. Corley, III, Panama City Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that the order on appeal is not “one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Fla. R. App. P. 9.110(k); Jensen v. Whetstine, 985 So.2d 1218, 1220-1221 (Fla. 1st DCA 2008) (holding that an order is not an appealable partial final judgment where there is a factual overlap between the claim resolved by the order and a pending claim). Therefore, the order does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is dismissed for lack of jurisdiction.

ROWE, OSTERHAUS, and ■ WINOKUR, JJ., CONCUR.


text:
    Junnis HUGGER, Appellant, v. Kennessa HUGGER, Appellee.
    CASE NO. 1D16-3186
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    Junnis Hugger, pro se, Appellant.
    Kristin Adamson, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. This Court retains jurisdiction to address the imposition of sanctions.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Dontonio Diaz THORTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5279
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Bruce A. Miller, Public Defender, and Alice F. Harris, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 24, 2016, judgment and sentence in Escambia County Circuit Court case number 2014-CF-004289-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.


text:
    Markas Brian WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1803
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mr. Washington appeals the trial court’s order revoking his probation based on the commission of four new law violations (battery, kidnap-false imprisonment, criminal mischief, and obstructing justice). We affirm except as to the trial court’s finding that Mr. Washington violated his probation as to kidnapping-false imprisonment for which there is no basis in the evidence. Because the record is not clear whether the trial court would have imposed the same sentences of five years to run consecutively based on the remaining sufficiently proven charges, we remand for reconsideration of revocation and sentencing. See Davis v. State, 75 So.3d 386, 388 (Fla. 1st DCA 2011) (“Although a violation of condition 18 could alone support revocation, because the record does not establish that the trial court would have revoked probation and imposed a 15-year sentence on a violation of condition 18 alone, this court is required to remand for the trial court to reconsider its decision to revoke probation and to impose the same sentence.”)

REVERSE and REMAND.

WOLF, RAY, and MAEAR, JJ., CONCUR.


author:
PER CURIAM
      CLARK, J., CRICHTON, J.,

text:
    IN RE: James Louis FAHRENHOLTZ
    No. 2017-B-0261
    Supreme Court of Louisiana.
    04/07/2017
    See also 18 So.3d 751.
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

liThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James Louis Fahrenholtz, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1996.

In 2009, we considered a disciplinary proceeding involving two sets of formal charges against respondent. In the first matter, respondent had been declared ineligible to practice law in 2005 for failure to pay his bar dues and the disciplinary assessment and separately for failure to comply with the mandatory continuing legal education requirements. In the second matter, he failed to cooperate with the ODC in two disciplinary investigations. Respondent failed to file an answer to the formal charges, and as a result, the factual allegations thereof were deemed admitted and proven by clear and convincing evidence. After reviewing the record, we concluded that respondent’s misconduct was “particularly | ^troublesome,” principally his failure to cooperate, which was noted to be “more egregious than the typical failure to cooperate case.” Accordingly, we suspended respondent .from the practice of law for one year and one day, necessitating a formal application for reinstatement. In re: Fahrenholtz, 09-0748 (La. 10/2/09), 18 So.3d 751 (“Fahrenholtz I”).

Respondent has not yet sought reinstatement from his suspension in Fahren-holtz I. As such, he remains suspended from the practice of law. Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

FORMAL CHARGES

In April 2015, a lobbyist working at the Louisiana State Capitol in Baton Rouge reported that his briefcase and Apple iPad, keyboard, and case were stolen from the Capitol building. The Louisiana State Police initiated an investigation into the matter and traced an electronic signal from the iPad to respondent’s home in New Orleans. Upon being questioned by law enforcement officers, respondent initially denied any knowledge of the theft; however, officers saw the stolen briefcase in plain view in respondent’s kitchen. Officers then obtained a search warrant and discovered the iPad, keyboard, and case in a pond at the rear of respondent’s property, where he had thrown them in an effort to hide and destroy evidence. Respondent was arrested and charged in Orleans Parish with illegal possession of stolen things and obstruction of justice. He was also charged in East Baton Rouge Parish with felony theft. In July 2015, respondent resolved the criminal charges by entering into a pretrial diversion program which permitted him to plead guilty to a misdemeanor charge of illegal possession of stolen things. He was also required to pay restitution in the amount of $800 to the victim.

| sIn May 2015, the ODC opened a disciplinary investigation in this matter. Notice of the investigation was sent to respondent by certified mail at his bar registration address pursuant to the requirements of Supreme Court Rule XIX, but respondent did not claim the certified mail. An ODC investigator then delivered a copy of the notice of the investigation to respondent in person. Despite receipt of this notice, respondent failed to cooperate with the ODC in its investigation.

