text:
    Jackie Dean POGUE, a/k/a Jack Clayton, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3536.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.
    Jackie D. Pogue, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s determination that Appellant’s rule 3.850 motion was insufficient, but reverse and remand so that Appellant may be permitted to amend his petition if he can. Spera v. State, 971 So.2d 754 (Fla.2007).

AFFIRMED in part; REVERSED in part and REMANDED.

SAWAYA, TORPY and COHEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Courtney CHILCOTT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-2429.
    District Court of Appeal of Florida, Fifth District.
    Nov. 13, 2009.

      Courtney Chilcott, Jr., Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Courtney Chilcott, Jr., seeks a writ of mandamus because the circuit court has not ruled on his rule 3.850 motion for postconviction relief filed in January 2008. The last action taken in the underlying proceeding was on September 23, 2009, when the circuit court granted a sixty-day extension of time for the State to file a response to the rule 3.850 motion. The response will be due on or about November 23, 2009.

Given the slow progress in the underlying proceeding, we cannot be certain that a ruling will be issued within two years of the filing date of the rule 3.850 motion if Chilcott is not granted relief by this court. We, therefore, grant the petition for writ of mandamus and direct the circuit court to issue a ruling on Chilcott’s rule 3.850 motion by December 23, 2009, which is thirty days after the date the State’s response is due. See Deboles v. State, 960 So.2d 899 (Fla. 5th DCA 2007); Lewis v. State, 934 So.2d 605 (Fla. 5th DCA 2006).

PETITION GRANTED.

SAWAYA, ORFINGER and COHEN, JJ., concur.


author: ALTENBERND, Judge.

text:
    Ernest L. HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-19.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    Rehearing Denied Dec. 11, 2009.
   ALTENBERND, Judge.

Ernest L. Hughes appeals the trial court’s order denying his postconviction motion as untimely. Pursuant to a plea agreement, Mr. Hughes was sentenced to life in prison in 1997 for killing a woman with a hatchet during a robbery. In 2008, he filed his postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. His motion alleges that although it is filed beyond the normal two-year limitation period of rule 3.850(b), it should nevertheless be given full consideration because the claim alleged is a matter of “fundamental error.” We affirm the trial court’s order and write to dispel the common misconception among prisoners that “fundamental error” can be reviewed in a postconviction proceeding at any time, including beyond the two-year period normally permitted for motions filed under rule 3.850.

Admittedly, a generic concept of “fundamental error” has been mentioned extensively in opinions discussing postconviction relief. Nevertheless, “fundamental error,” as most commonly defined as an error for which relief can be given on direct appeal even if the issue was not preserved in the trial court, is not a basis to justify an extension of time for the filing of a post-conviction motion. Indeed, an error that is actually reviewable on direct appeal as “fundamental error” cannot be raised on postconviction review except as a matter of ineffective assistance of counsel. Thus, we write to discourage the use of this term in postconviction proceedings and to encourage defendants to allege a claim using the language of rule 3.850 or other more specific legal concepts.

I. Mr. Hughes’ Belated Theory

Mr. Hughes deserves credit for not concealing the successive and belated nature of his motion. He admits that he was indicted for murder in 1997 and that he pleaded nolo contendere to that charge in exchange for a life sentence. He recites that he has filed four prior postconviction motions. The last motion was filed in 2008 and denied as untimely. He believes that this motion deserves consideration on the merits because it raises an issue not raised in the prior motions, an issue that he claims is a matter of “fundamental error” that can be corrected at any time, including a decade after his judgment and sentence became final.

The error that Mr. Hughes maintains is “fundamental” does not actually appear to be an error of any sort. He complains that the grand jury indicted him for murder, stating that he “did unlawfully, while engaged in the perpetration of, or in the attempt to perpetrate a robbery, kill and murder [the victim], a human being, by hitting her in the head with a hatchet in violation of Florida Statute 782.04.” He believes that he could not plead nolo con-tendere to first-degree felony murder in light of the language of this charging document. He believes that the indictment needed to allege that he committed the crime with “premeditated design.” Clearly, he is confused about the nature of first-degree felony murder versus first-degree premeditated murder. See § 782.04(l)(a), Fla. Stat. (1996). He was charged with felony murder and was convicted of the same because he pleaded to that crime.

Despite the weakness of his theory, this court is interested in his argument that a fundamental error can be raised at any time, including beyond the normal period for a postconviction writ. This theory has become a common claim by prisoners. As explained below, the use of this term by defendants probably diminishes their chances of success. The judicial use of the term “fundamental error” in the postcon-viction setting has been rather loose, but it has related to a far narrower range of issues than those that are reasonably perceived by a prisoner untrained in the law as matters of fundamental error.

II. A Brief Examination of Rule 3.850

Florida Rule of Criminal Procedure 3.850 contains a reasonably extensive explanation of the grounds for and the contents of such a motion. In subsection (a) it states:

(a) Grounds for Motion. The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:
(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.

The rule proceeds to explain the normal two-year time limitations for such motions, followed by a list of three recognized exceptions to those limitations. Those exceptions include:

(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion.

Fla. R.Crim. P. 3.850(b). At the conclusion of subsection (c), which describes the contents of the motion, the rule states:

This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

Noteworthy to this discussion is that nothing in the rule states that “fundamental error” is a ground for relief.

III. Fundamental Error as Error that Cannot Be Raised on Postconviction Review

There are undoubtedly several definitions of “fundamental error.” In Florida, however, the term is most frequently equated with an error that “can be considered on appeal without objection in the lower court.” State v. Smith, 240 So.2d 807, 810 (Fla.1970). “In its narrowest functional definition, ‘fundamental error’ describes an error that can be remedied on direct appeal, even though the appellant made no contemporaneous objection in the trial court and, thus, the trial judge had no opportunity to correct the error.” Judge v. State, 596 So.2d 73, 79 n. 3 (Fla. 2d DCA 1991). The case law often attempts to further define “fundamental error” in order to help judges and practitioners to predict whether a particular error will fall into this category, but all of the definitions attempt to create a “narrow” category of issues that can be reviewed on direct appeal despite the party’s failure to preserve the issue by objection in the lower tribunal. See Maddox v. State, 760 So.2d 89, 95 (Fla.2000).

If a “fundamental error,” as so defined, is one that can be reviewed on direct appeal without any preservation in the lower court, then such an error arguably is a ground “that could have or should have been raised ... on direct appeal of the judgment and sentence.” See Fla. R.Crim. P. 3.850(c). In other words, the requirement of proper preservation in rule 3.850 requires no action in the trial court to allow review on direct appeal of an issue that is fundamental error. Accordingly, it is not surprising that courts have occasionally observed that an issue could not be raised in a postconviction motion because, if it truly were a matter of fundamental error, it could have and should have been raised on direct appeal. See Franqui v. State, 965 So.2d 22, 35 (Fla.2007); Brudnock v. State, 16 So.3d 839 (Fla. 5th DCA 2009).

Obviously, there are times when an error that is unsuccessfully argued as fundamental error on direct appeal results in a facially sufficient claim in a postconviction proceeding because the trial lawyer was allegedly ineffective when he or she failed to object to the offending evidence or argument, thereby rendering the outcome of the trial court proceedings unreliable. See, e.g., Nolan v. State, 794 So.2d 639, 641 (Fla. 2d DCA 2001) (holding that the defendant’s claim of counsel’s failure to object to prosecutorial misconduct constituted facially sufficient claim in spite of the fact that the challenged conduct was raised as a matter of fundamental error on direct appeal). However, in that context, the postconviction claim is not and should not be raised as a claim of “fundamental error.” When a postconviction claim is raised with an allegation that it is a matter of fundamental error, the defendant essentially invites the trial court to rely on the above-cited cases to dismiss the claim as one that could and should have been resolved on direct appeal.

IV. Four Explanations for the Use of “Fundamental Error” in Postcon-viction Case Law

There are now more than 140 reported cases that reference “fundamental error” in the context of “postconviction” relief. It is undoubtedly impossible to sort all of these cases into a few categories. There do, however, appear to be four categories demonstrating that the use of the term outside the definition used in the preceding section can lead to confusion.

First, there are cases that use the term “fundamental error” to mean an error that is reviewable without preservation at a procedural level other than direct appeal. For example, in response to a petition for habeas corpus, the supreme court stated:

An allegation of fundamental error may, under certain situations, be used to avoid some types of procedural bar. See generally Maddox[, 760 So.2d at 95] (“a narrow class of unpreserved sentencing errors can be raised on direct appeal as fundamental error”). Nevertheless, the concept of fundamental error was never intended to provide litigants with a means to circumvent the type of procedural bar that occurs when the exact claim has already been decided on the merits and is thus res judicata.

