author: EISNAUGLE, J.

text:
    Tyrone NABBIE, Appellant, v. ORLANDO OUTLET OWNER, LLC, Preferred Choice Restaurants, LLC, and Jesse Enterprises II, LLC, Appellees.
    Case No. 5D16-1146
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Wayne C. Golding, Sr., of The Golding Law Group, PLC., Orlando, for Appellant.
    Robert Bruce McCausland, of McKenna, McCausland & Murphy, P.A., Ft. Lauderdale, for Appellee Orlando Outlet Owner, LLC.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellees Preferred Choice Restaurants, LLC and Jesse Enterprises II, LLC.
   EISNAUGLE, J.

Appellant Guarantor, Tyrone Nabbie, ("Guarantor") appeals a final judgment against him, contending that the trial court erred when it entered partial summary judgment in favor of Appellee Landlord, Orlando Outlet Owner, LLC, ("Landlord") holding that demand for payment was not a condition precedent to his performance as a guarantor. We agree and do not reach the other issues on appeal.

Guarantor entered into a written guaranty agreement (the "Agreement") with Landlord promising to pay any amounts due and owing under a lease if the tenant to the lease should default. Paragraph A of the Agreement provides that Guarantor, upon default of the tenant,

shall on demand of Landlord fully and promptly pay all Rental and other sums, costs, and charges to be paid by Tenant, and perform all the other covenants, and obligations to be performed by Tenant, under or pursuant to the Lease, and in addition shall, on Landlord's demand, pay to Landlord any and all sums due to Landlord under or pursuant to the terms of the Lease.

(Emphasis added). Paragraph B, however, further provides:

The Guarantor [Appellant] unconditionally waives ... (b)(i) presentment, demand for payment of any sum due from the Tenant or any person who has guaranteed in whole or in part any of the obligations guaranteed hereby , notice of dishonor, protest, protest and demand, notice or [sic] protest, and notice of nonpayment; (ii) notice of default by the Tenant or any person who has guaranteed in whole or in part any of the obligations guaranteed hereby; (iii) demand for performance by the Tenant or any person who has guaranteed in whole or in part any of the obligations guaranteed hereby ....

(Emphasis added).

After an uncured default by the tenant, Landlord filed suit against Guarantor, seeking to recover under the Agreement. Guarantor answered the complaint, asserting as an affirmative defense that Landlord never made a demand for payment under Paragraph A of the Agreement, and therefore, failed to comply with a condition precedent. Landlord moved for partial summary judgment on this issue, arguing that Paragraph B of the Agreement waived any right Guarantor had to receive a demand for payment as a matter of law. The trial court granted the motion and entered a partial summary judgment. The case then proceeded to a bench trial on the remaining issues, which resulted in a final judgment of $307,000 and an award of attorney's fees against Guarantor.

Although the parties advance diametrically opposed interpretations of the provisions at issue, they both assert that the Agreement is clear and unambiguous. Guarantor argues that Paragraphs A and B can be read together, and that Paragraph A requires a demand for payment from Guarantor before he is required to perform, while Paragraph B only waives demands directed to others such as the tenant and other guarantors. Landlord, on the other hand, argues that Paragraph B unambiguously waives any demand directed to Guarantor. Notably, Landlord does not offer any meaning for Paragraph A.

Summary judgment is proper where the movant conclusively demonstrates the absence of any genuine issue of material fact, a matter this court reviews de novo. Laurencio v. Deutsche Bank Nat'l Tr. Co., 65 So.3d 1190, 1192 (Fla. 2d DCA 2011). For a plaintiff "to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses." Howdeshell v. First Nat'l Bank of Clearwater, 369 So.2d 432, 433 (Fla. 2d DCA 1979). This court reviews the interpretation of a guaranty, like all contracts, de novo. Jackson v. Shakespeare Found., Inc. , 108 So.3d 587, 593 (Fla. 2013).

We hold that the demand requirement in Paragraph A is a condition precedent to suit. "A contract of guaranty may be absolute or it may be conditional." Rooks v. Shader, 384 So.2d 681, 683 (Fla. 5th DCA 1980). In the absence of limiting terms like "if," "provided that," or "on condition that," "whether a certain contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties." Reilly v. Reilly , 94 So.3d 693, 697 (Fla. 4th DCA 2012) (citing Chipman v. Chipman , 975 So.2d 603, 607 (Fla. 4th DCA 2008) ). When a guaranty makes payment premised upon a demand, the demand is a condition precedent. See Givans v. Ford Motor Credit Co. , 82 So.3d 864, 865 (Fla. 4th DCA 2011). In this case, the Agreement unequivocally requires that Guarantor shall make payment "on demand" of Landlord. We find this language entirely unambiguous, and given the nature of the Agreement, we conclude that demand for payment was a condition precedent to Guarantor's performance.

Nevertheless, Landlord points to Paragraph B, arguing that any demand for payment from Guarantor was expressly waived. Guarantor, on the other hand, asserts that Paragraph B should be read to apply only to parties other than himself-like the tenant and other guarantors.

While the Agreement could have been more carefully crafted, we conclude that Paragraphs A and B are unambiguous when read together, and both can be given meaning. "When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties' intent." Heiny v. Heiny , 113 So.3d 897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann , 25 So.3d 27, 29 (Fla. 2d DCA 2009) ). In so doing, "courts must not read a single term or group of words in isolation." Am. K-9 Detection Servs., Inc. v. Cicero , 100 So.3d 236, 238-39 (Fla. 5th DCA 2012) (citing Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002) ). Instead, we will "arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose." Id. (quoting Delissio , 821 So.2d at 353 ). To that end, "[w]hen provisions in a contract appear to be in conflict, they should be construed so as to be reconciled, if possible." Seabreeze Rest., Inc. v. Paumgardhen , 639 So.2d 69, 71 (Fla. 2d DCA 1994) (citing Arthur Rutenberg Corp. v. Pasin , 506 So.2d 33 (Fla. 4th DCA 1987) ). "An interpretation of a contract which gives a reasonable, lawful and effective meaning to all of the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or of no effect." Id. (quoting Herian v. Se. Bank, N.A. , 564 So.2d 213, 214 (Fla. 4th DCA 1990) ). Furthermore, a contract's "language is ambiguous only if it is susceptible to more than one reasonable interpretation."

Vyfvinkel v. Vyfvinkel , 135 So.3d 384, 385 (Fla. 5th DCA 2014) (quoting BKD Twenty-One Mgmt. Co. v. Delsordo, 127 So.3d 527, 530 (Fla. 4th DCA 2012) ). "A true ambiguity does not exist [in a contract] merely because [the] contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible." Id.

We find that a plain reading of Paragraph B provides that Guarantor waived any requirement that Landlord demand payment from others, including the tenant and other guarantors, but that it does not waive the demand for payment required in Paragraph A for several reasons. First, the Agreement routinely refers to Guarantor as "the undersigned" or "Guarantor." And although Paragraph B uses the defined term "Tenant," the defined term "Guarantor" is notably absent in the disputed portion of the provision. Landlord essentially argues that the phrase "any person who has guaranteed in whole or in part any of the obligations guaranteed hereby" is synonymous with "the undersigned" or "Guarantor." We, however, cannot endorse such a tenuous reading of the Agreement, especially given the parties' routine use of defined terms when referring to Guarantor. Second, the context of the provision lends itself to Guarantor's interpretation that it applies to demands and notices between Landlord and third parties, because many of the surrounding terms could not reasonably apply to Guarantor.

Third, and perhaps most importantly, if there were any doubt here, we find that Landlord's interpretation of Paragraph B would render Paragraph A's demand requirement superfluous. Indeed, Landlord has offered no interpretation for Paragraph A at all-let alone one that gives meaning to both provisions. We will not adopt such an interpretation when there is an obvious and better reading which has the added benefit of providing meaning to every term of the contract. We therefore reverse the partial summary judgment on Guarantor's affirmative defenses, and as a result, we also reverse the subsequently rendered final judgment and attorney's fee award.

