author: SHEPHERD, J. COPE, J.

text:
    Steven HAZURI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3046.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

Steven Hazuri appeals his conviction for aggravated battery with a weapon. The only issue on appeal is whether the trial court abused its discretion in failing to advise the jury they could receive a “read-back” of trial testimony in response to a request sent during deliberations for transcripts. We conclude the trial court had no duty to volunteer this information and thus did not abuse its discretion in declining to do so. We therefore affirm Hazuri’s conviction.

Hazuri was tried for armed robbery and aggravated battery with a weapon. After a couple hours of deliberation, the jury sent a note to the court stating the jurors were unable to reach a verdict. The parties agreed the jury should be sent home for the evening and return the next day to continue its deliberations. The next morning, after an hour of deliberations, the jury sent a note to the court requesting trial transcripts. The following transpired:

THE COURT: Back on the record. Note for the record the presence of the defendant, his attorney, the assistant state attorney. Counsel, we have a note from the jury. Could they get transcripts from the trial. State, suggestions.
[ASSISTANT STATE ATTORNEY]: My only suggestion is that we tell them they must rely on their own recollection of the testimony.
THE COURT: [Defense counsel].
[DEFENSE COUNSEL]: My answer is you should inform the jury that they are allowed to have whatever, you know, portion of the transcript read back to them if they have a question about some evidence, but to have a set of transcripts from the trial, absolutely not.
THE COURT: There are no trial transcripts of moment. Certainly portions of the record could be read, however, I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.
[DEFENSE COUNSEL]: You are not going to advise them that they have a right to have the transcript read back?
THE COURT: They don’t have a right. It is within my discretion.
[DEFENSE COUNSEL]: Would you note my objection for the record.
THE COURT: I will note your objection, counselor. I will note it for the record.
[DEFENSE COUNSEL]: You are just going to send the note back?
THE COURT: Yeah. Okay. Okay. There you go. Okay.

Hazuri argues the trial court abused its discretion in refusing to advise the jurors that although they could not have a copy of any transcripts, they were entitled to have portions of the transcript read back to them. Florida Rule of Criminal Procedure 3.410, governing “readbacks,” provides as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

However, the jury in this case did not ask for a “readback.” Rather, the jury asked a specific question. The court’s purported answer — the jury “must rely on their own recollection of the evidence” — was fair and legally accurate. Florida Rule of Criminal Procedure 3.400 states:

(a) ... The court may permit the jury, upon retiring for deliberation, to take to the jury room:
(1) a copy of the charges against the defendant;
(2) forms of verdict approved by the court, after being first submitted to counsel; (3) all things received in evidence other than depositions. If the thing received in evidence is a public record or a private document which, in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.

Nowhere does the above-quoted rule contain a provision allowing the jury to receive transcripts of trial testimony in the jury room. See Janson v. State, 730 So.2d 734, 735 (Fla. 5th DCA 1999); cf. Barnes v. State, 970 So.2d 332, 339 (Fla.2007) (holding transcript of testimony at prior trial which was admitted in evidence could not be taken to jury room); Young v. State, 645 So.2d 965, 967 (Fla.1994) (holding videotaped witness testimony could not be taken back to jury room for unrestricted view during jury deliberations). Thus, the trial court was bound to refuse the jury’s request, and its further answer that the jury “must rely on their own recollection” was true in relation to the question posed. Upon giving such an answer, the trial court was under no obligation — as defense counsel suggested — -to inform the jurors that a “readback” of trial testimony may be available upon request.

The assertion by the defense that the trial courts legally accurate answer created a misimpression in the minds of the jury that any further request for a “readback” also would be rejected is unpersuasive. It is true that “while the trial court has the discretion to deny a jurys request to read back testimony, it may not mislead the jury into thinking that a read-back is prohibited.” Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). However, in this case, nowhere in the colloquy between counsel and the court can there be found any statement that the court would disobey Rule 3.410 and deny a “readback” if requested. In fact, the trial judge expressly stated to the contrary. Because no transcripts were to be forthcoming, it was entirely correct to instruct the jury they “must rely on their own recollection of the evidence.... ” See Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992) (approving instruction to jurors that they must “rely on their recollection of the evidence” in response to jury question pertaining to testimonial fact evidence); Infantes v. State, 941 So.2d 432, 434 (Fla. 3d DCA 2006) (“We find no abuse of discretion in the trial courts refusal to reread the first officers testimony and instructing the jury to rely on its collective memory.”).

We find the authorities cited in the dissent inapposite, as they are all soundly based on the presence of legal error in the trial courts formulation of its own limitations. In two of the cases — Huhn v. State, 511 So.2d 583, 591 (Fla. 4th DCA 1987) and Biscardi v. State, 511 So.2d 575, 580 (Fla. 4th DCA 1987) — the trial court preemptively advised the jury in identical terms that “there really is no provision ... to have [] testimony read back.” This advice to the jury directly contravened Florida Rule of Criminal Procedure 3.410. In Avila, the third case relied upon by the dissent, the jury sought “[to] review [ ] the timetable presented by the testimonies of five specific alibi witnesses” in the case. Avila, 781 So.2d at 415. After an additional written exchange with the jury, the trial court concluded the jury, in fact, had requested a “readback,” — which involved “a full readback of five witnesses’ testimonies [that the trial court anticipated] would take a full day to complete” — but declined the request on the erroneous impression that it was prohibited from providing a “readback” of the testimony of just selected witnesses. Id. at 414-15. This, of course, was error.

In our case, the jury requested “transcripts.” The trial court did not abuse its discretion in advising the jury that it could not be given copies of the transcripts and must therefore rely upon its own recollection of the testimony.

We affirm the conviction.

SUAREZ, J., concurs.

COPE, J.

(dissenting).

Defendant-appellant Steven Hazuri appeals his conviction of aggravated battery with a weapon. He requests a new trial based on the trial court’s response to a jury question. His point is well taken.

Defendant was charged with armed robbery and aggravated battery with a weapon. At the conclusion of the trial, the jury retired to deliberate. After a few hours of deliberating, the jury sent a note saying that the jurors were unable to reach a verdict. The jury was sent home for the evening and returned the next morning to continue its deliberations.

The jury sent a note requesting trial transcripts. The following transpired:

THE COURT: Back on the record. Note for the record the presence of the defendant, his attorney, the assistant state attorney. Counsel, we have a note from the jury. Could they get transcripts from the trial. State, suggestions.
[ASSISTANT STATE ATTORNEY]: My only suggestion is that we tell them they must rely on their own recollection of the testimony.
THE COURT: [Defense counsel].
[DEFENSE COUNSEL]: My answer is you should inform the jury that they are allowed to have whatever, you know, portion of the transcript read back to them if they have a question about some evidence, but to have a set of transcripts from the trial, absolutely not.
THE COURT: There are no trial transcripts of moment. Certainly portions of the record could be read, however, I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.
[DEFENSE COUNSEL]: You are not going to advise them that they have a right to have the transcript read back?
THE COURT: They don’t have a right. It is within my discretion.
[DEFENSE COUNSEL]: Would you note my objection for the record.
THE COURT: I will note your objection, counselor. I will note it for the record.
[DEFENSE COUNSEL]: You are just going to send the note back?
THE COURT: Yeah. Okay. Okay. There you go. Okay. We will be in recess.

Florida Rule of Criminal Procedure 3.410 addresses a jury request to review the evidence. It authorizes the jury to request that testimony be read. The rule states:

Rule 3.410. Jury Request to Review Evidence or for Additional Instructions
After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

“While the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited.” Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). In Avila, the jury requested transcripts of the testimony of four alibi witnesses. The judge told the jury that there were no transcripts and that the jury should rely on its collective recollection. The court did not mention that a readback of the testimony was available. The Fourth District reversed, saying that the court “may have confused the jury as to whether a readback of testimony was permissible ....” Id. at 416; see also Huhn v. State, 511 So.2d 583, 591 (Fla. 4th DCA 1987) (error to instruct the jury that there was no provision to have any testimony read back); Biscardi v. State, 511 So.2d 575, 580-81 (Fla. 4th DCA 1987) (same); cf. Cedars of Lebanon Hosp. Corp. v. Silva, 476 So.2d 696, 700, 703 (Fla. 3d DCA 1985) (new trial order affirmed where trial court’s admonition to the jury that it could not be the jury’s “pen pal” “in effect prohibited the jury from asking ... questions necessary to allay the jury’s confusion.”).

The State relies on Infantes v. State, 941 So.2d 432 (Fla. 3d DCA 2006). In that case there was neither a defense objection to the trial court’s response to the jury’s request for transcripts, nor a request for an instruction about the possibility of a readback. Id. at 434.

In this case the defense timely requested that the jury be informed that a read-back of testimony was permissible. The instruction requested by the defense should have been given.

With all due respect, much of the majority opinion is niggling nitpicking. The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple “no.”

The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3.410, a jury may request to have “testimony read to them,” and the court may so order.