Denson v. State, 775 So.2d 288, 290 (Fla.2000). Footnote two of this quote explained: “There are many types of procedural bars, and we do not attempt to define them all in this decision. For our purposes today, by procedural bar we simply mean that a litigant is prevented from having his or her case reviewed on the merits for one reason or another.” Id. at 290 n. 2. Assuming that such usage of the term “fundamental error” is helpful, which seems doubtful to this court, then the courts will need to establish even narrower lists of errors for such procedural settings as “fundamental error on petition for habe-as corpus,” “fundamental error in rule 3.850,” and “fundamental error in rule 8.800(a).”

Second, “fundamental error” is frequently used as shorthand for an error that can be corrected under one of the six grounds quoted above from rule 3.850(a). Thus, as an example, if the trial court did not have jurisdiction to enter a judgment, this fundamental error can be reviewed on direct appeal. When this issue is first raised in a postconvietion proceeding, it simply needs to be raised under subsection (a)(2); it does not require a discussion of fundamental error. For example, in Willie v. State, 600 So.2d 479, 482 (Fla. 1st DCA 1992), the court stated: “A fundamental error may be raised for the first time at any point, including in a post-conviction proceeding.” This statement was made regarding a timely postconviction motion, explaining that lack of subject matter jurisdiction could be raised in a postconviction motion even if it had not been raised at an earlier time. Willie held that the issue raised by the defendant was not an issue relating to subject matter jurisdiction. Id.

Likewise, in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009), the Fourth District addressed a successive motion, explaining:

The “fundamental error” terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox[, 760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as “fundamental errors,” are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).

In Haliburton and the cases cited therein, under the actual language of rule 3.850, the issue was whether a claim involved a judgment or sentence “imposed in violation of the Constitution or laws of the United States or the State of Florida.” A substantive due process violation does not need to be “fundamental error” to give the trial court power to correct it under rule 3.850; rather, it needs to involve a judgment or sentence imposed in violation of the Constitution.

A third group of cases that is used to discuss fundamental error involves illegal sentences. See Cantrell v. State, 405 So.2d 986, 988 (Fla. 1st DCA 1981), quashed, 417 So.2d 260 (Fla.1982). It is well established that an illegal sentence can be corrected “at any time.” This authority comes from Florida Rule of Criminal Procedure 3.800(a). Admittedly, the concept of an “illegal sentence” is similar to the concept of “fundamental error,” but there is no need to determine whether an illegal sentence is fundamental error before a court corrects that error “at any time.” The supreme court effectively eliminated this usage when it explained in Maddox, 760 So.2d at 100 n. 8:

We note that in Davis[ v. State, 661 So.2d 1193, 1197 (Fla.1995)], we used the term “fundamental” errors and “illegal” sentences interchangeably. However, clearly the class of errors that constitute an “illegal” sentence that can be raised for the first time in a postcon-viction motion decades after a sentence becomes final is a narrower class of errors than those termed “fundamental” errors that can be raised on direct appeal even though unpreserved.

Finally, one of the grounds for filing a motion beyond the normal two-year period is that “the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.” See Fla. R.Crim. P. 3.850(b)(2). Such a “fundamental constitutional right” is not the equivalent of a “fundamental error,” although pleadings from prisoners untrained in the law often confuse these categories. Simply stated, fundamental error is not a valid ground for an untimely postconviction motion unless one creates a unique definition of “fundamental error” for this particular purpose. The grounds for such an untimely motion are contained in the rule, and we regard those grounds as sufficient without adding an additional category of special “fundamental errors” for belated postconviction proceedings.

V. Conclusion

We affirm the denial of this postconviction motion and caution those who file postconviction motions that an allegation of “fundamental error” is unlikely to help their cause and may actually harm it. As such, a motion brought under rule 3.850 should explain the claim within the grounds authorized by the rule itself.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

      . This is based on a Westlaw search performed in October 2009. This case adds another citation to that list.

      . We note that West has a key number within Post-Conviction Relief entitled “Fundamental or Constitutional Error." This may sometimes confuse prisoners about the need to allege a "fundamental error” when the prisoner really wishes to make a constitutional claim.


text:
    Irving ESCOBAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3237.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    Irving Escobar, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the September 13, 2007, judgment and sentence issued in Duval County Circuit Court case number 16-2007-CF-3203-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

VAN NORTWICK and PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    Vennis SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5284.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2009.
    Vennis Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, and Mark J. Hiers, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (holding that where the proceedings below are civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141 are not applicable).

VAN NORTWICK, PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    Larry MOGER, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D08-4169.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.

      Larry Moger, pro se, Appellant.
    Sarah Rumph, Acting General Counsel, Florida Parole Commission, for Appellee.
   PER CURIAM.

Appellant’s petition for extraordinary relief from final Florida Parole Commission agency action affirming the suspension of Appellant’s Presumptive Parole Release Date (“PPRD”) was properly deemed untimely by the circuit court pursuant to section 95.11(5)(f), Florida Statutes. The final agency action occurred on April 5, 2006, upon the Commission’s “Extraordinary Review” of the previous negative determination under section 947.18, Florida Statutes and suspension of Appellant’s PPRD.

It has long been recognized that agency action by the Florida Parole Commission “with respect to an inmate’s PPRD diminishes with the passage of time, so that the necessity and advisability of judicial intervention ... also subsides with the passage of time.” Jordan v. Florida Parole & Probation Commission, 403 So.2d 591, 592 (Fla. 1st DCA 1981). A PPRD is “presumptive only; it does not indicate the effective parole release date.” Id. As stated in Armour v. Fla. Parole Comm’n, 963 So.2d 305, 306-07 (Fla. 1st DCA 2007), “a Commission order suspending an inmate’s PPRD and thereby refusing to set an effective parole release date is appropriately reviewed by mandamus.” See also, Williams v. Fla. Parole Comm’n, 625 So.2d 926, 934 (Fla. 1st DCA 1993).

Because the trial court properly classified Appellant’s action below as one for non-habeas corpus extraordinary relief, and because Appellant, a prisoner, sought extraordinary relief more than one year after the agency action of the Florida Parole Commission became final, the trial court’s denial of the writ of mandamus as time-barred under section 95.11(5)(f), Florida Statutes, was correct and no error has been shown by Appellant.

The order of the circuit court is therefore AFFIRMED.

KAHN, BENTON, and CLARK, JJ., concur.


text:
    R.A.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1694.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Nancy A. Daniels, Public Defender; and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court issued a juvenile disposition order finding the allegations of simple battery to be true, withholding an adjudication of delinquency, and placing the appellant on probation. Counsel for the appellant filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), noting that an adjudication of delinquency was withheld. After a full and independent review of the record, we affirm the disposition order but remand to the trial court with instructions to correct a relatively minor sentencing error by striking costs in the amount of $20.00 imposed pursuant to the Crime Prevention Fund and section 775.083(2), Florida Statutes (2008). See In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991) (directing appellate courts to follow Anders procedure even where costs and other minor sentencing errors are raised in the Anders brief); J.S. v. State, 19 So.3d 380 (Fla. 2d DCA 2009) (remanding with directions to strike costs imposed under section 775.083(2), where the adjudication of delinquency was withheld); C.M.S. v. State, 997 So.2d 520, 521 (Fla. 2d DCA 2008) (noting that such costs under that statute can be assessed against a juvenile only upon an adjudication of delinquency).

AFFIRMED and REMANDED with instructions to strike costs assessed under section 775.083(2).

KAHN, BENTON, and CLARK, JJ„ concur.


author: KAPLAN, MICHAEL G., Associate Judge.

text:
    PALM BEACH POLO HOLDINGS, INC., a Florida corporation, Appellant, v. EQUESTRIAN CLUB ESTATES PROPERTY OWNERS ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 4D08-2250.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Rehearing Denied Dec. 22, 2009.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Dirán V. Seropian of Cole, Scott & Kis-sane, P.A., West Palm Beach, and Jeffrey D. Feldman and Samuel A. Lewis of Feld-man Gale, P.A., Miami, for appellee.
   KAPLAN, MICHAEL G., Associate Judge.

Palm Beach Polo Holdings, Inc. timely appeals a final money judgment entered in favor of Equestrian Club Estates Property Owners Association, Inc. awarding attorney’s fees pursuant to a proposal for settlement. This Court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).

Appellee, Equestrian Club Estates Property Owners Association, Inc. (Association) owns a private road which the appellant, Palm Beach Polo Holdings, Inc. (Palm Beach Polo) wanted to use to access an otherwise landlocked parcel of property know as the “one hundred acre lot.” On May 11, 2001, Palm Beach Polo filed its second amended complaint, which is the operative complaint upon which the case was tried. Count 1 of the second amended complaint alleged that Palm Beach Polo was entitled to three hundred votes in the election of the board of directors of the defendant property owners association due to rights allegedly granted at the time the property was developed. Palm Beach Polo alleged in Count 2 that the defendant had tortiously interfered with the plaintiffs attempts to sell the property by denying it access to the road, thereby resulting in monetary damages. In Count 6 of the complaint, Palm Beach Polo sought declaratory and injunctive relief, requiring the Association to recognize that the.plaintiff enjoyed an implied grant of way of necessity, entitling it to use the defendant’s private road to access the “one hundred acre lot.” On May 11, 2001, Palm Beach Polo moved for a temporary injunction, which was granted by the trial court on July 29, 2002. The court required the Association to remove the fence at the southern end of the private road and, pending trial, to allow Palm Beach Polo access to the “one hundred acre lot” through the guard house that the defendants controlled. The trial court ultimately required payment of a fifty thousand dollar bond by Palm Beach Polo.

