author: SUAREZ, J.

text:
    Carl LEGGETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2872
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

Carl Leggett appeals from the denial of his motion for judgment of acquittal of the charge of grand theft. Based on the lack of any evidence at trial to prove the necessary element of felonious intent, we find the motion for judgment of acquittal should have been granted. Therefore, we reverse and remand to vacate the conviction and for discharge of the defendant.

In July 2016, the homeowner Jones hired Leggett, a carpenter, to remodel her kitchen. Jones hired Leggett on the recommendation of her nephew after having obtained estimates for the work from other contractors. Leggett took Jones to see some of his other cabinetry work, which she liked. They discussed the scope of the project, the materials to be used, the necessary demolition, and he provided Jones with material samples and colors that she approved. Leggett and Jones entered into a contract that called for the work to be completed in two weeks (contingent on delays outside of either's control). Jones gave Leggett a check for $2,250.00 representing a fifty percent deposit to enable him to purchase necessary materials. After two weeks without hearing from Leggett, Jones called him and he told her that he was experiencing delays, but would finish her custom work. From August to October, Jones left voicemails, and at some point Leggett stopped taking her calls. Jones ultimately hired another carpenter to finish the work. The State charged Leggett with third degree grand theft and contracting without a license. Leggett went to trial. The trial court denied Leggett's motion at trial for judgment of acquittal and Leggett was subsequently convicted of grand theft and sentenced to sixty (60) months in prison. Leggett now appeals the trial court's denial of his motion for judgment of acquittal.

Our standard of review on denial of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). Grand theft requires proof of felonious intent to deprive the owner of property of its use or benefit, the critical element sought to be proven in this case. See § 812.014(1), Fla. Stat. (2002). To prove the crime of grand theft, the State must establish that the defendant had the requisite criminal intent at the time of the taking . Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012) ("Even though a promise to perform in the future may serve as the basis of a theft, a necessary element of theft under Florida law is that the defendant must have the specific intent to commit the theft at the time of, or prior to , the commission of the act of taking." (quoting Stramaglia v. State, 603 So.2d 536, 537-38 (Fla. 4th DCA 1992) ). "Intent, being a state of mind, is often not subject to direct proof and can only be inferred from circumstances." Jones v. State, 192 So.2d 285, 286 (Fla. 3d DCA 1966). A motion for judgment of acquittal should be granted in a circumstantial evidence case such as this if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. McNarrin v. State, 876 So.2d 1253, 1255 (Fla. 4th DCA 2004) ; Jeffries v. State, 797 So.2d 573, 580 (Fla. 2001) ("[I]n a circumstantial evidence case, the State's evidence must be not only consistent with guilt but inconsistent with any reasonable hypothesis of innocence.").

The State sought to prove Leggett's felonious intent by Jones's testimony that Leggett cashed the deposit check the same day she gave it to him. The problem with her testimony was that she said she knew this only because her bank called her to tell her that the check was cashed that same day. The trial court overruled defense counsel's hearsay objection to her testimony, but only as to her statement that the bank called her. The hearsay objection, however, should have been sustained as to Jones's entire statement, as she also had no personal knowledge that it was, in fact, Leggett who had cashed the check. The State introduced a document it claimed to be a copy of the check that Jones had given to Leggett. The signature on the back of the check purporting to be Leggett's had been redacted by the State because Jones was unable to testify as to Leggett's signature. The State did not have a handwriting expert testify to any signature on the back of the check, it did not have Jones's bank records authenticated and introduced into evidence, nor did it call any bank personnel to testify regarding the funds' withdrawal from Jones's account. The State was singularly unable to provide any admissible evidence that it was Leggett who had endorsed or had cashed the check. See e.g., Armstrong v. State, 42 So.3d 315 (Fla. 2d DCA 2010) (reversing conviction where State improperly introduced unauthenticated bank documents where victim's hearsay testimony relied solely on those documents to prove theft). The State's sole evidence to establish Leggett's alleged felonious intent to steal Jones's money at the time she gave him the check was Jones's inadmissible hearsay testimony that the check was cashed by Leggett the same day it was written. See Thompson v. State, 705 So.2d 1046 (Fla. 4th DCA 1998) (holding that the hearsay rule does not authorize hearsay testimony about the contents of business records that have not been admitted as evidence). Without Jones's inadmissible testimony and a failure of proof that the check was actually cashed, and by whom, the totality of the circumstances showed only that Leggett agreed to perform the remodeling work, took the deposit check, and subsequently failed to perform the agreed-upon task. This falls far short of the competent and substantial evidence necessary to prove the felonious intent required to sustain a conviction for grand theft. The fact that Leggett failed to perform the work does not, alone, prove felonious intent. See Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980) (holding no theft where money was voluntarily given pursuant to contract and defendant failed to perform the contract); Gellman v. State, 371 So.2d 181, 182 (Fla. 3d DCA 1979) (holding the existence of the required felonious intent is for the trier of the fact to determine subject to the legal requirement that there be substantial competent evidence from which the trier of the fact may so infer that intent); see also Benitez v. State, 852 So.2d 386, 388 (Fla. 3d DCA 2003) ; De La Cosa v. State, 733 So.2d 592 (Fla. 3d DCA 1999).

Based on the facts of this case, the evidence of felonious intent presented by the State in support of its third-degree grand theft charge against Leggett was totally insufficient to support his conviction on that count and the trial court should have granted the judgment of acquittal. This is an ordinary civil breach of contract case. See Segal, 98 So.3d at 744 (finding the State failed to prove felonious intent where its evidence was not inconsistent with appellant's hypothesis that this was simply a contractual undertaking which he failed to perform-a civil matter). We therefore reverse the conviction and remand with instructions to vacate the conviction for grand theft and dismiss the case. In addition, we instruct the trial court to vacate the order for restitution as well as the imposition of costs.

Reversed and remanded with instructions.

      The same day oral argument was heard in this case, the Court issued an order to the Florida Department of Corrections to immediately discharge Leggett (DC no. 391789) from prison, with this opinion to follow.

      Leggett was acquitted of the charge of contracting without a license.

      Section 812.014(1), Florida Statutes (2016) provides,
      (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

      The record allows for an inference that some demolition of the kitchen may have been started prior to Jones firing Leggett, as the Miami-Dade contract enforcement investigator who was assigned to photograph the work found that the replacement carpenter had already started to finish the kitchen. Further, Jones testified that she called another contractor in to finish the work, as she needed her kitchen for cooking.

      We are dismayed by the State's choice to pursue this criminal prosecution all the way through an appeal in the face of such weak or non-existent facts and evidence.


source: Caselaw Access Project

author: ROTHENBERG, C.J.

license: Public Domain

text:
    Mike GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1037
    District Court of Appeal of Florida, Third District.
    Opinion filed January 31, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   ROTHENBERG, C.J.

Mike Gonzalez ("the defendant") appeals the trial court's denial of his postconviction motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In his postconviction motion, the defendant contested his sentence on two grounds: (1) his convictions for attempted home invasion robbery and burglary of a dwelling with a battery constituted double jeopardy; and (2) the 90-month sentence reflected on the judgment for trespass, a second degree misdemeanor, and carrying a concealed weapon, a first degree misdemeanor, did not conform to the trial court's oral pronouncement and was in excess of the statutory maximums. However, the only argument raised on appeal is the trial court's failure to correct the sentence as to the second ground raised below. Because the claim on appeal is well-taken, we reverse the trial court's order denying relief and remand for correction of the judgment and sentences to reflect the trial court's oral pronouncement-that the defendant was sentenced to "credit for time-served" for trespass and carrying a concealed weapon-and to reflect a sentence no greater than what the law provides for these two misdemeanor offenses. Thus, the judgment and sentences shall be corrected on remand to read that the defendant was sentenced to: (1) sixty days, with credit for the sixty days the defendant served as to Count IV, trespass to a structure or conveyance; and (2) 364 days, with credit for the 364 days the defendant served as to Count VI, carrying a concealed weapon.

Reversed and remanded for correction of the judgment and sentence.


author: Per Curiam.

text:
    Derrick L. WYCHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-59
    District Court of Appeal of Florida, First District.
    January 30, 2018 Rehearing Denied March 13, 2018
    Derrick L. Wyche, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, Osterhaus, and Bilbrey, JJ., concur.


text:
    Lawrence ZEWIEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5344
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 13, 2018
    Lawrence Zewiey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Lewis, Osterhaus, and Bilbrey, JJ., concur.


author: LINDSEY, J.

text:
    Alvaro GORRIN, Jr., Appellant, v. POKER RUN ACQUISITIONS, INC., Appellee.
    No. 3D16-1426
    District Court of Appeal of Florida, Third District.
    Opinion filed January 31, 2018
    Law Offices Mendez & Mendez, P.A., and Sergio L. Mendez and Daniel J. Mendez, for appellant.
    Carlton Fields Jorden Burt, P.A., and Jose A. Loredo and Steven M. Blickensderfer, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   LINDSEY, J.

