author: ROTHENBERG, C.J.

text:
    Andres Ambrosio DUQUESNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-579
    District Court of Appeal of Florida, Third District.
    Opinion filed April 04, 2018
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   ROTHENBERG, C.J.

The defendant, Andres Ambrosio Duquesne, appeals from the revocation of his probation and the order sentencing him to ten years in prison. Although we conclude that some of the violations alleged were not proven at the probation violation hearing, we nevertheless affirm the trial court's revocation of the defendant's probation and the sentence imposed.

In February 2016, the defendant pled guilty to burglary of an unoccupied conveyance and third-degree grand theft, he was adjudicated guilty, and he was sentenced to a term of incarceration followed by two years of probation. The defendant began his two-year probationary period in April 2016, and by June 2016, his probation officer, Officer Phillipe, filed an affidavit of violation of probation, which was amended on September 14, 2016. The amended affidavit alleges, in part, that the defendant violated the following conditions of his probation: Condition (1) by failing to make a full and truthful report to the probation officer and by failing to report to the probation officer as directed as of June 15, 2016; Condition (3) by changing his residence without first procuring the consent of the probation officer and absconding, and that his whereabouts were unknown; Special Condition (18) by failing to complete the Court Options Recidivism Prevention Program ("CORP Program") by June 15, 2016; Condition (5) by failing to live and remain at liberty without violating any law by committing the criminal offenses of third-degree grand theft and obstruction by disguised person on August 16, 2016 (lower tribunal case number F16-17697), and by committing the criminal offenses of third-degree grand theft and obstruction by disguised person on July 13, 2016 (lower tribunal case number F16-17698).

During the probation violation hearing, the State called three witnesses-Detective Moises and Detective Fernandez of the Coral Gables Police Department and Probation Officer Phillipe. At the conclusion of the hearing, the trial court found that the defendant willfully and substantially violated his probation based on the violations of the above stated conditions. The trial court revoked the defendant's probation and entered an order sentencing the defendant to ten years in prison. The defendant's appeal followed.

We review the trial court's revocation of the defendant's probation for an abuse of discretion. See State v. Carter, 835 So.2d 259, 262 (Fla. 2002) ; Forbes v. State, 38 So.3d 232, 233 (Fla. 3d DCA 2010). Further, "[a]s part of such review, 'there must be evidence in the record to support a finding that any violation was willful and substantial.' " Harris v. State, 898 So.2d 1126, 1127 (Fla. 3d DCA 2005) (quoting Rubio v. State, 824 So.2d 1020, 1021 (Fla. 5th DCA 2002) ).

First, the State has properly conceded that at the probation violation hearing, it failed to introduce any evidence as to the new law offenses allegedly committed on July 13, 2016, charged in lower tribunal case number F16-17698. Accordingly, we remand with directions for the trial court to strike its findings that the defendant violated his probation by committing the new law violations charged in lower tribunal case number F16-17698.

The defendant also contends that the trial court committed fundamental error by revoking his probation based, in part, on a ground not alleged in the amended violation of probation affidavit-the theft of a cell phone from a bail bondsman's office on August 24, 2016. As the trial court did not rely on this theft in revoking the defendant's probation or in sentencing him to ten years in prison, we conclude no fundamental error occurred.

Next, the defendant challenges the trial court's finding that he violated Condition (3) of his probation by changing his residence without the consent of his probation officer and by absconding from supervision. Although the record reflects that the defendant was homeless when he began his two-year probationary period and, at the time of his arrest in August 2016, the defendant was still homeless, the record also reflects that the defendant absconded from supervision and his whereabouts remained unknown until his arrest on August 26, 2016. We, therefore, find that the trial court's finding that the defendant violated Condition (3) of his probation is supported by the record.

The record evidence also supports the trial court's determination that the defendant violated Condition (1) of his probation by failing to make a full and truthful report to the probation officer and by failing to report to the probation officer as directed. Officer Phillipe testified that when the defendant was placed on probation, he was advised of all of the conditions of his probation, including the condition that he must report to his probation officer immediately after being released from incarceration. Officer Phillipe introduced the February 9, 2016 Order of Probation contained in the court file which additionally reflected that the defendant was informed in writing regarding the condition that he report in person to the probation office within seventy-two hours of his release from incarceration. This order was signed by the defendant, and on the form, the defendant acknowledged that he had been informed of the conditions of his probation, the conditions were explained to him, he agreed to abide by the conditions, and he had been given a copy of the probation order. Officer Phillipe also testified that after the defendant was released from incarceration, the defendant initially reported to the probation office on April 12, 2016, where the defendant met with another probation officer, Officer Gonzalez, and Officer Gonzalez explained to the defendant that he was not his probation officer and that the defendant needed to return the following day to meet with his probation officer (Officer Phillipe). The defendant, however, failed to return the next day or any day thereafter. Although we recognize that a homeless probationer may find it challenging to report to his probation officer as directed, homelessness alone does not justify or excuse a probationer's failure to report. See Lane v. State, 761 So.2d 476 (Fla. 3d DCA 2000). We, therefore, affirm the trial court's finding that the defendant violated Condition (1) by failing to report.

The record also clearly supports the trial court's determination that the defendant violated Condition (5) of his probation by stealing a cell phone from the victim at Le Provencal Restaurant on August 16, 2016 in lower tribunal case number F16-17697. However, because the State failed to introduce any evidence as to the value of the stolen cell phone, we remand for entry and correction of an order reflecting that the defendant violated his probation by committing a petit theft in case number F16-17696. See Collins v. State, 446 So.2d 268, 269 (Fla. 2d DCA 1984).

Lastly, the defendant contends that the trial court abused its discretion by finding that the defendant violated Special Condition (18) by failing to enter and complete the CORP Program. We agree. During the probation violation hearing, Officer Phillipe acknowledged that the order of probation required the defendant to complete the CORP Program at least three months prior to the end of his two-year probationary period, not enter the program by a specific date, and the defendant still had time to complete the program. Accordingly, we remand with directions for the trial court to strike its finding that the defendant violated Special Condition (18) of his probation order.

In conclusion, the trial court's determination that the defendant willfully and substantially violated his probation is supported by the record. Because the defendant's violations of his probation were substantial (failing to report, absconding from probation, and committing a theft while on probation) and this was the defendant's second probation violation, we remand solely for the trial court to enter a revocation order consistent with this opinion. Mitchell v. State, 871 So.2d 1040, 1042 (Fla. 2d DCA 2004) (holding that "[w]here a violation of a condition of community control is reversed on appeal but other violations remain," the appellate court can "remand to the trial court to strike the erroneous violation" where the remaining violations constitute substantial violations and were sufficient to support the revocation).

Because the remaining arguments raised by the defendant were waived, without merit, or do not merit discussion, we decline to address them in this opinion.

Affirmed; remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    IF SIX WERE NINE, LLC, etc., Appellant, v. LINCOLN ROAD III, LLC, etc., et al., Appellees.
    Nos. 3D16-2614 3D17-895
    District Court of Appeal of Florida, Third District.
    Opinion filed April 04, 2018
    Bond, Schoeneck & King, PLLC, and Matthew M. Jackson and Eric J. Vasquez (Naples), for appellant.
    Tobin & Reyes, P.A., and Ricardo A. Reyes and Sacha A. Boegem (Boca Raton), for appellees.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   ROTHENBERG, C.J.

In this commercial lease dispute, If Six Were Nine, LLC, etc. ("the plaintiff") appeals the trial court's order dismissing all of the plaintiff's claims against Lincoln Road III, LLC, etc. ("Lincoln Road") and Terranova Corporation ("Terranova") and dismissing some of the plaintiff's claims against PPF LRIII Portfolio, LLC ("PPF"). We dismiss the appeal for lack of jurisdiction as to PPF because there are related claims against PPF pending in the case below that have not yet been adjudicated. See Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So.3d 559, 561-62 (Fla. 3d DCA 2015).

However, we find that the trial court abused its discretion when it entered an order dismissing with prejudice all of the plaintiff's claims against Lincoln Road and Terranova because the plaintiff was given, in effect, no opportunity to amend its complaint to allege additional facts or other causes of action, despite the trial court's assurances that the plaintiff would have an opportunity to amend. See Vorbeck v. Betancourt, 107 So.3d 1142, 1147 (Fla. 3d DCA 2012) ("Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion.") (quoting Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998) ); Al-Hakim v. Holder, 787 So.2d 939, 942 (Fla. 2d DCA 2001) (stating that "dismissal with prejudice is a severe sanction and one which was not warranted when Al-Hakim had not been given an opportunity to amend his petition").