A non-jury trial was held from May 2, 2005 through May 11, 2005, resulting in a final judgment in favor of the defendant Association. The trial court found that there was no common law way of necessity and that the alleged right to three hundred votes as to the defendant’s board of directors no longer existed. The Court further rejected the tortious interference claim because there was no showing that the defendant was aware of the contracts allegedly interfered with and because there was no prior determination that a way of necessity existed justifying any interference with access to the “one hundred acre lot”. The final judgment also dissolved the temporary injunction. Palm Beach Polo appealed the final judgment. This Court affirmed with opinion. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass’n, Inc., 949 So.2d 347 (Fla. 4th DCA 2007).

The defendant moved for attorney’s fees based, in part, on three proposals for settlement dated December 4, 2001, February 1, 2002 and April 30, 2004. Each proposal for settlement was pursuant to Rule 1.442, Florida Rules of Civil Procedure and Section 768.79, Florida Statutes (2008), and offered to pay $1,001.00 as complete and final resolution and settlement of all claims. The Association’s April 30, 2004 proposal offered the payment “as a complete and final resolution and settlement of all claims asserted by [Palm Beach Polo] against [Association] in this action.” The February 1, 2002 proposal for settlement used similar language. It stated “the proposal for settlement is for all claims brought against defendant, Equestrian Club Estates Property Owners Association, Inc., a Florida corporation, by the plaintiff, Palm Beach Polo Holdings, Inc., arising out of the litigation in this lawsuit.”

On May 23, 2006, the trial court entered its order on the attorney’s fees sought pursuant to the proposals for settlement. The trial court found that this case was an action for damages for purposes of application of section 768.79 and its corresponding rule. The trial court explained:

First, the plaintiff at trial and in its final argument to this court in the form of a proposed final judgment asked for damages against the defendant in an amount in excess of $8.6 million. It defies common sense, logic and would be a perversion of the rule and statute if this court were to consider a claim seeking an excess of $8.6 million to be not one for “damages”. While it is certainly true that a large portion of the trial dealt with whether or not the plaintiffs were entitled to a common law way of necessity across the defendant’s property, this claim was, in fact, the predicate for the claim for damages. In other words, absent a right-of-way of necessity, Plaintiffs’ claim for damages was not supportable. The mere fact that the plaintiff sought a common way of necessity across the defendant’s property as a predicate for its damage claim does not remove this cause from the statute or rule. This is also supported by the deposition testimony of Mr. Riemer that the original demand upon the Board of Directors made personally by Mr. Straub on behalf of the plaintiffs was that the entire matter could be resolved for a total payment by the defendants of $10 million. It would be contrary to the intent and purposes behind the statute not to allow a defendant who has been sued for an amount in excess of $8.6 million not to be able to attempt to resolve that dispute through a Proposal for Settlement.

The trial court subsequently held an evi-dentiary hearing to determine the amount of attorney’s fees awarded in an amended final judgment. The amended final judgment granted $441,625.00 in attorney’s fees and $83,775.16 in pre-judgment interest, for a total judgment of $525,340.16.

Section 768.79 provides the substantive law concerning offers of judgment and proposals for settlement, while Rule 1.442, provides its procedural mechanism. Saenz v. Campos, 967 So.2d 1114, 1116 (Fla. 4th DCA 2007). This Court applies a de novo review in determining whether an offer of settlement comports with rule 1.442 and section 768.79. Brower-Eger v. Noon, 994 So.2d 1239 (Fla. 4th DCA 2008).

The offer of judgment statute applies only to civil actions “for damages.” § 768.79. In this case, the action brought by Palm Beach Polo involved three essential Counts, two seeking declaratory judgment and only one seeking damages. One of the declaratory counts sought a way of necessity to obtain access to the “one hundred acre lot.” As pointed out by the trial judge, this claim served as a predicate for the tortious interference action, but it also had significant value independent of any monetary recovery for tortious interference.

In the instant case, the complaint contained two independent, significant claims, such that it could be characterized only as an action for both damages and non-monetary, declaratory relief. In order to determine whether the trial court erred in finding that the defendant is entitled to attorney’s fees pursuant to the offer of settlement, it must be determined whether a general offer applying to an entire case that includes both claims for damages and other claims can be binding upon the unsuccessful party. This issue has not yet been addressed by this court.

This court has addressed whether certain claims constitute actions “for damages.” In Novastar Mortgage, Inc. v. Strassburger, 855 So.2d 130, 131 (Fla. 4th DCA 2003), we rejected an argument that a mortgage foreclosure action was not an action for damages, pointing to the plaintiffs prayers for attorney’s fees and costs and noting the argument that the case “was only about money.” In National Indemnity Co. of the South v. Consolidated Insurance Services, 778 So.2d 404, 408 (Fla. 4th DCA 2001), the complaint sought only declaratory relief as to insurance coverage. Because no damages or payment of money was directly requested, this court concluded that the trial court was correct in finding that the offer of judgment statute did not apply. In so doing, this court characterized its task as looking at “whether the ‘real issue’ is one for damages or declaratory relief.” Id. This clearly does not contemplate an action such as the one at bar where both declaratory and damage relief are sought. In Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996), the plaintiff brought a declaratory action, but the only issue was money, whether the defendant was entitled to retain a deposit as liquidated damages or whether the plaintiff was entitled to its return. The court construed this as an action for damages and thus applied the statute. In V.I.P. Real Estate Corp. v. Fla. Executive Realty Mgmt. Corp., 650 So.2d 199, 201 (Fla. 4th DCA 1995), this court applied the statute to an interpleader action, since the real issue there was entitlement to a real estate commission. Finally, in Burtman v. Porchester, 680 So.2d 631, 632 (Fla. 4th DCA 1996), the court applied the statute to an interpleader action despite the existence of a cross-claim to set aside a fraudulent transfer, which does not qualify under the statute as a claim for civil damages. This court clarified that the fraudulent transfer issue was raised for purposes of defeating the plaintiffs claim for monetary relief and therefore did not preclude recognizing the action as one that essentially involved conflicting claims for money. Id.

The offer of judgment statute is in derogation of the common law rule that each party pays its own fees and, therefore, its language must be strictly construed. Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007). This is the case despite the legislature’s clear intent to encourage settlement of claims by permitting the assessment of attorney’s fees against a losing party facing a valid offer of settlement. Unicare Health Facilities, Inc. v. Mart, 553 So.2d 159 (Fla.1989).

Our supreme court addressed the strict construction of the offer of judgment statute in Campbell, 959 So.2d at 226. In that case, the proposal for settlement was served upon the defendant but was never accepted, or filed with the trial court, nor did the proposal make reference to the applicable statute, section 768.79. In invalidating the offer of settlement, the court found that the plain language of this “penal, fee-shifting provision” required that the offer must state that it is being made pursuant to the statute.

Similarly, strict construction of the statute and rule should not allow application of a general offer of settlement, sought to be applied to claims seeking non-monetary relief as well as actions for damages. In this case, each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims. Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute.

The facts of this case are similar to those in DiPaola v. Beach Terrace Ass’n, Inc., 718 So.2d 1275 (Fla. 2d DCA 1998). The plaintiffs, unit owners in a condominium, sued for damages and equitable relief against their condominium association and other co-defendants. The trial court found in favor of the plaintiffs on count four of their complaint, which sought both damages and injunctive relief. However, the court further determined that the amount recovered by the plaintiffs did not exceed the requisite amount under the offer of judgment and ordered them to pay attorney’s fees to the defendant association. On appeal, the second district held that the offer was ambiguous in that it failed to state whether the defendant association was agreeing to the entry of injunctions in addition to settlement of the plaintiffs’ damages claim despite its claim to be an offer to allow judgment on “all claims.” Id. at 1277. The court therefore reversed the trial court’s award of attorney’s fees pursuant to the offer of judgment, finding the offer invalid under section 768.79. Id.

Here, the proposals for settlement did not state whether the association was agreeing to entry of any injunctions, or declaration of Palm Beach Polo’s grant of way of necessity, yet it claimed to be a proposal to settle all claims. If the statute were read to permit a proposal for settlement to apply to a case in which there were claims for non-economic relief as well as for damages, the offeree would be forced either to accept the proposal and continue to litigate the request for injunc-tive and non-economic relief or to give up their non-damage claims. The purposes of section 768.79 include the early termination of litigation. A proposal for settlement in a case such as this one does not satisfy that purpose, as its acceptance would not terminate the litigation nor resolve those claims not seeking damages. Because the proposals for settlement addressed a complaint that included non-damages claims, they do not comply with the statute, and we find them invalid and reverse the trial court’s order awarding fees.