This case involves proceedings supplementary between a creditor and a debtor following the entry of a final judgment for breach of personal guaranties securing a commercial debt. The Debtor, Alvaro Gorrin, Jr. ("Gorrin"), appeals the final summary judgment entered on June 16, 2015, granting the Creditor's, Poker Run Acquisitions, Inc.'s ("Poker Run"), motion for summary judgment and the order denying rehearing entered on May 19, 2016. Because genuine issues of material fact remain in dispute, we reverse.

FACTUAL AND PROCEDURAL HISTORY

This case originates out of a lawsuit which sought to collect on guaranties executed by Gorrin as part of a loan, originally made by Ocean Bank, for the purpose of financing two condominium conversion projects. Poker Run purchased the loan package from Ocean Bank. In 2008, Poker Run filed suit on the guaranties, out of which these proceedings supplementary arose. On May 26, 2009, the trial court granted Poker Run final summary judgment against Gorrin for breach of the personal guaranties, awarding Poker Run over $19 million. At that time, Gorrin held a 95% interest in Lacross Marina LLC ("Lacross"). On August 8, 2009, Gorrin created the Gorrin Family Trust ("the Trust"), wherein he named his mother and brother as trustees and his wife and children as beneficiaries, and transferred to the trust his 95% ownership interest in Lacross. It is this transfer that brings this case back to this Court for yet the fourth time.

In January of 2014, Poker Run resumed discovery in aid of execution and proceedings supplementary seeking to undo the August 8, 2009 transfer of Gorrin's ownership interest in Lacross. On May 5, 2015, Poker Run moved for summary judgment contending there were no genuine issues of material fact and that an unrebutted presumption was created that the transfer was fraudulent by operation of sections 56.29(6)(a) and 726.105(1)(a), (2), Florida Statutes (2015).

In support, Poker Run submitted an affidavit by its President, R. Ford MacConnell ("MacConnell"). In his affidavit, MacConnell stated that suit was filed on June 28, 2008 and summary judgment was entered against Gorrin on May 26, 2009. MacConnell further stated that on August 8, 2009, the Trust was formed; that Gorrin owned a 95% interest in Lacross; and that Gorrin transferred that interest to the Trust on August 13, 2009. He also stated the Public Records revealed that Gorrin remained the managing member of Lacross and referenced a printout from the Florida Secretary of State Division of Corporations that was attached as an exhibit.

In response, Gorrin contended there remained genuine issues of material fact with regard to whether he transferred his interest in Lacross to the Trust with the actual intent to hinder, delay, or defraud creditors. In support, Gorrin submitted his own affidavit and the deposition transcript of Ricardo Beilmann ("Beilmann"), the owner of the remaining 5% interest in Lacross. In his affidavit, Gorrin stated that he retained the services of an attorney to set up the Trust for the benefit of his children for estate planning purposes pursuant to a promise he had made to his wife. Gorrin also stated he was not aware that he had any legal restriction from doing so at the time of the transfer, he did not make this transfer to delay, hinder or defraud any creditor, and he never sought to conceal the transfer.

Further, Gorrin stated he has never managed Lacross, that it has been primarily managed by Beilmann, and he has never worked at the business nor operated it. In addition to his affidavit, Gorrin relied on the deposition testimony of Beilmann wherein Beilmann testified that he was the manager of Lacross and that his responsibilities included fueling boats, making bank deposits, writing checks making a monthly budget, deciding whether to spend money on the marina and other financial decisions.

However, in its June 16, 2015 order granting final summary judgment, the trial court found Beilmann's deposition testimony unreliable, as he was unable to answer other specific questions about the company's finances and corporate structure. The trial court further found that Gorrin's statement in his affidavit that the transfer was made for estate planning purposes "fails to establish innocence of motive because by transferring the asset as a matter of estate planning it shields the asset from collection by creditors."

In addition to rejecting Gorrin's estate planning explanation as the reason for the transfer, the trial court also found Gorrin's statement-that he has never managed Lacross-to be contradicted by Gorrin's own documents and Beilmann's deposition. Alternatively, the trial court's order found that if Gorrin's affidavit is valid, the transfer of his 95% interest to the Trust was void, as the consent of the managing member was required by Lacross's Operating Agreement. Likewise, the trial court reasoned, if Gorrin was the managing member and the transfer was valid, then his affidavit filed in opposition to summary judgment is false. Based on these findings, the trial court struck Gorrin's affidavit as a sham.

In consideration of the foregoing, the trial court granted final summary judgment finding there were no genuine issues of material fact with regard to whether Gorrin's transfer of his 95% interest in Lacross was fraudulent under Florida law. The trial court also granted a charging lien in favor of Poker Run against Gorrin's interest in Lacross, ordered that the status quo be preserved as to all assets of Lacross, ordered that no distributions be made to Gorrin or the Trust, and required the surrender of all of Gorrin's economic interests in Lacross.

In addition, the trial court reserved jurisdiction to order the sheriff to levy upon a determination that Lacross had no managing member at the time of the order and is subject to dissolution. Gorrin moved for rehearing and the trial court entered an order on May 19, 2016 granting in part and denying in part the motion. This order amended the final summary judgement by striking the provision that stated that upon request of Poker Run, the court will determine whether Lacross is a shell with no actual governing members, in which case it may be subject to dissolution. This appeal follows.

STANDARD OF REVIEW

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). It "is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015).

"But a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez-Gurri Corp. v. McLeod, --- So.3d ----, 42 Fla. L. Weekly D2487, 2017 WL 5616924 (Fla. 3d DCA Nov. 22, 2017). "At both the trial and appellate level, all evidence and inferences from the evidence must be taken in the light most favorable to the non-moving party." Moradiellos, 176 So.3d at 334. This Court reviews de novo a trial court's ruling on a motion for summary judgment. Aberdeen at Ormond Beach, L.P., 760 So.2d at 130.

ANALYSIS

In support of the fraudulent transfer claim, Poker Run relies on two separate statutory theories of recovery, raised with particularity, in its motion for summary judgment. The first theory is based on a presumption of fraud under the Proceedings Supplementary Statute. Section 56.29(6)(a) provides:

When, within 1 year before the service of process on him or her, defendant has had title to, or paid the purchase price of, any personal property to which the defendant's spouse, any relative, or any person on confidential terms with defendant claims title and right of possession at the time of examination, the defendant has the burden of proof to establish that such transfer or gift from him or her was not made to delay, hinder, or defraud creditors.

§ 56.29(6)(a). Poker Run's second theory is based on a presumption of fraud under section 726.105(1)(a) of the Fraudulent Transfer Act which provides:

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: With actual intent to hinder, delay, or defraud any creditor of the debtor.

§ 716.105(1)(a) (emphasis added).

"Proof of fraud requires proof of intent. Obviously, in these situations, the parties will not readily admit to being instruments of fraud. Therefore, 'because of the difficulty of proving actual intent to defraud creditors, section 726.105(2) provides that fraudulent intent may be presumed from evidence of badges of fraud.' " Mejia v. Ruiz, 985 So.2d 1109, 1113 (quoting Beal Bank SSB v. Almand & Assocs., 780 So.2d 45, 60 (Fla. 2001) ). The language of section 726.105(2) provides as follows:

In determining actual intent under paragraph (1)(a), consideration may be given, among other factors, to whether:
(a) The transfer or obligation was to an insider.
(b) The debtor retained possession or control of the property transferred after the transfer.
(c) The transfer or obligation was disclosed or concealed.
(d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.
...
(g) The debtor removed or concealed assets.
...
(j) The transfer occurred shortly before or shortly after a substantial debt was incurred.

§ 726.105(2).

In its motion for summary judgment, Poker Run asserted that Gorrin's actions met all the above factors as: a) Gorrin transferred the assets for his family's benefit; b) Gorrin retained his manager status after the transfer; c) the transfer was concealed using the Trust as a vehicle; d) Gorrin was sued one year and two months before the transfer; g) Gorrin used the Trust to disguise and conceal assets; and j) the transfer occurred both before and after Gorrin incurred a substantial debt. Poker Run further asserted it established a prima facie case of a fraudulent transfer and that the burden of proof shifted to Gorrin to prove the transfer was not fraudulent. Stephens v. Kies Oil Co., Inc., 386 So.2d 1289, 1290 (Fla. 3d DCA 1980) (citation omitted) ("These badges of fraud create a prima facie case and raise a rebuttable presumption that the sale was void.").

"The proof required to show that a transfer is fraudulent is the preponderance of the evidence standard." Mejia, 985 So.2d at 1113 (citation omitted); see also Wieczoreck v. H & H Builders, Inc., 475 So.2d 227, 228 (Fla. 1985). "Ordinarily, the issue of fraud is not a proper subject of a summary judgment. Fraud is a subtle thing, requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud."