REVERSED and REMANDED.

PALMER and WALLIS, JJ., concur.

      For instance, it would be illogical for Guarantor to waive notice of his own dishonor, protest, or nonpayment. And of course, the disputed provision within Paragraph B itself suggests application to third parties given its express reference to "Tenant."


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alexander C. BROOKS, Jr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3684
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Alexander C. Brooks, Jr., Sanderson, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, 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 July 19, 2017 judgments and sentences in Case No. 2016-CF-002169-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, WALLIS and BERGER, JJ., concur.


text:
    Steven KELLER, Appellant, v. Olin RAMSEYER o/b/o A.R. and B.R., Minors, Appellee.
    Case No. 5D17-635, 5D17-639
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018 Rehearing Denied February 28, 2018
    Patrick M. Megaro, Robert L. Hughes and Joseph G. Easton, of Halscott Megaro, P.A., Orlando, for Appellant.
    David A. Baker and Mark A. Cavins, of The Law Office of David A. Baker, P.A., Rockledge, for Appellee.
   PER CURIAM.

In this consolidated appeal, Appellant (the stepfather of the alleged minor victims) challenges final judgments of injunction for protection against sexual violence filed by Appellee (the father of the alleged minor victims). Although the children denied the allegations during the videotaped interview with the Child Protection Team and there were no eyewitnesses to the alleged abuse, the trial judge granted the injunction primarily based on Appellee's testimony about what his children allegedly told him. Appellant's threshold claim of error relates to the admissibility of this testimony under section 90.803(23), Florida Statutes (2017). We need not address this evidentiary issue here because we conclude that Appellant's other claim of error based on section 784.046(4)(a), Florida Statutes (2017), is dispositive. In this case, there were no eyewitnesses, affidavits from eyewitnesses, or direct physical evidence of the alleged abuse to support the allegations.

Accordingly, there was a lack of substantial, competent evidence to support the injunction. See T.B. v. R.B. (In re A.B.) , 186 So.3d 544 (Fla. 2d DCA 2015) (holding that mother failed to meet requirements of section 784.046(4)(a) for obtaining injunction against father where she was not eyewitness to alleged acts and failed to introduce physical evidence or affidavit from eyewitness to alleged acts). The final judgments are reversed.

REVERSED.

TORPY, BERGER and EDWARDS, JJ., concur.


text:
    James LAPINSKI and Patricia Lapinski, Appellants, v. GREEN TREE SERVICING, LLC, Green Emerald Homes, LLC, Alexandria Pointe Homeowners Association, Inc., Appellees.
    Case No. 5D17-445
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018 Rehearing Denied February 27, 2018
    James Lapinski and Patricia Lapinski, Port Orange, pro se.
    Christopher R. Evans and Douglas R. Sargent, of Locke Lord LLP, West Palm Beach, and Charles P. Gufford, of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee, Green Tree Servicing, LLC.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Green Emerald Homes, LLC.
    No Appearance for Other Appellee.
   PER CURIAM.

We affirm the summary final judgment of foreclosure entered in favor of Appellee, Green Tree Servicing, LLC, without further discussion, except that we strike from paragraph ten of the judgment any reference to the trial court later entering a deficiency judgment against Appellants. Appellee agreed to waive the right to pursue any deficiency claim against Appellants as part of their settlement to resolve the case below.

FINAL JUDGMENT AFFIRMED, AS MODIFIED.

EVANDER, LAMBERT and EISNAUGLE, JJ., concur.


author: Lewis, J.

text:
    Jeffrey R. NOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2122
    District Court of Appeal of Florida, First District.
    February 9, 2018 Rehearing Denied March 7, 2018
    Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Lewis, J.

Appellant, Jeffrey R. Nolley, appeals his convictions and sentences for trafficking in methamphetamine, unlawful possession of pseudoephedrine, possession of cannabis, and possession of drug paraphernalia and raises three issues, only two of which merit discussion. Appellant argues that the trial court erred by denying his motion for judgment of acquittal as to the trafficking count because the evidence was insufficient to establish constructive possession. Appellant further contends that fundamental error occurred when the detective gave opinion testimony about his guilt; or, in the alternative, defense counsel rendered ineffective assistance that is apparent on the face of the record by failing to challenge the testimony. For the reasons that follow, we disagree and, therefore, affirm.

Facts

Appellant was charged with trafficking in amphetamine or methamphetamine (28 grams or more, but less than 200 grams) (Count 1); unlawful possession of pseudoephedrine (Count 2); possession of cannabis (less than 20 grams) (Count 3); possession of drug paraphernalia (Count 4); and possession of the prescription drug Cyclobenzaprine without prescription (Count 5). Count 5 was nolle prossed .

The evidence at trial established that Appellant lived in a one-room garage apartment on Richard Thomley's property. Thomley, who lived in the main residence, had partitioned off a room in his detached garage, which was located in the back of his fenced property. The apartment was small, about fifteen by fifteen feet, and was separated from the rest of the garage by a door. Appellant lived in the apartment by himself from July 2015 until his arrest in March 2016, but often had visitors. After finding his garage filled with smoke and emitting a strong smell on several occasions, Thomley informed Detective Jerry Nash that he suspected Appellant was making methamphetamine in the apartment and that one of the people who was visiting the apartment was Joshua Scott. To corroborate the information Thomley provided, Nash checked Appellant's purchases of pseudoephedrine, as compiled by the National Precursor Log Exchange ("NPLEx"). The NPLEx records showed that Appellant made seven purchases between December 2015 and March 2016, which, Sergeant Blake Weekley testified, is excessive and explains why an eighth purchase was blocked.

Nash searched the dumpster that was located on the county right-of-way, just outside of Thomley's gate and near the garage, and that served Thomley's and his son's residences. The dumpster contained receipts for Appellant's purchases of an instant cold pack, plastic tubing, and lithium batteries and Scott's purchase of pseudoephedrine, which, Nash testified at trial, are all items used in manufacturing methamphetamine. Nash also searched a burn pile that was located near the garage apartment and inside the fenced property, and in it he found burned batteries with the tops cut off, burned blister packs, and a Coleman fuel can, which, Nash testified, were also items used in manufacturing methamphetamine. Thomley testified that he never burned anything in the burn pile.

Subsequently, the police set up surveillance at Appellant's apartment and observed him arriving with Scott and Amy Thompson. The only thing they carried into the apartment was Thompson's purse. After about five minutes, the police did a "knock and talk." The only people inside the apartment were Appellant, Scott, and Thompson. Upon learning that Appellant had pseudoephedrine on his person, Nash arrested him. During the ensuing search, Nash found in Appellant's pockets a pipe that was used to smoke methamphetamine and a box of Sudafed along with Scott's receipt for it. Nash testified that Sudafed contains pseudoephedrine, which is the main ingredient in manufacturing methamphetamine, and that it is common for people who manufacture methamphetamine to have Sudafed purchased by others because one is allowed to purchase only so many boxes in a month.

After Appellant's arrest, his apartment was secured and searched pursuant to a warrant. The police found in the one-room apartment numerous items consistent with a meth lab, including a hydrogen chloride gas generator and a one-pot cook vessel under the bathroom sink, fourteen one-pot cook jugs, nine additional hydrogen chloride gas generators, three empty Coleman fuel containers, three empty Drano containers, plastic tubing, salt, pealed lithium battery casings, empty pseudoephedrine boxes and blister packs, empty ice compression boxes, a glass pipe used to smoke methamphetamine, empty lighter fluid containers, a receipt for pseudoephedrine, coffee filters with chemical residue, and an empty Voss water bottle. Most of the items were found in heavy-duty garbage bags that also contained regular household garbage and a receipt with Appellant's name. Marijuana was found on the dresser and inside a backpack that also contained mail belonging to Appellant. There was no doubt in Weekley's mind that the items found in Appellant's apartment were remnants of a meth lab. Thomley testified that none of the items found in the apartment belonged to him. The liquid from the one-pot vessel was tested and contained about ninety-three grams of methamphetamine.