Reversed and Remanded.

POLEN, J., concurs.

CIKLIN, J., concurs; he did not participate in oral argument, but has had the opportunity to review the entire proceedings.

      . At the time of the DiPaola decision, section 768.79 was not limited by its language to "claims for damages,” nonetheless, the same reasoning that applied to that offer, finding it ambiguous under the then-existing statute, is applicable to the case at bar.


author: TAYLOR, J.

text:
    Willie H. WATSON Jr., Appellant, v. SUMMIT ASSET MANAGEMENT, LLC, and Florida Unemployment Appeals Commission, Appellees.
    No. 4D09-576.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Willie H. Watson Jr., Riviera Beach, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee-Florida Unemployment Appeals Commission.
   TAYLOR, J.

The claimant appeals the final order of the Florida Unemployment Appeals Commission (UAC), which reversed the decision of an appeals referee and found that the claimant was disqualified for benefits due to his discharge for misconduct connected with work. We reverse.

The appeals referee made the following factual findings:

The claimant worked as a maintenance technician for this employer from January 2007 to a last day of work on April 28, 2008. Over the course of the claimant’s employment he had been warned more than once about his attendance. The claimant was given a warning in February 2008 about failing to call the employer to give notice of an absence. The claimant has emphysema. He does not have a telephone. His girlfriend has a telephone.
The claimant started feeling sick on April 28, 2008. He found it hard to breathe. He stayed at home starting on April 29, 2008 and took medication for his breathing. The problem did not improve. The claimant’s girlfriend was away and she had her telephone with her. The claimant went next door, but his neighbor was away, too. The claimant decided to go to the VA hospital, but he found that it was too painful to wait at the bus stop. The claimant went to the VA hospital on May 1, 2008. The claimant finally had access to a telephone, and so he called the employer late that night, leaving a message that he would be absent the next day. The claimant went to his primary care doctor the next day. The claimant got a note from his doctor about his illness. The claimant appeared at work on May 5, 2008, but the employer informed the claimant that he did not have a job, since he had not given the employer notice of being absent during three consecutive work days.

The appeals referee concluded that the claimant was qualified to receive benefits because he was discharged for reasons other than misconduct. The referee stated, in pertinent part:

The claimant’s testimony shows that, while he did not have a telephone of his own, he could usually rely on his girlfriend or neighbor to lend him the use of one. The testimony shows that the claimant could not conduct a search elsewhere for a means to notify the employer. But the evidence shows that the claimant did notify the employer when he could. Accordingly, while the employer may well have made a sound business decision to discharge the claimant, the discharge was not for disqualifying misconduct, within the meaning of the unemployment compensation law.

The employer appealed the referee’s decision to the UAC. The UAC disagreed with the referee’s conclusion that the claimant was qualified for benefits and reversed his decision.

A reviewing court must defer to an agency’s interpretation of a statute as long as that interpretation is consistent with legislative intent and supported by competent substantial evidence. Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). The administrative construction of a statute by the agency charged with its administration is entitled to great weight. This court may not overturn an agency interpretation unless clearly erroneous. Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983).

The Commission found that the claimant was disqualified from receiving benefits due to “misconduct.” That term is defined by statute as follows:

(29) “Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 443.036(29), Fla. Stat. (2008).

The UAC is bound by the findings of fact made by the appeals referee as long as competent, substantial evidence is present in the record to support them. Brooks v. Unemployment Appeals Comm’n., 695 So.2d 879, 881 (Fla. 5th DCA 1997). In this case, the Commission contends that it did not substitute its judgment for that of the appeals referee as to factual matters, but rejected the referee’s legal conclusion that the claimant’s failure to notify his employer of his absence, under the circumstances, did not amount to misconduct.

In Bates v. Unemployment Appeals Commission, 655 So.2d 1242 (Fla. 2d DCA 1995), the claimant, a caregiver in the toddler room of a Christian school, developed the flu on Monday. She did not have a phone in her apartment. She asked her mother to call and let her employer know she was ill. The school official who received the mother’s call testified that she was told that the claimant was ill and would call later. The claimant did not communicate with the school the rest of the week. Because she had not called daily, the referee found misconduct and denied benefits. The second district reversed, stating:

Ms. Bates should have had her mother call to update the employer regarding the status of her illness. Her failure to do so, however, should not render her ineligible for unemployment compensation.

Id. at 1243.

In Dickerson v. Florida Unemployment Appeals Commission, 646 So.2d 261 (Fla. 2d DCA 1994), the court stated:

This court has called a failure to inform the employer of illness “poor judgment” or “carelessness” that does not rise to the level of a wrongful intent or manifest a substantial disregard of the employer’s interests. Seger v. Danner Construction Co., Inc., 611 So.2d 82 (Fla. 2d DCA 1992).... Even when an employer has a policy that an employee who does not telephone prior to missing work will be subject to immediate dismissal, a failure to notify the employer, accompanied by a legitimate inability to telephone as required, is not willful and wanton disregard of the employer’s mies or misconduct justifying denial of benefits. Lamb v. Unemployment Appeals Commission, 424 So.2d 197 (Fla. 5th DCA 1983).

(emphasis added).

In this case, the appeals referee determined that the claimant had a legitimate inability to telephone his employer as required. This finding supports the referee’s conclusion that the claimant’s failure to notify his employer during his absence was mere “poor judgment” that did not rise to the level of misconduct.

Reversed and Remanded.

GROSS, C.J., and HAZOURI, J., concur.


author: SUAREZ, J.

text:
    COASTAL BUILDING MAINTENANCE, INC., etc., Appellant, v. Bertilia PRIEGUES, Appellee.
    No. 3D09-1884.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Knecht & Knecht and Harold C. Knecht, Jr., for appellant.
    Lawrence J. McGuinness; Billbrough & Marks and G. Bart Billbrough, Coral Gables, for appellee.
    Before SUAREZ, SALTER, JJ„ and SCHWARTZ, Senior Judge.
   SUAREZ, J.

On Motion to Dismiss

Appellee, claimant, Bertilia Priegues, moves to dismiss the appeal of a non-final order denying the employer’s, Coastal Building Maintenance, Inc.’s (“Coastal”), motion for summary judgment based on workers’ compensation immunity. We grant the motion to dismiss.

As conceded by Coastal, this Court finds that the order denying the motion for summary judgment is neither renewable under Florida Rule of Appellate Procedure 9.130 as a non-final order nor under the certiorari jurisdiction of this court. See Fla. R App. P. 9.030(b)(2). The order below does not make a determination on the issue of workers’ compensation immunity. It is simply an order denying a motion for summary judgment for insufficient evidence to support a summary judgment on the defense of workers’ compensation immunity. The order lacked the required designation “that, as a matter of law, [the claimant] was not entitled to workers’ compensation immunity,” which makes it appealable as a non-final order. See Fla. R.App. P. 9.130(a)(3)(C)(v); Reeves v. Fleetwood Homes, 889 So.2d 812 (Fla.2004).

Dismissed.


text:
    Kenneth PADEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1722.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.
    Kenneth Paden, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Kenneth Paden presents a timely claim of ineffective assistance of appellate counsel. He faults his counsel for failing to argue that the trial court fundamentally erred when, after initially adjudicating him incompetent, it thereafter proceeded to trial without holding an appropriate hearing or making a determination that he had been restored to competency. The state forthrightly concedes the trial court’s error in this regard, and that its error is fundamental. See Jackson v. State, 880 So.2d 1241 (Fla. 1st DCA 2004). Accordingly, we grant Paden’s petition, vacate the August 31, 2008, judgment and sentence in Gadsden County Circuit Court case number 05-770CF, and remand for such further proceedings as may be warranted pursuant to Florida Rule of Criminal Procedure 3.212.

PETITION GRANTED, JUDGMENT AND SENTENCE VACATED, and REMANDED.

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


text:
    Sandy CORDERO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Segue Search of Florida, LLC, Appellees.
    No. 1D09-3755.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.
    Sandy Cordero, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of the final order rendered by the Unemployment Appeals Commission, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110.

VAN NORTWICK and PADOVANO, JJ., and BROWNING, JR., EDWIN B„ Senior Judge, concur.


text:
    Jermaine HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4185.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.
    Jermaine Hunter, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on or about August 15, 2007, in Gadsden County Circuit Court case number 07-122-CFA, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


text:
    Jeffery PERKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4267.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.
    Jeffery Perkins, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about March 9, 2009, in Okaloosa County Circuit Court case numbers 07-CF-2319 and 07-CF-2785, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

HAWKES, C.J., BARFIELD and CLARK, JJ., concur.


text:
    Francisco AVILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-796.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Francisco Aviles appeals his conviction and sentence for felony driving under the influence with damage to the person or property of another. He makes several claims of error and we affirm all points raised except for the issue pertaining to the trial court’s judgment which erroneously reflects convictions on two counts. The State concedes error.