It seems clear that under the Fourth District decisions in Avila, Huhn, and Bis-cardi, the defendant is entitled to relief. The defense objection was timely and appropriate.

There should be a new trial.

      . We do not have the written response returned to the jury and defense counsel did not ask that the written response be read into the record for our benefit — which may be reason enough to affirm the conviction in this case, see Dade County Bd. of Pub. Instruction v. Foster, 307 So.2d 502, 502 (Fla. 3d DCA 1975) ("It is incumbent for the appellant, under Florida Appellate Rules, to bring the record to the court sufficient to demonstrate error.”) — but based upon the record we do have, we know it was defense counsel who inserted "readback” into the dialogue.

       The suggestion in footnote one of the majority opinion that we do not know what the trial court told the jury is contradicted by the rest of the majority opinion. As quoted by the majority opinion, the trial court said, “I do believe that the accurate and correct response is that they must rely on their own collective recollection of the evidence and we will answer the question that way.”


source: Caselaw Access Project

author: GERBER, J.

license: Public Domain

text:
    Gerald McCLATCHET, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1219.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Gerald McClatchet, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant below was convicted of possession of drug paraphernalia. The defendant’s appellate counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filed a brief stating that he is unable in good faith to argue that the record presents any point of reversible error.

The defendant, pro se, filed a brief arguing that the state’s evidence was insufficient to prove the crime. After a thorough review of the record, we find the state’s evidence was sufficient. The trial court properly denied the defendant’s motions for judgment of acquittal.

The defendant also argues his trial counsel was ineffective for not timely retrieving surveillance footage from the gas station where the police arrested him. However, “ineffective assistance of counsel will only be addressed on direct appeal ... when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.” Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002). None of those circumstances exist here.

Affirm,ed.

POLEN and MAY, JJ., concur.


author: SUAREZ, J.

text:
    SAAD HOMES, INC., Appellant, v. Orlando RIVERO and Lilian Rivero, Appellees.
    No. 3D09-769.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Diane S. Perera and Adam D. Sherman, Miami, for appellant.
    Robert A. Rosenblatt, Miami, for appel-lees.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

SAAD Homes, Inc. (“SAAD”), appeals from an order denying a renewed motion to dismiss for improper venue or transfer to Broward County. We reverse.

On September 24, 2007, the Riveros filed, in Miami-Dade County, a breach of contract action arising out of the construction of a luxury home which was located in Broward County. On October 23, 2007, SAAD recorded, in Broward County, a claim of lien against the property. SAAD then filed a complaint in Broward County to foreclose on the construction lien and for breach of contract. On December 5, 2007, SAAD filed a notice of lis pendens in Broward County. SAAD moved, three times, to dismiss the Miami-Dade County action or to transfer to Broward County for improper venue. The trial court denied SAAD’s renewed motion to dismiss for improper venue or to transfer to Bro-ward County since discovery was outstanding on whether or not a fraudulent lien had been filed in Broward County.

SAAD contends on appeal of the non-final order that, because the mechanic’s lien foreclosure suit was filed in Broward County in accord with Florida law that requires actions to foreclose liens to be brought in the county where the land lies, the trial court erred in denying the motion to dismiss or to transfer venue to Broward County. See Ga. Cas. Co. v. O’Donnell, 109 Fla. 290, 147 So. 267 (1933) (holding that actions in rem shall be brought in county where land lies); accord Haws & Garrett Gen. Contractors, Inc. v. Panhandle Custom Decorators & Supply, Inc., 500 So.2d 204, 205 n. 3 (Fla. 1st DCA 1986); Tietig v. Riccio, 451 So.2d 1016 (Fla. 3d DCA 1984). SAAD further maintains that it would be barred from bringing a counterclaim on the lien to foreclose in Miami-Dade County because the lien is an in rem action against the property and must be brought in the circuit with jurisdiction over the property. E.g., Ruth v. Dep’t of Legal Affairs, 684 So.2d 181 (Fla.1996).

We agree that Broward County is the appropriate venue since the property is located in Broward County. Ga. Cas. Co. v. O’Donnell, 147 So. at 267; Mason v. Homes by Whitaker, Inc., 971 So.2d 1029 (Fla. 5th DCA 2008) (finding error in trial court’s denial of contractor’s motion to transfer venue to Clay County where construction lien was filed on property located in Clay County); Tietig v. Riccio, 451 So.2d at 1016 (holding that mechanic’s lien action shall be brought where property is located). In addition, the work occurred in Broward County and the alleged breach as well as the majority of evidence and witnesses were located there. The order denying the motion to dismiss is reversed and the cause remanded for transfer to Broward County.

Reversed and remanded with directions.


author: FARMER, J.

text:
    James COOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2249.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In this case involving a conviction for grand theft, we confront an order fixing restitution without evidence and consequently reverse. In the probable cause affidavit, which was the basis for the charge, the officer stated that defendant had essentially confessed to stealing approximately $8,000 in merchandise from his employer. Defendant pleaded guilty, and a sentencing and restitution hearing was set for a later day.

At the hearing, the State requested a continuance on the issue of restitution because it had no witnesses to testify as to the value of the stolen goods. Defendant objected to a continuance and prayed for no restitution because of the failure of evidence. At that point the trial judge referred to the probable cause affidavit and decided to set the amount of restitution at $8,000, saying “I want to set an amount now so you can start paying it back.”

Later defendant filed a motion to correct the sentencing order by deleting the amount for restitution. He argued that he had sought to obtain evidence as to the precise merchandise claimed and the appropriate amount for it. The State objected on the grounds that defendant had agreed to pay $8,000. The court denied the motion. Defendant now appeals the order on restitution.

In Soriano v. State, 968 So.2d 112 (Fla. 4th DCA 2007), we explained:

“ ‘Restitution must be proved by substantial competent evidence.’ ... Where the proper amount of restitution is in dispute, the burden is on the state to prove the amount of the loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. ‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’ ‘The mere speculation or opinion of a victim as to the amount of their loss is insufficient to sustain a restitution order.’...
At a minimum, owners of stolen property should be required to identify what items were stolen in order to obtain restitution.... ‘Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation.’ ” [c.o.]

968 So.2d at 114-15. Contrary to the State’s argument there is no evidence of either an agreement by defendant to pay a specific sum or evidence complying with the foregoing requirements of proof.

Reversed.

HAZOURI and CIKLIN, JJ„ concur.


author: PER CURIAM.

text:
    Gerard MAGUIRE and Leslie Maguire, Husband and Wife, Petitioners, v. POOL DOCTOR OF the PALM BEACHES, INC. and Hector Jaime Alvarez Arcila, Respondents.
    No. 4D09-3590.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Andrew J. Weinstein of the Weinstein Law Firm, Coral Springs, for petitioners.
    Kent S. Pratt of Pratt & Radford, P.L., West Palm Beach, for respondents.
   PER CURIAM.

Petitioners seek certiorari review of a circuit court order allowing the defense to discover a video and transcript of a compulsory medical examination (“CME”) of petitioner Gerard Maguire. Petitioners objected that the video and transcript they requested of the CME were counsel’s protected work product, citing McGarrah v. Bayfront Medical Center, Inc., 889 So.2d 923 (Fla. 2d DCA 2004). We agree that McGarrah is controlling. Moreover, respondents have indicated that they have no objection to this court granting this petition because the video and transcript will be discoverable if petitioners decide to use this material at trial.

Accordingly, we grant the petition and quash the circuit court order compelling discovery of the video and transcript of petitioner’s CME.

WARNER, FARMER and DAMOORGIAN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Stephen J. CRADDOCK, Successor Trustee for the Trusts of Brittany Heffermehl and Birger Heffermehl, Minor Grandchildren of Decedent, Nancy H. Grayson, Appellant, v. GARY J. ROTELLA & ASSOCIATES, P.A., a Florida Professional Association, Birger W. Heffermehl, Sr., Father and Natural Guardian of Minor Children, Brittany Heffermehl and Birger Heffermehl, Individually and Karl C. Anderson, Esquire, Appellees.
    No. 4D09-570.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Alan M. Burger and Elizabeth Y. Davies of McDonald Hopkins LLC, West Palm Beach, for appellant.
    Gary J. Rotella of Gary J. Rotella & Associates, P.A., Fort Lauderdale, for ap-pellee, Gary J. Rotella & Associates, P.A.
   DAMOORGIAN, J.

Stephen J. Craddock appeals the trial court’s denial of his Motion to Transfer Venue from Broward County to Palm Beach County. We conclude that venue is legally proper in Broward County and that the trial judge did not abuse his discretion by denying Craddock’s motion. See Host Marriott Tollroads, Inc. v. Petrol Enters., Inc., 810 So.2d 1086, 1089-90 (Fla. 4th DCA 2002) (stating that an order on a motion to transfer venue is reviewed for abuse of discretion unless the order turns on a question of law, in which case the order is reviewed de novo).

Affirmed.