Automobile Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So.2d 386, 386 (Fla. 3d DCA 1972) (citations omitted) (reversing the granting of summary judgment).

Summary judgment is rarely granted in fraudulent transfer cases, as the determination of intent often presents a genuine issue of material fact. See Rosen v. Zoberg, 680 So.2d 1050, 1051 (Fla. 3d DCA 1996) (reversing summary judgment because genuine issues of material fact remain unresolved as to whether the defendants acted with fraudulent intent), overruled on other grounds by Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189 (Fla. 2003) ; Yaralli v. Am. Reprographics Co., LLC, 165 So.3d 785, 789 (Fla. 4th DCA 2015) (reversing the granting of summary judgment on the fraudulent transfer count); cf. Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 153 (Fla. 4th DCA 1994) (summary judgment affirmed where the sole shareholder of a judgment debtor simply transferred the assets of one P.A., in which he was the sole shareholder, to another P.A., in which he was the sole shareholder, without consideration and within days of the entry of a substantial judgment against the judgment debtor).

"While a single badge of fraud may amount only to a suspicious circumstance, a combination of badges will justify a finding of fraud." Mejia, 985 So.2d at 1113 (citation omitted). This consideration must be balanced against the principle that "[s]ummary judgment is available in fraud cases only in extraordinary circumstances." Stephens, 386 So.2d at 1290 (citing Automobile Sales, Inc., 256 So.2d 386 (finding that the entry of summary judgment was premature when debtor's evidence showing motivation to sell his business tended to rebut the presumption of fraud creating an issue to be resolved by the trier of fact).

Here, the trial court found that Gorrin's affidavit was a fraud and struck it as a sham based on the deposition testimony of Beilmann and the LLC Documents. However, on a motion for summary judgment, it is well-established that the trial court may not adjudge the credibility of witnesses or weigh the evidence. Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999). If believed by the trier of fact, Gorrin's evidence that the transfer was made for estate planning purposes, pursuant to a promise that he had made to his wife and without the intent to defraud any creditor, could rebut the presumption of fraud. Because the summary judgment evidence presents a genuine issue of material fact-whether Gorrin's transfer of his 95% ownership interest in Lacross to the Trust was fraudulently made with the intent to protect Gorrin's assets from execution-the trial court erred in granting summary judgment. Also, to the extent that there exist conflicts in Beilmann's deposition testimony, the resolution of those conflicts, likewise, should be left for the trier of fact.

Alternatively, Gorrin asserts that in the event the final summary judgment against Gorrin is upheld, a charging order against Gorrin's membership interest in Lacross is Poker Run's sole and exclusive remedy as Lacross is a multiple member LLC. See § 605.0503, Fla. Stat. (2015). Relying on Olmstead v. F.T.C., 44 So.3d 76 (Fla. 2010), Gorrin contends that the lower court's ruling which maintains the status quo as to all assets of Lacross is effectively a permanent injunction against Lacross and beyond that allowed by section 605.0503. We agree.

In Abukasis v. MTM Finest, Ltd., 199 So.3d 421 (Fla. 3d DCA 2016), Eliahu Abukasis appealed a post-judgment order, entered pursuant to sections 605.0503(7)(b), (c) and 726.108(1)(c)(3), Florida Statutes, transferring his membership interest in an LLC toward the satisfaction of a money judgment held against him by MTM Finest, Ltd. This Court reversed the trial court's order "finding no authority for an order directly transferring an interest in a property to a judgment creditor in partial or full satisfaction of a money judgment." Abukasis, 199 So.3d at 422. In so doing, this Court cited to Regions Bank v. Hyman, which explained that amendments to former section 605.0503, previously numbered 608.433, were brought on by Olmstead, 44 So.3d 76, "to clarify the exclusive remedies available to a judgment creditor as to a judgement debtor's interest in an LLC: a charging order or a charging order followed by a foreclosure sale." Regions Bank v. Hyman, 2015 WL 1912251, at *7, 2015 U.S. Dist. LEXIS 55011, at *7 (M.D. Fla. Apr. 27, 2015) ; see Abukasis, 199 So.3d at 423. This Court further stated that "[t]he attempted application of section 725.108, Florida Statutes, the fraudulent transfer statute, is similarly flawed." Abukasis, 199 So.3d at 423. Therefore, the trial court's order freezing the assets of Lacross exceeded the scope of that allowed under section 605.0503.

CONCLUSION

Because there are genuine issues of material fact as to whether Gorrin's transfer of his 95% interest in Lacross to the Trust was fraudulent and because the freezing of the assets of Lacross exceeded the scope of available remedies under Florida law, we reverse the final summary judgment granted in favor of Poker Run and against Gorrin and remand for further proceedings consistent herewith.

REVERSED AND REMANDED.

      Throughout the record, both Poker Run and Gorrin, use the terms Lacross Marina, LLC and Lacross Marina intermittently and interchangeably. Thus, for purposes of this appeal, we refer to both as "Lacross."

      Subsequent to the trial court's entry of final summary judgment in favor of Poker run in May of 2009, three appeals have been taken to this court. Eventually an amended final judgment was entered, and affirmed on appeal, awarding Poker Run the sum of $30,948,103.23. Gorrin v. Poker Run Acquisitions, Inc., 77 So.3d 739 (Fla. 3d DCA 2011) ; Gorrin v. Poker Run Acquisitions, Inc., 137 So.3d 1102 (Fla. 3d DCA 2014) ; Gorrin v. Poker Run Acquisitions, Inc., 163 So.3d 1207 (Fla. 3d DCA 2015).

      Section 56.29(6)(a) was the version in effect in 2015. That same subsection was renumbered as subsection 56.29(3)(a) in 2016. However, subsections 56.29(3)(a) and 56.29(6)(3) do not materially differ.

      Poker Run also submitted the deposition transcript of Maria Gonzalez de Gorrin taken on March 6, 2014, but then told the trial court at the summary judgment hearing on June 9, 2015 that it need not be considered.

      Also, at the summary judgment hearing, the trial court directed Gorrin to file the original Articles of Incorporation and Operating Agreement for Lacross Marina, LLC (the "LLC Documents"). However, at the time of entry of the order on summary judgment, the trial court had before it only the amended LLC Documents that were created and executed at the time of the transfer at issue.

      In addition to accepting the statutory theories of recovery raised by Poker Run, the trial court found that the transfer was void under the LLC Documents. However, this theory of recovery could not form the basis for summary judgment in favor of Poker Run because it was not raised by Poker Run in its motion. See Williams v. Bank of America Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006) (reversing the entry of summary judgment on a ground not raised with particularity, as required by Florida Rule of Civil Procedure 1.510(c), in the motion).

      Section 605.0503(1) provides: "On application to a court of competent jurisdiction by a judgement creditor of a member or a transferee, the court may enter a charging order against the transferable interest of the member or transferee for payment of the unsatisfied amount of the judgment with interest. Except as provided in subsection (5) [applicable to single member LLCs], a charging order constitutes a lien upon a judgment debtor's transferable interest and requires the limited liability company to pay over to the judgment creditor a distribution that would otherwise be paid to the judgment debtor."


author: Bilbrey, J.

text:
    James R. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-0171
    District Court of Appeal of Florida, First District.
    February 8, 2018
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

James R. Murray appeals his convictions for arson and burglary of a dwelling raising multiple grounds of unpreserved error and a claim that defense counsel rendered ineffective assistance as demonstrated on the face of the record. We find no fundamental error with regard to the jury instructions, comments of the State during closing argument, or the sufficiency of the evidence to support the elements of the charged offenses. Likewise, we find no deficient performance by defense counsel apparent on the face of the record which might be addressed on direct appeal. See Morales v. State , 170 So.3d 63 (Fla. 1st DCA 2015).

The remaining issue is Appellant's claim that the absence of the jury charge conference from the trial transcript in the appellate record due to a technical failure and through no fault of Appellant entitles him to a new trial. However, Appellant fails to assert or show by any indication in the existing record that he objected to the jury instruction at issue at any time during the trial proceedings and that his right to appellate review is prejudiced by the omission of a transcript of the charge conference. A missing portion of the trial transcript does not require a new trial unless the defendant/appellant can demonstrate the basis for the alleged error, such as a statement of "the grounds upon which she claimed error occurred during the trial." Louisias v. State , 985 So.2d 1181, 1183 (Fla. 3d DCA 2008). As stated in Jones v. State , 923 So.2d 486, 489 (Fla. 2006), "under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant." Without a "claim of prejudice, specific or otherwise" made or demonstrated "as a consequence of the trial court's actions," the fact that a portion of the transcript of the trial is missing does not mandate reversal. Perez-Sovias v. State , 95 So.3d 327, 332 (Fla. 3d DCA 2012) (holding that appellant not entitled to new trial based on transcript of voir dire, which included portions in Spanish which were not translated).