The plaintiff amended its complaint once as a matter of right before any responsive pleading had been filed. Thus, the trial court's ruling on the defendants' motion to dismiss was the first time the sufficiency of the operative complaint had been tested. See Hawkins v. Crosby, 910 So.2d 424, 425 (Fla. 4th DCA 2005) (stating that even if the plaintiff amended his complaint once as a matter of right pursuant to Florida Rule of Civil Procedure 1.190(a), he should have been given another opportunity to amend because he had not abused the privilege). Under these circumstances, it was an abuse of discretion to preclude the plaintiff from amending its complaint. Accordingly, we reverse the trial court's order dismissing the plaintiff's claims against Lincoln Road and Terranova and remand for further proceedings consistent with this opinion.

Dismissed in part, reversed in part.

      We express no opinion as to the merits of the plaintiff's claims or any potential defenses the defendants may have pursuant to the contracts in this case.


author: KHOUZAM, Judge. SALARIO, Judge, Specially concurring.

text:
    Isaiah L. SPENCER and Shatika L. Spencer, Appellants, v. DITECH FINANCIAL, LLC; CitiBank, National Association successor by merger to CitiBank, FSB; City of Tampa, Florida; Riverwalk at Waterside Island Townhomes Homeowners Association, Inc.; Waterside Community Association, Inc., Appellees.
    Case No. 2D16-4817
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018
    Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellants.
    Jonathan L. Blackmore and John D. Cusick of Phelan, Hallinan, Diamond & Jones, PLLC, Fort Lauderdale, for Appellee Ditech Financial, LLC.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Isaiah and Shatika Spencer appeal the final judgment of foreclosure entered against them and in favor of EverHome Mortgage Company following a bench trial. Ditech Financial, LLC, was later substituted as party plaintiff for EverHome. We reverse and remand for the trial court to enter an order of involuntary dismissal because EverHome, Ditech's predecessor in interest, failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required by paragraph 22 of the mortgage.

The Spencers executed the note and mortgage on March 28, 2003. Federal National Mortgage Association was the lender. Paragraph 22 of the mortgage provided that prior to acceleration, the lender must give the borrower notice and an opportunity to cure the default. Paragraph 15 provided that any such notice must be written and "shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means."

In 2010, EverHome filed a foreclosure complaint against the Spencers. EverHome alleged that it was the servicer of the loan and the holder of the note. EverHome also alleged generally that all conditions precedent to the acceleration of the note and mortgage and the filing of the foreclosure suit had been fulfilled. The Spencers filed an answer denying that the conditions precedent had been met and an affirmative defense alleging that EverHome had failed to give them notice and an opportunity to cure as required.

At trial, EverHome admitted a default letter from EverHome to Mr. Spencer through the testimony of Ms. Knight, an employee of Ditech. Ms. Knight testified to the general industry standards and practices followed by servicers such as Ditech and EverHome to advise borrowers that their loans are in default. She identified the default letter addressed to Mr. Spencer and described the process by which the letter was generated and kept in the ordinary course of business.

In addition to the default letter itself, Ms. Knight's testimony was the only evidence that EverHome provided to show that the letter had been sent to the Spencers. Throughout Ms. Knight's testimony, Spencer repeatedly objected based on hearsay, arguing that Ms. Knight lacked personal knowledge to testify about EverHome's routine business practices because she was not an employee of EverHome. The court overruled Spencer's objections, and Ms. Knight testified that pursuant to EverHome's procedure and policy, once a letter is generated it is mailed. But she explained that her knowledge of these procedures and policies was based on "training." And when pressed, she admitted that this "training" consisted of informally discussing EverHome's policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.

Specifically, Ms. Knight testified as follows: "I have spoken with EverHome employees who are prior employees of EverHome, as we are instructed to by our supervisor as part of training because we are not going to travel every day to Jacksonville to sit down with someone when we have questions." Ms. Knight admitted that no such discussions about this loan or any other loan had taken place prior to 2014, when the service transfer occurred-years after the default letter, dated June 17, 2010, had been generated by EverHome. She further admitted that she had never worked for EverHome, had never sent default letters on behalf of EverHome, and had not read EverHome's written policies and procedures from June 2010. Ms. Knight admitted that she was not personally involved in sending the default letter at issue in this case and that she did not have any documents other than the letter itself to show that the letter was sent.

This evidence was insufficient to show that the default letter was actually sent. "The fact that a document is drafted is insufficient in itself to establish that it was mailed." Allen v. Wilmington Tr., N.A., 216 So.3d 685, 687-88 (Fla. 2d DCA 2017) ; see also Edmonds v. U.S. Bank Nat'l Ass'n, 215 So.3d 628, 630 (Fla. 2d DCA 2017) (citing Allen with approval). Rather, "mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen, 216 So.3d at 688.

Testimony regarding a company's routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014) ). But the witness must have personal knowledge of the company's general mailing practice-meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters. See id.; Edmonds, 215 So.3d at 630 ; see also CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome's mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

Ditech relies on JPMorgan Chase Bank National Ass'n v. Pierre, 215 So.3d 633 (Fla. 4th DCA 2017), and Bank of America, N.A. v. Delgado, 166 So.3d 857 (Fla. 3d DCA 2015), to suggest that Ms. Knight's testimony was sufficient to establish mailing. These cases do not apply here because they addressed the sufficiency of evidence demonstrating an entity's boarding process to establish the admissibility of documents like default letters under the business records exception to the hearsay rule, as opposed to the sufficiency of evidence demonstrating an entity's routine business practices to establish that a default letter was mailed. See Allen, 216 So.3d at 687 ; Pierre, 215 So.3d at 637-39 ; Delgado, 166 So.3d at 859. It is true that in establishing admissibility under the business records exception, there is no requirement that the foundational witness be employed by the business whose records are at issue at the time the records were made. See Delgado, 166 So.3d at 860. And basic familiarity with the previous servicer or lender's practices for generating, storing, and sending a default notice in the normal course of business is all that is required to establish the admissibility of a default notice under the business records exception. See Pierre, 215 So.3d at 638-39 (citing Wells Fargo Bank, N.A. v. Balkissoon, 183 So.3d 1272, 1277 (Fla. 4th DCA 2016) ). But the admissibility of the default letter is not at issue in the instant case.

Because EverHome failed to show that it satisfied the condition precedent of giving notice prior to acceleration, we must reverse and remand for the trial court to enter an order of involuntary dismissal.

Reversed and remanded with instructions.

ROTHSTEIN-YOUAKIM, J., Concurs.

SALARIO, J., Concurs specially.

SALARIO, Judge, Specially concurring.

The Spencers argue in this appeal that the evidence was insufficient to sustain the judgment. They correctly point out that EverHome's sole trial witness, Ms. Knight, lacked any personal knowledge of EverHome's routine practice concerning the mailing of paragraph 22 letters and that without her testimony the evidence was insufficient as a matter of law to support a finding that such a letter was mailed to them. I agree with the reasoning of and the result reached by the majority, including the instruction that the trial court enter an order of involuntary dismissal instead of hold a new trial on remand, because I think as the majority does that both are compelled by our decisions in Edmonds, 215 So.3d at 631, and Allen, 216 So.3d at 688. See also Knight v. GTE Fed. Credit Union, 43 Fla. L. Weekly D348, --- So.3d ----, 2018 WL 844352 (Fla. 2d DCA Feb. 14, 2018). I write to express my growing unease with what we are saying in foreclosure cases about proceedings on remand when the plaintiff as appellee in our court has failed to prove at trial an element of or condition precedent to bringing the foreclosure action.

Outside the foreclosure context, our court routinely follows the general rule that a party that fails to meet its burden of proof in the trial court does not, when we reverse a judgment in its favor, get a second bite at the apple by way of a new trial or hearing on remand. See, e.g., Asset Mgmt. Holdings, LLC v. Assets Recovery Ctr. Invs., LLC, 238 So.3d 90, 2018 WL 1023916 (Fla. 2d DCA Feb. 23, 2018); Airsman v. Airsman, 179 So.3d 342, 345 (Fla. 2d DCA 2015) ; Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992) (citing In re Forfeiture of 1987 Chevrolet Corvette, 571 So.2d 594, 596 (Fla. 2d DCA 1990) ). This is as it should be: The interests of the parties and the judicial system in finality and in avoiding drawn-out, expensive, piecemeal litigation require that the parties and the courts regard the trial as the brass ring and not as the first step of an odyssey to an eventual result many proceedings away. See Carlough, 609 So.2d at 772 ; Morton's of Chi., Inc. v. Lira, 48 So.3d 76, 79-80 (Fla. 1st DCA 2010). Thus, although we have departed from the rule when a party that won in the trial court was denied a fair opportunity to present its full case during the first trial, see Elder v. Farulla, 768 So.2d 1152, 1155 (Fla. 2d DCA 2000), the default position is that there is no new trial when a party fails to prove its case and we reverse a judgment in its favor on appeal. My own inclination is that the interests served by the rule demand that a party present compelling equitable circumstances to justify a departure from this default position. See Morton's of Chi., 48 So.3d at 80. And I am inclined to adhere to that standard in circumstances where, as here, the party's proof was rendered insufficient by our determination on appeal that the only evidence it offered to prove a controlling point on which it bore the burden of proof was not admissible.