HAZOURI and CIKLIN, JJ., concur.


text:
    Stephanie HIDALGO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D09-1325.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Stephanie Hidalgo, in proper person.
    Louis A. Gutierrez, Tallahassee, Senior Attorney, for appellee, Florida Unemployment Appeals Commission.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Chacon v. Joell Designers Corp., 17 So.3d 716 (Fla. 3d DCA 2009).


text:
    Donald NWANKWO, Appellant, v. HUDSON & KEYES, L.L.C., Appellee.
    No. 3D09-983.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Donald Nwankwo, in proper person.
    Brian Kowal, for appellee.
    Before RAMIREZ, C. J., and WELLS, and SALTER, JJ.
   PER CURIAM.

Donald Nwankwo appeals the trial court’s order granting the plaintiff/appellee Hudson & Keyes, L.L.C.’s motion for summary judgment. On September 30, 2009, this Court dismissed the appeal for failure to file the initial brief. The appellant moved to reconsider the dismissal and submitted the initial brief. We would reinstate the appeal at this point but for the fact that an order granting a motion for summary judgment is not a final, appeal-able order. Rust v. Brown, 113 So.3d 1105 (Fla. 4th DCA 2009). Accordingly, we dismiss the appeal as premature. Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146, 149 (Fla. 3d DCA 2002). Upon the issuance of a final judgment by the trial court, the appellant may seek review of said order.

Appeal dismissed.


text:
    Mark ALGE, Appellant, v. ALLSTATE FLORIDIAN INSURANCE COMPANY, Appellee.
    No. 3D09-607.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Sarnoff & Bayer and Neil Bayer, Coconut Grove, for appellant.
    Rumberger, Kirk & Caldwell and Darryl L. Gavin, Orlando, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. Old Republic Ins. Co. v. W. Flagler Assocs., Ltd., 419 So.2d 1174 (Fla. 3d DCA 1982); Patriot Gen. Ins. Co. v. Auto. Sales, Inc., 372 So.2d 187 (Fla. 3d DCA 1979).


text:
    HONEYWELL INTERNATIONAL, INC., etc., Appellant, v. Stephen GUILDER, et al., Appellees.
    No. 3D08-1747.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      White & Case and Raoul G. Cantero, III; Adorno & Yoss, Jack R. Reiter, Anthony Upshaw, and Jordan S. Kosches, Miami, for appellant.
    The Ferraro Law Firm, P.A., James L. Ferraro and David A. Jagolinzer, Coral Gables, for appellees.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

On motion for clarification, we withdraw our slip opinion dated October 28, 2009, and substitute the following amended opinion:

Honeywell International, Inc. (“Honeywell”) appeals an adverse final judgment awarding Stephen Guilder (“Guilder”) and his children damages in the amount of $24,170,000.00, for injuries sustained from asbestos exposure. We reverse.

In the 1970’s and 1980’s, Guilder was exposed to chrysotile asbestos when he: remodeled an attic, worked as a road construction worker, and repaired automobiles. More than twenty years later, Guilder developed peritoneal mesothelio-ma, an extremely rare type of cancer that originates in the lining of the abdominal cavity called the peritoneum.

Guilder sued Honeywell, as the successor manufacturer of Bendix brake pads, Honda, BorgWarner, and several other defendants that settled before trial, for injuries sustained from asbestos exposure. Guilder sought to link his disease to his brief exposures to asbestos.

Shortly before trial, Honeywell filed various motions in limine. One motion sought to exclude or redact a Bendix employee’s letter to an asbestos supplier written in the late 1960’s on grounds of relevance. The trial judge denied this motion. The case then proceeded to trial.

After Honeywell rested, Guilder moved for directed verdict on Honeywell’s claim that the verdict form should include various third parties, such as Honda and Borg-Warner, as Fabre defendants. The trial judge granted the motion and did not include the Fabre defendants on the verdict form. The jury awarded Guilder over $24 million in damages, which included $10.4 million for Guilder’s children for loss of parental consortium.

After trial, Honeywell moved for a new trial, or in the alternative for judgment in accordance with the prior motion for directed verdict and/or motion for remittitur. Honeywell also moved to alter or amend the judgment and for collateral source set-off. The trial judge denied all post-trial motions. Honeywell appealed.

On appeal, among others errors, Honeywell asserts the trial court erred in: (1) admitting the irrelevant, highly prejudicial letter; (2) excluding Fabre defendants from the verdict form; and (3) awarding Guilder’s children loss of parental consortium. Honeywell further asserts that it is entitled to a setoff reflecting the appropriate percentage of economic damages received from Guilder’s settlement with co-defendants.

On the other hand, Guilder contends that: (1) the letter was relevant, and not unduly prejudicial, or inflammatory; (2) the Fabre defendants were properly excluded from the verdict form; and (3) the loss of parental consortium award was proper. Guilder further contends that Honeywell is not entitled to setoff from any portion of the verdict. We agree with Honeywell.

Turning to the first issue, relevant evidence is “evidence tending to prove or disprove a material fact.” See § 90.401, Fla. Stat. (2007). Although evidence may be relevant, it is not necessarily admissible. Relevant evidence is “inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” See § 90.408, Fla. Stat. (2007).

Here, the Bendix employee’s letter to an asbestos supplier written in the late 1960’s was relevant to proving Honeywell’s knowledge of the dangers of asbestos in its products. However, we find that the portion that stated, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause[,]” was unfairly prejudicial. See § 90.408. Therefore, the trial judge erred in refusing to redact this portion of the letter for use at trial. See MCI Exp., Inc. v. Ford Motor Co., 832 So.2d 795 (Fla. 3d DCA 2002).

Next, we turn to the second issue concerning the exclusion of Fabre defendants on the verdict form. In Fabre, the Florida Supreme Court stated that “the legislature intended that damages be apportioned among all participants to the accident.” 623 So.2d at 1185. Further, “the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.” 623 So.2d at 1185.

Here, in order to present a Fabre issue, Honeywell had the burden to plead the fault of a non-party as an affirmative defense and to present sufficient evidence at trial to prove the non-party’s liability or fault by a preponderance of the evidence. See W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746, 748 (Fla. 2d DCA 1994). Honeywell pleaded the fault of non-parties as affirmative defenses and presented sufficient evidence of at least two non-parties. Therefore, we find that Honeywell satisfied Fabre, and was entitled to have the non-parties listed on the verdict form for apportionment purposes.

The third issue involves a question of statutory interpretation of a child’s right to parental consortium pursuant to section 768.0415, Florida Statutes (2006). Section 768.0415 provides that:

a person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988.

Since section 768.0415 allows for a cause of action against a person only for “acts of negligence occurring on or after” the statute’s effective date, we initially focus on the meaning of the term “acts of negligence” as used in the statute. Although the term negligence is capable of multiple meanings, the term “negligent act” is defined as “an act that creates an unreasonable risk of harm to another.” Black’s Law Dictionary 28 (9th ed. 2009). Therefore, here, the relevant negligent act is Guilder’s last known exposure to asbestos.

Further, based on our review of the statute’s legislative history, we find that the Legislature specifically limited section 768.0415’s application to negligent acts occurring on or after October 1,1988. Here, Guilder’s last known exposure to asbestos was 1982. Therefore, we find that the loss of consortium damage award was improper.

The final issue is whether Honeywell was entitled to a setoff reflecting the appropriate percentage of economic damages received through settlement with the co-defendants. Settlement proceeds should be divided between economic and noneconomic damages in the same proportion as the jury’s award. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 254 (Fla.1995).

Here, Guilder settled with several other defendants for $2,820,000.00. Honeywell was entitled to the setoff of those proceeds. Thus, the trial judge erred in failing to set off the settlement proceeds before entering the final judgment.

Because we are reversing the final judgment based on the aforementioned grounds, we need not address the other issues raised on appeal. Accordingly, we reverse the final judgment and remand for a new trial.

Reversed and remanded.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


text:
    Darryl FLENNORY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1762.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Riggins v. State, 830 So.2d 920, 921 (Fla. 4th DCA 2002).


text:
    John VALDES-PINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1417.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

      Before WELLS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

John Valdes-Pino appeals his conviction for second-degree murder asserting fundamental error in the manslaughter instruction given to the jury. We affirm the conviction.

On the record presented, we find that the then-standard instructions given by the trial court (without objection) did not constitute fundamental error. Zeigler v. State, 18 So.3d 1289 (Fla. 2d DCA 2009). However, because the contrary analysis in Montgomery v. State, — So.3d-, 2009 WL 350624 (Fla. 1st DCA 2009), is currently pending review before the Florida Supreme Court, we certify decisional conflict with that First District opinion.

Affirmed. Direct conflict certified.

      . The defendant's remaining point lacks merit.