DISCIPLINARY PROCEEDINGS

In November 2015, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The board administrator forwarded respondent notice of the filing of the formal charges at his bar registration address via certified mail. Once again, however, respondent did not claim the certified mail, and an ODC investigator attempted to make personal service of the formal charges on respondent at his home. Nevertheless, 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 found that respondent violated the Rules of Professional Conduct as charged. He violated duties owed to the public and the legal system by committing theft and obstructing justice. By his repeated failures to respond, participate, or cooperate in any phase of the disciplinary investigation or this proceeding, he has violated duties owed to the profession and the legal system. His conduct was clearly intentional. Respondent caused substantial harm to the victim of his theft, including the destruction of property, as well as harm to the profession and the legal system. The applicable baseline sanction is disbarment.

The committee found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding, and substantial experience in the practice of law (admitted 1996). The committee found no mitigating factors.

Based on these findings, the committee recommended that respondent be disbarred.

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

Disciplinary Board Recommendation

Noting the factual allegations contained in the formal charges were deemed admitted, the disciplinary board determined that the hearing committee’s factual findings are supported by the deemed admitted factual allegations and/or the evidence submitted in support of those allegations. Based on those facts, the board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

If/The board then determined that respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession by engaging in criminal conduct. The commission of criminal acts by an attorney causes harm by burdening the criminal justice system and undermining the public’s confidence in the integrity of members of the bar. Further, respondent’s failure to cooperate with the ODC violated a duty to the profession, causing unnecessary delay and expenditure of the limited resources of the disciplinary system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is disbarment. The board agreed with the aggravating factors found by the committee and determined that no mitigating factors apply.

Turning to the issue of an appropriate sanction, the board observed that this court has disbarred lawyers who commit criminal conduct, including theft. See, e.g., In re: Jones, 04-0437 (La. 6/25/04), 878 So.2d 506 (lawyer disbarred for various intentional misconduct, including his guilty plea to misdemeanor theft stemming from his endorsement of a $1,518 check payable to his client’s sister), and In re: Basile, 98-0900 (La. 5/29/98), 714 So.2d 687 (disbarment imposed upon a lawyer who attempted to purchase merchandise with a stolen check and subsequently pleaded guilty to attempted misdemeanor theft; charges of prostitution and felony, theft were pending against the lawyer in another jurisdiction, and she was later arrested for purchasing merchandise through the fraudulent use of her father’s.credit card). The board also acknowledged that respondent’s conduct arguably may fall within the scope of the permanent disbarment guidelines; however, a majority of the board concluded that permanent disbarment is not warranted in this case and that ordinary disbarment is ^appropriate. One board member dissented and would recommend permanent disbarment.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57.

In 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: Doman, 01-3058 (La, 1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent was convicted of the crime of illegal possession of stolen things, and subsequently failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

17Having 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).

By its very nature, respondent’s criminal conduct was intentional. He violated duties owed to the public and the legal profession, causing actual harm. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction in this matter is disbarment.

The record supports the following aggravating factors: a prior disciplinary record, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. The only mitigating factor present is the imposition of other penalties or sanctions in connection with the criminal proceeding.

Turning to the issue of an appropriate sanction, one member of the disciplinary board has recommended that respondent be permanently disbarred. Both the hearing committee and a majority of the disciplinary board have recommended that respondent be disbarred. The ODC does not object to this | ¡¿recommendation, and in fact, suggested in its deemed admitted submission that disbarment is the appropriate sanction in this matter.

We agree. We have not hesitated to disbar lawyers who have engaged in serious crimes, including theft. In the instant case, respondent was convicted of illegal possession of stolen things, a misdemeanor offense which contains elements of willing and knowing deceit. This conduct warrants disbarment. Accordingly, we will accept the disciplinary board’s recommendation and disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that James Louis Fahrenholtz, Louisiana Bar Roll number 24088, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. 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.