No motion for new trial appears in this record, and there is no indication that Appellant ever objected or challenged the standard jury instruction for the stealthy entry inference on a burglary charge as given at trial. See § 810.07(1), Fla. Stat. (2016) ; Fla. Std. Jury Instr. (Crim.) 13.1. To the contrary, the available transcript includes defense counsel's agreement to the jury instructions and her agreement that no additional matters needed to be added to the record at the conclusion of the proceedings. Finally, even if Appellant had contested the use of the standard instruction in this case, and thus was able to proceed on appeal under a harmful error standard rather than a fundamental error standard, Appellant does not assert and cannot point to any prejudice to his defense from the use of the instruction. See Reed v. State , 208 So.3d 1231, 1234 (Fla. 1st DCA 2017) (holding the lack of evidence made stealthy-entry instruction erroneous, but harmless error where State and defense "barely mentioned" the inference of intent in their respective closing arguments).

Accordingly, the judgment and sentence on appeal are AFFIRMED .

Roberts and Kelsey, JJ., concur.


author: EVANDER, J.

text:
    Brenda PREWITT, Appellant, v. Shirley KIMMONS, Sandra A. Perkins and Space Coast Credit Union, Appellees.
    Case No. 5D16-3076
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Stephanie Vollrath, of Vollrath Law P.A., Oviedo, for Appellant.
    J. Stephen McDonald and Stephanie L. Cook, of Shuffield, Lowman & Wilson, P.A., Daytona Beach, for Appellees Shirley Kimmons and Sandra A. Perkins.
    No Appearance for Appellee Space Coast Credit Union.
   EVANDER, J.

Brenda Prewitt ("Appellant"), a named beneficiary of a trust established by her now deceased mother, Pauline Tyler, filed a multi-count second amended complaint against Shirley Kimmons (the successor trustee), Sandra Perkins, and Space Coast Credit Union. The trial court granted summary final judgment in favor of Kimmons and Perkins ("Appellees") on all the claims brought against them. Because we conclude that disputed material issues of fact precluded the entry of summary judgment on Counts 3, 5, and 13, we reverse the trial court's order as to these counts.

A trial court's order granting summary judgment is reviewed de novo. Doctor Rooter Supply & Serv. v. McVay , 226 So.3d 1068, 1072 (Fla. 5th DCA 2017). In reviewing a court's decision to enter summary judgment, we must consider all record evidence in a light most favorable to the non-moving party. Id. If there are material disputed issues of fact, summary judgment must be reversed. Id.

Pauline Tyler was the mother of six children: Appellant, Appellees, Kathy Henderson, Ronald Wilson, and Jacqueline Green. In 2000, Tyler executed an irrevocable trust naming herself as the trustee. As trustee, Tyler was to distribute the net proceeds of the trust to herself unless she directed otherwise, but the trust became irrevocable upon her death. In 2007, Tyler executed an amendment to the trust providing, inter alia, for Kimmons to be successor trustee. In 2012, at ninety-one years of age, Tyler began to need assistance with daily activities. Later that year, she began residing with Kimmons and Kimmons' husband. Tyler died on September 29, 2013. Kimmons accepted her role as successor trustee and distributed various assets of the trust to named beneficiaries.

It is unnecessary to recite all the summary judgment evidence presented to the trial court at the summary judgment hearing. Instead, it is sufficient to note the summary judgment evidence that should have precluded the entry of summary judgment on Counts 3, 5, and 13.

This record evidence was sufficient to permit Appellant to proceed on Count 3, which alleged that Kimmons breached her fiduciary duty to Appellant by, inter alia, (1) failing to distribute funds as provided for by the trust documents, (2) failing to seek return of $10,000 of trust assets wrongly retained by Perkins, and (3) failing to return monies that Kimmons had misappropriated from the trust account prior to Tyler's death. First, there was record evidence that Kimmons paid approximately $14,000 for lease payments on a motor vehicle that was ultimately conveyed to beneficiary Wilson and that said payments were not consistent with the terms of the trust. Second, there was record evidence that Perkins had received $10,000 from Tyler solely for "safekeeping" purposes, that these monies had never been returned to the trust account, and that Kimmons had taken no action to recover these monies. Third, there was record evidence that in a time period when Tyler was in deteriorating health and receiving morphine, Kimmons improperly disbursed money from the trust account to herself and her daughter. Therefore, questions of fact remain over Appellant's breach of fiduciary duty claim. See § 736.0801, Fla. Stat. (2013) ("[T]he trustee shall administer the trust in good faith, in accordance with its terms ...."); id. § 736.0811 ("A trustee shall take reasonable steps to enforce claims of the trust ...."); id. § 736.0812 ("A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee ...."). Similarly, we conclude that this summary judgment evidence was sufficient to preclude summary judgment on Count 5 (conversion as to Perkins) and Count 13 (civil theft as to Perkins). We affirm, without discussion, the remainder of the trial court's order.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

COHEN, C.J. and WALLIS, J., concur.

      We conclude that the trial court properly found the trust amendment to be valid.

      Florida Rule of Civil Procedure 1.510(c) defines "summary judgment evidence" to mean affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence.


text:
    Jason Don THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1990
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jason Thompson was convicted of lewd and lascivious molestation of a child under twelve. At trial, the State presented evidence that Thompson's daughter had an eleven-year-old friend who spent a night at Thompson's home. Thompson sneaked into the room where the victim slept, and he rubbed the victim's genital region.

On appeal, Thompson raises four issues. First, he contends the trial court erred by admitting child hearsay statements without conducting a balancing test under section 90.403, Florida Statutes (2015). He argues that although the trial court made findings of reliability under section 90.803(23), the court was still obligated "to conduct an analysis of whether the probative value of the statements was outweighed by the danger of presentation of repetitive and cumulative evidence under the protection afforded by section 90.403." But by admitting the evidence, the trial court necessarily rejected any argument that prejudice from cumulative evidence outweighed any probative value. The trial court did not articulate any balancing consideration, but "there is no requirement under section 90.403 that the court must make findings on the record or otherwise, to cause the record to reflect the specific reasoning applied by the court in overruling an objection that evidence is cumulative." Reynolds v. State , 660 So.2d 778, 781 (Fla. 4th DCA 1995). Therefore, Thompson has not shown an abuse of discretion.

Second, Thompson argues that prosecutor's improper comment in opening, along with a misstatement of law, led to fundamental error. The prosecutor referred to Thompson as a "boogeyman," and the trial court promptly sustained an objection. Thompson did not seek a curative instruction or move for a mistrial, and the inappropriate comment was not sufficient to warrant a new trial under the fundamental-error standard. See Carroll v. State , 815 So.2d 601, 622 (Fla. 2002) (prosecutor's reference to defendant as the "boogie man" and a "creature that stalked the night" was not fundamental error); see also Williams v. State , 213 So.3d 1123, 1125 (Fla. 1st DCA 2017). We similarly reject Thompson's argument that the prosecutor's alleged misstatement of law led to fundamental error. See Dicks v. State , 75 So.3d 857, 858-60 (Fla. 1st DCA 2011) (rejecting argument that prosecutor's misstatement of law during closing argument led to fundamental error).

Third, Thompson contends the trial court erred in allowing improper opinion testimony about Thompson's daughter's credibility. The testimony had to do with another victim's experience with Thompson, an incident that was introduced as similar-act evidence under section 90.404(2)(b), Florida Statutes (2015). We conclude the testimony was in fact not improper opinion, and we find no abuse of discretion.

Finally, Thompson argues the court committed fundamental error by failing to instruct the jury on the lesser-included offense of an unnatural and lascivious act. But as Thompson acknowledges, the offense of unnatural and lascivious act is not a necessary lesser-included offense of lewd and lascivious molestation, but a permissive one. Fla. Std. Jury Instr. (Crim) 11.10(c). A court's failure to give an instruction on a permissive lesser-included does not constitute fundamental error. See Khianthalat v. State , 974 So.2d 359, 361 (Fla. 2008) (noting that "[u ]pon request , a trial judge must give a jury instruction on a permissive lesser included offense if ... two conditions are met" (emphasis provided) ). Thompson did not request such an instruction, and the trial court was not obligated to give one.

AFFIRMED .

Lewis, Wetherell, and Winsor, JJ., concur.

      Section 90.803(23)(a)1., Florida Statutes (2015), makes admissible statements of children describing acts of sexual abuse if "[t]he court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability." The court must make specific findings of fact regarding its ruling under that provision, id. § 90.803(23)(c), which the trial court did. Thompson has not challenged the trial court's findings of reliability.


author: Kelsey, J.

text:
    Joshua Leon WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1809
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   Kelsey, J.