Most of the items were hazardous material that had to be destroyed because they are so corrosive that they eat through the bottles and continue to produce gas. Weekley testified that the bottles had been sitting for some time because it would have taken at least a week or two for the amount of deterioration observed on some of them to occur. Nash explained that the liquid from the one-pot vessel was placed into a glass jar, then into a plastic container, and then into a paint can for safekeeping because, as could be seen in the pictures, it eats through the bottles, deteriorates the glass container lids, and leaks out.

In cross-examining Nash, defense counsel called into question the police investigation in part by eliciting testimony that Scott was let go even though a pipe was found on his person, he was on the run with warrants, and he was not charged with trafficking methamphetamine (though he was charged with distribution of a listed chemical) and that Thompson likewise was not arrested. In turn, the State elicited the following testimony on redirect without objection:

[STATE]: And you were also asked about Joshua Scott. He was not arrested on that date, is that correct?
[NASH]: Correct.
[STATE]: Why is that?
[NASH]: I try and go after the meth cook, not the people buying the boxes of Sudafed. And from the information gathered that night that is what Mr. Scott was. Mr. Scott was arrested at a later date.
[STATE]: So based on your investigation along with the information you obtained at the residence did you make a determination, as to who was cooking methamphetamine at that apartment?
[NASH]: Yes, sir.
[STATE]: And who was it?
[NASH]: [Appellant].

In moving for a judgment of acquittal on Count 1, Appellant argued that the State failed to meet its burden with regard to the elements of dominion, control, and knowledge so as to prove constructive possession of the one-pot vessel. The trial court denied the motion.

Appellant's mother and sister testified that weeks before Appellant's arrest, Thomley was remodeling his house and had contractors on his property. Appellant's mother further testified that Thomley frequently had visitors at his home and that Appellant's apartment was lockable only from the inside and, to her knowledge, he did not have the key to it in case he got locked out and the door remained unlocked during the day while he was at work. However, she never saw anyone enter Appellant's apartment and take garbage bags inside it.

During closing argument, defense counsel contended that the government failed to meet its burden and threw everything against the wall to see what stuck, and argued, "[Nash] wasn't even going to tell you that Josh Scott was on the run unless I asked him. He wasn't going to tell you that they let him go. He wasn't going to tell you that Amy Thompson was there. They let her go, if I hadn't asked him." During rebuttal closing, the State responded in part, "What did Detective Nash tell you why he did not arrest Mr. Scott on that day? Because he was focused on the cook. The one in possession [of] over 28 grams of methamphetamine on that day. That's [Appellant]." Appellant was convicted of the charged offenses, and this appeal followed.

Analysis

Denial of Motion for Judgment of Acquittal

An appellate court reviews a trial court's denial of a motion for judgment of acquittal de novo to determine whether the evidence is legally sufficient to sustain a conviction; in doing so, the court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Kemp v. State , 166 So.3d 213, 216 (Fla. 1st DCA 2015). In a case where the State submitted some direct evidence, the denial of a motion for judgment of acquittal will be affirmed if it is supported by competent and substantial record evidence. McWatters v. State , 36 So.3d 613, 631 (Fla. 2010).

To prove that Appellant committed the crime of trafficking in methamphetamine, the State had to prove that: (1) he knowingly possessed or manufactured a certain substance; (2) the substance was methamphetamine or a mixture containing methamphetamine; and (3) the methamphetamine or mixture containing it weighed fourteen grams or more. See § 893.135(1)(f), Fla. Stat. (2016) ; Fla. Std. Jury Instr. (Crim.) 25.13(a). Possession may be actual or constructive. Evans v. State , 32 So.3d 188, 189 (Fla. 1st DCA 2010) ; see also § 893.135, Fla. Stat.; Fla. Std. Jury Instr. (Crim.) 25.13(a). Constructive possession exists when the defendant knows of the presence of the contraband and can maintain dominion and control over it. Evans , 32 So.3d at 189 ; see also Fla. Std. Jury Instr. (Crim.) 25.13(a). When a defendant is in exclusive possession of the premises where the contraband is found, his knowledge of the presence of the contraband and his power and intent to control the contraband may be inferred. See Smith v. State , 125 So.3d 359, 361 (Fla. 1st DCA 2013) ; Mitchell v. State , 958 So.2d 496, 499 (Fla. 4th DCA 2007) ; see also Fla. Std. Jury Instr. (Crim.) 25.13(a). On the other hand, when the premises where the contraband is found are in joint possession, the State must establish the knowledge and ability to maintain dominion and control elements by independent proof. Evans , 32 So.3d at 190 ; see also Fla. Std. Jury Instr. (Crim.) 25.13(a). The independent proof may be evidence establishing that the defendant had actual knowledge of the presence of the contraband in the place where it was found or circumstantial evidence from which a jury might properly infer that the defendant had knowledge of the presence of the contraband. Evans , 32 So.3d at 190.

The parties disagree about whether this case involved joint or exclusive possession of the premises. To recap, the undisputed evidence showed that Appellant was the sole resident of the apartment; the police observed Appellant, Scott, and Thompson arriving together at the apartment about five minutes prior to the "knock and talk," and the only thing they carried inside was Thompson's purse; and meth oil is highly corrosive, and some of the bottles in the apartment were so corroded that it would have taken at least a week or two for such damage to occur, making it highly unlikely that the meth oil was carried inside the purse and into the apartment. Based on these facts, viewed in the light most favorable to the State, we find persuasive the State's argument that this is an exclusive possession of premises case, making it proper to infer Appellant's knowledge of the presence of the contraband and his ability to control it.

We further find that even if this were a joint possession of premises case, the State presented independent proof of the knowledge and ability to control elements. In addition to the aforementioned evidence, Appellant's small, one-room apartment was filled with items consistent with a meth lab, including the one-pot cook vessel, fourteen one-pot cook jugs, ten hydrogen chloride gas generators, three empty Coleman fuel containers, three empty Drano containers, plastic tubing, salt, pealed lithium battery casings, empty pseudoephedrine boxes and blister packs, empty ice compression boxes, a glass pipe used to smoke meth, empty lighter fluid containers, a receipt for pseudoephedrine, and coffee filters with chemical residue. Most of the items were located inside garbage bags that also contained household trash and a receipt with Appellant's name. Thomley testified that none of the items in Appellant's apartment belonged to him and he never went inside the apartment. There was no evidence of anyone entering and taking the garbage bags into Appellant's apartment. The evidence further showed that Appellant had made extensive pseudoephedrine purchases; Thomley suspected he was making meth in the apartment due to the smell and smoke; and, at the time of his arrest, Appellant was in actual possession of a meth pipe and the box of Sudafed Scott had purchased for him. There was simply no evidence to suggest that Appellant did not have knowledge or control over the meth oil or the items that were used to manufacture it. Therefore, the trial court did not err in denying Appellant's motion for judgment of acquittal.

Detective's Opinion Testimony about Appellant's Guilt

A witness's opinion about the guilt or innocence of the defendant is inadmissible pursuant to section 90.403, Florida Statutes, which excludes relevant evidence when its probative value is substantially outweighed by unfair prejudice. Martinez v. State , 761 So.2d 1074, 1079 (Fla. 2000) (explaining that "there is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt" because it "could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant"). When the error is preserved, opinion testimony about the defendant's guilt is subject to the harmless error analysis. Id. at 1081. When the error is not preserved, the fundamental error analysis applies, whereby an error is deemed fundamental only in the rare case where it reaches down into the validity of the trial to the extent that a guilty verdict could not have been obtained without its assistance. Sheppard v. State , 151 So.3d 1154, 1166 (Fla. 2014).