CLARK, J., concurs in part, dissents in part and assigns reasons.

CRICHTON, J., dissents and assigns reasons.

CLARK, J.,

concurs in part, dissents in part and assigns reasons:

|J agree with the majority that respondent committed intentional serious professional misconduct; however, I dissent as to the discipline imposed. I would, instead, impose permanent disbarment.

Respondent deliberately stole items of personal property from a fellow lobbyist while in the Capitol building, one of the seats of our state government. Following the theft, respondent attempted to destroy evidence of his wrongdoing, and then lied to police officers investigating the matter. Respondent refused to cooperate with the ODC in its investigation.

Based upon respondent’s history of prior discipline, failure to cooperate, failure to acknowledge wrongdoing, and intentional wrongdoing, the proper discipline is permanent disbarment.

Respondent is at the present time suspended from the practice of law, as he was at the time he committed the present misconduct. As the majority notes, bar discipline is designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Here, what amounts to more than a seven-year suspension from the practice of law has failed to do any of those things with respect to respondent. In such a case, permanent disbarment, rather than disbarment, is the more reasonable discipline to be imposed.

CRICHTON, J.,

dissents and assigns reasons:

h Suspended from the practice of law and apparently working as a lobbyist, respondent stole another lobbyist’s briefcase, iPad, keyboard and case, took the briefcase to his home, and threw the other items in a pond behind his house. These actions required the Louisiana State Police in two parishes to investigate respondent (during which he lied to the police), leading to three felony charges against him: Theft in East Baton Rouge Parish, Illegal Possession of Stolen Property, and Obstruction of Justice in Orleans Parish. Although he completed a diversion program and was allowed to enter a plea of guilty to one count of misdemeanor theft, in my view, this conduct by a lawyer, albeit a suspended one, is not only a violation of Rule 8.4 of the Rules of Professional Conduct, but it is also hideous and embarrassing for the profession. This criminal and ethical misconduct is also preceded by misconduct giving rise to this Court’s order of suspension for a year and a day, in which this Court deemed his misconduct “particularly troublesome.” In re: Fahrenholtz, 09-0748 (La. 10/2/09), 18 So.3d 751 (“Fahrenholtz I”)

Supreme Court Rule XIX, Appendix E, Guideline 9 sets forth conduct that might warrant permanent disbarment and, in my view, is applicable here: It provides:

GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which ^results in a suspension of more than one year.

To exacerbate matters, respondent blatantly refused to cooperate with ODC in violation of Rule 8.4(a), both in this case and in Fahrenholtz I. See 09-0748 at p. 8, 18 So.3d at 755. (noting the failure to cooperate was “more egregious than the typical failure to cooperate case.”). This demonstrates, without doubt, his total disregard and disdain for the legal profession. In fact, in this case and in Fahrenholtz I, it is difficult to imagine how respondent could have been any more uncooperative.

In addressing lawyer disciplinary matters, it is the duty of the Louisiana Supreme Court to maintain the high standards of the legal profession, protect the public, preserve the integrity of the profession, and deter future misconduct. Based on Mr. Fahrenholtz’s lack of moral fitness and his astonishing lack of concern and respect for this profession, I believe that permanent disbarment is warranted in this instance. For these reasons, I dissent from the Per Curiam imposing “regular” disbarment, from which the respondent could at some point seek reinstatement. See La. Sup. Ct. R. XIX, § 24(A) (“No lawyer may petition for readmission until five years after the effective date of disbarment.”).

      . Respondent served on the Orleans Parish School Board for eight years and later worked as a lobbyist.

      . It is noteworthy that Basile was decided by the court prior to the adoption of the sanction of permanent disbarment in- 2001. Thus, at the time of Basile, ordinary disbarment was the most serious sanction the court could impose.

      . This court mailed notice to respondent of the filing of the board's recommendation, but the correspondence was returned to us marked "refused by addressee.”