Accordingly, this cause is remanded to the trial court for correction of the written sentencing documents to reflect an adjudication and sentence in one count only.

FARMER, HAZOURI and CIKLIN, JJ., concur.


text:
    Henry BARNUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3122.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Clifford L. Davis, Monticello; Nancy A. Daniels, Public Defender, David P. Gaul-din, Assistant Public Defender, and Kathleen Stover, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Ann M. Phillips, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We find no substantive error in the order revoking the appellant’s probation but remand the case to the trial court to enter a corrected order showing that the judgment was rendered on the evidence presented in a probation violation hearing and not by an admission.

Affirmed and remanded.

VAN NORTWICK and PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


text:
    Sharon Rae WILLIAMSON, formerly known as Sharon R. Studley, Individually and as Trustee of Gainesville Country Village Land Trust, Petitioner, v. Bradford C. BANTA, as Trustee of the Bradford C. Banta Revocable Trust dated February 5, 1990; in his own right and in the right of Gainesville Country Village, L.C., a Florida Limited Liability Company, Respondent.
    No. 1D09-365.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    N. Albert Bacharach, Jr., of N. Albert Bacharach, Jr., P.A., Gainesville, for Petitioner.
    Gregory G. Olsen of Olsen & Olsen, LLP, Ft. Lauderdale, for Respondent.
   PER CURIAM.

In this petition for writ of certiorari, Petitioner argues the trial court’s partial summary judgment for monetary damages should be quashed on two grounds. In particular, Petitioner asserts the trial court departed from the essential requirements of law, causing material injury, not remediable on appeal by (1) entering a summary judgment concerning the parties’ settlement agreement where a material issue of fact existed as to the correct interpretation of that agreement; and (2) including the language “upon which let execution issue” in the partial summary judgment. We decline to address Petitioner’s first issue because the correct interpretation of the parties’ settlement agreement may be addressed on appellate review after all matters have been adjudicated. Respondent concedes, and we agree, however, that the trial court’s inclusion of the execution language departed from the essential requirements of the law and caused a material injury that cannot be remedied on appellate review. See Millennium Group I, L.L.C. v. Attorneys Title Ins. Fund, Inc., 847 So.2d 1115, 1116-17 (Fla. 1st DCA 2003) (holding trial court erred as matter of law by letting execution issue on defendant’s counterclaim when original claim remained pending); Baumann v. Intracoastal Pac. Ltd. P’ship, 619 So.2d 403, 404 (Fla. 3d DCA 1993) (holding partial summary judgment order directing disbursement of funds before disposition of all matters was improper). Accordingly, we GRANT Petitioner’s petition, in part, and QUASH the portion of the trial court’s partial summary judgment which allows execution to issue on the judgment.

KAHN, BENTON, and CLARK, JJ, concur.


text:
    LIFE CARE CENTER OF WINTER HAVEN and Gallagher Basset Services, Inc., Appellants, v. Valerie A. BENJAMIN, Appellee.
    No. 1D09-0858.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Jeffrey E. Appel and Mark N. O’Grady of Appel Law Group, Lakeland, for Appellants.

      Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Joshua C. Nelson of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellee.
   PER CURIAM.

The employer/carrier (E/C) challenge an order of the Judge of Compensation Claims (JCC) that generally sets forth the manner in which permanent impairment benefits are to be calculated and paid. Nevertheless, the order on appeal does not calculate the dollar amount of permanent impairment benefits to which Claimant is entitled, the essential issue tried below. Instead, the JCC directed the parties to administratively determine additional facts and calculate the benefits thereon. Additionally, the JCC reserved jurisdiction to determine the exact amounts due and owing should the parties be unable to reach an agreement. Because the order does not finally resolve the central issue brought to trial, the order is nonfinal and nonappealable, and the E/C’s appeal is DISMISSED. See Fla. R.App. P. 9.180(1); see also Martin County Bd. of County Commr’s v. Jones, 595 So.2d 125, 128 (Fla. 1st DCA 1992) (holding where JCC reserved on precise amount of medical bills appellate court did not have jurisdiction over issue of whether JCC erred awarding such payment); Betancourt v. Sears Roebuck Co., 693 So.2d 680 (Fla. 1st DCA 1997) (stating where JCC reserves ruling on a claim that is ripe for adjudication, order is not yet final or appealable).

DISMISSED.

VAN NORTWICK, and PADOVANO, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.


author: BROWNING, JR., EDWIN B., Senior Judge.

text:
    Patti Angela WELCH, Wife, Appellant, v. Thomas Frederick WELCH, Husband, Appellee.
    No. 1D08-5670.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.

      Graham Clarke, Panama City, for Appellant.
    Carroll L. McCauley, Panama City, for Appellee.
   REVISED OPINION ON APPELLANT’S MOTIONS FOR WITHDRAWAL OF OPINION, CLARIFICATION, REHEARING, OR REHEARING EN BANC

BROWNING, JR., EDWIN B., Senior Judge.

Patti Angela Welch, the former wife, has moved for a withdrawal, clarification, rehearing, or rehearing en banc of our previous opinion in Welch v. Welch, 34 Fla. L. Weekly D1503 (Fla. 1st DCA July 24, 2009). We grant relief to the extent that we withdraw our prior opinion and substitute the following clarifying opinion. The motion for rehearing en banc is denied.

The former wife appeals certain findings of fact and conclusions of law made by the trial court in its final judgment dissolving her 23-year marriage to the appellee, Thomas Frederick Welch. Florida Rule of Civil Procedure 1.530(e) states in pertinent part:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

Thus, we review the trial court’s determination of the former wife’s income for purposes of awarding alimony and child support in light of the former wife’s contention that no competent substantial evidence in the record supports the sums.

On the former wife’s claim for permanent periodic alimony pursuant to section 61.08, Florida Statutes (2007), the trial court awarded her only $1.00 a year in nominal permanent alimony, thereby reserving jurisdiction to revisit this issue if the circumstances should justify it. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001). The parties’ 23-year marriage is considered “long-term,” raising a rebuttable presumption of entitlement to alimony. See Rabbath v. Farid, 4 So.3d 778, 784 (Fla. 1st DCA 2009) (revised opinion on the appellee’s motion for rehearing). A ruling on a claim for permanent periodic alimony is reviewed for an abuse of discretion. See Alcantara v. Alcantara, 15 So.3d 844, 845-47 (Fla. 3d DCA 2009); Green v. Green, 463 So.2d 510 (Fla. 1st DCA 1985). In the section of the final judgment of dissolution of marriage specifically addressing “Alimony,” the court found the former husband earned approximately $140,000.00 per year and the former wife earned approximately $85,000.00 per year. The former wife contends this figure for her yearly income is unsupported by any competent substantial evidence.

Section 61.08(2), Florida Statutes (2007), states that in determining whether to grant alimony to either party, the trial court “shall consider all relevant economic factors, including but not limited to,” “[a]ll sources of income available to either party.” § 61.08(2)(g), Fla. Stat. (2007). As used in the chapter on dissolution of marriage:

“Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, workers’ compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.

§ 61.046(8), Fla. Stat. (2007). Refuting the suggestion that the income figures for the former wife are unsupported by the evidence, the former husband relies on the former wife’s salary in 2007 as reported on her federal income tax return, the testimony of the forensic accountant, the annual cost-of-living salary increase received by the employees of her company, the employment benefits paid to her retirement plan, and the significant economic value of employer-paid health, dental, vision, and life insurance benefits. We find no abuse of discretion in the trial court’s findings regarding the parties’ respective incomes. To the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a timely motion for rehearing. See Anaya v. Anaya, 987 So.2d 806 (Fla. 5th DCA 2008); Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001); Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001); Reis v. Reis, 739 So.2d 704, 705-06 (Fla. 3d DCA 1999).

Counsel for the former wife filed a motion for appellate attorney’s fees. Florida Rule of Appellate Procedure 9.400(b) states in pertinent part that “[a] motion for attorney’s fees ... shall state the grounds on which recovery is sought.” The Supreme Court of Florida has strictly interpreted this rule as requiring a party seeking appellate attorney’s fees to “provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court.” United Services Auto. Ass’n v. Phillips, 775 So.2d 921, 922 (Fla.2000); see Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003). “The ‘grounds on which’ an award is sought require! ] a party to identify a source of entitlement to an award of fees.” White v. White, 3 So.3d 400, 403 (Fla. 2d DCA 2009). “Virtually all claims for attorney’s fees rest on contractual or statutory bases.” Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001). “Any determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage ... begins with section 61.16, Florida Statutes,” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997), subsection (1) of which is the statutory authority governing an award of appellate attorney’s fees in dissolution of marriage appeals. Inasmuch as no statutory ground whatsoever is cited in the motion for appellate attorney’s fees, it must be denied. See Sumlar v. Sumlar, 827 So.2d 1079, 1086 (Fla. 1st DCA 2002); Shuler v. Darby, 786 So.2d 627, 630 (Fla. 1st DCA 2001) (on motion for clarification and/or rehearing).