Something different, however, seems to be happening in foreclosure cases. We have been determining whether to grant a new trial according to considerations that either appear alien to those that underlie the general rule or that are not clearly tied to a legal principle we can apply across cases (or both). For example, in cases where we reverse a judgment of foreclosure because a plaintiff failed to adduce legally sufficient evidence proving the amount of the defendant's indebtedness-an element of its claim for foreclosure -our most recent cases hold that a new trial is proper where a plaintiff has introduced "some evidence" of that amount, either admissible or inadmissible, and that involuntary dismissal is required when it has "failed to offer any evidence" of that amount. Paeth v. U.S. Bank Nat'l Ass'n, 220 So.3d 1273, 1275 (Fla. 2d DCA 2017) (emphasis in original) (holding that plaintiff was entitled to a new trial on the amount of indebtedness where it introduced some evidence of the amount, but the evidence was legally insufficient); see also Evans v. HSBC Bank, USA, Nat'l Ass'n, 223 So.3d 1059, 1063-64 (Fla. 2d DCA 2017) (characterizing amount of indebtedness as "damages" and remanding for new trial where plaintiff presented "some" evidence of indebtedness, but the evidence was not admissible). The cases do not, however, explain whether or how this some-evidence-no-evidence test relates to the general rule against allowing new trials when a plaintiff fails to meet its burden of proof, the policies underlying that rule, or any compelling equity that would justify making an exception to it in a particular case. Nor do they explicitly state any principle that limits that test to a foreclosure plaintiff's proof of the amount of indebtedness-as distinguished from, say, standing, default, or compliance with paragraph 22-or, indeed, that limits the test to foreclosure cases at all.

In other decisions, our consideration of whether to remand for a dismissal or a new trial when a foreclosure plaintiff has failed to prove its case appears to have hinged on whether the trial court erroneously admitted some evidence offered by the plaintiff. See, e.g., Heller v. Bank of Am., N.A., 209 So.3d 641, 645 (Fla. 2d DCA 2017) (remanding for new trial where trial court erroneously admitted a copy of a note to prove its contents in violation of the best evidence rule); Sas v. Fed. Nat'l Mortg. Ass'n, 112 So.3d 778, 780 (Fla. 2d DCA 2013) (remanding for new trial where proof of amount due was based on inadmissible evidence the trial court erroneously admitted). These are cases where, as here, had the inadmissible evidence not been admitted, the remaining evidence (if any) would have been insufficient to permit a judgment in the plaintiff's favor. Although we have not explicitly stated what considerations drive the result in those circumstances, allowing a new trial where the trial court has erroneously admitted some of the plaintiff's evidence and the remaining evidence is insufficient might be linked to the notion that the plaintiff was denied a fair opportunity to present its case-i.e., that the trial court's erroneous admission of some of the plaintiff's evidence induced the plaintiff not to present other evidence that would have been admissible and that would have proved the same point.

But if that is the basis for these decisions, we have not said so. Nor have we explained why there should be a categorical distinction between pure sufficiency problems and admissibility problems that lead to sufficiency problems. On the contrary, other cases seem to suggest that determining whether a new trial is necessary in a case involving an admissibility issue that creates a sufficiency problem requires a fact-specific inquiry rather than a categorical rule. See, e.g., Mathis v. Nationstar Mortg., LLC, 227 So.3d 189, 193 (Fla. 2d DCA 2017) (remanding for involuntary dismissal where trial court erroneously allowed witness to testify, over objection, to the contents of an allonge in violation of the best evidence rule and the original was not produced); Holt v. Calchas, LLC, 155 So.3d 499, 507 (Fla. 4th DCA 2015) (remanding for involuntary dismissal where plaintiff's only evidence that a paragraph 22 letter was sent was hearsay that was erroneously admitted over objection); Burdeshaw v. Bank of N.Y. Mellon, 148 So.3d 819, 826-27 (Fla. 1st DCA 2014) (reversing foreclosure judgment based on an evidentiary error and remanding for order of involuntary dismissal where remand for new trial was inappropriate under the facts of the case).

This case provides a good example of why a categorical distinction between pure sufficiency and admissibility cases may not make sense. Here, it is hard to imagine that if the trial court had correctly excluded Ms. Knight's routine practice testimony, EverHome would have been prepared to produce other admissible evidence that the paragraph 22 letter was mailed to the Spencers. It seems obvious that a person without personal knowledge of a party's routine business practice cannot testify as to that practice or parrot the hearsay statements of others to establish it. See §§ 90.604, .802, Fla Stat. Yet Ms. Knight was the only witness EverHome decided to bring to the trial, and her testimony established that she had no knowledge to impart about the mailing of the paragraph 22 letter apart from her inadmissible testimony concerning routine practice. Had the trial court excluded that evidence, to which the Spencers contemporaneously objected, it seems quite certain that EverHome would simply have failed to prove compliance with paragraph 22. And had the trial court rendered a judgment of foreclosure notwithstanding that failure of proof, we would likely remand for an order of involuntary dismissal under the rule that a plaintiff that fails to prove its case does not get a second bite at the apple on remand. Granting a new trial here simply because the trial court admitted some plainly inadmissible testimony does not seem to protect legitimate reliance on a trial court's evidentiary ruling; rather, it seems to reward either (or both) a litigant's insufficient trial preparation or a strategic decision that it might be able to convince a court to admit clearly inadmissible evidence-precisely the kinds of results the general rule against granting a new trial when a party fails to prove its case the first time around is designed to avoid.

In the interest of brevity, I am oversimplifying a bit. There is more to our decisions on the scope of remand in foreclosure cases than this opinion allows. My point, however, is that we are making decisions about when a foreclosure plaintiff gets an involuntary dismissal or a new trial based on considerations that do not bear an obvious relationship to the rule governing the consequences of a party's failure to meet its burden of proof that we apply in cases other than foreclosures and that we may not be able to limit to the foreclosure context on a principled basis. Someday, for instance, a lawyer is going to ask that we apply the some-evidence-no-evidence rule in a garden variety contract or tort case, a result we may well consider unadvisable. At least on the basis of what our opinions say, "that is a foreclosure rule" may be the only answer we are able to give for not extending it. But that answer is not going to be a credible or persuasive one. Speaking for myself, I would be open to examining these issues in an appropriate case as a full court with the object of settling on a general approach that we can apply on a principled basis across cases.

      See Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) (stating that proof of the amount due is necessary to establish entitlement to foreclose); see also Liberty Home Equity Sols., Inc. v. Raulston, 206 So.3d 58, 60 (Fla. 4th DCA 2016) (stating that proof of the amount due is part of a foreclosure plaintiff's prima facie case); Bank of Am., N.A. v. Delgado, 166 So.3d 857, 859 (Fla. 3d DCA 2015) (characterizing the amount of indebtedness as an "element" of the foreclosure plaintiff's case).

      Although it is commonly assumed in the civil context that a new trial is the correct instruction on remand in such cases, I have as yet been unable to locate any decision of ours that so holds. But see Walker v. State, 988 So.2d 6, 10 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (stating in a concurring opinion that this has been a general practice in civil cases), quashed on other grounds by State v. Walker, 992 So.2d 232 (Fla. 2008). As the cases cited in the text demonstrate, there are circumstances in which our court and others have declined to afford a new trial where a foreclosure plaintiff's only evidence on a point was inadmissible, leaving the balance of the evidence legally insufficient. Such circumstances are distinguishable from the more common circumstance in which a party convinces a trial court to admit inadmissible evidence and the resulting error is harmful, notwithstanding the fact that other admissible evidence produced by that party might be sufficient to sustain a judgment in that party's favor. In that situation, we direct a new trial not to protect some interest of the party that offered the inadmissible evidence, but because we cannot say that the admission of that evidence did not affect the outcome of the trial. See, e.g., Soto v. McCulley Marine Servs., Inc., 181 So.3d 1223, 1226 (Fla. 2d DCA 2015) ; Swanson v. Robles, 128 So.3d 915, 919-20 (Fla. 2d DCA 2013).