      . La. R.S. 14:69 defines the criminal offense as follows:
      Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.


author: PER CURIAM:

text:
    Roger WALLACE v. St. Tammany Parish Sheriff, Jack STRAIN, Clerk of Court, Malise Prieto, St. Tammany Parish Judicial District Court
    No. 2016-OK-0682
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

|, Writ granted in part. Petitioner initiated proceedings in the district court seeking the return of money seized at the time of his arrest and introduced into evidence at his trial. The district court found the proceedings premature under La.R.S. 15:32 because five years have not elapsed from the final disposition of the case. The district court erred. This provision places no obligation on the owner to forbear five years before seeking return of the money seized and used as evidence. Instead, the pertinent provisions governing property forfeiture are provided in Chapter 26, the Seizure and Controlled Dangerous Substances Property Forfeiture Act, La.R.S. 40:2601 et seq. Accordingly, the application is granted for the sole purpose of transfer to the district court to reconsider its ruling and to construe the application as a motion for release of seized property pursuant to the provisions of Chapter 26. Nothing in this ruling precludes the state, however, from requesting an order from the district court that the money be destroyed, pursuant to La.R.S. 15:41, provided the state can prove the money is contraband that has become so [{.tainted with hazardous chemicals that its destruction is in the public interest, as the state alleged in district court. The application is otherwise denied.


author: PER CURIAM CLARK, J.,

text:
    STATE of Louisiana v. 1330.00 IN U.S. CURRENCY (Reference: Robert Mincey)
    No. 2016-OK-360
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM

11Writ granted; the trial court’s order denying claimant’s petition for nullity of the judgment of forfeiture in this matter is hereby vacated.

The trial court erred in dismissing claimant’s petition for nullity of judgment concerning the judgment of forfeiture obtained by the state for $1,330. The currency seized from claimant was seized in conjunction with his arrest and booking on a charge of second degree murder. The Cal-casieu Parish District Attorney (“CPDA”) prosecuted claimant on that charge, and he was found guilty of manslaughter, adjudicated a second felony offender, and sentenced to 50 years imprisonment at hard labor without benefit of probation or suspension of sentence. After claimant’s conviction became final and as he continued to serve his sentence in prison, the CPDA executed an “Evidence Release Form” on July 14, 2010, accompanied by a letter that instructed all cash money in evidence in connection with claimant’s case be released to claimant’s mother. Despite this, on September 7, 2010, the CPDA mailed notice of the pending forfeiture to claimant’s last known |2address, a residence in Lake Charles at which a search warrant was executed. That notice was returned to the CPDA as unclaimed and unable to forward on September 24, 2010. A judgment of forfeiture, was then granted on November 22, 2010, ordering the $1,330 forfeited to the state pursuant to R.S. 40:2626.

La.C.C.P. art. 2002 requires that a final judgment be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken. R.S. 40:2608(3)(a) requires that notice of pending forfeiture be mailed to the owner’s current address, if known. The state did not comply with the requirements of R.S. 40:2608 in serving notice to claimant of the pending forfeiture, because the state knew or should have known that the address to which it mailed the notice was not claimant’s current address. The July 14, 2010 letter instructing that the currency be released to claimant’s mother, coupled with the undeliverable notice returned on September 24, 2010, and the fact that defendant was convicted and sentenced to a lengthy term of imprisonment, put the state on notice that the Lake Charles residence was not claimant’s current address.

The CPDA knew claimant was incarcerated because the CPDA was the entity that successfully prosecuted him on the charge stemming from the arrest that resulted in the seizure of the currency at issue. Because the CPDA’s successful prosecution resulted in claimant’s continued incarceration, the CPDA knew or should have known that he was not residing in Lake Charles when it mailed the notice of pending forfeiture there. See Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 31-32, 34 L.Ed.2d 47 (1972) (“[T]he State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in .,. jail. | sUnder these circumstances, it cannot be said that the State made any effort to provide notice which was ‘reasonably calculated’ to apprise appellant of the pen-dency of the forfeiture proceedings.”). Thus, as noted by Judge Cooks, dissenting below, see State v. $1,330.00 in U.S. Currency, 15-0623 (La. App. 3 Cir. 11/15/15), 180 So.3d 513 (Cooks, J. dissenting), the CPDA’s attempt at notice was not “reasonably calculated” to apprise claimant of the pending forfeiture action. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As such, claimant was denied due process with respect to the forfeiture of the currency. Accordingly, the trial court’s ruling dismissing the petition for nullity of judgment is reversed, and the ease is remanded to the trial court for further proceedings consistent with this ruling.