Appellant raises three issues in this direct appeal from a judgment and sentence for armed robbery with a deadly weapon. We find one reversible error that requires further proceedings below, and affirm on the other two issues.

I. PRE-TRIAL SUGGESTION OF INCOMPETENCE

Further proceedings are required to establish Appellant's competency. Appellant's counsel filed a Suggestion of Mental Incompetence in compliance with Florida Rule of Criminal Procedure 3.210, specifying a factual basis for doubting Appellant's competency, representing that an expert had found Appellant incompetent to proceed, requesting further evaluation, and certifying that the suggestion was filed in good faith and on reasonable grounds. The trial court took no action on the suggestion. Several weeks later, and just a few days before trial, defense counsel withdrew the Suggestion of Mental Incompetence. Just a few days after that, between voir dire and jury selection, defense counsel reported to the court that Appellant was claiming not to understand the proceedings, but that counsel had had Appellant evaluated and the report deemed him competent. Counsel did not file the competency report, but represented as an officer of the court that Appellant had been deemed competent. The trial court held no competency hearing and made no independent adjudication or written determination of Appellant's competence. The parties then proceeded to trial. On the facts of this case, this was reversible error.

It is a due process violation to proceed against an incompetent criminal defendant. Dougherty v. State , 149 So.3d 672, 676 (Fla. 2014) ; see also Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ; Cotton v. State , 177 So.3d 666, 667-68 (Fla. 1st DCA 2015). Not even the defendant's own stipulation to competency relieves the trial court of the obligation to hold a competency hearing and adjudicate the issue of competency if there are reasonable grounds to question competency. Dougherty , 149 So.3d at 677-78.

A competency hearing is mandatory if there are reasonable grounds to suggest a defendant is not mentally competent to proceed with trial. Brooks v. State , 180 So.3d 1094, 1095 (Fla. 1st DCA 2015). The trial court must independently determine that there are reasonable grounds to question the defendant's competency before the obligation to hold a competency hearing arises. Rodgers v. State , 3 So.3d 1127, 1132 (Fla. 2009) ("Under rule 3.210(b), the trial court must hold a hearing to determine a defendant's mental condition only where the court 'has reasonable ground to believe that the defendant is not mentally competent to proceed.' Fla. R. Crim. P. 3.210(b)." (emphasis added) ). While the trial court is not obligated to accept defense counsel's representations about a defendant's competency, the court should consider counsel's representations among all relevant circumstances. Calloway v. State , 651 So.2d 752, 754 (Fla. 1st DCA 1995) ("There are no 'fixed or immutable signs that always' require a competency hearing.... The trial court must consider all the circumstances, including defense counsel's representations.") (citation omitted) (quoting Scott v. State , 420 So.2d 595, 597 (Fla. 1982) ). We review the trial court's assessment of the existence of reasonable grounds for an abuse of discretion. Rodgers, 3 So.3d at 1132 ("This Court will uphold the trial court's decision as to whether such a [competency] hearing is necessary absent an abuse of discretion.").

This record reflects that Appellant's trial counsel in good faith filed a suggestion of incompetence asserting a factual basis for doubting Appellant's competency and asserting that Appellant had been evaluated professionally and deemed incompetent. Although the suggestion requested additional court-appointed expert evaluation, the court took no action; and counsel arranged for private evaluation, in which Appellant was deemed competent. However, the facts that counsel questioned his client's competence seriously enough to have him evaluated, the first evaluator found Appellant incompetent, and counsel filed a good faith motion in compliance with Rule 3.210, were enough to constitute reasonable grounds to question Appellant's competency. Calloway , 651 So.2d at 754 (requiring consideration of the totality of the relevant circumstances); see also Boggs v. State , 575 So.2d 1274, 1275 (Fla. 1991)

(holding that a confidential psychiatric expert's opinion that defendant was incompetent was sufficient reasonable grounds to activate the process of Rule 3.210(b) ). Once reasonable grounds existed, defense counsel should have filed the evaluation reports in the record for the benefit of the trial court and to facilitate appellate review; and the trial court should have conducted a hearing on the matter.

The core due process right at issue is a defendant's entitlement to the trial court's independent assessment of competency, followed by a court order adjudicating the issue. Dougherty , 149 So.3d at 676 ; Sheheane v. State , 228 So.3d 1178, 1180 (Fla. 1st DCA 2017) ("It is this right to the trial court's independent assessment of competency that lies at the heart of the due process requirement."). On these facts, we conclude the trial court abused its discretion in failing to hold a hearing, adjudicate Appellant's competency, and enter an order memorializing that adjudication.

On remand, the trial court must conduct a hearing to determine if Appellant had been evaluated appropriately and deemed competent before the trial. If such evidence exists, the trial court may enter an order finding Appellant competent nunc pro tunc, in which case there would be no change to Appellant's conviction or sentence. Dougherty , 149 So.3d at 678-79 (determining that "a retroactive determination of competency is possible" even though "inherently difficult"); Cotton , 177 So.3d at 668-69. Any such competency report, the transcript of such hearing, and the order adjudicating competency must be filed of record to facilitate further appellate review, if any. If the trial court cannot make a retroactive determination, it must properly adjudicate Appellant's present competency and, if the court finds Appellant competent to proceed, conduct a new trial on his charges.

II. APPELLANT'S COURTROOM BEHAVIOR.

Appellant also argues that his later behavior in the courtroom constituted new evidence of his potential incompetency. He commented out loud during the proceedings; and he inflicted apparently superficial cuts on himself the morning of the first day of testimony, which were medically treated as a precaution but did not prevent Appellant from returning to the trial. On this record we reject his arguments that these additional facts were legally sufficient to require an additional competency evaluation before continuing with the trial. See , e.g. , Pickles v. State , 976 So.2d 690, 693-94 (Fla. 4th DCA 2008) ("Although Pickles engaged in disruptive behavior and refused to communicate with his attorneys, the court had dealt with this defendant longer than his own attorney and had observed his manipulative behavior.... From this record we conclude that the defendant was not denied due process by the trial court's refusal to conduct an evidentiary hearing.").

REVERSED and REMANDED .

Rowe and Jay, JJ., concur.


text:
    Gerome BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1394
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Kelsey, J.

On appeal from a judgment and sentence for selling cocaine within 1000 feet of an assisted living facility, Appellant argues that the trial court erred by failing to hold a competency hearing and adjudicate Appellant competent to stand trial. We agree with this argument, reject Appellant's other arguments without further comment, and remand for the trial court to adjudicate Appellant's competence to stand trial.

The record reflects that Appellant's trial counsel filed a suggestion of incompetence before trial, citing Appellant's age, distrust of counsel and of the legal process, and paranoia about defense counsel's colluding with the prosecutor. The trial court promptly ordered an expert examination of Appellant. Thereafter, defense counsel cited the same issues as grounds for a motion to withdraw, which was granted; and new counsel took over. The record then falls silent about Appellant's competence. There is no indication that the expert's report was filed, that the court conducted a hearing, or that the court adjudicated Appellant competent. This failure to hold a hearing and adjudicate competence is reversible error.

"A criminal defendant has a procedural due process right to the observance of procedures adequate to protect his or her right not to be tried or convicted while incompetent to stand trial." Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) (citing Dougherty v. State , 149 So.3d 672, 676 (Fla. 2014) ). The test for competence is whether a defendant can consult with his attorney with a reasonable degree of rationality and whether he understands the nature of the proceedings against him. Mairena v. State , 6 So.3d 80, 85 (Fla. 5th DCA 2009) (quoting Hill v. State , 473 So.2d 1253, 1257 (Fla. 1985) ). Defendants' attorneys are in a unique position to comment on both of these factors, which is why their expressed doubts as to their client's competency are given such great weight in determining whether a hearing is required. See Avilesrosario v. State , 152 So.3d 851, 854 (Fla. 4th DCA 2014) (citing Calloway v. State , 651 So.2d 752, 754 (Fla. 1st DCA 1995) ).

The trial court must "observe the specific hearing requirements set forth in [ Florida Rules of Criminal Procedure 3.210 - .212 ]." Dougherty , 149 So.3d at 676. The rules provide that a court shall set a competency hearing within twenty days if "defense counsel, the state, or the trial court has reasonable grounds to suggest that a defendant is not mentally competent to proceed." Mairena , 6 So.3d at 85 (citing Fla. R. Crim. P. 3.210(b) ); accord Zern , 191 So.3d at 964 (citing Brooks v. State , 180 So.3d 1094, 1096 (Fla. 1st DCA 2015) ); Avilesrosario , 152 So.3d at 854 (citing Fla. R. Crim. P. 3.210(b) ). The trial court has discretion in determining whether the circumstances, including counsel's representations, create the required "reasonable grounds." Rodgers v. State , 3 So.3d 1127, 1132 (Fla. 2009) (citing rule 3.210(b) ). The trial court's determination of reasonable grounds is reviewed for abuse of discretion. Rodgers, 3 So.3d at 1132.