We AFFIRM the final judgment dissolving the parties’ marriage.

PADOVANO and WETHERELL, JJ., concur.


text:
    Tyrone BROUGHTON, Appellant, v. TIRES PLUS CAR CARE and Sedgwick Claims Management Services, Inc., Appellees.
    No. 1D09-4209.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Tyrone Broughton, Appellant, pro se.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, LLP, Sarasota, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s October 6, 2009, order to show cause, the court GRANTS Appellees’ motion to dismiss and DISMISSES this appeal for lack of jurisdiction. See, e.g., Troche v. BJ’s Wholesale Club, Inc., 954 So.2d 685, 686 (Fla. 1st DCA 2007) (“It is well settled that to be timely, a notice of appeal must be filed in the appropriate court within the appropriate time period.”); Metro. Dade County v. Vasquez, 659 So.2d 355, 356 (Fla. 1st DCA 1995) (dismissing untimely appeal for lack of jurisdiction).

VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.


author: WALLACE, Judge.

text:
    Zachary JOERIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5555.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah A. Fraim, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Zachary Joerin appeals his judgment and sentence for fleeing or attempting to elude a law enforcement officer under section 316.1935(3)(a), Florida Statutes (2007), a second-degree felony. Mr. Joerin argues that double jeopardy principles bar his fleeing or eluding conviction because he had previously pleaded nolo contendere to and been sentenced for a reckless driving offense, section 316.192(1), stemming from the same series of events that gave rise to the fleeing or eluding charge. We conclude that Mr. Joerin’s convictions for both reckless driving and fleeing or eluding do not violate double jeopardy. See Cruz v. State, 956 So.2d 1279, 1282 (Fla. 4th DCA 2007).

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.


author: LaROSE, Judge.

text:
    Lacrecia Amanda WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3608.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Lacrecia Amanda White seeks review of an order withholding adjudication, placing her on probation, and imposing certain costs. We affirm except for two imposed costs.

The trial court assessed costs of $3 under section 938.01 and $2 under section 938.15, Florida Statutes (2007). These provisions apply only to “convicted persons,” with the inapplicable exception of withheld adjudications for certain traffic violations.

Here, the trial court withheld adjudication. Accordingly, these two cost items cannot stand. See Reyes v. State, 655 So.2d 111, 118 (Fla. 2d DCA 1995) (striking costs imposed upon withhold of adjudication under statute that authorized imposition only upon conviction), superseded by statute, § 938.15, Fla. Stat. (1997), on other grounds as recognized in Waller v. State, 911 So.2d 226, 227 (Fla. 2d DCA 2005); Knaus v. State, 608 So.2d 557, 558 (Fla. 2d DCA 1992) (same); see also J.S. v. State, 19 So.3d 380, 380 (Fla. 2d DCA 2009) (striking costs imposed upon withhold of adjudication in juvenile context where statute authorized imposition only upon adjudication).

Judgment and sentence affirmed; specified costs stricken.

WHATLEY and MORRIS, JJ„ Concur.


author: VILLANTI, Judge.

text:
    C.W., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Respondents.
    No. 2D09-4028.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 2009.
    Jackson Stuart Flyte, Regional Counsel, Second District, Bartow, and Julia Fletcher, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bradenton, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Respondent Department of Children and Family Services.
    Wendie Michelle Cooper, Tavares, for Respondent Guardian ad Litem Program.
   VILLANTI, Judge.

C.W., the Mother, seeks review of an order sheltering her youngest child in this termination of parental rights case. Based on rulings made by the trial court while this petition was pending, we dismiss this petition as moot.

Dismissed.

KELLY and KHOUZAM, JJ., Concur.


text:
    In re Thomas G. McHUGH.
    No. 2009-B-1706.
    Supreme Court of Louisiana.
    Nov. 20, 2009.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Thomas G. McHugh, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in June 2007. In re: McHugh, 07-1337 (La.7/3/07), 960 So.2d 62.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

Count I

On July 5, 2005, respondent agreed to represent Melissa Melancon in a juvenile proceeding for a $500 fee. The hearing was set for July 14, 2005. Between July 7, 2005 and July 11, 2005, Ms. Melancon paid respondent $500. Nonetheless, respondent failed to attend the hearing.

By letter dated July 19, 2005, Ms. Me-lancon discharged respondent and asked for an accounting and a refund of the unearned fee. Respondent failed to respond to |j>Ms. Melancon, failed to provide an accounting, and failed to promptly refund the unearned fee.

On February 17, 2006, respondent refunded the $500. On March 10, 2006, respondent paid Ms. Melancon legal interest for the period between July 18, 2005 and February 17, 2006. Respondent provided the ODC with a copy of both cancelled checks on May 12, 2008.

Count II

In July 2006, respondent abandoned his law practice and his clients, including, but not limited to, the following clients:

1) Fred and Crystal Peltier — In July 2006, they paid respondent a $1,000 flat fee for a civil matter and a $1,500 flat fee for a criminal matter. By July 10, 2007, respondent refunded $2,500 plus legal interest;
2) Patrick Latiolais — Between March 23, 2004 and May 3, 2004, he paid respondent a $15,000 flat fee for a criminal matter. Respondent admitted he was not present at Mr. Latiolais’ sentencing hearing and, therefore, intended to refund $500. On March 17, 2009, respondent refunded $500 plus $102.55 in legal interest;
3) Kelly Hebert — Between December 4, 2004 and February 8, 2005, she paid respondent a $1,250 flat fee for a domestic case and a bankruptcy case. Respondent refunded $1,250 plus $354.56 in legal interest on August 15, 2008;
4) Cannis Joseph Francois, Sr. — Between July 2005 and August 2005, he paid respondent a $1,500 flat fee for a community property case. |3Respondent refunded $1,500 on June 20, 2008 and refunded $257.02 in legal interest on July 25, 2008;
5) Stephanie P. Kelley — On February 10, 2006, she paid respondent a $750 flat fee for a DWI case. Respondent refunded $750 on November 27, 2007 and refunded $160.56 in legal interest on July 24, 2008;
6) Stephen Harrison — In February 2006, he paid respondent a $300 flat fee for an expungement matter. Respondent refunded $300 on November 27, 2007 and refunded $53.76 in legal interest on July 23, 2008;
7) Kevin Wayne Perrodin — On September 16, 2005, he paid respondent $600 towards an $800 flat fee for a child support case. Respondent refunded $600 on November 27, 2007 and refunded $143.75 in legal interest on July 24, 2008;
8) John Hubert Theriot — On March 3, 2006, he paid respondent a $1,500 flat fee for a DWI case. Respondent refunded $1,500 on June 26, 2008 and refunded $314.56 in legal interest on July 25, 2008;
9) Christine A. Gaudin — On September 9, 2005, she paid respondent a $750 flat fee for a bankruptcy case. Respondent refunded $750 on June 30, 2008 and refunded $177.35 in legal interest on July 25, 2008;
10)Juamarra Martin — -He paid respondent $1,600 on October 7, 2004 and $1,000 on November 17, 2005 for a criminal case. On October 7, 2008, respondent refunded $2,600 plus $739.36 in legal interest;
11) Ellis Glenwood Gusler, III — Between February 11, 2005 and May 5, 2005, he paid respondent a $800 flat fee for two speeding ticket cases. Respondent refunded $800 on March 20, 2008 and refunded $189.29 in legal interest on August 15, 2008;
|412) Humberto Cisnaros — He paid respondent an unknown fee for a criminal case. Respondent admitted he was not present at Mr. Cis-naros’s sentencing hearing and, therefore, intended to refund $500. Respondent’s attempts to locate Mr. Cisnaros to provide the refund has been unsuccessful thus far;
13) Albert Stevens, Jr. — Between January 9, 2006 and March 28, 2006, he paid respondent a $6,000 flat fee for a criminal matter. Between December 12, 2008 and February 20, 2009, respondent refunded a total of $6,000. He also refunded $1,538.78 in legal interest on February 20, 2009.

With the exception of the Latiolais and Cisnaros cases, respondent performed little or no legal work on behalf of his clients. Respondent also missed several court appearances in his clients’ cases, and in the Cisnaros case, he was held in contempt for failing to appear in court. In several of the above cases, respondent neither made an appearance nor filed any pleadings on his clients’ behalf. Respondent further failed to communicate with his clients and was unavailable to them, despite them efforts to contact him.