      . State v. Montgomery, 11 So.3d 943 (Fla.2009); oral argument was heard October 7, 2009.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. M.M.G. & Holistic Care Center, Inc., a/a/o Gregorio Cabrera, Respondent.
    No. 3D09-2848.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Thomas L. Hunker, for petitioner.
    Lopez & Best and Virginia M. Best, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

United Automobile Insurance Company (“United”) petitions for a writ of certiorari to quash the circuit court appellate division’s decision affirming a final judgment in favor of M.M.G. & Holistic Care Center, Inc., a/a/o Gregorio Cabré. Based on the authority of United Automobile Insurance Company v. Professional Medical Group, — So.3d-, 2009 WL 4281277 (Fla. 3d DCA 2009), and United Automobile Insurance Company v. Garrido, 21 So,3d 112 (Fla. 3d DCA 2009), we deny the petition for certiorari.


text:
    Sagit Tova KAREN, etc., et al., Petitioners, v. Maurice Jay KUTNER, etc., et al., Respondents.
    Nos. 3D09-1708, 3D09-1761.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      Stok & Associates, Robert A. Stok, and Joshua R. Kon, Aventura, for petitioners.
    Stephens Lynn Klein La Cava & Puya, Robert M. Klein, and Yelena Shneyder-man, Miami, for respondents.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Petition denied. See Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So.2d 155, 157 (Fla. 3d DCA 2005).


author: SILBERMAN, Judge.

text:
    Christopher K. BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5279.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Christopher K. Burton, pro se.
   SILBERMAN, Judge.

Christopher K. Burton seeks review of the order dismissing his motion for post-conviction relief which was filed pursuant to Florida Rule of Criminal Procedure 3.850. Burton’s motion alleged newly discovered evidence in the form of witness recantation testimony. Because the post-conviction court erroneously determined that such a claim must be accompanied by a sworn witness affidavit, we reverse and remand for reconsideration of the claim on the merits. See Butler v. State, 946 So.2d 30, 31 (Fla. 2d DCA 2006); Keen v. State, 855 So.2d 117, 118 (Fla. 2d DCA 2003); Smith v. State, 837 So.2d 1185, 1186 (Fla. 4th DCA 2003). But see Brooks v. State, 972 So.2d 958, 958 (Fla. 5th DCA 2007) (affirming summary denial of rule 3.850 motion based on failure to include sworn statement of witness who had allegedly recanted); Moss v. State, 943 So.2d 946, 948 (Fla. 4th DCA 2006) (holding that un-sworn letter attached to rule 3.850 motion alleging newly discovered evidence was not sufficient to warrant evidentiary hearing).

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.


author: WARNER, J.

text:
    Yvon MONCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1892.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      Yvon Moncher, Sneads, pro se.
    No appearance for appellee.
   WARNER, J.

We reverse the summary denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) for failure of the trial court to attach records conclusively refuting appellant’s claim that he did not qualify for the habitual violent offender sentence he received. See Thompson v. State, 17 So.Sd 307 (Fla. 4th DCA 2009).

Although the state’s response to appellant’s motion recites that appellant already raised this issue in an earlier rule 3.850 motion, which was denied, it did not attach documents to its response supporting its allegations. Instead, the state indicated that the supporting documents were “incorporated herein by reference but not physically attached all over again.”

The record on appeal on a summary denial of a rule 3.800(a) motion consists of “copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.” Fla. RApp. P. 9.141(b)(2)(A). Therefore, that portion of the record which would show that appellant was not entitled to relief was not transmitted to this court. Without it, the record is insufficient to determine the issue raised.

We reiterate what was said in the concurring opinion in Thompson:

Substantial time and expense are wasted in the courts because the rules of postconviction relief are incomplete and antiquated. Although the trial and appellate courts have called for postconviction relief reform for years, no changes have resulted. The postconviction relief process occupies substantial time of the judges and staff of both the trial and appellate courts. Changes to make the process more efficient must be made.

17 So.3d at 308.

Reversed and remanded for attachment of portions of the record which conclusively refute appellant’s claim.

GROSS, C.J., and LEVINE, J., concur.


text:
    Robert J. PRESTON, d/b/a, Europanache, LLC, a foreign limited liability corporation, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 1D09-6008.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Mary J. Hoftiezer of Hendry, Stoner & Brown, P.A., Orlando, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Dep’t of Corr. v. Swaiter, 742 So.2d 368 (Fla. 1st DCA 1999); Sys. Mgmt. v. Dep’t of Health & Rehabilitative Serv., 391 So.2d 688 (Fla. 1st DCA 1980).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


text:
    STATE of Louisiana v. Anthony JOHNSON.
    No. 2007-KP-2034.
    Supreme Court of Louisiana.
    June 26, 2009.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, M. Richard Schroeder, New Orleans, David B. Park, for Applicant.
    James D. Caldwell, Attorney General, Walter P. Reed, District Attorney, Lewis Virgil Murray, III, Kathryn W. Landry, Assistant District Attorneys, for Respondent.
   PER CURIAM.

hOn February 24, 1986, defendant Anthony Johnson was convicted of the second degree murder of Angela Bond. After several failed attempts at postconviction relief in the state and federal courts in the intervening years, in 2004, defendant filed an application for post-conviction relief in the Twenty-Second Judicial District Court, Parish of Washington. In this most recent application, defendant raised two primary claims.

First, defendant sought relief under La. C. Cr. P. art. 930.3(7), through which a petitioner is entitled to a new trial when the “results of DNA testing performed pursuant to an application granted under [La. C. Cr. P.] Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.” La. C. Cr. P. arts. 926.1 & 930.3(7). Second, defendant asserted that he was entitled to a new trial because the State suppressed multiple items of favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, at first in conjunction with, and then in the alternative to, his Brady claims, defendant also argued that he was denied his right to effective assistance of counsel. Finally, in addition to these primary claims, defendant also asserted that he was | gentitled to relief because (1) the trial court denied his defense motion to test the physical evidence, in violation of his due process and confrontation rights; (2) the State introduced evidence of defendant’s bad acts without a hearing, in violation of his due process rights; (3) race and gender discrimination affected the selection of the grand jury foreperson and the existence of other indictment-related irregularities render the indictment and conviction invalid; and (4) defendant is actually innocent and was therefore being held in violation of the United States and Louisiana constitutions.

The trial court subsequently held a hearing on defendant’s application for postconviction relief in November, 2006. Thereafter, on February 21, 2007, the trial court granted defendant a new trial based on both his DNA and Brady claims. Based on the nature of circumstantial evidence upon which defendant’s conviction rested, recently-produced DNA evidence excluding defendant as the source of genetic material found underneath the victim’s fingernails and expert testimony regarding the likelihood of DNA transfer in a struggle and the implausibility of such transfer through casual contact, the trial court found that defendant had proven by clear and convincing evidence that he was factually innocent of the murder of Angela Bond as required by La. C. Cr. P. art. 930.3(7). The trial court also found that numerous statements regarding Matthew Brown — who defendant strongly alleges to be the actual perpetrator of the crime for which he was found guilty — and other possible perpetrators were never disclosed to defendant or his trial counsel, despite several requests, in violation of Brady.

In response, the State appealed the trial court’s ruling regarding the DNA claim. In addition, complaining that it had not had adequate time to brief the Brady laissues, the State requested a reconsideration of the trial court’s ruling regarding defendant’s Brady claims, as well as a stay halting the execution of the trial court’s decision pending the outcome of the motion. The trial court declined to stay its judgment insofar as it applied to its grant of relief for the DNA claim. However, the trial court granted the State’s motion regarding the Brady violations, and set the matter for a reconsideration hearing on May 9, 2007. The First Circuit Court of Appeal subsequently ruled on the DNA issue in October, 2007, and this court granted writs of certiorari shortly thereafter.

During the course of this court’s review of this case, it was discovered that, while the trial court originally set the re-hearing for the Brady claims for May, 2007, this hearing was not ultimately held until May, 2008, at which time the trial court received the depositions of the prosecutors and defense counsel from the original trial and heard limited testimony regarding the issues. After this hearing, the trial court issued no new judgment regarding defendant’s Brady claims and the record in this case suggests that the trial court has refrained from re-ruling on those claims in light of the pending DNA claim in this court.

Having reviewed the record in great depth, we have determined that the trial court’s withholding of its Brady ruling — or rather its withholding of its ruling on the merits of the State’s motion for reconsideration of its initial Brady ruling — hinders our ability to adequately address this case. But for the State’s motion to reconsider the trial court’s original determination regarding the Brady claims, this court would not be forced to address this case in a piecemeal fashion. As such, this court will retain jurisdiction of the DNA claim, but will remand this case to the trial court to address defendant’s Brady claims and, in the alternative, defendant’s claims to ineffective assistance of counsel, so that the divided claims in this case may be once again |4rejoined in a single, coherent action. The trial court is therefore hereby ordered to render a decision on defendant’s Brady claims and, in the alternative, defendant’s claims to ineffective assistance of counsel, in an expeditious manner. If the trial court finds that further hearings are necessary, it may hold them promptly. In addition, the parties are directed to seek any review of the trial court’s decision directly in this court as part of the pending matter already before this court pursuant to our plenary supervisory jurisdiction over all other courts. La. Const, art. V, § 5(A).

JURISDICTION RETAINED; REMANDED in PART.

JOHNSON, KNOLL and WEIMER, JJ., concur.

       Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case. Traylor, J., retired. Justice Traylor retired after oral argument and he has not participated in the deliberation of this case following his date of retirement, May 31, 2009.

      . After it granted defendant a new trial, the trial court released defendant from jail on bail pending the outcome of the State’s appeals.


author:
PER CURIAM.
     VICTORY, J., JOHNSON, J.,

text:
    STATE of Louisiana v. Anthony JOHNSON.
    No. 2007-KP-2034.
    Supreme Court of Louisiana.
    Oct. 9, 2009.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, M.Richard Schroeder, New Orleans, David B. Park, for applicant.
    James D. Caldwell, Attorney General, Walter P. Reed, District Attorney, Lewis

      Virgil Murray, III, Kathryn W. Landry, Assistant District Attorneys, for respondent.
   PER CURIAM.

11 On February 24, 1986, Anthony Johnson was convicted of the second degree murder of Angela Bond. In 2004, defendant filed an application for post-conviction relief in the Twenty-Second Judicial District Court in Washington Parish. Defendant alleged two primary claims. First, defendant alleged that he was entitled to a new trial under La. C. Cr. P. art. 930.3(7), which provides for relief if “results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.” Defendant also asserted that he was entitled to a new trial on the basis that the State suppressed multiple items of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On February 21, 2007, the trial court granted defendant a new trial based on both the DNA claim and the Brady claims. The State appealed the DNA ruling to the First Circuit Court of Appeal and requested a reconsideration of the trial court’s ruling on the Brady claims, based upon the State’s claim of inadequate time to brief the issues. In October of 2007, the First Circuit Court of Appeal reversed the trial 12court’s grant of a new trial, and this court granted certiorari thereafter. State v. Anthony Johnson, 07-2034 (La.6/6/08), 983 So.2d 907. During the course of this court’s review, the trial court held the rehearing on the Brady claims in open court on May 14, 2008. After this hearing, the trial court issued no new judgment regarding the defendant’s Brady claims, and the record in this case suggests that the trial court refrained from re-ruling on those claims due to the pending DNA claim in this court.

Thereafter, on June 26, 2009, this court issued a per curiam opinion, ordering the trial court to rule on defendant’s Brady and ineffective assistance of counsel claims, while this court retained jurisdiction over the defendant’s DNA claim. State v. Anthony Johnson, 07-2034 (La.6/26/09), — So.3d-. Pursuant to this court’s order, the trial court rendered its judgment on July 22, 2009, granting the defendant a new trial pursuant to La. C. Cr. P. art. 930.3(1). After a review of the evidence, the trial court held “that the failure to disclose the exculpatory and impeachment evidence directly impacted the fundamental fairness of the proceedings in such a material way that had it been disclosed prior to trial, there is a reasonable probability of the defendant’s acquittal.”

The trial court therefore granted defendant’s post-conviction relief, set aside his guilty verdict, and ordered a new trial, based on the defendant’s Brady claims. The State then appealed the trial court’s July 22, 2009 judgment to this court, as directed by the per curiam. After review of the trial court’s reasons for judgment, we denied the State’s writ in application 09-OK-1920 this date.

Due to the trial court’s July 22, 2009, ruling granting the relief sought by defendant, and this court’s denial of the State’s writ application concerning that ruling, this court need not consider the DNA claim raised by the defendant in his initial writ application, as it is moot. We preter-mit any discussion of defendant’s |SDNA claim, in light of the trial court’s July 22, 2009, judgment granting the defendant a new trial based upon his Brady claim. As such, this court expresses no opinion concerning the efficacy of the DNA claims of the defendant or the action of the Louisiana First Circuit Court of Appeal. As such, this matter is remanded to the trial court for further proceedings.

THE WRIT IS MOOT AND THEREFORE RECALLED.

VICTORY, J., concurs.

JOHNSON, J., dissents and assigns reasons.

VICTORY, J.,

concurring.

Li concur in the recall of defendant’s writ application.

JOHNSON, J.,

dissents, and assigns reasons.

11 Since this case is res nova, and presents the first opportunity to give direction to trial courts on how to apply and weigh the science of deoxyribonucleic acid (DNA) testing to determine factual innocence in Applications for Post Conviction Relief, I would grant defendant’s writ application. In my view, the trial court correctly decided the DNA claim raised by the defendant in his initial writ application. The majority opines that due to the trial court’s July 22, 2009, ruling, which granted defendant a new trial based on his Brady claims, we need not consider the trial court’s ruling on the DNA claim, nor the action of the Court of Appeal. This case presents a critical juncture between science and law for which we are obliged to do a thoughtful examination of the requirements and remedies contemplated by Louisiana Code of Criminal Procedure Articles 926.1 and 930.3(7), and to give [ 2meaningful guidance to the lower courts on the interpretation of these two codal articles.

Before a defendant is entitled to DNA testing under La. C. Cr. P. art. 930.3(7), a showing must be made under Article 926.1 that DNA testing will resolve doubt as to the guilt of the defendant, and establish the innocence of the defendant. Clearly, La. C. Cr. P. art. 926.1 provides for an evidentiary examination in which a defendant may introduce extrinsic evidence, not admitted into evidence at trial. Said evidence must inure to the factual innocence of the defendant, establish articuable doubt as to his guilt, and establish that DNA testing will likely resolve that doubt in favor of the defendant to invoke the right to use DNA evidence for the purpose of Post Conviction Relief.

The majority of jurisdictions in this country require a threshold showing of “materiality” before testing is granted. Materiality requires the defendant to demonstrate that “a reasonable probability exists that the defendant would not have been convicted if exculpatory results had been obtained through DNA testing.” Several states impose additional limitations after the resulting DNA testing exclude |san individual. New York State permits relief if the results of DNA testing show a reasonable probability of innocence. Pennsylvania uses the heightened,

For guidance as to the applicable standard of review, our trial court can apply already established Louisiana jurisprudence concerning Post Conviction Relief based on Brady violations. When a defendant’s application for Post Conviction Relief is based on the State’s withholding Brady material, a grant of Post Conviction Relief is warranted when a defendant establishes that it was reasonably probable that the result of the proceeding would have been different had the suppressed evidence been disclosed. By analogy, when examining a claim for Post Conviction Relief based on DNA evidence, courts should weigh the evidence produced in application for DNA testing under La. C. Cr. P. art. 926.1, and the DNA results obtained under La. C. Cr. P. art. 930.3(7), against the State’s evidence to determine whether it was reasonably probable that the result of the proceeding would have been different, had the DNA evidence been available.

The clear wording of La. C. Cr. P. art. 930.3(7), states that the results from DNA testing, pursuant to an application for Post Conviction Relief, under La. C. Cr. P. art. 926.1, will prove by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted (the DNA in question does not match that of the petitioner). To prove a matter by clear and convincing evidence means to demonstrate “the existence of the disputed fact must be highly probable, that is, much more probable than its non-existence.”

La. C. Cr. P. art. 930.3(7) does not require that the DNA test results exonerate |4a defendant, or establish actual innocence. The clear and convincing proof contemplated by the statute is a DNA result that excludes a defendant, after an evidentiary finding that there is a reasonable likelihood that the requested DNA testing will resolve the doubt, and establish the innocence of the defendant.

In light of the facts the defendant, Anthony Johnson, (Johnson) presented to invoke the application of DNA testing, Johnson clearly showed that there existed articulable doubt, as to his guilt, based on competent evidence, and that DNA testing would resolve that doubt and establish his factual innocence. Instead of contesting these facts that were presented by Johnson as reasons to doubt his guilt, the state conceded that DNA testing was warranted under these circumstances. There is no issue as to the credibility of the test results since the defense and the State jointly selected the laboratory that would conduct all of the DNA testing (Reliance Technologies, Inc.). Further, the state could not rebut the scientific studies, and expert testimony offered by the defendant which established that foreign DNA under fingernails is usually a result of a violent struggle or intimate conduct. Against the backdrop of all the facts, and evidence presented establishing reasons to doubt the correctness of Johnson’s conviction, combined with the DNA results, the District Court correctly granted Johnson a new trial.

Since the state conceded the defendant’s right to DNA testing in the case at bar, there was no need to consider whether the defendant met his burden of proof under Article 926.1 Armed with his results, Defendant made his case at the post conviction hearing that the DNA test results resolved the doubt, and established his factual | finnocence by clear and convincing evidence.

The State’s case against Johnson hinged primarily on a police officer’s recollection of an inculpatory statement allegedly made by Johnson regarding the types of weapons used in the murder which revealed “special knowledge.” The body of Angela Bond, the victim, was discovered with a knife and fork protruding from it. However, this “special knowledge” of the weapons used in the murder, was known to several people, (including Johnson’s sister) prior to law enforcement’s arrival at the murder scene. Moreover, the alleged statement was not recorded contemporaneously, but instead, documented by the police officer nearly three months after it was purportedly uttered.