      My instinct on this may be wrong. Perhaps there is a solid doctrinal reason for categorically regarding pure sufficiency cases differently from cases involving an admissibility problem, or maybe it is just more desirable to have a categorical rule that grants a new trial to avoid having to engage in this inquiry in every case. My main concern, as explained in the text, is that we are not really stating a legal principle that drives the result in these cases.


author: Winsor, J.

text:
    Daniel Heath WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4752
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Rodney W. Smith and Jesse Smith of Avera & Smith, LLP, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Less than an hour after police arrested Daniel Willis for shoplifting, they realized they had the wrong man. But in the meantime, officers searched Willis pursuant to that arrest and found drugs and paraphernalia. That discovery led to drug charges and an allegation that Willis violated his probation. Willis unsuccessfully moved to suppress the evidence, contending the search was unlawful. Willis then pleaded no contest, reserving his right to appeal on the suppression issue. We now reverse.

I.

In December 2015, a shoplifter victimized the Best Buy in Gainesville's Butler Plaza. Some employees saw the perpetrator flee on foot toward the nearby Texas Roadhouse, and others saw a Chevy Silverado leaving the scene. Police soon put out a bulletin for officers to be on the lookout for the truck and a slim white male wearing jeans and a hat. An officer spotted Willis-a slim white male wearing jeans and a hat-in the parking lot outside the Texas Roadhouse. The officer approached Willis, explained that he was a suspect in a criminal investigation, and told him to "hang out and just wait."

While the first officer detained Willis, a second officer responded directly to the Best Buy. Store employees were gathering surveillance video for review, but rather than wait for the video, the second officer drove an eyewitness (a store employee) to the spot where Willis was detained. On the short drive over, the second officer told the witness how the showup identification would work: Reading from a standard form, the second officer said the witness "should not feel [he has] to make an identification" and that "[i]t is just as important to exclude innocent persons from suspicion as it is to identify the suspect." But after reading the standard instructions, the second officer added that "I think this is going to be unusual. There are two people involved and this was the getaway driver, I think."

Willis was standing in front of the first officer's patrol car when the second officer drove up with the witness. Once within sight of Willis, the second officer asked the witness whether Willis was the shoplifter. From the patrol car's back seat, and some eight to ten car lengths away, the witness looked at Willis but hesitated to make a positive identification. He said that although Willis matched the general description, the clothing was not a match. He also explained that Willis's arm tattoo could not help the identification because the shoplifter had been wearing a jacket. The witness did note, though, that Willis had "a ball cap on and ... a shaved face," as did the shoplifter. While the witness continued to contemplate, the second officer asked "yes or no?" The witness said "yes."

As soon as the witness said "yes," the second officer radioed the first officer, relaying that Willis had been positively identified. The second officer then drove off with the witness, and the first officer arrested Willis. When the second officer got back to Best Buy, she learned the security footage was ready for review. Looking at the footage, she immediately realized Willis was not the shoplifter. She then drove back to the Texas Roadhouse parking lot to tell the first officer of the misidentification.

In the short time between Willis's arrest and the realization that they had the wrong man, police searched Willis and found cash, a baggie with cocaine residue, and some cut up straws in his pocket. This discovery prompted a K9 officer, already on the scene, to walk his dog near Willis's nearby truck. After the dog alerted, officers searched the truck and found forty grams of marijuana, several baggies of cocaine, and a scale with marijuana and cocaine residue.

The State charged Willis with possession of drugs and possession with intent to distribute, and Willis moved to suppress all evidence found as a result of the arrest, arguing that the showup identification that set everything in motion was impermissibly suggestive. The court denied that motion.

II.

The Florida Supreme Court has said that "a show-up is inherently suggestive because a witness is presented with only one suspect for identification." Perez v. State , 648 So.2d 715, 719 (Fla. 1995). Nonetheless, evidence from a showup identification is admissible if "despite its suggestive aspects, the out-of-court identification possesses certain features of reliability." Grant v. State , 390 So.2d 341, 343 (Fla. 1980) (citing Manson v. Brathwaite , 432 U.S. 98, 110, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ); accord Perez , 648 So.2d at 719 ("[A] showup is not invalid if it does not give rise to a substantial likelihood of irreparable misidentification given the totality of the circumstances.").

Florida courts apply a two-step test to determine the admissibility of an out-of-court identification: "(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification."

Grant , 390 So.2d at 343 (citing Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ). As to the first step, we conclude the showup process at issue here was unnecessarily suggestive. The second officer's comment-"this was the getaway driver, I think"-suggested that Willis was involved in the crime. See, e.g. , Anderson v. State , 946 So.2d 579, 581 (Fla. 4th DCA 2006) (showup was impermissibly suggestive when perpetrator used screwdriver in robbery and, before showup, police informed witnesses that detained suspect had been carrying a screwdriver); Davis v. State , 683 So.2d 572, 574 (Fla. 4th DCA 1996) (officer's statement that "I think we caught them, but you need to properly identify them" was improperly suggestive) abrogated on other grounds by Diaz v. State , 980 So.2d 1275 (Fla. 4th DCA 2008). As the trial court recognized, the comment was improper and "certainly would bolster someone's willingness to say, yeah, that's the guy I saw."

Turning to the second step, we must consider whether, under the totality of the circumstances, the identification process was reliable despite the unnecessarily suggestive procedure. The State has the burden to prove reliability by clear and convincing evidence. Johnson v. State , 717 So.2d 1057, 1063 (Fla. 1st DCA 1998). Relevant factors for determining the reliability include

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Perez , 648 So.2d at 719 (quoting Biggers , 409 U.S. at 199, 93 S.Ct. 375 ); accord Walton v. State , 208 So.3d 60, 66 (Fla. 2016) (citations omitted) reh'g denied , SC13-1652, 2017 WL 203617 (Fla. Jan. 18, 2017). Applying these factors to the facts of this case, we conclude the State did not meet its burden.

Although the witness saw the shoplifter in the Best Buy, the witness never saw a second suspect or a vehicle. The officer knew this when she took the witness to the Texas Roadhouse for the identification, yet she suggested Willis was a getaway driver. The witness offered no description of the shoplifter before misidentifying Willis, so there is no way to compare any pre-identification description to Willis's actual description. And perhaps most critically, the witness displayed little certainty that Willis was the man he saw. Both the witness and the officer testified that the witness was initially hesitant to make a positive identification. Indeed, after viewing Willis at the showup, the witness's initial observation was that Willis was not wearing a jacket but the shoplifter had been. Cf. Walton , 208 So.3d at 66 ("[W]e conclude that [the witness] did not display a high level of certainty when she identified Walton."). The video from the in-car camera shows that while the witness was contemplating the similarity of the suspect in custody to the suspect he observed, the officer abruptly interjected and asked, "yes or no?" Only after this interjection did the witness positively identify Willis. The officer never asked the witness how confident he was in his identification; instead, she immediately drove off, preventing any further contemplation.

III.

Considering the totality of the circumstances on the particular facts of this case, we conclude the showup identification lacked sufficient indicia of reliability to overcome the unnecessarily suggestive procedure through which it was obtained. The trial court therefore should have suppressed all evidence obtained as a result of the misidentification.

The State acknowledges that without the misidentification, officers would have lacked probable cause to arrest Willis. Without the arrest, officers would have lacked justification to search Willis's person and would not have found paraphernalia in Willis's pocket. And without the paraphernalia, police would not have been prompted to walk their dog around Willis's truck, nor would they have had probable cause to search the truck. We therefore reverse the order denying Willis's motion to suppress. On remand, the trial court should vacate Willis's convictions and reinstate his probation.

REVERSED and REMANDED.

Bilbrey and M.K. Thomas, JJ., concur.

      A "showup identification" is when police take a witness shortly after a crime to the location of a detained suspect, allowing the witness to identify the suspect. Anderson v. State , 946 So.2d 579, 582 (Fla. 4th DCA 2006).

      A camera mounted in the second officer's police car recorded interaction between the officer and the witness. The video was admitted into evidence below and is part of the record on appeal.

      The witness testified at the suppression hearing that when he identified Willis, he worried about the fact that Willis had no jacket because the jacket was what he remembered most about the shoplifter. The witness also testified that he was only "somewhat confident" in his identification, but that he was confident at the time that police knew what they were doing and would not have asked him to make an identification unless they were "pretty sure" that they had detained the right person.