When he abandoned his law practice, he failed to properly notify his clients, opposing counsel, and the courts that he was leaving the practice of law. He failed to file motions to withdraw in those cases in which he had appeared or filed pleadings. He also failed to account to his clients for the fees paid or promptly refund unearned fees.

In a May 7, 2007 sworn statement to the ODC, respondent indicated that he intended to provide his clients with full refunds, including legal interest. When the ODC filed formal charges against him, respondent had not yet provided the ODC with | ¡-.documentation of said refunds. However, he later provided the ODC with copies of cancelled checks as proof of the refunds listed above.

DISCIPLINARY PROCEEDINGS

In April 2008, the ODC filed two counts of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges and admitted his misconduct. However, he asserted that numerous mitigating factors were applicable.

Prior to a formal hearing in this matter, respondent and the ODC entered into a joint stipulation of facts, as set forth above. Respondent also stipulated that he violated Rules 1.3, 1.4, 1.5(f)(5), and 1.16(d) of the Rules of Professional Conduct. However, he disputed that his conduct amounted to a violation of Rule 8.4(c). Because of the stipulations, respondent and the ODC agreed that a formal hearing was unnecessary. Accordingly, the hearing was can-celled, and the matter was submitted to the hearing committee based upon the record, exhibits, and memoranda previously filed by the parties.

Hearing Committee Report

After considering the stipulation, exhibits, and memoranda, the hearing committee found that respondent admitted to the substantive factual allegations of the Informal charges and admitted to violating the alleged Rules of Professional Conduct with the exception of Rule 8.4(c). The committee, however, found that respondent did violate Rule 8.4(c).

The committee determined that, based on the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is disbarment. In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the practice of law (admitted 1996). As mitigating factors, the committee found the following: absence of a prior disciplinary record and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings. The committee declined to find the mitigating factor of timely good faith efforts to make restitution because most of respondent’s efforts at restitution were made after the filing of formal charges.

Under these circumstances, and after considering this court’s prior jurisprudence, the committee recommended that respondent be permanently disbarred.

Respondent filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent knowingly and intentionally violated duties owed to his clients and the legal profession. Respondent caused serious actual 17harm to several clients by collecting advanced fees and conducting no work on the clients’ legal matters. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

The board agreed with the aggravating and mitigating factors found by the committee. In addition, the board accepted that respondent experienced symptoms of depression, anxiety, and stress at the time of the misconduct, though it assigned these personal and emotional problems very little weight in mitigation. With respect to restitution, the board recognized that respondent has paid restitution, plus legal interest, to all but one client, albeit in an untimely manner.

Given respondent’s cooperation in these proceedings as well as his restitution efforts, the board determined that permanent disbarment is not warranted. Instead, the board recommended that respondent be disbarred. The board further recommended that respondent be ordered to continue his attempts to make restitution to Mr. Cisnaros.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). |sWhiIe we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent has stipulated to the factual allegations of the formal charges as set forth above in the underlying facts section. The record supports these facts. Respondent has also stipulated to violating Rules 1.3, 1.4, 1.5(f)(5), and 1.16(d) of the Rules of Professional Conduct. The record supports these rule violations, as well as a violation of Rule 8.4(c) based on respondent’s abandonment of his law practice without protecting his clients’ interests or promptly refunding unearned fees.

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

Respondent knowingly and intentionally violated duties owed to his clients, the legal profession, and the legal system. His conduct caused actual harm to his clients. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for misconduct involving the abandonment of a legal practice is disbarment.

The record supports the following aggravating factors: a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the | ¡practice of law. The record supports the following mitigating factors: absence of a prior disciplinary record, personal or emotional problems, and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

Based on the parties’ stipulation, respondent failed to promptly refund a total of $20,050 in unearned fees. Currently, he has repaid all but $500 of those fees, plus legal interest.

Considering respondent’s good faith efforts at restitution, as well as the fact that he has no prior discipline and has cooperated fully in these proceedings, we will adopt the board’s recommendation and disbar respondent. We will further order respondent to continue his efforts to make restitution to Mr. Cisnaros.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that Thomas G. McHugh, Louisiana Bar Roll number 24551, be and he hereby is disbarred, retroactive to his July 3, 2007 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 of $500 plus legal interest to Humberto Cisnaros. 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.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . The committee reasoned that, in the past, this court has treated an attorney's failure to refund unearned fees after abandoning his or her law practice as a conversion of client funds, which is a violation of Rule 8.4(c). See, e.g., In re: Alleman, 07-2060 (La.5/30/08), 982 So.2d 814.

      . The board also indicated its hope that respondent will seek treatment for his personal and/or emotional problems before applying for readmission; however, the board stopped short of making treatment a condition of readmission, recognizing that the court does not impose conditions on sanctions requiring a formal application for reinstatement or readmission. In re: Dunn, 02-2165 (La.11/8/02), 831 So.2d 889.


text:
    STATE ex rel. Johnny B. WRIGHT v. STATE of Louisiana.
    No. 2008-KH-2949.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Wright, Johnny B.;—Plaintiff; Applying for Reconsideration of this Court’s action dated October 2, 2009; Parish of Caddo, 1st Judicial District Court Div. B, No. 136,884; to the Court of Appeal, Second Circuit, No. 44084-KH.

Reconsideration denied.


text:
    Kelda PRICE v. KIDS WORLD, Ankur Brambhatt, Small World.
    No. 2009-C-1340.
    Supreme Court of Louisiana.

   In re Price, Kelda;—Plaintiff; Applying for Reconsideration of this Courts action dated September 25, 2009; Parish of E. Baton Rouge, 19 Judicial District Court Div. O, No. 545,264; to the Court of Appeal, First Circuit, No. 2008-CA-1815.

Denied; original writ untimely filed.


text:
    STATE ex rel. Kenny WHITMORE v. STATE of Louisiana.
    No. 2009-KH-1241.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   Whitmore, Kenny applying for Motion to Enforce this court’s order dated June 19, 2009, Parish of E. Baton Rouge, 19th Judicial District Court Division A, No. 5-75-8865.

Denied. Moot. The district court has acted.

WEIMER, J., recused.


text:
    HARRAH’S BOSSIER CITY INVESTMENT COMPANY, L.L.C. v. Cynthia BRIDGES, In her Capacity as the Secretary of the Department of Revenue, and The Louisiana Department of Revenue. Cynthia Bridges, Secretary of the Department of Revenue for the State of Louisiana v. Wilhite Electric Company, Inc.
    No. 2009-C-1916.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Bridges, Cynthia et al.; Department of Revenue, Louisiana;—Defendants); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 537,225 (and Consolidated Cases); to the Court of Appeal, First Circuit, Nos. 2008 CA 1727 Through 2008 CA 1756 and 2008 CA 1758, 2008 CA 1757.

Granted.


text:
    STATE of Louisiana v. David Gilbert ARDOIN.
    No. 2009-K-0578.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 477,855; to the Court of Appeal, First Circuit, No. 2008-KA-1504.

Granted.


text:
    STATE ex rel. Erica M. BOWERS v. STATE of Louisiana.
    No. 2009-KH-2281.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Bowers, Erica M.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 236,058; to the Court of Appeal, Second Circuit, No. 45,-003-KH.

Denied.


text:
    Lane MONTGOMERY v. Jean Lawson KEDGY, et al.
    No. 2009-C-2110.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Shreveport City of;—Other; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 467,735; to the Court of Appeal, Second Circuit, No. 44,601-CA.

Denied.


text:
    Donna AUBERT v. DEPARTMENT OF POLICE.
    No. 2009-C-2103.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Aubert, Donna;—Plaintiff; Applying For Writ of Certiorari and/or Review Civil Service Commission, No. 7119; to the Court of Appeal, Fourth Circuit, No. 2009-CA-288.

Denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Travelers Casualty & Surety Co. of America, Southgate Residential Towers, LLC, et al. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., Mapp Construction, LLC, Travelers Casualty and Surety Co. of America, et al.
    No. 2009-CC-2079.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Southern States Plumbing Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, Nos. 529,351, 550,534; to the Court of Appeal, First Circuit, No. 2009 CW 0898.

Denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Travelers Casualty & Surety Co. of America, Southgate Residential Towers, LLC, et al. c/w Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., Mapp Construction, LLC, Travelers Casualty and Surety Co. of America, et al.
    No. 2009-CC-2078.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Southgate Penthouses LLC; Southgate Residential Towers LLC;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, Nos. 529,351, 550,534; to the Court of Appeal, First Circuit, No. 2009 CW 0943.

Denied.


text:
    Laquetia WHITE, Individually and as Natural Tutrix of her Minor Child, Latravious Thomas, and Eddy Washington v. Jathan “Jay” FREDERICK and State Farm Insurance Company.
    No. 2009-C-2059.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Washington, Eddy; White, LaQuetia et al.;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. K, No. 510,770; to the Court of Appeal, Second Circuit, No. 44,563-CA.