Here, Detective Nash's testimony that he tries to go after the meth cook, not the person buying the Sudafed, and that the information gathered indicated that Scott was the buyer of Sudafed, was not erroneous. That testimony was offered on redirect examination merely to explain why Scott was not arrested on the same day as Appellant, and the defense had opened the door to the explanation during cross-examination by calling into question the police investigation and eliciting testimony that Scott was let go even though a pipe was found on him, he was on the run with warrants, and he was not charged with trafficking methamphetamine. See Rolle v. State , 215 So.3d 75, 77-79 (Fla. 3d DCA 2016) (finding no merit in the appellant's argument that the detective improperly commented on his guilt by testifying that he determined based on his investigation that Ajuste was not involved in the crime because the detective was simply explaining why the police released Ajuste, and was not opining about the appellant's guilt, and the defense opened the door to the explanation by arguing that the police arrested the wrong person and let the actual perpetrator, Ajuste, go free). But the State did not stop there.

The State then elicited testimony from Nash that based on his investigation and the information obtained at the residence, he determined it was Appellant who was cooking methamphetamine in the apartment. Nash's opinion testimony about Appellant's guilt was improper. See Martinez , 761 So.2d at 1079. However, we disagree with Appellant that the error rises to the level of fundamental error because it does not reach down into the validity of the trial to the extent that a guilty verdict could not have been obtained without its assistance. The erroneous testimony was brief, did not become the focus of the trial, and was clearly offered to explain why Scott was not arrested on the day of Appellant's arrest. While the State repeated the testimony in closing, it did so only once and only to rebut the defense's argument that the police investigation was inadequate and Nash was not going to tell the jury that Scott was on the run and that he and Thompson were both let go. Furthermore, there was ample evidence of Appellant's guilt, including evidence that he was the sole resident of the apartment that contained the meth oil, dozens of items used in manufacturing methamphetamine, and cannabis; he had made extensive pseudoephedrine purchases; and a meth pipe and box of Sudafed were found on his person at the time of his arrest. See Odeh v. State , 82 So.3d 915, 918-24 (Fla. 4th DCA 2011) (finding that it was error for the jury to hear the officer's statements during the taped police interview that the appellant did not legally act in self-defense because an officer's opinion about the defendant's legal defense is tantamount to an opinion as to his guilt, but concluding that the error was not fundamental, and declining to find ineffective assistance of counsel on the face of the record).

We also decline Appellant's invitation to find ineffective assistance of counsel on the face of the record for the failure to challenge Nash's opinion testimony because this is not one of those rare cases where deficient performance and prejudice are apparent on the face of the record. See Monroe v. State , 191 So.3d 395, 403 (Fla. 2016) (explaining that an appellate court may grant relief for ineffective assistance of counsel on direct appeal only where counsel's ineffectiveness is apparent from the face of the record and a waste of judicial resources would result from remanding the matter for further litigation); see also Morales v. State , 170 So.3d 63, 67 (Fla. 1st DCA 2015) (declining to find ineffective assistance of counsel on direct appeal because such finding requires "ineffectiveness obvious on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct"); Odeh , 82 So.3d at 923-24 (explaining that a claim of ineffective assistance of counsel generally cannot be raised for the first time on appeal and instead must be raised in a motion for postconviction relief).

Therefore, we affirm Appellant's judgment and sentence without prejudice to his raising a claim of ineffective assistance of counsel in a motion pursuant to Florida Rule of Criminal Procedure 3.850. See Elmore v. State , 172 So.3d 465, 467 (Fla. 1st DCA 2015) (affirming the appellant's convictions and sentences without prejudice for him to file a proper motion for postconviction relief or a petition alleging ineffective assistance of counsel); see also Beazley v. State , 148 So.3d 552, 554-55 (Fla. 1st DCA 2014) (declining to hold that ineffective assistance of counsel was apparent on the face of the record, but noting that the appellant could raise the issue in a motion for postconviction relief); Wade v. State , 812 So.2d 600 (Fla. 1st DCA 2002) (affirming the appellant's conviction and sentence without prejudice to his right to raise his claims of ineffective assistance of counsel in a rule 3.850 motion).

AFFIRMED .

Osterhaus and Bilbrey, JJ., concur.

      Appellant did not argue in the trial court, or on appeal, that the circumstantial evidence standard applies.


author: DAMOORGIAN, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Joan SCHOEFF, as Personal Representative of the Estate of James Edward Schoeff, deceased, Appellee.
    No. 4D13-1765
    District Court of Appeal of Florida, Fourth District.
    February 14, 2018
    Gordon James, III, and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale, and Gregory G. Katsas of Jones Day, Washington, D.C., for appellant.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, Alex Alvarez of The Alvarez Law Firm, Coral Gables, and Gary M. Paige of Gordon & Doner, Davie, for appellee.
   DAMOORGIAN, J.

This matter is before us on remand from the Supreme Court of Florida following its decision in Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294 (Fla. Dec. 14, 2017), quashing our decision in R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487 (Fla. 4th DCA 2015). In accordance with the supreme court's mandate, we reverse the final judgment and, on remand, direct the trial court to vacate its order reducing the jury's compensatory damage award by Mr. Schoeff's comparative fault before entering a new final judgment.

Reversed and remanded.

Taylor and May, JJ., concur.


author: Per Curiam.

text:
    Isaiah B. SALOWITZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5452
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Isaiah Salowitz, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


author: LAMBERT, J.

text:
    Roger NIEHAUS, Appellant, v. Dennis E. DIXON and Tina M. Niehaus, Appellees.
    Case No. 5D17-470
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 16, 2018
    R. Kevin Sharbaugh, of Keyser & Sharbaugh, P.A., Interlachen, for Appellant.
    Zachery Lucas Keller, of Keller Legal, Palatka, for Appellee, Dennis E. Dixon.
    No Appearance for Appellee, Tina M. Niehaus.
    ON APPELLEE'S MOTION FOR CLARIFICATION
   LAMBERT, J.

We deny Appellee, Dennis Dixon's, motion for clarification of our December 29, 2017 opinion. Nevertheless, on our own motion and unrelated to any matters raised in Dixon's motion for clarification, we withdraw our prior opinion and issue the following opinion in its stead.

Roger Niehaus appeals the final order dismissing his negligence action with prejudice as a sanction for committing fraud upon the court. In its order, the trial court found eight separate instances where it concluded that Niehaus made "false statements" or committed acts of intentional concealment. Because we hold that at least two of these findings were not supported by competent substantial evidence, we reverse the final order and remand for the trial court to reconsider whether the remaining findings in its order cumulatively support its conclusion that Niehaus committed a fraud upon the court.

Niehaus filed suit against Dixon, alleging that Dixon negligently struck him in the head with the wing of an airplane that Dixon was operating, resulting in personal injury and damages to Niehaus. Dixon denied the allegations, instead asserting that as he was attempting to taxi the plane off the runway, Niehaus ran toward the aircraft, slammed his fist into the right wing of the plane, and then fell to the ground, exclaiming that Dixon had struck him with the aircraft. The parties thereafter engaged in fairly contentious litigation over the next three years, culminating in Dixon filing a motion to dismiss Niehaus's complaint for fraud upon the court based upon Niehaus's: (1) failing to disclose that he had been in an automobile accident resulting in injuries ten months earlier, (2) repeatedly lying during his deposition, and (3) intentionally concealing pertinent medical history from his retained expert. The trial court held an evidentiary hearing on this motion and rendered the final order now under review.

Fraud upon the court is where "a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense." Cox v. Burke , 706 So.2d 43, 46 (Fla. 5th DCA 1998) (quoting Aoude v. Mobil Oil Corp. , 892 F.2d 1115, 1118 (1st Cir. 1989) ). A dismissal for fraud upon the court must be supported by clear and convincing evidence, Gautreaux v. Maya , 112 So.3d 146, 149 (Fla. 5th DCA 2013) (citing Perrine v. Henderson , 85 So.3d 1210, 1212 (Fla. 5th DCA 2012) ), and because such a dismissal with prejudice is an extreme remedy that sounds the "death knell of a lawsuit," trial courts are reminded that they should use the power of dismissal cautiously, sparingly, and only where a party's conduct is egregious. Cox , 706 So.2d at 46.