      As the trial court explained, during the time Willis was lawfully detained before the showup, his truck was parked in a public parking lot, so there was nothing stopping officers from conducting a K9 sniff. A positive alert would have provided probable cause to search the truck, and Willis likely would have wound up with the same charges and convictions. But the record shows that the K9 sniff did not occur until after-and only as a direct result of-Willis's arrest and the discovery of drug paraphernalia in his pocket. Suppression of the evidence found in the vehicle is therefore required. See Moody v. State , 842 So.2d 754, 759 (Fla. 2003) (suppression required when an "initial arrest set[s] in motion an unbroken chain of events, which include[s] the discovery of" additional evidence).


author: Per Curiam.

text:
    William George REDMOND, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1790
    District Court of Appeal of Florida, First District.
    April 5, 2018
    Deana K. Marshall, Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Following his four convictions-two for sexual battery, one for assault, and the last for procuring another for prostitution-William Redmond, III, alleged his trial counsel to be ineffective based on three grounds. The trial court denied all three grounds and, on appeal, we affirm.

The victim, working as a prostitute, came to an agreement with Redmond to perform certain sexual activities for a set price. However, it soon became apparent that Redmond had no money. Redmond refused to drop the victim off at her request, and, when she attempted to get out of his vehicle, he snatched her back in by her hair. He then made it clear that he was going to have sex with the victim whether she wanted to or not-and then he did. Redmond dropped the victim off at a bus stop after exchanging phone numbers; he wanted to bring her money another day. Law enforcement tracked the phone number to Redmond, who closely resembled the description given by the victim. He also happened to be in possession of the same vehicle described by the victim. When confronted with outgoing phone calls from his phone to the victim's, Redmond explained that someone likely took his phone in the middle of the night and called the victim, but quickly returned the phone to Redmond before he ever found out it was gone. The victim positively identified Redmond in a photo lineup.

The State presented the testimony of Berenger Chan from the Florida Department of Law Enforcement, who discussed his analysis of several DNA swabs taken from the victim; Chan found DNA of multiple individuals, excluding the victim. Redmond was excluded as a contributor to one sample, included as a possible contributor in several others, and a "match" to one partial DNA profile. A report of Chan's findings, including statistics of the likelihood that DNA found belonged to Redmond, was admitted into evidence without objection by the defense.

Following the trial, the court asked if the parties were prepared to proceed to sentencing. Redmond notified his counsel that some of the prior convictions on the criminal scoresheet were not his, but his brother's, and that he did not want crimes he did not commit to elongate his sentence. Defense counsel notified the trial court of the situation, and the court reset sentencing so the defense could fully investigate Redmond's criminal history. When Redmond returned to court for sentencing, he was served with a notice of intent to seek habitual felony offender sentencing, and subsequently sentenced as a habitual felony offender.

I.

Redmond's postconviction motion alleged that his trial counsel was ineffective for three reasons: 1) she requested a continuance before sentencing, allowing the State time to serve notice of its intent to seek habitual felony offender sentencing; 2) she failed to adequately impeach the victim with prior testimony; and 3) she failed to ensure that Chan was qualified to present DNA evidence. The trial court summarily denied the first two grounds, and we affirm as to these grounds without further comment. The trial court ordered an evidentiary hearing to hear Redmond's final claim.

To demonstrate ineffective assistance of counsel, a defendant must both: 1) overcome the presumption that his trial counsel's performance was not constitutionally deficient, and 2) show prejudice by way of a reasonable probability that the result would have been different absent this deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bright , 200 So.3d 710, 730 (Fla. 2016) ; Rutherford v. State , 727 So.2d 216, 220 (Fla. 1998).

At the hearing, Redmond argued that there was insufficient evidence at trial of Chan's qualifications, including any background working with statistics or genetics, any scientific publications authored, or his experience working with the database used to compute the probability statistics. In short, Redmond argued that he had no idea whether Chan was qualified or not.

The trial prosecutor testified that Redmond's trial counsel had deposed Chan prior to trial, and questioned him extensively on his qualifications and analysis. Because Redmond's counsel was aware of Chan's sufficient experience and qualifications, the prosecutor assumed, she did not make useless pro forma objections, especially as the theory of defense was not identification.

The trial court denied Redmond's claim, finding that he presented no evidence that Chan was unqualified or that any trial objections would have been sustained, and thus, that his trial counsel was ineffective. We agree. In simply arguing that he did not know whether or not Chan was qualified, Redmond proved neither deficiency nor prejudice by his trial counsel.

AFFIRMED.

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


author: MORRIS, Judge.

text:
    Ronnie Tray ATMORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4654
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Howard L. Dimmig, II, Public Defender, and Ronald N. Toward, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Ronnie Tray Atmore appeals his sentence for resisting arrest with violence. Because the records before us do not reflect that the trial court was aware that a ten-year sentence could not be imposed under the Prison Releasee Reoffender (PRR) statute, we reverse.

Resisting arrest with violence is third-degree felony that is punishable by up to five years in prison. See §§ 775.082(3)(e), 843.01, Fla. Stat. (2015). Where the State demonstrates by a preponderance of the evidence that a defendant qualifies to be sentenced as a PRR, the defendant must be sentenced to five years in prison for a third-degree felony. § 775.082(9)(a)(3)(d). A trial court may impose a single sentence pursuant to both the PRR and habitual felony offender (HFO) statutes but the HFO portion of the sentence must be longer than the PRR portion of the sentence. See § 775.082(9)(c) ("Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 [the HFO statute] or any other provision of law."); Grant v. State, 770 So.2d 655, 659 (Fla. 2000) (explaining that the plain language of section 775.082(8)(c), the predecessor to subsection 775.082(9)(c), only permits trial courts to impose an HFO term that is longer than the PRR term and that, therefore, trial courts may not sentence a defendant to an equal sentence under the HFO statute even when it is imposed concurrently with the PRR sentence); see also Wallace v. State, 128 So.3d 139, 140 (Fla. 2d DCA 2013) (explaining that a defendant can receive a concurrent sentence under both the PRR and HFO statutes as long as the HFO portion of the sentence is longer).

The State first suggests that the ten-year sentence in this case is permissible because the HFO statute doubled the maximum sentence of five years, a point we do not dispute. See § 775.084(4)(a)(3), Fla. Stat. (2015) (providing that a court may sentence an HFO to "a term of years not exceeding 10" for a third-degree felony). However, the State then goes on to suggest that the imposition of the ten-year HFO sentence "simultaneously creat[ed] a five-year minimum mandatory sentence under the" PRR statute. But on the record before this court, we cannot make such an assumption.

During the imposition of Atmore's sentence, the trial court stated: "I'll sentence him to 10 years Florida State Prison concurrent with Count I [aggravated battery on a law enforcement officer]. That's as a PRR habitual offender." The trial court did not specify whether the PRR portion of the sentence was only for five years. Had it done so, the sentence would have been permissible. See §§ 775.082(9)(a)(3)(d), 843.01.

The written sentence also fails to offer any clarity as it provides for a ten-year sentence with both the PRR and HFO boxes checked. There is a handwritten nota tion next to the PRR box that the designation applied to both counts, including the sentence now being challenged on appeal, but there is nothing written on the sentence form indicating that the PRR portion was limited to five years. The trial court may have intended for the PRR portion to apply only for the first five years of the ten-year sentence. But the trial court failed to indicate that intention either during the oral pronouncement of sentence or on the written sentence form. And if the trial court did, in fact, intend to impose a ten-year PRR sentence, such a sentence would be illegal as it would exceed the statutory maximum sentence and would be the same length as the HFO sentence.

From the record before us, we cannot assume that the trial court intended to impose a ten-year HFO sentence with a five-year minimum mandatory PRR portion. And the sentence as currently written has the potential to affect sentencing calculations by the Department of Corrections (DOC). Cf. Wallace, 128 So.3d at 140 (holding that twenty-year sentence, which was composed of the first fifteen years designated as the PRR portion followed by a consecutive five-year term designated as the HFO term, was legal but remanding for the trial court to determine what amendment might be permissible to clarify the sentence as it appeared to provide for an HFO term that was shorter than the PRR term and "might affect ... sentencing calculations by the [DOC]"). But see Kimbrough v. State, 776 So.2d 1055, 1057 (Fla. 5th DCA 2001) ("Because we are sure the trial judge realized that [the] PRR [statute] authorizes a maximum sentence of five years for a third[-]degree felony, we assume that he meant that the PRR prohibition against gain time should apply only to the first 60 months of the sentence [for the charge of resisting an officer with violence]." (emphasis added) ). Accordingly, the ten-year sentence imposed pursuant to both the PRR and HFO statutes is reversed. Should the trial court decide to again impose a single sentence pursuant to both the PRR and HFO statutes, it should specify what portion of the sentence is being served as the PRR portion so that it is clear that the HFO portion of the sentence exceeds the length of the PRR portion.

Reversed and remanded for resentencing.

NORTHCUTT and SILBERMAN, JJ., Concur.