GUIDRY, J., would deny.

CLARK, J., dissents and would deny the writ.

CLARK, J.,

Dissents.

hi respectfully dissent and would deny the writ.

      . See State v. Mincey, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613 (affirming conviction after rejecting insufficient evidence claim), writ denied, 09-1743 (La. 4/5/10), 32 So.3d 219; State v. Mincey, 09-0155 (La. App. 3 Cir. 6/3/09), 12 So.3d 1105 (affirming subsequently imposed habitual offender sentence after amending it to delete the illegal prohibition on parole eligibility, having found the 50-year term not unconstitutionally excessive), writ granted in part, 09-1743 (La. 4/5/10), 32 So.3d 219 (granting writs only to delete a sentence term prohibiting diminution of sentence, as that is a matter for DOC).


author: JOHNSON, C.J. CRICHTON, J., GENOVESE, J.,

text:
    STATE of Louisiana v. Dan MCCORVEY
    No. 2016-K-423
    Supreme Court of Louisiana.
    04/07/2017
    JOHNSON, C.J., would grant and assigns reasons.
    WEIMER, J., would grant.
    HUGHES, J., would grant.
    CRICHTON, J., additionally concurs and assigns reasons.
    GENOVESE, J., additionally concurs and assigns reasons.
   JOHNSON, C.J.

would grant the writ application and assigns reasons.

1 defendant was found guilty by the district court of possession with intent to distribute cocaine and adjudged a fourth-felony offender. The court sentenced defendant to 10 years imprisonment at hard labor. Defendant appealed his conviction and sentence, arguing the district court erred by allowing him to represent himself at trial without conducting a hearing as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The court of appeal affirmed defendant’s conviction and sentence, finding defendant’s actions before and during trial demonstrated he was capable of knowingly and voluntarily choosing self-representation and that the arrangement most resembled a hybrid-representation, in which defendant acted in tandem with counsel, which did not require a Faretta inquiry. State v. McCorvey, 15-0482 (La.App. 4 Cir. 2/3/16), 187 So.3d 41.

Considering the facts of this particular case, I would vacate defendant’s conviction and sentence and remand this case to the district court, finding the court of appeal erred by concluding that the district court was not required to conduct a Faretta inquiry.

Both the Louisiana and federal constitutions guarantee a criminal defendant’s right to assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Brooks, 452 So.2d 149, 155 (La. 1984). Nevertheless, an accused may elect to waive the right to counsel and represent himself. The assertion of the right to self-representation must be clear and unequivocal. See U.S. Const. Sixth Amend,; La. Const. art. I, § 13; Faretta, 422 U.S. at 835, 95 S.Ct. 2525; State v. Hegwood, 345 So.2d 1179, 1181-82 (La. 1977). And, the relinquishment of counsel must be knowing and intelligent. Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); State v. Strain, 585 So.2d 540, 542-43 (La. 1991), While the United States Supreme Court has expressly declined to “prescriben any formula or script to be read to a defendant who states that he elects to proceed without counsel,” Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the accused “should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525.

This court has explained that a district court “should advise the accused of the nature of the charges and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver.” Strain, 585 So.2d at 542, While a specific inquiry by the judge, expressly addressing the disadvantages of self-representation is clearly preferable, “[t]he critical issue on review of the waiver is whether the accused understood the waiver, What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge.” Id. at 543. Moreover, in addressing a co-counsel arrangement, this court has ruled that “[hjybrid representation in which a defendant acts in tandem with counsel in questioning witnesses or in presenting closing argument does not implicate Faretta.” State v. Mathieu, 10-2421 (La. 7/1/11), 68 So.3d 1015, 1019. However, to the extent a hybrid representation in which a defendant and his attorney “act, in effect, as co-counsel, with each speaking for the defense Uduring different phases of the trial,” results partially in pro-se representation, “allowing it without a proper Faretta inquiry can create constitutional difficulties.” Id. In this case, defendant appeared for his bench trial with an attorney. The state requested clarification of defendant’s representation status and the following exchange took place:

The court: [Defendant] said he’s lead counsel. Am I right? That’s what you said.
Defendant: I don’t have an attorney present. I’m going to have to go with it, sir.
The court: That’s what you said you wanted to do?
Defendant: That’s fine. I don’t have no other choice. I’m ready to get this over with. I’m trying to get out to help my father. My father need me.
The court: Okay. All right.
Defendant: I got her. She going to help me through it.
Attorney: Your Honor, as co-counsel, Your Honor, I’m asking again for a defense continuance.
The court: I appreciate—
Attorney: [Defendant] is looking at serious time. [Defendant], as well as myself, we need time to prepare for trial. Your Honor, I’m just asking for a brief continuance on behalf of [defendant], and [defendant] had already asked for it as well.
The court: Denied. Opening statements.