On appeal, a trial court's findings of fact upon which it bases a dismissal for fraud upon the court will be upheld if they are supported by competent substantial evidence. See T.S. ex rel. D.H. v. Dep't of Child. & Fams. , 969 So.2d 494, 495 (Fla. 1st DCA 2007) (stating that a trial court's findings of fact pursuant to the clear and convincing evidence burden of proof are reviewed under the competent substantial evidence appellate standard of review (citing N.L. v. Dep't of Child. & Fam. Servs. , 843 So.2d 996, 999 (Fla. 1st DCA 2003) ) ). While the trial court's conclusion that a fraud upon the court has occurred and its decision to dismiss the case with prejudice are reviewed for an abuse of discretion, appellate courts employ a more scrupulous and less deferential abuse of discretion standard in such cases to account for the heightened "clear and convincing" evidentiary burden and the gravity of the sanction. See Gautreaux , 112 So.3d at 149 (quoting Suarez v. Benihana Nat'l of Fla. Corp. , 88 So.3d 349, 352 (Fla. 3d DCA 2012) ); see also Jimenez v. Ortega , 179 So.3d 483, 487 (Fla. 5th DCA 2015) ("[A] more stringent abuse of discretion standard is appropriate [in reviewing a dismissal for fraud upon the court] because dismissal is an extreme remedy." (quoting Jacob v. Henderson , 840 So.2d 1167, 1169 (Fla. 2d DCA 2003) ) ).

In the first ground justifying dismissal for fraud upon the court, the trial court found that Niehaus did not disclose that he had suffered injuries from a car accident ten months earlier. The court erred in this finding because Niehaus did, in fact, provide pertinent information and records about this accident when requested, but had not disclosed this information earlier because Dixon admittedly did not ask Niehaus about prior injuries or accidents in his initial discovery. Niehaus was under no obligation to voluntarily provide records or other information prior to being asked by Dixon.

In the eighth ground found by the court for dismissal, the court concluded that Niehaus's testimony at the hearing on his motion was fraudulent. Niehaus was presented with two photographs taken on different days that Dixon argued evidenced Niehaus's ability to work on airplanes, allegedly contradicting Niehaus's claim that he could no longer work on planes. In response, Niehaus testified that one photo showed him working on a plane and the second appeared to show that he was sitting on a stool taking a break but that he "probably" had been working on a plane. Niehaus further explained that he was still physically able to work on planes; however, due to problems with his memory, he would not be able to pursue obtaining a license in airplane maintenance but could work on airplanes if supervised. The court commented that the second photo appeared to show Niehaus working on a plane, to which Niehaus testified that it looked as if he was "looking for a screw or something in a screw can." The court then concluded that Niehaus had changed his testimony in response to the court's comment and that this "false testimony" constituted fraud upon the court under the standard described in Cox . We disagree. Assuming that Niehaus's comment in response to the trial court was a "change" in testimony, we find that the court abused its discretion as this testimony did not clearly and convincingly demonstrate fraud.

Finally, although we have concern about whether some of the remaining six grounds found by the court in its final order would individually qualify as evidence of fraud upon the court, we believe that the analysis of whether these six grounds cumulatively qualify for the extraordinary remedy of dismissal with prejudice is initially best left to the trial court. In doing so, we are mindful of the trial court's finding in its order that any one of the false statements made by Niehaus would warrant dismissal. Having reviewed the record, we disagree with the trial court that if Niehaus had only made one of the "false" statements described in the final order that dismissal would be warranted under Cox and its progeny.

We also dismiss for lack of jurisdiction that part of the appeal challenging the trial court's award of attorney's fees to Dixon because, while the trial court found that Dixon is entitled to attorney's fees, it did not set an amount. See Mills v. Martinez , 909 So.2d 340, 342 (Fla. 5th DCA 2005) (explaining that an order determining entitlement to attorney's fees was not a final order despite being included in a final judgment because "[a]n award of attorneys' fees does not become final, and, therefore, appealable until the amount is set by the trial court" (citing Sanders v. Palmieri , 849 So.2d 417, 417 (Fla. 5th DCA 2003) ) ). We further dismiss for lack of jurisdiction that part of the appeal challenging the trial court's decision to refer Niehaus to the State Attorney's Office of the Seventh Judicial Circuit to investigate whether Niehaus committed perjury in the circuit court proceedings, and to refer Niehaus's counsel, Timothy Keyser, to the "Professional Ethics Committee of The Florida Bar for investigation into his actions in the course of this litigation."

Accordingly, we reverse the final order of dismissal with prejudice and remand for the trial court to reconsider and re-evaluate whether the remaining six findings in its order cumulatively support dismissal with prejudice for fraud upon the court. We dismiss those parts of the appeal challenging the referral of Niehaus to the State Attorney's Office of the Seventh Judicial Circuit, the referral of his counsel to The Florida Bar, and the award of attorney's fees to Dixon without setting an amount.

REVERSED in part; DISMISSED in part; and REMANDED.

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

      Contrary to his inference stated in his motion, Appellee is not the prevailing party in this appeal. We reversed the final order under review with directions that the trial court re-evaluate the remaining grounds and reconsider whether, in light of the opinion, the remedy of dismissal with prejudice is still appropriate. Contrary to Appellee's belief, the opinion does not "implicitly" find that dismissal remains appropriate nor does it otherwise indicate to the trial court that it should again so determine.

      At oral argument, Niehaus's counsel suggested that this issue may be moot.


text:
    Bryan FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3298
    District Court of Appeal of Florida, First District.
    February 23, 2018
    Bryan Flowers, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Hamilton v. State , 996 So.2d 964, 966 (Fla. 1st DCA 2008) (rejecting defendant's claim that his sentence violates Hale v. State , 630 So.2d 521 (Fla. 1993), where, as here, the sentence "do[es] not, in the aggregate, exceed the maximum he could have received if all sentences subject to enhancement under the habitual felony offender statute had been enhanced (but run concurrently), and because his sentence[ ] also do[es] not, in the aggregate, exceed the maximum he could have received if none of his sentences had been enhanced but all had been ordered to run consecutively").

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Homer WALKER, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections and the Florida Commission on Offender Review, Appellees.
    No. 1D17-2199
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Homer Walker, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Tallahassee, for Appellee Florida Department of Corrections. No appearance for Appellee Florida Commission on Offender Review.
   Per Curiam.

Appellant seeks review of an order denying his Petition for Writ of Habeas Corpus, which was rendered March 6, 2017. See Fla. R. App. P. 9.020(i). The clerk of the lower tribunal stamped Appellant's notice of appeal as filed April 12, 2017. This date appeared to be the presumptive filing date of the appeal. See Fla. R. App. P. 9.420(a)(2).

Because the presumptive filing date was beyond the 30-day period for seeking review, we directed Appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. In response, Appellant demonstrates that the presumptive filing date of the notice of appeal is April 7, 2017, the date he placed it in the hands of an institution official for mailing. See Fla. R. App. P. 9.420(b)(2)(A). This presumptive filing date is also beyond the 30-day period for seeking review. However, in reliance on Florida Rule of Criminal Procedure 3.070, Appellant concludes that the notice of appeal was timely filed.

Appellant's reliance on the rule is misplaced because it does not apply to the time period for filing a notice of appeal. See Joseph v. State , 157 So.3d 546, 548 (Fla. 1st DCA 2015). Because no additional time is added to the 30-day period to bring an appeal, Appellant's notice of appeal filed outside this time period is untimely and failed to invoke the Court's jurisdiction.

DISMISSED .

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Michael W. CORN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3079
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of December 18, 2017, the Court has determined that the order on appeal is not a final, appealable order. See Fla. R. Crim. P. 3.850(f)(2) ; Young v. State , 66 So.3d 1076 (Fla. 1st DCA 2011). Accordingly, the appeal is dismissed.

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Otha K. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1993
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Otha K. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b) ; Fla. R. App. P. 9.141(b)(1). Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Michael A. GOSHAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4546
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Michael A. Goshay, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

In light of this Court's denial of Petitioner's previous petition for belated appeal in Goshay v. State , 156 So.3d 1078 (Fla. 1st DCA 2014), the petition for belated appeal filed October 30, 2017, is dismissed as successive. See Fla. R. App. P. 9.141(c)(6)(C).