The other evidence presented by the State was Johnson’s own admission that he was at the victim’s home several times on the evening prior to the murder, contradictory testimony from several witnesses regarding the times Johnson was observed in the victim’s neighborhood, and a hair found on a plastic shower cap at the crime scene that was similar to Johnson’s hair. Though similar, the hair was not conclusively determined to have originated from Johnson. The defendant’s presence in the victim’s home and the presence of his DNA, would be expected, since the victim was Johnson’s girlfriend, and they had a child together.

The evidence presented at the post conviction hearing supporting Johnson’s factual innocence is compelling for the following reasons: (1) Matthew Brown was convicted of killing two other women, Bevalina Brown and Regina Jackson. One of his murder victims was a woman he killed in the same bedroom where Angela Bond’s | (¡body was found. Brown confessed to at least two people that he killed the victim, Angela Bond, (2) Two witnesses placed Matthew Brown at the victim’s home within hours of the discovery of the victim’s body, and the victim’s neighbors testified that the victim and Brown were having an affair, (3) There was un-refuted expert testimony that a struggle likely ensued between the murder victim and her attacker, (4) There was un-refuted expert testimony that the biological evidence found under the victim’s fingernails was likely transferred during the murder from the victim’s attacker, (5) DNA results proved that the biological sample was from a single male donor, and that Johnson was not the contributor of the DNA material found under the fingernails of the victim, (6) Kelvin Hayes (a suspected co-perpetrator in the murders of Bevalina Brown and Regina Jackson), admitted to law enforcement that he made a statement implicating himself as having a role in the killing of Angela Bond.

Johnson also re-urged testimony given at his trial by Lionel Weathersby, (a neighbor of Angela Bond) who testified that he heard two men outside his window, at about 3:30 am, on the night of the murder, and one of them said, “I killed that bitch.” Weathersby testified it was not defendant’s voice that he heard, and the car he heard drive away, was not defendant’s car.

Further, Johnson’s account of his whereabouts on the evening of the murder 17are corroborated by at least two witnesses. In his application for Post Conviction Relief and DNA testing, Johnson challenged the recollection of Carl McGee, one of the State’s witnesses at his trial. McGee had testified that he saw Johnson leaving the victim’s house around 6:00 a.m. the morning the victim’s body was discovered, wearing a plastic shower cap on his head. He said Johnson, waved at him while he drove past and was wearing his plastic shower cap, as he often did. However, McGee’s police statement indicated that he was outside at 6:00 a.m. because he was putting out the trash when he saw Johnson drive by, and trash day was the day before the body was discovered, which is also the time Johnson would have been driving to his job at the hospital, to which he always wore a plastic shower cap.

Lastly, Johnson highlighted the stark similarities between the murders of the three women killed in Bogalusa indicating a modus operandi All three women were young African American women in their twenties. Regina Jackson had been beaten about the head and face and throttled like Angela Bonds. Bevalina Brown and Angela Bond, were both killed in the same house and in the same bedroom. They were both strangled with fabric wrapped around their necks, and both had a second thicker piece of fabric around their necks. Both victims’ heads were turned to the right, and they both had their tongues protruding through their teeth. They both had semen in their vaginas and there was no evidence of drug or alcohol in their systems. Perhaps the strangest coincidence was that both women slept with weapons under their pillows for protection: Angela with an ice pick and fork, and Bevalina with knives.

A trial court’s grant of a motion for new trial should only be reversed upon a 1 ¿finding that the trial court abused its wide discretion. In evaluating whether newly discovered evidence warrants a new trial, the test to be employed is not simply whether another trier of fact might render a different verdict, but whether the new evidence is so material that it ought to produce a verdict different from that rendered at trial. When presented with a motion for a new trial based on newly discovered evidence, the trial judge’s duty is not to weigh the new evidence as though he were a jury determining guilt or innocence; rather his duty is the narrow one of ascertaining whether there is new material fit for a new jury’s judgment.

Considering the wealth of exculpatory evidence Johnson presented pursuant to La. C. Cr. P. art. 926.1, and the DNA results, this trial court judge did not abuse his discretion in ruling that Johnson had proven his factual innocence. Thus, in my view, the Court of Appeal erred in reversing the decision of the district court, and in reinstating the conviction for second degree murder.

       Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case. Traylor, J., retired. Justice Traylor retired after oral argument and he has not participated in the deliberation of this case following his date of retirement, May 31, 2009.

      . DNA is the fundamental blueprint in each of our cells that contain all our genetic information, from our general identity as human beings to our specific identity as an individual person. No two persons, except identical twins, have the exact same DNA. Sophisticated scientific technology has combined with molecular biology to be able to decipher this individual identity from even the most minute sample of body tissue (saliva, blood, semen, skin, hair). Every cell of our body contains the complete blueprint of all our traits. La. Prac.Crim. Trial Prac. section 20:41 (4th ed. 2008) ... [T]he length and composition of certain DNA base-pair sequences varies from one individual to another at several million sites along the human chromosome, and that, by examining the sizes of enough fragments at different sites on different chromosomes, statistical procedures based on known sequence frequencies in the population can be employed to establish the uniqueness of any one person’s DNA pattern. Am.Jur.2d. Evidence section 574.

      . Brady v. State, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady, the prosecution has a duty to disclose evidence favorable to a defendant, whether the evidence is exculpatory or impeachment, prior to trial.

      .Article 926.1 provides in pertinent part:
      An application filed under the provisions of this Article shall comply with the provisions of Article 926 of this Code and shall allege all of the following:
      (1) A factual explanation of why there is an articulable doubt, based on competent evidence whether or not introduced at trial, as to the guilt of the petitioner in that DNA testing will resolve the doubt and establish the innocence of the petitioner.

      ... C. In addition to any other reason established by legislation or jurisprudence, and whether based on the petition and answer or after contradictory hearing, the court shall dismiss any application filed pursuant to this Article unless it finds all of the following:
      (1) There is an articulable doubt based on competent evidence, whether or not introduced at trial, as to the guilt of the petitioner and there is a reasonable likelihood that the requested DNA testing will resolve the doubt and establish the innocence of the petitioner. In making this finding the court shall evaluate and consider the evidentiary importance of the DNA sample to be tested. [Emphasis added]

      .La. C. Cr. P. art. 930.3(7) provides in pertinent part that:
      If the petitioner is in custody after a sentence for conviction of an offense, relief shall be granted only on the following grounds:
      (7) The results of DNA testing performed pursuant to an application granted under more-probable-than-not, standard. (Citations omitted). Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.

      . 92 Minn. L.Rev. 1627, Claiming Innocence, (June 2008).

      . See, State v. Kenner, 2004-1809, 900 So.2d 948 (La.App. 4 Cir.2005), writ granted, vacated 2005-1052, 917 So.2d 1081 (La. 12/16/05).

      . Fernandez v. Herbert, 2006-1558, p. 9 (La.App. 1st Cir.5/4/07), 961 So.2d 404, 408.

      . The actual innocence standard is employed by federal courts in determining whether a petitioner is entitled to habeas corpus relief based on constitutional claims that are procedurally barred under state law. A prisoner asserting a claim of innocence as a “gateway” to defaulted claims must establish that, in light of new evidence, it is more likely than not, that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2068, 165 L.Ed.2d 1 (2006).

      . The studies introduced into evidence reported no examples of foreign DNA from fingernails being matched to someone other than a sexual partner or assailant.

      .The trial court judge, expressing his misgivings about the conviction stated:
      [T]he court can very candidly tell you that in this trial until the defendant took the stand, I had some misgivings about the, the business about every reasonable hypothesis. I truly did. I considered the case that if the defendant had not taken the stand in this case and the verdict had come back that this would be a very close case, one probably where, where the court would be in the position of having to grant a judgment verdict of acquittal.

      . Brown boasted that he killed Angela Bond to a cell mate, Joseph Rogers. Brown told Rogers that one of the “girls” he killed had a boyfriend in prison with him in Washington Parish for the murder that Brown committed. Additionally, William Todd Morris (Morris) testified to a grand jury that Brown bragged to him about killing a girl with a fork, and that somebody else was taking the rap for the murder. Morris testified at Johnson’s second grand Jury that Brown had confessed to killing a woman with a fork.

      . The State originally suggested that the DNA from the victim's fingernail clippings could have been deposited there by a male infant the victim was caring for on the day of her murder. The State suggested, contrary to the expert testimony, that DNA is easily transferred under the fingernails from person to person.

      .Two witnesses, Carlos Wayne Dunn, and Stanley Lundy, reported to police that on the day before Bevalina was found murdered, they heard Hayes threatening to rape and kill Bevalina Brown “the same way the other girl {Angela Bonds) in that house was killed.” Hayes admitted to the police that he made that statement.

      .Charlotte Smith stated to the police that Johnson was at the Jug's bar that night, left with crabs and returned at least once. She recalled that he was still there when she left around 11:30 p.m. Charles Taylor told the police that Johnson was at the bar at least until 11:30 a.m. and that he left with crabs and returned several times.

      . State v. Persley, 918 So.2d 491 (La.App. 2 Cir 12/16/05).