The record appears to be devoid of any information that would suggest defendant understood the risks and responsibilities associated with self-representation. The above exchange makes clear that defendant specifically indicated that he was moving forward pro-se only because he did not feel that he had any other choice and was “ready to get this over with” because of a need to be released to help his father. Thus, in the absence of a standard Faretta colloquy, it does |4not appear that the totality of the circumstances supports a conclusion that his waiver was knowing and voluntary. Additionally, I would not characterize the attorney’s participation in defendant’s trial as substantial or describe the arrangement as a hybrid representation to the degree that Faretta was not implicated. As acknowledged by the court of appeal, the attorney’s trial participation was essentially non-existent—defendant questioned all of the witnesses and presented the opening statement and closing argument. As noted by the court of appeal, the only direct participation by the attorney at trial was that she made “several objections to trial testimony,” conferred with defendant concerning cross-examination of a witness, and she clarified a question submitted by defendant to the court by stating, “For the record [defendant] is talking about State’s Exhibit [3].” Her participation became more substantial only after trial, when she filed several motions and actively participated in the habitual offender hearing.

In my view, it appears the attorney, at best, acted as backup counsel for defendant. Defendant unquestionably assumed most, if not all, of the core functions of the lawyer at his trial, and thus the arrangement appears more accurately described as self-representation with limited assistance from standby counsel. With no information to support a conclusion that defendant knowingly and voluntarily chose this arrangement after being duly advised of the risks of self-representation, I would find the trial court erred by not conducting a Faretta inquiry before allowing defendant to proceed.

CRICHTON, J.,

additionally concurs and assigns reasons.

hi agree with the majority’s denial of the writ; however, I write separately to highlight the relevant Faretta jurisprudence -distinguishing situations in which a Faretta colloquy is necessary and situations where, like this one, a Faretta colloquy is unnecessary but nevertheless should be utilized as a best practice.

An accused may elect to. waive the right to counsel and represent himself. The assertion of the right to self-representation must be clear and unequivocal, see U.S. Const. Sixth Amend.; La. Const. art. I, § 13; Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); State v. Hegwood, 345 So.2d 1179, 1181-82 (La. 1977), and the relinquishment of counsel must be knowing and intelligent. Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023 (1938); State v. Strain, 585 So.2d 540, 542-43 (La. 1991). While the United States Supreme Court has expressly declined to “prescribe any formula or script to be read to a defendant who states that he elects to proceed without counsel,” Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the accused “should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (internal quotation marks and citation omitted). Accordingly, a trial court should “advise the accused of the nature of the charges and the penalty range, inquire into the accused’s age, |aeducation, and mental condition and determine according to the totality of the circumstances whether the accused understands the significance of the waiver.” Strain, 585 So.2d at 542 (citing Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) and 2 W. LaFave & J. Israel, Criminal Procedure, 11.3 (1984)). Jurisprudence suggests that the failure to conduct a Faretta colloquy is not per se reversible error if the totality of the circumstances show that the defendant knowingly and voluntarily waived his right to counsel. See Dallio v. Spitzer, 343 F.3d 553, 562 (2d Cir. 2003).

Defendant, as a fourth felony offender, is no stranger to the criminal justice system. Indeed, his extensive time spent amassing such a criminal history distinguishes him as an accomplished criminal in our justice system. In this case, he received the assistance of two lawyers: one who withdrew pre-trial and the other who assisted him during trial, conferring with him on several occasions during cross-examination of prosecution witnesses and lodging objections. She took a more active role in post-verdict motion practice. It is my view in this case that, despite an absence of a Faretta colloquy, the totality of the circumstances supports a conclusion that this defendant’s choices were clearly his own, made knowingly and voluntarily. Before trial, defendant’s lawyer referred to herself as “co-counsel,” and defendant likewise informed the court that his lawyer was “going to help me through it.” It is important to note that the defendant chose that arrangement. Thus, it is my view that this somewhat hybrid representation did not come close to constituting a Sixth Amendment violation, nor did it implicate the absolute necessity of a Faretta colloquy. And even if court-appointed counsel acted as merely backup counsel for defendant, the specific circumstances here involving this experienced criminal defendant meet the “knowing and voluntary” threshold as described above.