      Atmore does not challenge the underlying judgment for this crime, nor does he challenge his judgment and sentence for aggravated battery on a law enforcement officer that were rendered at the same time as the challenged sentence.


author: PER CURIAM.

text:
    Kevin TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4252
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018 Rehearing and Rehearing En Banc Denied May 21, 2018
    Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Kevin Taylor appeals his judgment and sentence for attempted human trafficking for the purpose of exploiting a child through commercial sexual activity and unlawful use of a two-way communication device in furtherance of the commission of a felony. Taylor raises the following arguments: 1) the evidence was insufficient to support a conviction for unlawful use of a two-way communication device in furtherance of a felony; 2) the trial court erred by limiting the cross-examination of a witness; 3) the State made improper comments during closing argument that warrant reversal and a new trial; 4) the trial court erred in imposing costs of investigation; and 5) the judgment failed to state that Taylor was tried by a jury.

We agree that the trial court erred in imposing costs of investigation, as the State did not request them. See Foulkes v. State, 221 So.3d 789, 790 (Fla. 5th DCA 2017). We therefore remand for the trial court to strike these costs from the judgment, noting that the State should be given the opportunity to request the imposition of costs. See McCarthy v. State, 893 So.2d 689, 690 (Fla. 5th DCA 2005).

We also remand for the trial court to correct the scrivener's error in the judgment, which failed to indicate that Taylor was tried by a jury and found guilty. See Harvey v. State, 146 So.3d 66, 66 (Fla. 5th DCA 2014). In all other respects, we affirm without further discussion.

AFFIRMED in part, REVERSED in part, REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.


text:
    Alberto RUIZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2877
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 4, 2018
    James S. Purdy, Public Defender, and Brittany N. O'Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Alberto Ruiz appeals the partial denial of his motion to correct sentence filed under Florida Rule of Criminal Procedure 3.800(a). Ruiz, who was seventeen years old at the time of his offense, entered an open plea to sexual battery and was sentenced to forty years in prison, followed by a lifetime of sex offender probation. In his rule 3.800(a) motion, Ruiz argued that he was entitled to a full resentencing hearing and judicial review of his sentence. The trial court granted Ruiz's motion in part, amending the sentencing documents to allow for a juvenile sentence review hearing, but denying Ruiz a new resentencing hearing.

In Davis v. State, 230 So.3d 487 (Fla. 5th DCA 2017), this Court held that the trial court erred when it modified a juvenile defendant's sentence to allow for a review hearing without also holding a resentencing hearing under sections 775.082, 921.1401 and 921.1402, Florida Statutes (2014). Accord Katwaroo v. State, 237 So.3d 446 (Fla. 5th DCA 2018) (stating same). Ruiz's situation is identical. Accordingly, we affirm the trial court's order amending the sentence to provide for a review hearing, but reverse and remand to allow the court to conduct a full resentencing hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J. and ORFINGER, J., concur.

BERGER, J., concurring specially with opinion.

Berger, J., concurring specially.

I concur based on this Court's decision in Davis v. State, 230 So.3d 487, 488 (Fla. 5th DCA 2017). However, were I writing on a clean slate, I would affirm. In my view, Ruiz is not entitled to resentencing under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), or Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because his forty-year sentence is not a de facto life sentence. See Davis v. State, 214 So.3d 799, 799-800 (Fla. 1st DCA 2017).

      Although Ruiz filed his motion under rule 3.850, the trial court correctly considered it under rule 3.800(a).


text:
    Jimmie Edward KEENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1048
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 8, 2018
    Ryan Thomas Truskoski, Special Assistant, and Jeffrey Deen, Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See McMullen v. State , 714 So.2d 368 (Fla. 1998) ; Pietri v. State , 935 So.2d 85 (Fla. 5th DCA 2006).

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Kyle EUSTACE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2465
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 4, 2018
    Paula C. Coffman and Jeffrey D. Deen, of Office of Criminal Conflict & Civil Regional Counsel, Orlando, and Lori D. Loftis, Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm but remand for correction of a scrivener's error. See Daniels v. State , 200 So.3d 195, 196 (Fla. 5th DCA 2016). The trial court orally dismissed the condition (9) violation but the written order states otherwise. Accordingly, we remand this cause for correction of the order.

AFFIRMED AND REMANDED.

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


text:
    Charles B. RIMMER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3718
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Charles B. Rimmer, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court's order summarily denying the defendant's Motion for Correction of Jail Credit. See Fla. R. Crim. P. 3.801. However, we remand for the trial court to correct a scrivener's error in the judgment and sentence in case number 2015-CF-52882, inasmuch as they incorrectly award 368, instead of 378, days of jail credit.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERROR.

COHEN, C.J., PALMER and LAMBERT, JJ., concur.


text:
    Patrick MAXWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3624
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    Mary E. Fitzgibbons, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Patrick Maxwell appeals the summary denial of Ground Two of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Maxwell's claim that counsel was ineffective for failing to request an independent act jury instruction, we reverse the summary denial of Ground Two and remand for attachment of portions of the record conclusively refuting that claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000)

("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

REVERSED and REMANDED.

EVANDER, BERGER and EISNAUGLE, JJ., concur.


text:
    Stephon DOBY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1025
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 18, 2018
    Rachael E. Reese, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 29, 2016 judgments and sentences rendered in Case Nos. 2015-CF-102862 and 2015-CF-103089, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA and PALMER, JJ., concur.


text:
    Darryl B. HILL, Petitioner, v. Iris Elizabeth HILL and Ponte Vedra Animal Hospital, Inc., Respondents.
    Case No. 5D18-1192
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 17, 2018
    Erin R. Whitmore and Joshua R. La Bouef, of Brennan Manna Diamond, Jacksonville, for Petitioner.
    Iris Elizabeth Hill, Palm Coast, pro se.
    No Appearance for Other Respondent.
   PER CURIAM.

Darryl Hill petitions this court for a writ of prohibition, challenging the denial of his timely motion to disqualify the trial judge presiding over the below proceedings. After a review of the record, including the transcript from the hearing described in Hill's motion to disqualify, we conclude that comments made by the judge at that hearing "were sufficient to put a reasonably prudent person in well-founded fear of not receiving a fair or impartial hearing or trial." State v. Gresham , 214 So.3d 780, 781 (Fla. 5th DCA 2017) (citing Shuler v. Green Mountain Ventures, Inc. , 791 So.2d 1213, 1215 (Fla. 5th DCA 2001) (holding that fear of judicial bias giving rise to disqualification motion must be objectively reasonable) ). Accordingly, we grant the petition and issue the writ of prohibition.

PETITION GRANTED.

COHEN, C.J., and LAMBERT, J., concur.

TORPY, J., dissents without opinion.


text:
    Cindy SWANICK, Individually and as Personal Representative of Gwendolyn Harvey-Hamp, Appellant, v. Patrick LORISH, Appellee.
    Case No. 5D17-571
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Cindy Swanick, Ocala, pro se.
    Lorenzo Ramunno, of Ramunno Law Firm, P.A., Ocala, for Appellee.
   PER CURIAM.

Cindy Swanick, individually and as personal representative for Gwendolyn Harvey-Hamp, appeals an order granting a motion to strike filed by Lorenzo Ramunno, Esq., Swanick's former attorney, in Swanick's mother's probate case. We reverse the portion of the order that prohibits Swanick or her agents from disseminating, publishing or communicating, in any form whatsoever, contents of the probate case and all related matters because the trial court failed to conduct a proper constitutional inquiry. See Fox v. Hamptons at Metrowest Condo. Ass'n, 223 So.3d 453 (Fla. 5th DCA 2017). The order is affirmed in all other respects.

AFFIRMED in part; REVERSED in part.

ORFINGER, BERGER and WALLIS, JJ., concur.

      Our opinion does not affect the temporary injunction in place in Marion County case number 42-2017-CA-418.


text:
    SAWGRASS MUTUAL INSURANCE COMPANY, Appellant, v. Terry MONE and Diane Mone, Appellees.
    Case No. 5D15-3061
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 18, 2018
    Jack R. Reiter and Robert D. Peters, of GrayRobinson, P.A., Miami, for Appellant.
    Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm, Longwood, for Appellees.
    UPON REMAND FROM THE FLORIDA SUPREME COURT
   PER CURIAM.

Our prior opinion of September 2, 2016, was disapproved by the Florida Supreme Court "to the extent it is inconsistent with [the Florida Supreme] Court's opinion in Joyce v. Federated Nat'l Ins. Co. , 228 So.3d 1122 (Fla. 2017)," and the case was remanded to this court "for instructions not inconsistent with th[e] Court's opinion in Joyce ." See Mone v. Sawgrass Mut. Ins. Co. , 43 Fla. L. Weekly S185, 2018 WL 1895708 (Fla. Apr. 20, 2018). Upon reconsideration, we affirm the final judgment awarding attorney's fees, including the trial court's application of a multiplier to the attorney's fees award. Based upon Appellees' prior concession of error, we reverse the award of $26,918.43 in court costs regarding the services provided by two of Appellees' expert witnesses, Nettles & Associates and Reliable Field Services of Central Florida, Inc. On remand, the trial court is directed to strike this amount from the final judgment.