      . State v. Coleman, 04-0758, (La.App. 1 Cir. 3/24/05); 918 So.2d 23


text:
    STATE of Louisiana v. Roland Damond FOSTER.
    No. 2009-K-0617.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   The trial court’s adjudication of defendant as a third offender and its sentence of 35 years imprisonment at hard labor following conviction for possession of cocaine with intent to distribute are reinstated.

In vacating that adjudication and sentence, the court of appeal purported to apply our decision in State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, which overruled our prior decision in State v. Sanders, 337 So.2d 1131 (La.1976) in part, and held that a sentence imposed upon a conviction for felon in possession of a firearm in violation of La.R.S. 14:95.1 is subject to further enhancement under the habitual offender provisions of La.R.S. 15:529.1, as long as the prior felony conviction used as an element in the firearm conviction is not also used as a prior felony conviction in the habitual offender bill of information. In the present case, the court of appeal reasoned that because the state used defendant’s prior conviction for second offense possession of marijuana as a basis to charge and convict him of third | ¡^offense possession of marijuana, in the same proceeding that resulted in defendant’s conviction/for possession of cocaine with intent to distribute, Baker prevented the state from using the prior conviction for. second offense possession of marijuana in the habitual offender bill filed on the cocaine conviction. State v. Foster, 43,777, p. 18 (La.App.2d Cir.1/28/09), 3 So.3d 595, 606 (“Under the reasoning of the Louisiana Supreme Court in Baker ... the defendant did face double enhancement of his sentence: the prior possession of marijuana offense that the defendant pled guilty to on August 25, 1999 was used to enhance both the defendant’s sentences under the possession of marijuana, third offense conviction and the possession with intent to distribute cocaine.”).

However, Baker considered the question of “double enhancement” in the context of a single conviction, an essential element of which was the defendant’s pri- or conviction for a qualifying offense. We specifically noted that the case did not implicate the other rule of Sanders, cited with approval in State v. Ruiz, 06-1755 (La. 4/11/07, pp. 12-13 (La.4/11/07), 955 So.2d 81, 89, and thus left in tact by Baker, that the state, may not use the same set of prior convictions to enhance the penalties provided for the underlying offense and then to enhance those enhanced penalties under the habitual offender provisions of La.R.S. 15:529.1. Baker, 06-2175, p. 15, 970 So.2d at 957. However, in the present case, although the state used the prior conviction for second offense possession of marijuana twice, double enhancement for purposes of Baker (ie., enhancement of enhanced penalties) did not occur because the state used that conviction only once on the count charging third offense possession of marijuana (to enhance the status of the crime and punishment from a second to third offense) and only once on the separate conviction for possession of cocaine with intent to distribute, to enhance defendant’s status from a second to third offender for sentencing purposes under the habitual offender law in La.R.S. 15:529.1.


text:
    In re Karen J. COOPER (a/k/a Karen René Johnson).
    No. 2009-B-1848.
    Supreme Court of Louisiana.
    Dec. 11, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ¾ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Karen J. Cooper, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

06-DB-060

Count I — The Majeau Matter

On June 7, 2004, Heather Majeau hired respondent to represent her in divorce and child custody proceedings, paying $2,000 towards respondent’s $4,000 fee. On June 14, 2004, respondent filed a petition for divorce on Ms. Majeau’s behalf in Civil District Court for the Parish of Orleans, stating that Ms. Majeau was domiciled in Orleans Parish when she was in fact domiciled in Jefferson Parish. Respondent also failed to include the required verification affidavit and failed to request service of the petition on Ms. Majeau’s husband. Respondent further requested the issuance of an ex parte provisional custody order. In response to these filings, the attorney for Ms. Majeau’s husband filed exceptions based on improper venue and failure to comply with statutory requirements. In the meantime, on June 21, 2004, Ms. Ma-jeau’s husband filed a petition for divorce in the Twenty-Fourth Judicial District Court for the Parish of Jefferson. Although respondent filed a motion for provisional custody 12on Ms. Majeau’s behalf in the Twenty-Fourth Judicial District Court proceeding, she failed to respond to numerous phone calls from Ms. Majeau and failed to keep her advised of the status of her case. When Ms. Majeau obtained new counsel, respondent agreed to provide Ms. Majeau with a refund of the legal fee she paid. However, respondent failed to do so.

In September 2004, Ms. Majeau filed a disciplinary complaint against respondent, who failed to respond to the complaint. Respondent also failed to appear to give a sworn statement to the ODC, despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II — The Cantey Estate Matter

On December 4, 2001, Edith Cantey passed away. On December 21, 2001, her heirs (seventeen nieces and nephews) hired respondent to handle the succession. Respondent was instructed to sell Ms. Canters house, which was sold on July 19, 2002. However, respondent failed to inform the heirs of the sale. Via a December 5, 2002 email, respondent provided Mable Burks, one of the heirs, with an accounting |3of succession debts and a proposed distribution to the heirs. Nonetheless, respondent failed to complete the distribution of the succession proceeds or account for the funds. On September 16, 2004, Arxavia Godfrey, another heir, requested a status update from respondent. Respondent did not reply to Ms. Godfrey or to the heirs’ numerous other requests for information.

In November 2004, Ms. Godfrey filed a disciplinary complaint against respondent, who failed to respond to the complaint. Respondent also failed to appear to give a sworn statement to the ODC, despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(d) (failure to timely remit funds to a client or third person), 1.15(e) (a lawyer in possession of property in which two or more persons claim interests shall keep the property separate until the dispute is resolved), 1.16(d), 3.4(c), 8.1(c), 8.4(a), 8.4(c), and 8.4(d).

Count III — The Jefferson Matter

On January 6, 2005, Ronald Jefferson hired respondent to assist him in collecting unpaid child support from his ex-wife. Mr. Jefferson paid respondent $410 for a consultation and to attend a hearing in the matter. Respondent failed to appear at the February 15, 2005 hearing, which had to be continued to March 14, 2005. Respondent also failed to appear at the March 14, 2005 hearing, necessitating another continuance. Mr. Jefferson called respondent numerous times, but she did not return the calls or provide him with an explanation for her failure to appear in court on his behalf. Thereafter, her phone number was disconnected, and she closed her office |4without notifying Mr. Jefferson. Respondent failed to provide Mr. Jefferson with an accounting or a refund of the unearned portion of the fee. Accordingly, Mr. Jefferson filed a claim with the Client Assistance Fund of the Louisiana State Bar Association (LSBA), seeking recovery of the $410.

On March 29, 2005, Mr. Jefferson filed a disciplinary complaint against respondent, who failed to respond to the complaint. Respondent also failed to appear to give a sworn statement to the ODC, despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.15(d), 1.15(e), 3.4(c), 8.1(c), 8.4(a), and 8.4(d).

Count TV — The Forbs Matter

On August 4, 2004, Verna Forbs consulted respondent about a real estate loan she obtained from First Horizon Home Loan Corporation on February 17, 2004. In September 2004, First Horizon sued Ms. Forbs, and she was served with the lawsuit on October 1, 2004. On October 5, 2004, Ms. Forbs signed a fee agreement with respondent to represent her in the lawsuit, paying respondent $1,500. Thereafter, respondent took no action on Ms. Forbs’ behalf and failed to respond to Ms. Forbs’ requests for status updates. Accordingly, via letter dated December 21, 2004, Ms. Forbs terminated respondent’s services and requested a full refund. Respondent did not return Ms. Forbs’ file, did not provide her with an accounting, and did not refund the unearned fee.

|Jn January 2005, Ms. Forbs filed a disciplinary complaint against respondent, who failed to respond to the complaint. Respondent also failed to appear to give a sworn statement to the ODC, despite being personally served with a subpoena.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 3.2 (failure to make reasonable efforts to expedite litigation), 3.4(c), 8.1(c), 8.4(a), 8.4(c), and 8.4(d).

Count V — The Bar Registration Matter

In early 2006, respondent relocated to Phoenix, Arizona and began working with the law firm of Gust Rosenfeld, P.L.C. However, she did not report her change of address to the LSBA.

The ODC alleged that by failing to update her primary registration statement address, respondent has violated Supreme Court Rule XIX, § 8(C).

Count VI — The Williams Matter

On June 6, 2005, Chriscynthia Williams hired respondent to handle her divorce, paying respondent $961. Thereafter, respondent canceled two appointments with Ms. Williams and failed to file Ms. Williams’ petition for divorce. She also failed to respond to Ms. Williams’ numerous requests to proceed with the divorce. Ms. Williams subsequently hired another attorney, who filed the petition for divorce on April 24, 2006. Respondent did not provide Ms. Williams with an accounting or refund the unearned fee.

Lin April 2006, Ms. Williams filed a disciplinary complaint against respondent, who failed to respond to the complaint. Thereafter, respondent relocated to Arizona without notifying Ms. Williams or the LSBA.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 8.1(c), 8.4(a), and 8.4(c). The ODC also alleged that by failing to update her primary registration statement address, respondent has violated Supreme Court Rule XIX, § 8(C).