In this case, the trial court appropriately ordered a competency evaluation based on trial counsel's fact-based, good faith suggestion of incompetence. The trial court was required to hold a competency hearing and enter a written order adjudicating Appellant competent before he could be tried. It appears, however, that the change of counsel may have caused the issue to fall between the cracks, resulting in reversible error.

This error does not necessarily require a new trial, however. This Court has previously held that "[t]he trial court may make a retroactive determination of competency with no change in Appellant's judgment or sentence, if the evidence that existed prior to the hearing on Appellant's charges supports a finding that he was competent at that time." Cotton v. State , 177 So.3d 666, 668-69 (Fla. 1st DCA 2015). "If the trial court cannot make a retroactive determination, it must properly adjudicate Appellant's present competency and, if the court finds Appellant competent to proceed," conduct a new trial. Id. at 669.

REVERSED and REMANDED .

Wolf and Osterhaus, JJ., concur.


text:
    STATE of Florida, Appellant, v. Justin David LANTZ, Appellee.
    No. 1D17-1681
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Justin Karpf, Assistant Public Defender, Tallahassee, for Appellee.
   Per Curiam.

The State appeals an order suppressing a number of incriminating statements made by Justin Lantz after invoking his right to counsel. We reverse in part and remand because some of the incriminating statements suppressed by the trial court were offered voluntarily by Mr. Lantz and were not the product of questions, or other actions by law enforcement that were reasonably likely to elicit incriminating responses.

I.

Mr. Lantz was charged with first degree murder of his mother and he entered a plea of not guilty. After being arrested late one night under a bridge, and in close proximity to his dead mother's floating body, Mr. Lantz was brought to an interrogation room at the police station. He was told of his rights to remain silent and to counsel. And he asked for a lawyer. At this, the officers told Mr. Lantz that they'd like to talk to him again after he got a lawyer. They told him that he would leave the room to go to the jail after a crime scene technician arrived to process him for physical evidence (he had scrapes and cuts on his body). But then, they had to wait for the technician to arrive for about two hours. In the meantime, officers got Mr. Lantz coffee and they waited for the technician to arrive. During this period, Mr. Lantz became chatty and made incriminating statements. He has filed a motion to suppress the statements, arguing that he made them within the context of an unlawful interrogation after he had invoked his constitutional right to counsel.

After a suppression hearing, the trial court ordered some of his statements suppressed and others not. The State appeals the suppression order asserting that six portions of his statements shouldn't be suppressed because Mr. Lantz volunteered the information without law enforcement asking questions of him or taking other actions reasonably likely to elicit his incriminating responses.

II.

A ruling on a motion to suppress is reviewed by the appellate court with a presumption of correctness.

Martin-Godinez v. State , 225 So.3d 926, 927 (Fla. 1st DCA 2017) (citing Spivey v. State , 45 So.3d 51, 54 (Fla. 1st DCA 2010) ). "This Court applies a mixed standard of review, giving deference to the factual findings that are supported by competent, substantial evidence, but reviewing the determination of constitutional rights de novo." Id. The ultimate question here, of whether the action of officers constitutes "interrogation" for Miranda purposes, is a legal question that we review de novo. See Everett v. State , 893 So.2d 1278, 1284 (Fla. 2004) ; United States v. Yepa , 862 F.3d 1252, 1258 (10th Cir. 2017).

A.

The Florida and United States Constitutions protect those arrested for committing crimes against being compelled to become witnesses against themselves in their own criminal cases. U.S. Const. amend. V ; Art. I, § 9, Fla. Const.; Ramirez v. State , 739 So.2d 568, 572-73 (Fla.1999). Suspects arrested for crimes must be notified of their "right to remain silent, that any statement [made] may be used as evidence against [them], and [of the] right to the presence of an attorney, either retained or appointed." Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "Once warnings have been given, the subsequent procedure is clear.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id. at 473-74, 86 S.Ct. 1602. Continuing with an interrogation after invocation of the right to counsel risks suppression of whatever exculpatory or inculpatory statements arise from the interrogation. Id. at 479, 86 S.Ct. 1602 ("[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."). But see, e.g., New York v. Quarles , 467 U.S. 649, 651, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (recognizing limited exceptions to the prophylactic rule).

Once the right to counsel has been invoked, Miranda requires counsel during interrogations. But it does "not require counsel's presence for all further communications; only for interrogations." Everett v. State , 893 So.2d 1278, 1284 (Fla. 2004) (emphasis in original); see also Edwards v. Arizona , 451 U.S. 477, 485-86, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right."). Thus, Miranda is implicated only when a defendant in custody is subjected to questioning or "its functional equivalent." Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ; see also Traylor v. State , 596 So.2d 957, 966 (Fla. 1992) ("These guidelines ... do not apply to volunteered statements initiated by the suspect or statements that are obtained in noncustodial settings or through means other than interrogation"). Interrogation "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682 ; see also Traylor, 596 So.2d at 966, n.17 ("Interrogation takes place for Section 9 purposes when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response."). However, "no interrogation occurs where an officer does not initiate a conversation and merely responds to the suspect." Gordon v. State , 213 So.3d 1050, 1053 (Fla. 4th DCA 2017). "Officers do not interrogate a suspect simply by hoping that he will incriminate himself." Arizona v. Mauro , 481 U.S. 520, 529, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

B.

In this case, the State challenges the suppression of five parts of a police-station dialogue between Mr. Lantz and officers after he had invoked his right to counsel. The State argues that it was not interrogating Mr. Lantz when he voluntarily offered inculpatory statements, and we partly agree.

The State first challenges the suppression of statements found in the record, page 114, line 9 through line 20, of the interview transcript. The statements are immediately preceded by dialogue that the trial court did not suppress. In this section, the officer responded to a question posed by Mr. Lantz regarding potential sentences for murder as follows:

Mr. Lantz: What's murder these days? Life?"
[Investigator]: I don't know anything. I've been doing this 27 years, to be honest with you, sir. It [sic] really, case by case (unintelligible)."
Mr. Lantz: I didn't-I didn't kill the b****, but somebody paid me to f***ing help him. That was a good way to make money.
[Investigator]: No.
Mr. Lantz: Somebody else killed her. I didn't kill her. The body was there. He told me to come get her. 10 grand (unintelligible) pay me. Never going to see that money. And now he got away with murder, and I get the f***ing rap.

In this instance, there wasn't officer questioning, or words or actions by an officer "reasonably likely to elicit an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682. The officer simply responded to an unsolicited question from Mr. Lantz regarding the sentence for murder, and did so in way that didn't invite Mr. Lantz's incriminating response. These circumstances do not constitute interrogation requiring suppression of Mr. Lantz's incriminating statements. See Gordon, 213 So.3d at 1054 (finding no interrogation where the officer responded to the suspect's question and "did not initiate the conversation, nor did he assume wrongdoing on appellant's part, and finally did not call for appellant to respond").

For similar reasons, we conclude that the trial court erroneously suppressed statements found in the record at page 126, line 6, through page 128, line 10; and page 134, line 1 through page 135, line 16. As in the first instance, the officers in these later parts of the transcript variously responded to questions posed by Mr. Lantz. But they did not ask questions, or take actions that were reasonably likely to elicit incriminating statements. We thus reverse the suppression order also with respect to these parts of the dialogue.

In all of these instances, it wasn't unlawful for officers to wait with Mr. Lantz for the crime scene technician to arrive, even if Mr. Lantz was intoxicated at the time. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 600-606, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (holding that an intoxicated suspect's statements to officers over a period of time were not the product of interrogation); Mauro , 481 U.S. at 529, 107 S.Ct. 1931 (recognizing that police don't "interrogate" a suspect simply by hoping he will confess). Nor do we think that giving Mr. Lantz coffee was reasonably likely to elicit incriminating statements. See, e.g., Bobby v. Dixon , 565 U.S. 23, 29, 132 S.Ct. 26, 181 L.Ed.2d 328 (2011) (finding that a defendant's statements were voluntarily made, in part, because he "was given water and offered food, and was not abused or threatened").

With respect to all other parts of the transcript challenged by the State, we affirm.

III.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.