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

COHEN, C.J., LAMBERT, J., and LEMONIDIS, R.C., Associate Judge, concur.


author: PER CURIAM

text:
    IN RE: Raushanah Shakia HUNTER
    NO. 2018-B-0341
    Supreme Court of Louisiana.
    May 18, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Raushanah Shakia Hunter, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

Count I-The Bell Matter

By way of background, Haneefah Solomon Bell and her minor daughter allegedly developed significant health problems because their apartment complex failed to properly maintain, clean, and remediate a mold infestation. Ms. Bell secured the services of an environmental consulting firm who tested the apartment complex for toxic material and mold and provided Ms. Bell with a report dated November 9, 2012.

In November 2013, Ms. Bell hired respondent to handle the personal injury claim arising out of the mold contamination of the apartment complex, at which time she provided respondent with a copy of the November 9, 2012 mold report. Ms. Bell also indicated that respondent agreed to represent her and her daughter and file a lawsuit on their behalf. Ms. Bell further indicated that respondent advised her the fee arrangement was "no fee until case was settled." According to Ms. Bell, she did not sign a written contingency fee agreement, and respondent did not provide her with a copy of any such agreement.

On November 12, 2013, respondent filed a petition for damages on behalf of Ms. Bell and her daughter. On October 10, 2014, the defendant filed a motion for summary judgment. The motion was set for hearing on February 23, 2015. Respondent did not appear for the hearing and did not file any pleadings in opposition to the motion. Accordingly, the judge granted the defendant's motion, and the case was dismissed. Respondent failed to inform Ms. Bell of the dismissal.

In September 2015, following respondent's repeated failures to provide Ms. Bell with requested status updates, Ms. Bell sought the advice of another attorney, who advised Ms. Bell that her case had been dismissed due to respondent's failure to file an opposition to the motion for summary judgment or appear at the related hearing. Thereafter, Ms. Bell attempted to contact respondent via telephone, via text messages, and by stopping by respondent's office and home. None of these efforts were successful. In one instance, respondent answered Ms. Bell's telephone call but pretended Ms. Bell had the wrong number.

In October 2015, Ms. Bell filed a disciplinary complaint against respondent, indicating that her numerous attempts to obtain her file materials, including the November 9, 2012 mold report, from respondent had been unsuccessful. Respondent failed to claim the notice of the complaint sent via certified mail, necessitating the issuance of a subpoena to obtain her sworn statement. On December 1, 2015, respondent appeared for her sworn statement with a written response to the complaint. However, she failed to provide the ODC with Ms. Bell's file, despite being instructed to do so on the subpoena.

During the sworn statement, the ODC instructed respondent to immediately return to Ms. Bell all file materials Ms. Bell had provided to her. The ODC also instructed respondent to advise Ms. Bell in writing that she had committed malpractice, that she now had a conflict of interest because of the potential malpractice claim, and that Ms. Bell should consult with independent counsel of her own choosing. Respondent failed to follow any of these instructions.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7 (conflict of interest), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II-The Jones Matter

In June 2013, Ernest Jones hired respondent to represent him in a work place discrimination and harassment lawsuit against his former employer, the Louisiana Department of Revenue ("LDR"). Mr. Jones paid respondent an advanced attorney fee of $600 and an additional $520 for filing fees.

On August 1, 2013, respondent filed the lawsuit against the LDR on Mr. Jones' behalf. After Mr. Jones provided his deposition, the LDR filed a motion for summary judgment. Respondent failed to respond to the motion or attend the related hearing on June 16, 2014. Accordingly, the judge granted the motion, and Mr. Jones' lawsuit was dismissed.

In January 2016, Mr. Jones filed a disciplinary complaint against respondent, indicating that he had been unable to contact or meet with respondent since May 2014, despite his numerous attempts. Respondent received notice of the complaint via certified mail but failed to respond, necessitating the issuance of a subpoena to obtain her sworn statement.

Respondent appeared for the sworn statement on March 22, 2016 but failed to bring a copy of Mr. Jones' file as requested on the subpoena. During the sworn statement, respondent acknowledged receiving the complaint but provided no explanation for her failure to respond to the complaint in writing. She also acknowledged that she failed to appear at the hearing on the motion for summary judgment. When asked if she had returned all of Mr. Jones' file materials to him with instructions to secure independent counsel as a result of her malpractice, respondent indicated that she had failed to do so.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.7, 8.1(c), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In November 2016, the ODC filed formal charges, as set forth above, against respondent. Respondent answered the formal charges, and the matter was set for a formal hearing before the hearing committee. Prior to the hearing, respondent and the ODC submitted a document styled "Stipulations by Respondent," wherein she stipulated as follows: "The Respondent has reviewed and hereby stipulates to all of the factual allegations set forth within the Formal Charges as well as the Rules of Professional Conduct violations set forth therein." The document also stated that the formal hearing on the merits would be converted to a hearing on mitigation only.

Mitigation Hearing

The hearing committee conducted the mitigation hearing on April 25, 2017. The ODC introduced documentary evidence and called Ms. Bell and Mr. Jones to testify before the committee. Respondent did not introduce any documentary evidence but did call five character witnesses to testify before the committee. She also testified on her own behalf and on cross-examination by the ODC.

During her testimony, respondent indicated that she began working as a law clerk/research assistant for another attorney in August 2010. She did not file any pleadings while working in this position and continued in this position until December 2012. She also worked for the B.P. Claims Administrator, researching and reviewing B.P. oil spill claims. She worked under supervision in this position and did not draft or file pleadings or make court appearances.

Respondent further testified that she started her own law office in January 2013, practicing primarily criminal and family law. She indicated that the Bell and Jones cases were the first two civil cases she accepted. She also indicated that, since January 2017, she has worked at Southeast Louisiana Legal Services and that her supervising attorney there is willing to mentor her. Respondent is also closing out the last fifteen to twenty cases left from her private practice.

She expressed remorse and took full responsibility for her failure to properly calendar the hearing dates for the motions for summary judgment and for her failure to properly communicate with her clients. Regarding her failure to follow the ODC's instructions to contact both Ms. Bell and Mr. Jones to inform them of their possible malpractice claim against her, she indicated that she was afraid her contact would be construed by them as an attempt to coerce them to withdraw their disciplinary complaints against her. Respondent further testified that she still has not returned her clients' files to them.

Respondent also genuinely expressed hope that she could receive professional assistance from the Louisiana State Bar Association ("LSBA") and from other attorneys. She described the disciplinary process as a wake-up call and sees monitoring and supervision by a mentoring attorney as mandatory. She further testified that she is willing to pay restitution to her clients.

Finally, respondent described changes she has made in her office procedures. These changes include keeping digital and hard copy calendars, sending copies of pleadings to clients, providing a place for clients to sign signifying they have received copies of documents, writing notes while the information is fresh in her memory after each telephone call, and sending follow-up emails following telephone calls with clients.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee found that respondent stipulated to all of the factual allegations and rule violations as set forth in the formal charges. Based on respondent's stipulation and other evidence in the record, the committee made the following determinations:

The evidence that was presented to the Hearing Committee demonstrated in a clear and convincing fashion that the Respondent has clearly violated Rule 1.3 by neglecting in each instance the matters entrusted to her and allowing motion for summary judgments to go unchallenged without even an appearance on behalf of her clients in each instance. She failed in her duty to communicate with her clients in a reasonable fashion in violation of Rule 1.4. Recognizing that her lack of diligence on behalf of her clients had allowed (in each instance) for their cases to be harmed, the Respondent had an affirmative duty to communicate that information to each client along with an explanation that her lack of care may well give rise to a cause of action against her for legal malpractice. Obviously at this juncture she had a conflict of interest with her client which she was duty bound to disclose but which she failed to do in each instance. The Respondent's failures in this regard shift this matter from a "mere malpractice" set of instances to ones warranting the imposition of discipline.
The Respondent also failed on multiple occasions to comply with her ethical obligations of cooperating with the Office of Disciplinary Counsel. She failed consistently to respond to complaints when filed against her; failed to bring with her subpoenaed materials including client files in each instance; and then when instructed by the Office of Disciplinary Counsel to take appropriate remedial efforts to notify the clients of the developments, return files, and to direct them to secure independent counsel, she once again failed to do so.