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Jessica FRIEDEBORN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3814
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    Jessica Friedeborn, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 15, 2017, judgments and sentences in Case No. 17-CF-1152 in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    John Charles LEWIS, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D17-5396
    District Court of Appeal of Florida, First District.
    February 28, 2018
    John Charles Lewis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED. See Banks v. State , 916 So.2d 35 (Fla. 1st DCA 2005) ; Baldwin v. Crosby , 905 So.2d 250 (Fla. 1st DCA 2005) (concluding "proper remedy is to file a motion in the circuit court seeking [removal of lien and restoration of funds collected], secure a ruling, and if necessary raise the issue when appellate review is sought of any final order in the proceedings below").

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Cheri Rose GRANGER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3406
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Cheri Rose Granger, timely appeals her convictions by jury verdict for DUI manslaughter, vehicular homicide, driving while license suspended and DUI with property damage. We reverse her conviction for vehicular homicide, and otherwise affirm.

Appellant argues that convictions for both DUI manslaughter and vehicular homicide based upon a single death cannot stand because they violate her constitutional right to be free from double jeopardy, citing Houser v. State , 474 So.2d 1193 (Fla. 1985), and State v. Chapman , 625 So.2d 838 (Fla. 1993). The State concedes error, and based upon our supreme court's precedent, we agree. Accordingly, we order the trial court to vacate Appellant's conviction for vehicular homicide. See Aguirre v. State , 159 So.3d 1033, 1033 (Fla. 1st DCA 2015) ; Ivey v. State , 47 So.3d 908, 911 (Fla. 3d DCA 2010). We affirm Appellant's conviction and sentence for DUI manslaughter, as well as her other convictions and sentences for driving while license suspended and DUI with property damage.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Gene Edward HANKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2571
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Gene Edward Hanks, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance and Allison L. Morris, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Gene Hanks appeals the judgment and sentence imposed by the trial court for violating his community control. We conclude that competent substantial evidence was presented at trial to support the trial judge's decision that Hanks willfully and materially violated his community control. However, despite our reminders to trial judges that their written orders or judgments must identify which condition or conditions of probation or community control have been violated, we are compelled to remand here because the written order did not specify the condition of community control that Hanks was found to have violated. See Lowe v. State , 225 So.3d 953 (Fla. 5th DCA 2017) ; Biser v. State , 157 So.3d 539 (Fla. 5th DCA 2015) ; Roberts v. State , 76 So.3d 1047 (Fla. 5th DCA 2011) ; Bell v. State , 60 So.3d 558 (Fla. 5th DCA 2011) ; Mormon v. State , 976 So.2d 1188 (Fla. 5th DCA 2008) ; Brinson v. State , 866 So.2d 1268 (Fla. 5th DCA 2004).

Accordingly, we vacate the judgment under review and remand for entry of a proper adjudicatory order listing the specific condition of community control that Hanks was found to have violated.

JUDGMENT VACATED; REMANDED for entry of a proper adjudication order.

BERGER, WALLIS and LAMBERT, JJ., concur.


text:
    Derek Lamar MURRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2215
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp and Kaylee D. Tatman, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Derek Murray appeals his convictions for aggravated battery with great bodily harm and simple battery. We affirm the convictions without further discussion but reverse the order for reimbursement of investigation costs to the Osceola County Sheriff's Office because the trial court lacked jurisdiction to enter the order while this appeal was pending.

Section 938.27(1), Florida Statutes (2016), provides in pertinent part that in all criminal cases, the court shall include in every judgment rendered against the convicted person the investigative costs incurred by law enforcement agencies, if requested by such agencies. Here, Murray disputed the amount of the investigative costs that were being requested by the Osceola County Sheriff's Office. As a result, the trial court announced at the sentencing hearing that it assessed investigative costs against Murray, but was reserving jurisdiction to determine at a later hearing the specific amount of these costs. Shortly thereafter, Murray filed the instant appeal. Subsequently, the trial court held the aforementioned hearing and entered the now-challenged order imposing investigative costs against Murray.

While the trial court properly reserved jurisdiction at the sentencing hearing to impose these investigative costs, the court was thereafter without jurisdiction to enter an order determining the amount while this direct appeal was pending. See Gatlin v. State , 618 So.2d 765, 766 (Fla. 2d DCA 1993) (holding that although the trial court reserved jurisdiction at sentencing to consider imposing costs for police investigation, when the court actually ordered those costs it was without jurisdiction to do so because the defendant had already timely filed his notice of appeal). The State properly concedes error. Accordingly, the September 15, 2017 order for reimbursement of investigation costs entered by the trial court during this appeal is a nullity.

CONVICTIONS AND SENTENCES AFFIRMED. ORDER FOR REIMBURSEMENT OF INVESTIGATION COSTS REVERSED, without prejudice.

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

      The trial court may enter a separate order for reimbursement of investigation costs once jurisdiction is returned to it following the issuance of our mandate.


author: COHEN, C.J.

text:
    Robert BURTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-1310
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 2, 2018
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
    ON REMAND
   COHEN, C.J.

In Burton v. State, No. SC16-1116, 2018 WL 798521 (Fla. Feb. 9, 2018), the Florida Supreme Court summarily quashed this Court's prior opinion in Burton v. State, 191 So.3d 543 (Fla. 5th DCA 2016), and remanded for reconsideration based on Carpenter v. State, 228 So.3d 535 (Fla. 2017). In Carpenter, the majority held that "the good-faith exception to the exclusionary rule does not apply" when law enforcement is "not relying on the type of longstanding, thirty-year appellate precedent" such as that at issue in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Carpenter, 228 So.3d at 542.

Upon consideration of Carpenter, the good-faith exception as articulated in Davis was inapplicable in the instant case. Therefore, Burton's motion to suppress evidence taken from the warrantless search of his cell phone incident to his arrest should have been granted. See id.

REVERSED AND REMANDED.

PALMER, J., concur.

BERGER, J., concurs specially, with opinion

BERGER, J., concurring specially

While I continue to believe the police acted in good faith when they searched Burton's cell phone without a warrant, I am constrained to concur based on the Florida Supreme Court's opinion in Carpenter v. State, 228 So.3d 535 (Fla. 2017).


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. David RUFF
    No. 2017-KK-1980
    Supreme Court of Louisiana.
    February 2, 2018
    ON SUPERVISORY WRIT TO COURT OF APPEAL FIRST CIRCUIT, W. FELICIANA PARISH
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
   HUGHES, J., would grant.

GENOVESE, J., would grant for the reasons assigned by Johnson, F. J.

JOHNSON, C.J., would grant defendant's writ application and assigns reasons.

The defendant, David Ruff, was shopping at a local hardware store with his family when he was approached by Deputy Travis Depew in the parking lot. Deputy Depew asked the defendant to identify himself because he was investigating possible criminal activity. The defendant gave Deputy Depew his identification but the officer insisted that Ruff step over to his police car so that he could run his name in the database. At that point the defendant became agitated and angry, which Deputy Depew interpreted as threatening, and he wrestled the defendant to the ground and handcuffed him.

An arrest requires probable cause, while an investigatory stop requires only the lesser standard of reasonable suspicion enunciated in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868 (1968). Although this lesser standard is required for police to make an investigatory stop, it does not negate that the Court has recognized that "[i]n making a brief investigatory stop the police still 'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' " State v. Kalie , 96-2650, p. 3 (La. 9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) ). The police must therefore "articulate something more than an " 'inchoate and unparticularized suspicion or "hunch." ' " United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry , 392 U.S. at 27, 88 S.Ct. at 1883 )). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only " 'some minimal level of objective justification ....' " Sokolow , 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado , 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984) ). A reviewing court must take into account the "totality of the circumstances-the whole picture," giving deference to the inferences and deductions of a trained police officer "that might well elude an untrained person." Cortez , 449 U.S. at 418, 101 S.Ct. at 695.

Deputy Depew's own testimony establishes that he did not suspect defendant of any crime; in fact, the person suspected of the criminal activity was named Travis Johnson.