Lewis, Osterhaus, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    Keith Douglas JAMES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3650
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James W. Smith, III, and Yadirah M. Rodriguez, of CPLS, P.A., 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 August 24, 2017, judgment and sentence in Case No. 2016-CF-006355-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EVANDER and LAMBERT, JJ., concur.


text:
    Cory A. TATE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3562
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    Cory A. Tate, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. 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 October 16, 2015 judgments and sentences in Case No. 2014-CF-003479-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, WALLIS and LAMBERT, JJ., concur.


text:
    Christopher RINGENBERG, Appellant, v. Stephanie Dayle RINGENBERG, Appellee.
    No. 1D17-1577
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Appellant challenges the trial court's award of attorney's fees to appellee and the trial court's order denying his motion to disqualify their child's counselor. We reverse the trial court's award of attorney's fees because the trial court did not determine appellee's need or appellant's ability to pay prior to deciding that appellee was entitled to fees. Routh v. Thompson , 82 So.3d 157, 158 (Fla. 2d DCA 2012). We affirm the trial court's order denying appellant's motion to disqualify the child's counselor without comment.

AFFIRMED IN PART and REVERSED IN PART.

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.


text:
    Kayron O. ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5588
    District Court of Appeal of Florida, First District.
    March 8, 2018
    Andy Thomas, Public Defender, Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this direct criminal appeal, Appellant, Kayron O. Ervin, challenges his judgment and sentences for the crimes of grand theft of $20,000 or more, but less than $100,000, and extortion, raising two points for our review. We affirm on Point I without comment, but our affirmance on Point II merits an explanation.

During its deliberations, the jury submitted a question to the trial court. Appellant claims the trial court's special instruction given in response to the question negated his entire defense to the charge of extortion. We disagree. Under the facts of this case, the trial court's answer was a correct statement of the law regarding extortion. See Duan v. State , 970 So.2d 903, 906 (Fla. 1st DCA 2007). Furthermore, we conclude the instruction neither suggested a verdict nor coerced the jury to reach a hasty decision. In sum, Appellant's defense to the charge of extortion remained viable, and he has failed to demonstrate reversible error.

AFFIRMED .

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    STATE of Louisiana v. Joshua THOMPSON
    No. 2018-KK-119
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE 21st JUDICIAL DISTRICT COURT FOR THE PARISH OF TANGIPAHOA
    Writ Denied.
   Hughes, J., additionally concurs as the writ was premature.


text:
    STATE of Louisiana v. Joshua EVERY
    No. 2018-KK-0368
    Supreme Court of Louisiana.
    March 8, 2018
    ON SUPERVISORY WRITS FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
    Writ Denied.
    Crichton, J., additionally concurs and assigns reasons.
    I agree with the writ denial in this matter. I write separately to emphasize that the trial court has vast discretion under La. C.Cr.P. art. 17 to exercise powers necessary "for the exercise of its jurisdiction and the enforcement of its lawful orders..." In my view, the trial court did not abuse that discretion under the facts presented. Defendant's rights can be safeguarded by the right to reasonable surrebuttal in accordance with La. C.E. 611, and the trial court is well equipped, without this Court's intervention and micromanagement, to conduct the proceedings in an "orderly and expeditious manner" as required by article 17.
    Genovese, J., would grant and assigns reasons:
    I strongly disagree with this Court's denial of Defendant's application for a supervisory writ in this capital case. Defendant seeks a reversal of the trial court's ruling which denies him the right to present his evidence first on eleven (11) motions for which he has the burden of proof. In my view, the trial court abused its discretion under the guise of La. C. Cr. P. art. 17, which allows the court "to so control the proceedings that justice is done." Justice is not done when a defendant in a death-penalty case is not allowed to fully present his defense.
    In this case, the trial court refused to allow the Defendant, on motions filed by him and upon which he has the burden of proof, to call his own witnesses first, with cross examination by the State, and then to be able to question these witnesses again in rebuttal. This deviation from traditional trial procedure allows the State, not the court and surely not the defendant, to control the proceedings. The State, on a motion not filed by it, but by the Defendant, upon which that Defendant has the burden of proof, will have the right and opportunity to call whatever witness it wishes first and to question that witness on whatever it wishes first, all to the disadvantage of the Defendant. And, just what specifically is Defendant's right of rebuttal in this unorthodox procedure? This disrupts the orderly progression of trial to the detriment of Defendant in a capital case. Thus, Defendant has the burden, and the State runs the show. The violation of such a cardinal rule of trial procedure constitutes an abuse of discretion and a violation of due process.
   I would grant this writ, reverse the trial court's ruling, and remand the case for further proceedings consistent herewith.


text:
    SUCCESSION OF Johnye Mae MADDEN
    No. 2018-CC-0137
    Supreme Court of Louisiana.
    March 9, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF WEBSTER
    Writ application denied.
    Crichton, J., would grant and assigns reasons:
   I would grant this application, order the record and briefing, and docket for oral argument to examine the compelling issues presented under Rule 1.9 of the Louisiana Rules of Professional Conduct.


text:
    STATE of Louisiana v. Lamondre Markes TUCKER
    State of Louisiana v. Alicia Ann Tucker
    2015-K-1505
    Supreme Court of Louisiana.
    March 9, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
    Writ denied.
    GENOVESE, J., would grant and assigns reasons.
   I strongly disagree with this Court's decision to deny the writ in this case. Defendant, Lemondre Markes Tucker, and his mother were convicted of jury tampering pursuant to La. R.S § 14:129, which convictions were upheld on appeal. Under the facts presented in this case, I find these convictions to be a clear error of law. The text of La. R.S. § 14:129 provides, in pertinent part:

Jury tampering is any written or verbal communication or attempted communication, whether direct or indirect, made to any juror in a civil or criminal cause, including both grand and petit jurors, for the purpose of influencing the juror in respect to his verdict or indictment in any cause pending or about to be brought upon him....

In this case, the offending communications occurred between the defendant, his mother, and a prospective juror who took part in voir dire , but who was never impaneled. A prospective juror is, plainly, someone who is not yet a juror. Importantly, criminal statutes may not be given extended application by analogy, but must be interpreted "according to the fair import of their words, taken in the usual sense, in connection with the context, and with reference to the purpose of the provision." La. R.S. § 14:3. The principle of lenity "directs that a court construe a criminal statute in favor of the most narrow application when there are serious doubts concerning a meaning of a term." State v. Ritchie, 590 So.2d 1139, 1149, n. 6 (La. 1991) ; State v. Boowell , 406 So.2d 213, 216 (La. 1981). Indeed, criminal statutes are strictly and narrowly construed with any ambiguity resolved in favor of an accused. See State v. Carr , 99-2209, pp. 4-5 (La. 5/26/00), 761 So.2d 1271, 1274 (citing State v. Becnel , 93-2536, p. 2 (La. 5/31/96), 674 So.2d 959, 960 ); State v. Piazza , 596 So.2d 817, 820 (La. 1992).

The language in La. R.S. § 14:129 states that the term "juror" includes both grand and petit jurors. In this context, the absence of a reference to any category such as "prospective jurors" or "members of the venire" is meaningful. Furthermore, the penalty provision of La. R.S. § 14:129 supports this plain language interpretation in its apparent assumption of jury impanelment:

(2) Whoever commits the crime of jury tampering in a criminal case shall be furnished as follows:
(a) If the offense charged in the trial for which the jury has been impaneled is punishable by death or life imprisonment, the offender shall be imprisoned at hard labor for not more than ninety-nine years.

(Emphasis added).

Likewise, the pattern jury instruction for this statute explicitly includes finding impanelment of the jury as an element of the crime of jury tampering:

....
Thus, in order to convict defendant of jury tampering you must find:
....
[ (4) that the jury was impaneled in the trial of a criminal case when the communication was made or attempted communication was made.]

Cheney C. Joseph & P. Raymond Lamonica, 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:208 (3rd ed. 2012) (emphasis added).

As the Trial Court in this case determined pre-trial that the prospective juror was a "juror" for the purpose of La. R.S. § 14:129 and did not permit the defense to raise this issue before the jury, legal error interdicted the fact-finding process. The lower courts' failure to strictly interpret the applicable law has thus resulted in the impermissible jurisprudential expansion of a criminal statute. Although the Legislature may decide that it wishes to amend La. R.S. § 14:129 to encompass communications with prospective jurors, courts are without discretion to stretch statutorily-defined offenses to create desired outcomes. I would grant this writ and reverse the defendant's conviction.

      Although these cases were consolidated before the Court of Appeal, defendant and his mother applied separately for writs to this Court. Because defendant's mother's writ application was untimely, it has not been considered.


author: PER CURIAM:

text:
    STATE EX REL. Andrea HALL v. STATE of Louisiana
    No. 2017-KH-2146
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CONCORDIA
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: Johnson, C.J., recused.

text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2018-B-0189
    Supreme Court of Louisiana.
    March 9, 2018
    ORDER
   Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel, IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

Johnson, C.J., recused.


text:
    STATE EX REL. Thomas LEBEAU v. STATE of Louisiana
    No. 2018-KH-0157
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Corneil OBY v. STATE of Louisiana
    No. 2018-KH-0074
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: Guidry, J., recused.

text:
    IN RE: Joseph Aiavolasiti KOTT
    NO. 2018-OB-0338
    Supreme Court of Louisiana.
    March 9, 2018
    ORDER
   Considering the Joint Petition for Transfer to Disability Inactive Status, IT IS ORDERED that Joseph Aiavolasiti Kott, Louisiana Bar Roll number 32073, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

Guidry, J., recused.


text:
    STATE EX REL. Paul J. BEEBE, III v. STATE of Louisiana
    No. 2018-KH-0109
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Joshua D. BROOKS v. STATE of Louisiana
    No. 2017-KH-0054
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   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 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.