The committee then determined that respondent knowingly violated duties owed to her clients, which caused actual harm to her clients' causes of action and may have damaged their opportunity to seek appropriate redress through appellate relief or through the pursuit of a legal malpractice claim. The committee also determined that the baseline sanction is suspension based on the case of In re: Bullock , 16-0075 (La. 3/24/16), 187 So.3d 986, wherein an attorney was suspended from the practice of law for one year and one day, with all but six months deferred, for neglecting her client's legal matter to the point that the claim prescribed, failing to communicate with her client and timely disclose her malpractice, and misleading her client regarding the status of the case.

Regarding aggravating and mitigating factors, the committee noted the ODC stipulated that respondent has a reputation for good character and that she is inexperienced in the practice of law (admitted 2011). Additionally, the committee stated:

Further, as of the hearing, Respondent had not contacted complainants, returned their files, or attempted restitution. All of those unacceptable, unprofessional, harmful and damaging behaviors fly in the face of Respondent's reputation for good character and the first-hand observations of Respondent's character witnesses who presented as credible... Further, the Hearing Committee observed Respondent to be a very sympathetic Respondent with few resources. She presented as truly remorseful, taking full responsibility for her actions, and seeking help she knows she needs to practice in a professional manner. This Respondent does not present as someone who is manipulative; rather, this Respondent presents as a person who is devastated over the harm she has caused. This Respondent also presents as someone who wants to fix the problem now, but she knows realistically that she had no malpractice insurance and no significant income, relying only on the job she has now with Southeast [Louisiana Legal Services] and possibly fees from closing out a handful of cases. This Respondent expects to be disciplined... and is hopeful that she will be able to receive assistance from the LSBA. This Respondent did not present as a belligerent Respondent. Respondent's inexperience at the time may be the root of some of the mistakes that were made. While Respondent has no prior disciplinary record, Respondent had not been an attorney long for the opportunity to develop a disciplinary record.

In light of the above findings, the committee recommended respondent be suspended from the practice of law for one year and one day, with all but four months deferred, followed by two years of supervised probation with the following conditions:

1. Respondent shall attend the LSBA's Ethics School;
2. Respondent shall register for and provide certification of completion of the LSBA's Client Assistance Foundation or The Practice Assistance Foundation for a law office practice management tutorial geared to her practice and needs and to design a practice system to ensure she has the basic structures that she needs;
3. Respondent shall make restitution to Mr. Jones of the $600 he paid in attorney fees and $520 he paid for court costs;
4. Respondent shall make restitution to Ms. Bell for the cost of the mold report and any reasonable expenses Ms. Bell incurred from hiring another attorney to investigate the status of her case; and
5. If respondent returns to the private practice of law in a solo setting during the probationary period, then Respondent shall work under the supervision of another attorney.

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

Disciplinary Board Recommendation

After review, the disciplinary board accepted respondent's stipulations to the factual allegations and the violations of the Rules of Professional Conduct set forth in the formal charges. The board also determined that the hearing committee's additional factual findings are supported by the record and do not appear to be manifestly erroneous.

The board then determined respondent violated duties owed to her clients. Initially, respondent's conduct was negligent, but her subsequent failure to communicate with her clients was knowing and intentional. Her conduct caused actual harm to her clients' causes of action. Additionally, the board determined respondent violated a duty owed to the legal profession by failing to cooperate with the ODC in its investigations. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension.

In aggravation, the board found multiple offenses and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the board found the absence of a prior disciplinary record, inexperience in the practice of law (admitted 2011), and remorse. Additionally in mitigation, the board agreed with the committee that respondent genuinely desires assistance with her law practice and has already made positive practice changes.

After also considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but four months deferred, followed by two years of supervised probation with the following conditions:

1. Respondent shall attend the LSBA's Ethics School;
2. Respondent shall accept the appointment of a mentor or practice monitor;
3. Respondent shall seek the help of the LSBA's Practice Assistance programs with regard to calendaring and client communication;
4. Respondent shall provide restitution to Mr. Jones by reimbursing the $600 in attorney's fees and $520 in court costs;
5. Respondent shall provide restitution to Ms. Bell for the cost of the mold report and any reasonable expenses Ms. Bell incurred from hiring another attorney to investigate the status of her case; and
6. Respondent shall practice under the supervision of another attorney during the probationary period.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

In this matter, the formal charges essentially allege that respondent neglected two legal matters, failed to communicate with two clients, and failed to cooperate with the ODC in two investigations. Respondent subsequently stipulated to the truthfulness of these facts. She also stipulated to the alleged violations of the Rules of Professional Conduct as set forth in the formal charges. Therefore, the only issue remaining for our consideration is the appropriate sanction for respondent's admitted misconduct.

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

The record supports a finding that respondent negligently and knowingly violated duties owed to her clients and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is suspension. Aggravating factors include a pattern of misconduct and multiple offenses. Mitigating factors include the absence of a prior disciplinary record, inexperience in the practice of law, character or reputation, and remorse. We also note that respondent has expressed a genuine desire for assistance from the LSBA and other attorneys to learn how to properly manage her practice of law and has already made positive changes to her office procedures.

In light of the above, we find the disciplinary board's recommended sanction will protect the public yet will not be overly punitive for this inexperienced and remorseful respondent. Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for one year and one day, with all but four months deferred, followed by two years of supervised probation with the conditions set forth in the board's report.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Raushanah Shakia Hunter, Louisiana Bar Roll number 34227, be and she hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that all but four months of this suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for a period of two years, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. 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.

CRICHTON, J., dissents in part and assigns reasons.

GENOVESE, J., dissents in part for the reasons assigned by Justice Crichton.

CRICHTON, J., dissents in part and assigns reasons:

Although I agree with the per curiam's finding that respondent has violated the Rules of Professional Conduct as charged, I disagree with the sanction imposed as I find it unduly lenient. In my view, respondent's behavior towards clients and her willful disregard for the disciplinary process is troublesome at best. While I commend her statements of remorse, they belie her reluctance to make any restitution in the modest amount of $1,100 during a three-year period. Respondent has also yet to return any of the files requested by her clients, despite a subpoena and repeated requests by ODC. Furthermore, the incident in which respondent told a client who telephoned her that she had the "wrong number" is revealing of the extent taken to evade her responsibility to stand accountable to her clients. As a result, I find a full one year and one day suspension, with no time deferred, is warranted in this matter. See In re Jalila Bullock , 16-B-0075, p. 2 (La. 3/24/16), 187 So.3d 986, 993-4 (Crichton, J., dissenting, finding imposition of one year and one day (with all but six months deferred) too lenient, where respondent neglected client's legal matter involving claim for wrongful death of a child, allowed it to prescribe, and engaged in a cover-up).

GENOVESE, J., dissents in part for the reasons assigned by Justice Crichton.


text:
    STATE of Louisiana v. Wayne BANKS
    2018-KK-516
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE 24th JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON
    Writ denied.
   Hughes, J., would deny on the showing made.

GENOVESE, J., would grant in part.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Shannon Marie BRITE
    No. 2017-K-1406
    Supreme Court of Louisiana.
    May 18, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ST. TAMMANY
    Writ denied.
   GUIDRY, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

I would grant this writ for the reasons assigned by Chief Judge Whipple in her dissent in the court of appeal. The trial court apparently accepted the critical testimony of the law enforcement officers demonstrating that the initial "knock and talk" quickly evolved into credible concerns of destruction of evidence. Given the great deference provided trial court rulings on motions to suppress, I would reverse the court of appeal's decision and reinstate the trial court's judgment.


text:
    IN RE: David G. ARCENEAUX
    NO. 2018-OB-0696
    Supreme Court of Louisiana.
    May 18, 2018
    ORDER
   Considering the Petition for Transfer to Active Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that David G. Arceneaux, Louisiana Bar Roll number 31020, be and he hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G), subject to the condition that he must fully and completely adhere to all terms of his August 13, 2015 recovery agreement with the Judges and Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Judges and Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent's compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

This order shall be effective immediately.


text:
    STATE of Louisiana v. Steven Anthony WALCOTT, Jr.
    2018-KH-752
    Supreme Court of Louisiana.
    May 18, 2018
   Hughes, J., concurs in the denial of the writ.

I concur because a sanity hearing is scheduled for May 23rd. But further continuances are going to be a problem.


author: PER CURIAM:

text:
    Shawn SMITH v. STATE of Louisiana
    No. 2017-KP-0604
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claims, relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Robert GUIDRY v. STATE of Louisiana
    No. 2017-KH-0575
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Joseph GARDNER v. STATE of Louisiana
    No. 2017-KH-0574
    Supreme Court of Louisiana.
    May 18, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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