)3On the other hand, and while the law may provide exceptions as noted above, I believe a full Faretta inquiry following a defendant’s invocation of right to self-representation (hybrid or otherwise) constitutes a best practice for courts and serves both the interests of justice and judicial economy. Indeed, the de minimus amount of time and effort by the trial court in conducting a colloquy in compliance with Faretta—even in a hybrid representation context—protects the record against post-trial collateral attacks and possible appellate intervention.

GENOVESE, J.,

additionally concurs and assigns reasons.

|TI concur in part for the reasons assigned by Justice Crichton. Additionally, I concur to emphasize that a defendant in a criminal case has a constitutional right to counsel and has a constitutional right to represent himself, but he does not have the constitutional light to both.

In this case, defendant voluntarily, knowingly, and intelligently elected to proceed via “hybrid” representation. He cannot, at this time, claim that his right to counsel or his right to represent himself were abridged.


text:
    STATE EX REL. Fermichael HARRISON v. STATE of Louisiana
    No. 2015-KH-2268
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

| TDenied. Relator’s claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466.

GENOVESE, J., recused.


text:
    STATE EX REL. Clyde Milton JONES v. STATE of Louisiana
    No. 2015-KH-2190
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

| í 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 also fails to state the grounds upon which relief is sought with reasonable particularity. La.C.Cr.P. art. 926(B)(3).

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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings 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 bright to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kenneth R. BILBO v. STATE of Louisiana
    No. 2015-KH-2177
    Supreme Court of Louisiana.
    04/07/2017
   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). Relator also fails to carry his burden of proof post-conviction with regard to his claim the district court erred in handling the jurors’ requests during deliberations. La.C.Cr.P. art. 930.2.

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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings 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.

GENOVESE, J., recused.


text:
    STATE EX REL. Joel WILLIS v. STATE of Louisiana
    No. 2015-KH-2174
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

11 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 the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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. Michael Wayne HOOD v. STATE of Louisiana
    No. 2015-KH-2171
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

[ denied. Relator fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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. Tara LANCASTER v. STATE of Louisiana
    No. 2015-KH-2150
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

| ¶Denied. Relator’s sentencing claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466.

Relator has now fully litigated her 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 claim has now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Robert DIGGINS v. STATE of Louisiana
    No. 2015-KH-2126
    Supreme Court of Louisiana.
    04/07/2017
   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).

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. Roy Lee WILLIAMS v. STATE of Louisiana
    No. 2015-KH-2100
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

| denied. The application is repetitive. La.C.Cr.P. art. 930.4.

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:
    STATE EX REL. Larry John THOMPSON v. STATE of Louisiana
    No. 2015-KH-0383
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

|, Granted in part. The matter is remanded to the district court for an evidentiary hearing to determine whether relator’s guilty plea was entered unintelligently or involuntarily as a result of erroneous or misleading advice, from counsel or the trial court, regarding his sentencing exposure; and whether trial counsel rendered ineffective assistance. In all other respects, the application is denied.


author: PER CURIAM

text:
    IN RE: Channing J. WARNER
    NO. 2017-B-0359
    Supreme Court of Louisiana.
    04/07/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| T The instant disciplinary proceeding arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Channing J. Warner, for his alleged failure to comply with the conditions of probation imposed in In re: Warner, 14-1060 (La. 6/20/14), 140 So.3d 1164 (“Warner I”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Warner I demonstrated that respondent neglected a legal matter, failed to communicate with a client, commingled client funds, and failed to promptly deliver settlement funds to a client. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions. On June 20, 2014, we accepted the petition for consent discipline in Warner I. Our order stated in pertinent part as follows:

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Channing J. Warner, Louisiana Bar Roll number 29017, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date [¡respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. [Emphasis added.]