Once Deputy Depew approached the defendant and the defendant cooperated with the deputy's request and provided identification, which confirmed his identity as David Ruff, the investigation should have halted. This defendant was protecting and exercising his right to resist the unlawful arrest.

The law on this issue is long standing. "An individual in Louisiana has a time-honored right to resist an illegal arrest." State v. Fairman , 15-67, p.7 (La. App. 5 Cir. 9/23/15), 173 So.3d 1278, 1285 (citing City of Monroe v. Goldston, 95-0315 (La.9/29/95), 661 So.2d 428, 430 ; White v. Morris, 345 So.2d 461, 465 (La.1977) ).

For these reasons, I would grant the writ.


author: Hughes, J., dissents.

text:
    LOUISIANA BOARD OF ETHICS v. Susan THEALL
    Louisiana Board of Ethics v. Burton Zaunbrecher
    2017-CC-2015
    Supreme Court of Louisiana.
    February 9, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    Writ denied.
   Hughes, J., dissents.

I respectfully dissent and would grant the writ. The alleged violation here was not "contained in a report" and is subject to a three year prescriptive period.


author: WEIMER, J., would grant.

text:
    Shawn CORMIER, et al. v. CITGO PETROLEUM CORPORATION, et al.
    No. 2017-C-2138
    Supreme Court of Louisiana.
    February 9, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
    Writ denied.
   WEIMER, J., would grant.

Crichton, J., would grant and assigns reasons:

I would grant this writ application to examine the excessive damages awards to plaintiffs in this matter. According to the information presented to this Court, Plaintiffs' health complaints were so benign that they required no medical treatment other than, in some instances, over-the-counter medications. Furthermore, not one plaintiff sought medical treatment on his own for symptoms related to his exposure. Consequently, in my view, it does not appear the Plaintiffs have established, through medical testimony and evidence, they have suffered injury warranting what are seemingly high monetary damages in this case. I would find the trial court abused its discretion in awarding the amounts rendered.

      "In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident." Maranto v. Goodyear Tire & Rubber Co. , 94-2603, p. 3 (La. 2/20/95), 650 So.2d 757, 759 (internal citations omitted).


author: PER CURIAM

text:
    IN RE: James E. MOORMAN, III
    NO. 2018-OB-0167
    Supreme Court of Louisiana.
    March 2, 2018
    ON APPLICATION FOR REINSTATEMENT
   PER CURIAM

This proceeding arises out of an application for reinstatement to the practice of law filed by petitioner, James E. Moorman, III, a suspended attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Over a three-month period of time in 2013, while petitioner was experiencing severe depression, he engaged in misconduct involving neglect of his clients' legal matters, failure to refund unearned fees, and failure to properly supervise his non-lawyer staff. Specifically, petitioner collected approximately $16,500 in fees from clients and then failed to provide the services for which he was paid.

In August 2013, members of the judiciary and friends in the legal community conducted an intervention. Thereafter, petitioner was admitted to the Ridgeview Institute ("Ridgeview") for inpatient treatment. During his treatment, petitioner contacted the Judges and Lawyers Assistance Program ("JLAP") and voluntarily surrendered his law license by joining the Office of Disciplinary Counsel ("ODC") in filing a joint petition for his interim suspension. After considering the joint petition, we suspended petitioner from the practice of law on an interim basis. In re: Moorman , 13-2430 (La. 10/21/13), 128 So.3d 268.

Following his initial treatment for depression, petitioner was transferred to the inpatient addiction program at Ridgeview, where he remained until he was discharged in December 2013. He discontinued his contract with JLAP in November 2013.

In December 2015, the ODC filed formal charges against petitioner. Petitioner stipulated that he engaged in the alleged misconduct and had made restitution of approximately half of the $16,500 in unearned fees he collected from his clients. For this misconduct, we suspended petitioner from the practice of law for three years, retroactive to the date of his interim suspension, and ordered him to make restitution to his clients or the Louisiana State Bar Association's Client Assistance Fund ("CAF"), as appropriate. In re: Moorman , 17-0431 (La. 4/24/17), 217 So.3d 316 (" Moorman I ").

In July 2017, more than three years after the effective date of petitioner's suspension, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

During the hearing, testimony and evidence was presented indicating that petitioner has seen a therapist to deal with his depression since January 2014 and is no longer depressed. Further evidence presented at the hearing indicated that petitioner made restitution to six of the ten clients who were the subject of Moorman I . The remaining four clients were reimbursed through the CAF, which provided a certificate showing payments totaling $10,235.61 were made to these four clients. Petitioner provided the hearing committee with a copy of a promissory note he signed on May 2, 2017, in which he promised to pay the CAF $10,235.61 by making monthly payments of $100 beginning June 1, 2017. Finally, petitioner provided evidence of his monthly payments to the CAF.

Following the hearing, the hearing committee recommended that petitioner be reinstated to the practice of law on a conditional basis for one year, with the following conditions:

1. Petitioner must enter into a one-year contract with JLAP;
2. Petitioner must continue mental health counseling with a therapist for one year;
3. A practice monitor shall be appointed through the disciplinary board for the purpose of monitoring petitioner's law practice and shall include monitoring for compliance with trust account rules, accounting procedures, law office management procedures, adequate communications with clients, diligence in the representation of clients, and otherwise verifying compliance with the Rules of Professional Conduct;
4. Should petitioner enter into a solo practice and/or handle client funds during the conditional period, a certified public accountant selected by the practice monitor shall be engaged at petitioner's expense to conduct a year-end audit of petitioner's trust account, operating account, and personal finances to provide documentation that petitioner is in compliance with these conditions of reinstatement;
5. Petitioner shall enroll in the Louisiana State Bar Association's Ethics School;
6. Petitioner must not violate the Rules of Professional Conduct during the period of conditional reinstatement;
7. Should petitioner have disciplinary complaints filed against him at any time during the period of conditional reinstatement, he must promptly and fully cooperate with the ODC's investigation; and
8. Any violation of any of these conditions shall result in a motion to revoke petitioner's conditional reinstatement with an expedited hearing to be conducted by the disciplinary board in a summary fashion.

Neither petitioner nor the ODC objected to the hearing committee's recommendation.

DISCUSSION

After considering the record in its entirety, we find petitioner has met his burden of proving that he is entitled to be reinstated to the practice of law on a conditional basis for one year, with the conditions recommended by the hearing committee. We also find that further precautions are warranted to insure that the public will be protected upon petitioner's return to practice. See Supreme Court Rule XIX, § 24(J). Specifically, we find it appropriate to place an additional condition on petitioner's reinstatement to ensure that he continues to make his monthly payments to the CAF.

Accordingly, we will order that petitioner be reinstated to the practice of law, subject to a one-year period of supervised probation governed by all of the conditions recommended by the hearing committee, plus the following additional condition:

Petitioner shall report quarterly to the ODC demonstrating that he is making his monthly payments to the CFA.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that James E. Moorman, III, Louisiana Bar Roll number 20528, be immediately reinstated to the practice of law in Louisiana, subject to a one-year period of supervised probation governed by the conditions set forth herein. The probationary period shall commence from the date petitioner, the practice monitor, and the ODC execute a formal probation plan. Should petitioner fail to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately, or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.


text:
    IN RE: Steven C. GILL
    No. 2017-OB-1885
    Supreme Court of Louisiana.
    March 2, 2018
    ON APPLICATION FOR REINSTATEMENT
    Reinstatement Denied
    CLARK, J., additionally concurs for the reasons assigned by Crichton, J.
   HUGHES, J., would adopt recommendation of hearing committee.