08-DB-0S8

Count I — The Divorce Proceedings Matter

While respondent was in the process of obtaining a divorce from Richard Cooper, she engaged in the following misconduct:

Respondent’s husband was the sole owner of and held the title to a 1996 Mercedes S420. In June 2004, respondent, without her husband’s knowledge or consent, signed his name to documents transferring the vehicle’s title to Benson Motor Company.

Respondent and her husband maintained a joint bank account. On March 12, 2004, respondent issued a $62,000 check from the joint account made payable to Precise Title, LLC, and the proceeds were deposited into Precise Title’s escrow account. Also on March 12, 2004, respondent issued a $2,746.47 check from the joint account made payable to Precise Title. That same day, respondent issued a $65,746.47 check from Precise Title’s escrow account made payable to her husband, and the proceeds were deposited into the joint account.

|7A Precise Title escrow account check in the amount of $119,030.66 was dishonored on September 10, 2004 and again on September 20, 2004 because of insufficient funds in the account. During September 2004, numerous other checks from Precise Title’s escrow account were dishonored because of insufficient funds in the account.

In February 2006, the Jefferson Parish District Attorney’s Office notified the ODC of the above actions by respondent. In September 2006, the ODC sent notice of the alleged misconduct to respondent at her place of employment in Arizona. Respondent did not respond to the ODC.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c), and 8.4(d).

Count II — The Kalantari Matter

On June 2, 2005, Mary Kimball Kalan-tari hired respondent to handle her divorce, paying her $5,000. On June 10, 2005, Ms. Kalantari gave respondent $10,000 in cash for safekeeping. That same day, respondent deposited the cash into her office checking account. On June 30, 2005, respondent’s office account had a negative balance of $147.10, and the records for the account through December 2007 indicated a balance well below Ms. Kalantari’s $10,000.

In late 2005, Ms. Kalantari reconciled with her husband and, thus, requested that respondent terminate the divorce proceedings. By that time, respondent had relocated out of state. She informed Ms. Ka-lantari that she would meet with her when |sshe next visited the New Orleans area; however, she failed to do so. Throughout 2006 and 2007, Ms. Kalantari called respondent numerous times but was unable to contact her. As such, she hired another attorney, who sent respondent a demand letter dated August 24, 2007, requesting the return of Ms. Kalantari’s $10,000.

In November 2007, Ms. Kalantari filed a disciplinary complaint against respondent. Because respondent did not update her address with the LSBA, the ODC was unable to serve her with the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.15(a)(e)(e)(f) (safekeeping property of clients or third persons), 1.16(a)(3) (a lawyer shall withdraw from the representation of a client if the lawyer is discharged), 1.16(d), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

On October 19, 2006, the ODC filed the formal charges in 06-DB-060. The ODC amended the formal charges on November 3, 2006. On April 10, 2008, the ODC filed the formal charges in 08-DB-038. Respondent failed to answer both sets of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

The two matters were consolidated by order of the hearing committee chair. No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the committee’s consideration.

| ¡¡Hearing Committee Report

After considering the ODC’s deemed admitted submissions in these consolidated matters, the hearing committee found that the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. Specifically, the committee found that respondent filed Ms. Majeau’s divorce in an improper venue, failed to attach the proper verification affidavit to the divorce petition, and failed to promptly serve Ms. Majeau’s husband. Additionally, the committee found that respondent neglected her clients’ cases, relocated several times without notice to clients, failed to properly withdraw from representations, failed to respond to numerous requests for information, failed to refund unearned fees, failed to resolve fee disputes, failed to safeguard client funds, commingled and/or converted client and/or third-party funds, failed to account for funds, misused her escrow account, abandoned her clients, failed to file responsive pleadings on behalf of clients, failed to cooperate with the ODC in its investigations, committed numerous criminal acts, including forgery and check kiting, and failed to update her bar registration information.

Based on these facts, the committee determined that respondent violated Rules 1.1(a), 1.3, 1.4, 1.5(f), 1.15, 1.16, 3.2, 3.4(c), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 8(C).

The committee determined that respondent knowingly and intentionally violated duties owed to her clients, the public, and the legal profession. Her dishonesty and lack of professionalism erodes the public’s trust and confidence in the | 10legal profession and the legal system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

The committee found the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. The sole mitigating factor found by the committee is the absence of a prior disciplinary record.

Under these circumstances and considering this court’s prior jurisprudence involving similar misconduct, the committee recommended that respondent be disbarred. The committee further recommended that respondent provide complete accountings and restitution to her victims and repay the Louisiana State Bar Association’s Client Assistance Fund for any funds paid to her victims.

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

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board found that the hearing committee’s factual findings are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. Based on these facts, the board determined that respondent violated Rules 1.1(a), 1.3, 1.4, 1.5(f)(5), 1.16(a)(3), 1.16(d), 3.2, 3.4(c), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct, as well as Supreme Court Rule XIX, § 8(C).

With respect to Rule 1.15, the board indicated that respondent failed to distribute succession proceeds to the Cantey heirs, despite receiving those funds in |nJuly 2002. However, the board noted that there is no evidence in the record to indicate respondent actually received the funds and converted those funds, but the deemed admitted facts support such a finding. The board also indicated that respondent failed to return Ms. Kalantari’s $10,000. Instead, she deposited the money into her business account, the balance of which subsequently fell below $10,000. Respondent further collected an advance fee from Mr. Jefferson, failed to perform any services, and failed to return Mr. Jefferson’s funds. Finally, the board indicated that respondent issued numerous checks from her escrow account, totaling more than $100,000, which were returned because of insufficient funds. Accordingly, the board found that respondent violated Rules 1.15(a)(d)(e). However, in the Ka-lantari matter, the board found that Rules 1.15(c)(e)(f) have no application to the misconduct alleged in the formal charges.

The board determined that respondent knowingly and intentionally violated duties owed to her clients, the legal system, the public, and the legal profession. She caused serious actual harm by failing to refund unearned fees and converting client funds. The board noted that several clients had to pay other attorneys to complete their legal matters. Citing the ABA’s Standards for Imposing Lawyer Sanctions, as well as this court’s prior jurisprudence involving conversion and abandonment of a law practice, the board determined that the baseline sanction is disbarment. The board also agreed with the aggravating and mitigating factors found by the committee.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred. The board further recommended that respondent provide accountings and restitution, plus legal interest, to her victims and | prepay the Louisiana State Bar Association’s Client Assistance Fund as necessary. One board member dissented and would recommend ordinary disbarment.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

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

In this matter, the deemed admitted facts and the record support a finding that respondent failed to provide competent representation to a client, neglected several legal matters, failed to communicate with several clients, failed to account for and refund unearned fees, converted client and/or third-party funds, misused her escrow | ^account, committed criminal acts involving forgery and check kiting, abandoned her law practice, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent violated the Rules of Professional Conduct as found by the disciplinary board. Respondent also violated Supreme Court Rule XIX, § 8(C), by failing to update her bar registration address when she relocated to Phoenix, Arizona.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 518 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports a finding that respondent acted knowingly and intentionally. She violated duties owed to her clients, the public, and the legal profession, causing substantial actual harm. The applicable baseline sanction is clearly disbarment under both the ABA’s Standards for Imposing Lawyer Sanctions and our prior jurisprudence. See Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986). Therefore, the only issue presented for our consideration is whether respondent’s misconduct is so egregious as to warrant permanent disbarment.

Supreme Court Rule XIX, Appendix E depicts conduct that may warrant permanent disbarment. We find that Guideline 1 (“[rjepeated or multiple instances of intentional conversion of client funds with substantial harm”) is applicable in this matter. The record indicates that respondent converted at least $168,000 in client |14and/or third-party funds and has not made restitution to any of her victims. In addition, respondent forged her husband’s signature on title transfer documents and kited checks in excess of $60,000 between her escrow account and personal account. These actions reveal a fundamental lack of moral character and fitness to practice law.

We can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of Karen J. Cooper (a/k/a Karen René Johnson), Louisiana Bar Roll number 26244, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this State. It is further ordered that respondent provide accountings and restitution, plus legal interest, to her victims and repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to claimants on her behalf. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The email indicated that the net worth of the estate to be distributed to the heirs was $39,134.51.

      . Ms. Forbs paid respondent $75 for the consultation.

      . According to the Louisiana Secretary of State's corporations database, respondent was an officer of Precise Title, LLC.

      . The committee did not specifically find that respondent violated Rule 8.4(b), but this appears to be an oversight in light of its factual finding that respondent committed numerous criminal acts, including forgery and check kiting.


text:
    In re Steven E. ADAMS.
    No. 2009-B-2246.
    Supreme Court of Louisiana.
    Dec. 11, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a consensual sexual relationship with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.7(a)(2) (conflicts of interest) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Steven E. Adams, Louisiana Bar Roll number 2334, be suspended from the practice of law in Louisiana for a period of ninety days. This suspension shall be fully deferred, subject to respondent’s successful completion of an additional eight hours of continuing legal education, four each in the areas of ethics and professionalism.

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