Denied.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Travelers Casualty & Surety Company of America, Southgate Residential Towers, LLC, et al. c/w Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. Mapp Construction, Inc., Mapp Construction, LLC, Travelers Casualty and Surety Company of America, et al.
    No. 2009-CC-2027.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Southgate Penthouses LLC; Southgate Residential Towers LLC;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, Nos. 550,534, 529,351; to the Court of Appeal, First Circuit, No. 2009 CW 0915.

Denied.


text:
    EAST NEW ORLEANS NEIGHBORHOOD ADVISORY COMMISSION v. LEVY GARDENS PARTNERS 2008, LLC, Levy Gardens Partners, L.L.C., Levy Gardens Partners 2007, L.P., Carubba Engineering, Inc., Washer Hill Libscomb Cabaniss Architecture (LA) LLC, Recon Engineering, Inc., Devere Construction Company, Inc. of Michigan, Delta International Construction Corporation and The City of New Orleans.
    No. 2009-C-1870.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Levy Gardens Partners 2007 L.P.; Levy Gardens Partners 2008 LLC et al.; Levy Gardens Partners L.L.C.;—Defendants); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2009-802; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0326.

Denied.


text:
    Randy SOLET v. Melissa WILLIAMS and Miss Redemption, L.L.C.
    No. 2009-C-1645.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Miss Redemption L.L.C.; Williams, Melissa et al.;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 143339; to the Court of Appeal, First Circuit, No. 2008 CA 2206.

Denied.

VICTORY, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Juaniski Flanda WILKERSON.
    No. 2009-KO-0634.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Wilkerson, Juaniski Flanda;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 18292; to the Court of Appeal, First Circuit, No. 2008 KA 1595.

Denied.


text:
    STATE of Louisiana v. Herman PIERRE.
    No. 2009-KO-0633.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Pierre, Herman;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 12-06-0400; to the Court of Appeal, First Circuit, No. 2008 KA 1668.

Denied.


text:
    STATE of Louisiana v. Arthur THOMAS.
    No. 2009-KO-0626.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Thomas, Arthur;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 06-3650; to the Court of Appeal, Fifth Circuit, No. 08-KA-390.

Denied.


text:
    STATE of Louisiana v. Daminco A. BOZEMAN.
    No. 2009-KO-0629.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Bozeman, Daminco A.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 06-32; to the Court of Appeal, First Circuit, No. 2008 KA 1077.

Denied.


text:
    STATE of Louisiana v. David TRIMBLE.
    No. 2009-KO-0624.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Trimble, David;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 06-402; to the Court of Appeal, Third Circuit, No. OS-814.

Denied.


text:
    STATE of Louisiana v. Phillip LAZARD.
    No. 2009-KO-0623.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Lazard, Phillip; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 469-762; to the Court of Appeal, Fourth Circuit, No. 2008-KA-1242.

Denied.


text:
    STATE of Louisiana v. David Fezell STUBBS.
    No. 2009-KO-0622.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Stubbs, David Fezell;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 285,866; to the Court of Appeal, Third Circuit, No. OS-691.

Denied.


text:
    STATE of Louisiana v. Luke A. LEADER.
    No. 2009-K-0594.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Leader, Luke A.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. B, No. 18606; to the Court of Appeal, First Circuit, No. 2008 KA1500.

Denied.


text:
    STATE ex rel. Wynn JONES v. STATE of Louisiana.
    No. 2009-KH-0414.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Jones, Wynn;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 05-1314; to the Court of Appeal, Fifth Circuit, No. 08-KH-1256.

Denied.


text:
    STATE ex rel. Ronald HAWKINS v. STATE of Louisiana.
    No. 2009-KH-0394.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Hawkins, Ronald;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 403-405; to the Court of Appeal, Fourth Circuit, No. 2009-K-0039.

Denied.


text:
    STATE ex rel. Joe DAVIS v. STATE of Louisiana.
    No. 2009-KH-0392.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Davis, Joe;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 351415; to the Court of Appeal, First Circuit, No. 2008 KW 2252.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Ezra RICHARDSON v. STATE of Louisiana.
    No. 2009-KH-0389.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Richardson, Ezra;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 83,461; to the Court of Appeal, First Circuit, No. 2008 KW 2338.

Denied.


text:
    STATE ex rel. Erica M. BOWERS v. STATE of Louisiana.
    No. 2009-KH-0375.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Bowers, Erica M.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 236,058; to the Court of Appeal, Second Circuit, No. 44,-360-KH.

Denied. State ex rel. Bernard, v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    Elrick GALLOW v. Richard STALDER, Lynn Cooper.
    No. 2009-CI-0365.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Gallow, Elrick;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 561,053; to the Court of Appeal, First Circuit, No. 2008 CA 0944.

Denied.


text:
    STATE ex rel. Eddie JACKSON v. STATE of Louisiana.
    No. 2009-KH-0369.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Jackson, Eddie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 02-3671; to the Court of Appeal, Fifth Circuit, No. 08-KH-1180.

Denied.


text:
    STATE ex rel. Charles C. DUCKWORTH v. STATE of Louisiana.
    No. 2009-KH-0373.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Duckworth, Charles C;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 425160; to the Court of Appeal, First Circuit, No. 2008 KA 1203.

Denied.


text:
    STATE ex rel. Bernard DENHAM v. STATE of Louisiana.
    No. 2009-KH-0361.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Denham, Bernard;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 321085; to the Court of Appeal, First Circuit, No. 2008 KW 2035.

Denied.


text:
    STATE ex rel. Ryan CROTWELL v. STATE of Louisiana.
    No. 2009-KH-0360.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Crotwell, Ryan;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 99-CR-M41; to the Court of Appeal, First Circuit, No. 2008 KW 2040.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Marcus D. WILHITE v. STATE of Louisiana.
    No. 2009-KH-0357.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Wilhite, Marcus D.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 99-F-0910; to the Court of Appeal, Second Circuit, No. 44,274-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; see also State ex rel. Hall v. State, 99-0326 (La.9/24/99), 871 So.2d 1071.


text:
    Robert Kevin McCARTNEY, et al. v. George McCORMICK, et al.
    No. 2009-CP-1550.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re McCartney, Robert Kevin; McCartney, Aubrey; McCartney, Elaine—Plaintiff(s);—Applying for Reconsideration of this Court’s Action dated October 9, 2009; Parish of Rapides, 9th Judicial District Court Div. C, No. 225,011; to the Court of Appeal, Third Circuit, No. 09-30.

Not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    STATE of Louisiana v. Sherrod BRUMFIELD.
    No. 2009-KP-1084.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Brumfield, Sherrod;—Defendant; Applying for Rehearing of this Court’s Order, dated September 2, 2009; Parish of Orleans, Criminal District Court, Div. D, No. 408-387; to the Court of Appeal, Fourth Circuit, No. 2009-K-0177.

Rehearing denied.


text:
    STATE ex rel. Joseph WARD v. STATE of Louisiana.
    No. 2008-KH-2308.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Ward, Joseph; Plaintiff; Applying for Rehearing of this Court’s order dated October 10, 2008; Parish of St. John, 40th Judicial District Court Div. B, No. 93-159; to the Court of Appeal, Fifth Circuit, Nos. 99-KH-231; 02-KH-582; 02-KH-863.

Rehearing denied.


text:
    STATE ex rel. Johnny FOLEY v. STATE of Louisiana.
    No. 2008-KH-2588.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Foley, Johnny;—Plaintiff; Applying for Rehearing of this Court’s order dated April 24, 2009; Parish of Jefferson, 24th Judicial District Court Div. “D”, No. 82-3368; to the Court of Appeal, Fifth Circuit, No. 06-KH-480.

Denied.


text:
    STATE ex rel. Derrick NELLON v. STATE of Louisiana.
    No. 2008-KH-2794.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Nellon, Derrick-Plaintiff(s); Applying for Rehearing of this Courts order dated April 24, 2009; Parish of Jefferson, 24th Judicial District Court Div. G, No. 99-6870; to the Court of Appeal, Fifth Circuit, No. 06-KH-710.

Rehearing denied.


text:
    James THOMAS, Sr., Lucille Marie Landry, Jacob Allen Thomas, Chelsea Marie Landry, Lexielynn Landry and Jade Elaine Thomas v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Barriere Construction Company, L.L.C.
    No. 2009-CP-1509.
    Supreme Court of Louisiana.
    Nov. 25, 2009.
   In re Thomas Sr., James;—Plaintiff; Applying for Reconsideration of this Court’s action dated October 9, 2009; Parish of Lafourche, 17th Judicial District Court Div. E, No. 100723; to the Court of Appeal, First Circuit, No. 2008 CA 1924.

Reconsideration denied. Relator’s initial motion for extension of time was untimely, as it was filed outside of the thirty-day delay set forth in Supreme Court Rule X, section 5 for the filing of a timely application for supervisory writs in this court.