On August 4, 2014, respondent executed a formal probation agreement with the ODC. Among other things, the agreement required him to:

1. Promptly respond to all requests by and make himself reasonably available for conferences with the ODC;
2. Comply with all bar membership requirements;
3. On a semiannual basis, submit to the ODC a professional activities report detailing the nature of his law practice;
4. On a quarterly basis and at his expense, have his trust account audited by a CPA approved by the ODC, instruct his CPA to perform the procedures outlined in the ODC’s Trust Audit Program as part of the quarterly audits, and instruct and authorize his CPA to submit audit reports and related documents to the ODC within thirty days after the end of each quarter;
5. Pay all costs and expenses associated with Warner I prior to the expiration of the probationary period; and
6. Acknowledge that any violation of the Rules of Professional Conduct and/or this probation agreement may result in summary revocation of his probation and making the deferred suspension executory and/or may result in the imposition of additional discipline as appropriate.

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On January 18, 2017, the ODC filed the instant motion and rule to revoke respondent’s probation, alleging that he had failed to comply with the conditions of | ¡¡his probation in Warner I. Essentially, the ODC alleged that respondent consistently failed to make himself accessible to the ODC, whether via letters, e-mails, or telephone calls. Respondent was also declared ineligible to practice law several times during his probationary period—between September 9, 2014 and November 12, 2014, he was ineligible for failing to pay bar dues and the disciplinary assessment and failing to register his trust account information; between September 9, 2015 and September 23, 2015, he was ineligible for again failing to pay bar dues and the disciplinary assessment; between June 3, 2016 and July 15, 2016, he was ineligible for failing to fulfill mandatory continuing legal education requirements; and between September 9,2016 and September 23, 2016, he was ineligible for failing to register his trust account information. Additionally, respondent failed to submit semiannual professional activities reports and quarterly reports of his trust account. He also failed to pay any of the disciplinary costs (totaling $1,943.95 as of November 21, 2016) associated with Warner I.

Finally, during respondent’s probationary period, two of his clients filed disciplinary complaints against him. The ODC’s investigation into one of the complaints revealed that a client gave respondent $250 in cash for court costs, and respondent failed to place these funds into his trust account as required by Rule 1.5(f)(4) of the Rules of Professional Conduct. The ODC’s investigation further revealed that respondent is unable to account for the funds. Additionally, respondent allegedly represented the client during the two periods of time in 2016 that he was ineligible to practice law.

Accordingly, the ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred one year and one day suspension.

This matter was originally scheduled for an evidentiary hearing before an adjudicative panel of the disciplinary board on February 16, 2017. However, on February 15, 2017, the parties filed a joint motion to revoke respondent’s probation Land to impose the previously-deferred suspension. In the motion, respondent acknowledged that he cannot successfully defend against the ODC’s allegations and, thus, consented to the revocation of his probation and the imposition of the previously-deferred suspension.

Disciplinary Board Recommendation

On February 23, 2017, the disciplinary board filed its report with this court, recommending that the ODC’s motion to revoke probation be granted in light of the evidence in the record and respondent’s consent to the revocation. The board also recommended that the deferred one year and one day suspension imposed in Warner I be made executory.

DISCUSSION

A review of the record reveals that respondent has not complied with many of the requirements set forth in his August 4, 2014 probation agreement. Most troubling are the facts that respondent has been ineligible to practice law several times during his probationary period and has had two disciplinary complaints filed against him since we imposed discipline upon him in Warner I. To protect the public, it is necessary to revoke respondent’s probation and impose the previously-deferred suspension. Notably, respondent agrees with this disposition.

Accordingly, we will accept the disciplinary board’s recommendation and grant the motion to revoke respondent’s probation, making the previously-deferred one year and one day suspension imposed in Warner I immediately executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously-deferred one year and one day suspension imposed in In re: Warner, 14-1060 (La. 6/20/14), 140 So.3d 1164, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, Channing J. Warner, Louisiana Bar Roll number 29017, in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE EX REL. Troy GREENUP v. STATE of Louisiana
    No. 2016-KH-2025
    Supreme Court of Louisiana.
    04/07/2017
   PER CURIAM:

| TPenied. We attach hereto and make a part hereof the district court’s written reasons denying relator’s motion.

|2Attachment