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J., additionally concurs and assigns reasons:

I wholeheartedly agree with the Court's decision to deny petitioner's application for reinstatement. However, I write separately to point out petitioner's abhorrent behavior toward the disciplinary process, as well as his personal attacks against a deputy disciplinary counsel assigned to his case. Petitioner, employing inflammatory and derogatory language, accused the deputy disciplinary counsel of being a "conniving liar" and of opposing his application for reinstatement for purely personal reasons. This type of communication with ODC, during the pendency of his application for reinstatement, is unprofessional and unacceptable. In addition to this conduct, and as reflected by the record before us, petitioner has had a troublesome history with alcohol abuse and has displayed irresponsible, obnoxious, and vulgar behavior towards his daughter and her mother. In light of all of this, not only has petitioner engaged in "conduct prejudicial to the administration of justice" as found in Rule 8.4(d) of the Rules of Professional Conduct, I find petitioner has woefully failed to demonstrate he has met the criteria for reinstatement to the practice of law as required by La. Sup. Ct. R. XIX, § 24 (E).

      The record evidences email correspondence directed at a Deputy Disciplinary Counsel wherein petitioner tells the Deputy "I hate you" and that "you are my enemy," as well as other grossly inappropriate comments.

      Rule 8.1(c) requires that a lawyer "cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it ...."


text:
    IN RE: John Arthur BRITTAIN
    NO. 2018-B-0188
    Supreme Court of Louisiana.
    March 2, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel commenced an investigation into numerous complaints of serious professional misconduct against respondent, including his conversion of client funds. Following the filing of two sets of formal charges against respondent, the parties submitted a joint petition for consent discipline seeking respondent's disbarment. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John Arthur Brittain, Louisiana Bar Roll number 24035, be and he hereby is disbarred, retroactive to March 29, 2017, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

IT IS FURTHER ORDERED that respondent shall make restitution to his clients as set forth in the petition for consent discipline.

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


text:
    IN RE: Eric O. PERSON
    NO. 2017-B-2159
    Supreme Court of Louisiana.
    March 2, 2018
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent and the Office of Disciplinary Counsel ("ODC") submitted a joint petition for consent discipline, in which respondent acknowledges that he mishandled his client trust account and entered into an improper business relationship with a client, in violation of Rules 1.8(a) (business transaction with a client) and 1.15 (safekeeping property of clients or third persons) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Eric O. Person, Louisiana Bar Roll number 10530, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


author: PER CURIAM:

text:
    STATE EX REL. Dennis Donyel THOMAS v. STATE of Louisiana
    No. 2017-KH-0975
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL, DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Writ granted. The district court's ruling of September 9, 2016, dismissing relator's application for post-conviction relief on procedural grounds is reversed, and the matter is remanded to the district court for consideration of the merits of relator's claims pertaining to ineffective assistance and the subornation of perjury. La.C.Cr.P. arts. 929, 930. If the district court orders an evidentiary hearing, it shall appoint counsel. La.C.Cr.P. art. 930.7(C).


text:
    STATE EX REL. Huey RANDOLPH v. STATE of Louisiana
    No. 2016-KH-2170
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Thomas , 08-2912 (La. 10/16/09), 19 So.3d 466 ; State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. 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 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 of Louisiana v. Paul Junius FELIX
    No. 2016-KP-2166
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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. Edward MCGARY v. STATE of Louisiana
    No. 2016-KH-2132
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   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. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172, see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. Relator's claim is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Eugene James BAZILE v. STATE of Louisiana
    No. 2016-KH-2256
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   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.

Relator has now fully litigated an application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La.

Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Winford Lagard MCFARLAND, Sr. v. STATE of Louisiana
    No. 2016-KH-2239
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator shows no lower court error. La.C.Cr.P. art. 930.2 ; State v. McKinney , 406 So.2d 160, 161 (La. 1981) ("The general rule is that a guilty plea waives all nonjurisdictional defects in the proceedings prior to the plea and precludes review thereof either by appeal or by post-conviction remedy."). In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

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


text:
    STATE EX REL. Douglas H. KATES, Jr. v. STATE of Louisiana
    No. 2016-KH-2134
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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. Cesar ROCA v. STATE of Louisiana
    No. 2016-KH-2133
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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.

Attachment

TWENTY FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA NO. 01-1422 DIVISION "A" CESAR ROCA VERSUS DARREL VANNOY, WARDEN FILED: 7-26-16 DEPUTY CLERK

ORDER

This matter comes before the court on the petitioner's APPLICATION FOR POST-CONVICTION RELIEF, STAMPED AS FILED JULY 11, 2016.

The petitioner files his second application for post-conviction relief, challenging his 2002 convictions for aggravated rape (two counts), aggravated oral sexual battery on a juvenile, and molestation of a juvenile. His convictions and sentences were upheld on direct appeal.State v. Roca, 866 So.2d 867 (La.App. 5 Cir. 1/13/04), writs denied, 877 So.2d 143 (La. 7/2/04). An earlier application for post-conviction relief and a federal writ of habeas corpus have also been denied.

The petitioner now asserts that he obtained videos or DVDs that were withheld from the defense and that these videos or DVDs contain exculpatory evidence. He contends that the records of the victims do not contain statement that the petitioner used a gun. He continues his claim by asserting, at length, that the law of aggravated rape, LSA-R.S. 14:42, requires the element of the perpetrator being armed with a dangerous weapon.

Under LSA-C.Cr.P. art. 930.8, the petitioner had two years from the date his conviction and sentence became final to file an application for post-conviction relief, unless he proves an exception to the time limitations of LSA-C.Cr.P. art. 930.8(A). The relevant exception provides as follows:

The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys. Further, the petitioner shall prove that he exercised diligence in attempting to discover any post-conviction claims that may exist. Diligence for the purposes of this Article is a subjective inquiry that must take into account the circumstances of the petitioner. Those circumstances shall include but are not limited to the educational background of the petitioner, the petitioner's access to formally trained inmate counsel, the financial resources of the petitioner, the age of the petitioner, the mental abilities of the petitioner, or whether the interests of justice will be served by the consideration of new evidence. New facts discovered pursuant to this exception shall be submitted to the court within two years of discovery.
LSA-C.Cr.P. art. 930.8(A)(1), emphasis added.

The petitioner does not prove or even allege when he obtained the recordings in question. He does not show any efforts by himself or counsel to obtain such recordings in the many years between conviction and the instant application for post-conviction. For this reason, he does not meet any of the exceptions for delayed filing. The court, therefore, finds petitioner's application for post-conviction relief time barred.

The court notes that, although the denial of this application is based on mandatory jurisdictional procedural grounds, the petitioner is unpersuasive on the merits as well. The bill of indictment enumerates that the crimes were charged on the basis of the victims being under twelve years of age. For this reason, the state had no obligation to prove the use of a gun or other dangerous weapon. The presence or absence of a gun is not exculpatory evidence.

Under LSA-C.Cr.P. art. 928, an application may be dismissed without an answer if the application fails to allege a claim which, if established, would entitle petitioner to relief. In this case, the petitioner has not alleged a claim valid claim reviewable in accordance with LSA-C.Cr.P. art. 930.3 or 930.4. The petitioner is not entitled to relief sought.

Accordingly,

IT IS DECLARED BY THE COURT that the application for post-conviction relief be and is hereby DENIED.

Gretna, Louisiana this 26 day of July, 2016. JUDGE

PLEASE SERVE:

Defendant: Cesar Roca, # 457210, Louisiana State Prison, Angola, LA

District Attorney: Paul Connick, Thomas J. Butler, 200 Derbigny St., Gretna, LA 70053


text:
    STATE EX REL. Richard Lynn LONG, Jr. v. STATE of Louisiana
    No. 2016-KH-2071
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND
   PER CURIAM:

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

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


text:
    STATE EX REL. Samuel RICHARDSON v. STATE of Louisiana
    No. 2016-KH-2036
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Relator has now fully litigated an 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.

JOHNSON, C.J., would grant.


text:
    STATE EX REL. Clifford BRAUD v. STATE of Louisiana
    No. 2015-KH-0701
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. In light of the Supreme Court's holding in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we vacate relator's sentence and remand this case to the Orleans Parish Criminal District Court for further proceedings consistent with the views expressed in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, and for resentencing pursuant to La.C.Cr.P. Art. 878.1. We further note that, after defendant is resentenced, that judgment is included by statute among those which defendant may appeal. See La.C.Cr.P. art. 912(C)(1).