JOHNSON, C.J., would grant the writ and assigns reasons.

In 2013, Defendant was convicted of second degree murder as a result of an offense he committed in 2009, when he was 16 years old. Defendant was subsequently sentenced to 60 years imprisonment at hard labor without benefit of parole. In my view, defendant's 60-year sentence without parole is effectively a life sentence. In light of the Supreme Court's holding in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed. 2d 599 (2016) that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, I would grant defendant's writ, vacate his sentence, and remand the case to the district court for further proceedings consistent with the views expressed in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, and for re-sentencing pursuant to La. C.Cr. P. Art. 878.1.

Hughes, J., would grant for an evidentiary hearing.


text:
    STATE of Louisiana v. Teddy R. MAGEE
    No. 2016-KP-2254
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   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's remaining claims are repetitive. La.C.Cr.P. art. 930.4(A) ; see also State v. Lee , 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638 (an "attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing").

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. Clarence WILLIAMS v. STATE of Louisiana
    No. 2018-KH-0159
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES
   PER CURIAM:

WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court's ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Daniel CHAMBERS v. STATE of Louisiana
    No. 2016-KH-2207
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, the application is repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his third 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.


author: PER CURIAM: WEIMER, J., dissenting

text:
    STATE of Louisiana v. Demetrice JOHNSON
    No. 2016-KP-2232
    Supreme Court of Louisiana.
    March 9, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Writ granted. The ruling of the court of appeal ordering an evidentiary hearing to address defendant's entitlement to an out-of-time appeal is reversed, and the district court's ruling denying the application for post-conviction relief is reinstated. Defendant pled guilty pursuant to a negotiated agreement, was sentenced in conformity therewith, and was informed at the time of his plea that he was waiving his right to appeal. Therefore, he has not shown that he is entitled to an out-of-time appeal. See State v. Counterman , 475 So.2d 336 (La. 1985).

WEIMER, J., dissenting

I would request an opposition from the defendant prior to issuing a ruling.

Hughes, J., would request an opposition from the defendant prior to issuing a ruling.


text:
    Andre AARON, et al. v. EXXON MOBIL CORPORATION
    No. 2018-CD-0009
    Supreme Court of Louisiana.
    March 9, 2018
    ON SUPERVISORY WRITS TO THE 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM.

Writ granted for the sole purpose of transferring the application to the court of appeal for briefing, argument and full opinion under its supervisory jurisdiction. La. Const. art. V, § 5 (A); La. Const. art. V, § 10 (A).

WEIMER, J., would grant and docket.

JOHNSON, Chief Justice, would deny.

GUIDRY, J., adds additional concurring reasons.

Review on remand should ensure strict compliance with this Court's earlier order in this case. Aaron v. Exxon Mobil Corp. , 16-1072 (La. 9/16/16), 201 So.3d 241.

Hughes, J., would deny.


author: JOHNSON, C.J., would grant.

text:
    STATE EX REL. Ronald Lee WASHINGTON v. STATE of Louisiana
    NO. 2016-KH-1672
    Supreme Court of Louisiana.
    February 23, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Washington v. State, 16-1101 (La. 9/29/17), 227 So.3d 258.
   JOHNSON, C.J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-106
    NO. 2017-OB-2130
    Supreme Court of Louisiana.
    February 23, 2018
    Leave to appeal denied.


author: HUGHES, J., would deny.

text:
    William Preston CAHILL, Jr. v. Armand Alice Unkauf CAHILL
    NO. 2018-CC-0028
    Supreme Court of Louisiana.
    February 23, 2018
    Granted in part. The portion of the court of appeal's judgment holding relator, Armand Alice Unkauf Cahill, in contempt of court is reversed. In all other respects, the writ is denied.
   HUGHES, J., would deny.


author: GENOVESE, J., would grant in part.

text:
    David John VEDROS v. Kelli Soileau VEDROS
    NO. 2017-02119
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   GENOVESE, J., would grant in part.


author: HUGHES, J., would grant.

text:
    STATE EX REL. Jonathan LEBLANC v. STATE of Louisiana
    NO. 2016-KH-2072
    Supreme Court of Louisiana.
    February 23, 2018
    Denied. Relator previously exhausted his right to state collateral review. See State ex rel. LeBlanc v. State, 15-0275 (La. 11/20/15), ---So.3d ----.
   HUGHES, J., would grant.


text:
    Sidney GOODREAUX v. LAKEWOOD COUNTRY CLUB a/k/a Lakewood CDD, LLC, New Orleans Fire Fighters Pension Fund Investments a/k/a New Orleans Fire Fighters' Pension and Relief Funds, Lakewood Restoration Partners, Ltd., a Louisiana Limited Liability Partnership a/k/a Devonshire Properties, LLC and Henry Jerome Maumus, III
    NO. 2017-CC-2042
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., would grant.

text:
    Bradford EDWARDS and Tia Edwards, as Natural Tutors of B.E., a Minor v. ALBERTSON'S LLC & John and/or Jane Doe I-II
    NO. 2018-CC-0008
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE EX REL. David Lee WILLIAMS v. STATE of Louisiana
    NO. 2016-KH-1075
    Supreme Court of Louisiana.
    February 23, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   JOHNSON, C.J., would grant.

GUIDRY, J., would grant.

GENOVESE, J., would grant.


author: WEIMER, J., recused.

text:
    STATE EX REL. Jesse BROWN, Jr. v. STATE of Louisiana
    NO. 2016-KH-2218
    Supreme Court of Louisiana.
    February 23, 2018
    Denied. See State ex rel. Brown v. State, 03-2568 (La. 3/26/04), 870 So.2d 976.
   WEIMER, J., recused.

HUGHES, J., would grant.


text:
    Sidney GOODREAUX v. LAKEWOOD COUNTRY CLUB a/k/a Lakewood CDD, LLC, New Orleans Fire Fighters Pension Fund Investments a/k/a New Orleans Fire Fighters' Pension and Relief Funds, Lakewood Restoration Partners, Ltd., a Louisiana Limited Liability Partnership a/k/a Devonshire Properties, LLC and Henry Jerome Maumus, III
    NO. 2017-CC-2102
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Donald Ray MAGEE, Jr. v. STATE of Louisiana
    NO. 2016-KH-2214
    Supreme Court of Louisiana.
    February 23, 2018
    Denied. Moot.
   JOHNSON, C.J., would remand matter to court of appeal.


text:
    Lonnie HARPER v. BOISE PAPER HOLDINGS, LLC
    NO. 2018-C-0024
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    Cynthia Anne COLE v. SABINE BANCSHARES, INC.
    NO. 2018-C-0019
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   GENOVESE, J., recused.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-082
    NO. 2017-OB-2096
    Supreme Court of Louisiana.
    February 23, 2018
    Leave to appeal denied.


text:
    Mr. and Mrs. Adam THOMAS, Sr., et al. v. MOBIL OIL CORPORATION, et al.
    Mr. and Mrs. Adam Thomas, Sr., et al. v. Mobil Oil Corporation, et al.
    NO. 2017-CC-2132
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


author: CLARK, J., would grant.

text:
    Anne TROY v. Dr. Scott SULLIVAN and Fairway Medical Center aka Fairway Medical Surgical Center
    NO. 2017-CC-2141
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   CLARK, J., would grant.


text:
    Sadeq ELMUFLIHI v. CENTRAL OIL & SUPPLY CORP. & NORTHSIDE STORES, LLC
    In re: Sadeq Elmuflihi, Plaintiff.
    NO. 2017-C-2009
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    STATE EX REL. Ladarius WILLIAMS v. STATE of Louisiana
    NO. 2018-KH-0017
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Dexter VASSAR
    NO. 2018-KH-0169
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


text:
    STATE of Louisiana v. Daniel Brandon PRINCE aka Daniel B. Prince
    NO. 2017-KO-0667
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Cornelius WILSON
    NO. 2017-KO-0392
    Supreme Court of Louisiana.
    February 23, 2018
    Denied; moot. See State v. Wilson, 17-0392 (La. 11/13/17), 229 So.3d 924.
   JOHNSON, C.J., would grant.


text:
    STATE EX REL. Tyrone K. DAVENPORT and Dale M. Elmore v. STATE of Louisiana
    NO. 2018-KH-0079
    Supreme Court of Louisiana.
    March 9, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.