text:
    H.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-398
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LUCK, JJ.
   SCALES, J.

H.S., a juvenile, appeals the denial of his Florida Rule of Juvenile Procedure 8.135(b)(2) motion to correct a disposition error. Because section 939.185(l)(a) of the Florida Statutes (2015) does not authorize a Florida county to adopt an ordinance imposing an additional $65 court cost where a juvenile court sustains the allegations in the juvenile delinquency petition, but adjudication of delinquency is withheld, wé reverse and remand with directions that the $65 in additional court cost be stricken from H.S.’s disposition.

On September 25, 2015, the State filed a petition for delinquency against H.S., charging H.S. with one count of trespass on school property with a weapon, and one count of possession of a weapon on school property. Following an adjudicatory hearing, the juvenile court found that H.S. committed the second offense but withheld adjudication of delinquency. The disposition order imposed $65 as an additional court cost in accordance with Miami-Dade-County Ordinance 04-116, adopted pursuant to section 939.185(l)(a).

H.S. thereafter moved to correct the disposition under rule 8.135(b)(2), arguing that the statute authorizing Florida counties to impose an additional court cost of up to $65 did not authorize the imposition of that additional cost when, as here, the trial court withholds adjudication of, delinquency despite sustaining the allegations in the juvenile delinquency petition. H.S.’s motion was deemed denied when the trial' court failed to file an order ruling on the motion within thirty days. See Fla. R. Juv. P. 8.135(b)(1)(B), (b)(2)(B).

We agree with H.S. While section 939.185(l)(a) does authorize Florida counties to adopt an ordinance imposing an additional court cost of up to $65, that authorizing statute clearly and unambiguously schedules - those adjudications and dispositions to which any such additional court cost applies. Specifically, a county may' impose the additional surcharge “when a person pleads guilty'or nolo coh-tendere to, dr is found guilty of, or adjudicated delinquent for, any felony, misdemeanor, delinquent act, or criminal traffic offense ...§ 939.185(l)(a), Fla. Stat. (2016). The statute simply does not authorize the surcharge when, as here, a juvenile is found to be delinquent, but adjudication is withheld.

This Court has previously found the statute does mot apply to juvenile withholds of adjudication. S.F. v. State, 56 So.3d 116, 116 (Fla. 3d DCA 2011); see also R.F. v. State, 42 So.3d 333, 335 (Fla. 2d DCA 2010) (noting that while the Florida Legislature amended section 939.185 in 2007 to apply it specifically to an adjudiea-tión of delinquency; “the amended statute does not provide for the imposition of the [additional] cost when the court withholds adjudication of delinquency”). Moreover, Florida courts have routinely held that, absent express authorization,.a local ordinance may not impose a penalty that exceeds the statutory penalty. See, e.g., F.F. v. State, 218 So.3d 455, 457 (Fla. 4th DCA 2017) (“ ‘[A]n ordinance penalty may not exceed the penalty imposed by the state.’ ” ... Thus, if the Broward County ordinance authorizes the assessment of the teen court cost upon a juvenile whose adjudication of delinquency is withheld, sutíh a penalty would exceed the penalty imposed by section 938.19(2), which requires an adjudication of delinquency.” (quoting Thomas v. State, 614 So.2d 468, 470 (Fla. 1993))); Mitchell v. State, 789 So.2d 1043, 1044 (Fla. 1st DCA 2001) (“Although Bay County Ordinance 94-06 provides for a service charge-in addition to the amount authorized by the Florida Legislature, the trial court could not require- the -appellant to pay more than what the legislature has authorized.”).

Accordingly, because we find the juvenile court’s imposition of a $65 additional court:cost was not authorized under section 939.185(l)(a), we reverse and remand with directions that the costs be stricken.

Reversed and remanded.

      . The statute provides, in relevant part:
      The board of county commissioners may-adopt by ordinance an additional court cost, not to exceed $65, to be imposed by the court when a person pleads guilty or nolo contendere to, or'is found guilty of, or adjudicated delinquent for, any .felony, misdemeanor, delinquent act, or criminal traffic offense under the laws of this state.
      § 939.185(1)(a), Fla. Stat. (2015) (emphasis added). The Miami-Dade County Ordinance implementing section 939.185(l)(a) is broader than the statute as to juvenile withholds of adjudication, imposing $65 as an additional-court cost in juvenile cases "regardless of whether; adjudication is withheld.” Code of Miami-Dade County, Fla. § 04-116.

      . In so holding, we reject the State’s contention that our prior precedent is somehow "irreconcilable with the plain language ofisection 939,185(l)(a) and well-established law,” On the contrary, interpreting the statute as the State would have us read it—i.e„ that the Florida Legislature intended the phrase "found guilty of” in section 939.185(l')(a) to apply to a juvenile ■ wh,o the juvenile court finds committed a delinquent act, but is not adjudicated delinquent—would render the phrase "adjudicated delinquent for” in the statute unnecessary and meaningless, See Johnson v. Feder, 485 So.2d 409, 411 (Fla. 1986) ("We are compelled by well-established norms of statutory construction to choose that interpretation of statutes and rules which renders their provisions meaningful. Statutory interpretations that render statutory provisions superfluous ‘are, and should be, disfavored.’ ” (quoting Patagonia Corp. v. Bd. Of Governors of the Fed. Reserve Sys., 517 F.2d 803, 813 (9th Cir. 1975))). That is to say, if the legislature intended that the additional court cost be imposed based solely upon the juvenile court finding that the juvenile committed a delinquent act,'there was no need for the legislature to include the phrase “adjudicated delinquent for” in the statute.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Scott A. BROCK, Former Husband, Appellant, v. Carolyn Ann BROCK, Former Wife, Appellee.
    CASE NO. 1D16-3117
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Rehearing Denied November 14, 2017
    Rhonda S. Clyatt, Panama City, for Appellant.
    Russell S. Roberts, Marianna, for Appel-lee.
   PER CURIAM.

We affirm, in all respects the Amended Final Judgment of Dissolution of Marriage. The issues now raised on appeal by the former husband were not brought to the trial court’s attention either during the final hearing or in the former husband’s motion for rehearing, which challenged other aspects of the amended final judgment. Consequently, we hold they either were not preserved for appellate review or were' expressly waived. Byers v. Byers, 149 So.3d 161, 161-62 (Fla. 1st DCA 2014); Furr v. Furr, 57 So.3d 914, 914 (Fla. 1st DCA 2011) (Mem.); Mize v. Mize, 45 So.3d 49, 49 & n.1 (Fla. 1st DCA 2010); Welch v. Welch, 22 So.3d 153, 155-56 (Fla. 1st DCA 2009); Simmons v. Simmons, 979 So.2d 1063, 1064 (Fla. 1st DCA 2008); Owens v. Owens, 973 So.2d 1169, 1169 (Fla. 1st DCA 2007). Regardless, because the evidentiary bases for the trial court’s equitable distribution of the parties’ marital assets and liabilities, its award of permanent alimony to the former wife, and its award of child support were reasonably clear and supported by the record, we perceive no reason to reverse for lack of statutory findings in the written judgment, Buchanan v. Buchanan, No. 1D16-4492, 225 So.3d 1002, 1003-04, 2017 WL 4018417 at *1 (Fla. 1st DCA September 13, 2017). Finally, our review of the record convinces us that even though the trial court adopted the former wife’s proposed final judgment, there is no evidence that its doing so resulted in a “substitute for [the court’s] thoughtful and independent analysis of the facts, issues, and law .... ” Byers, 149 So.3d at 162 (citing Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004)).

AFFIRMED.

LEWIS, RAY, and JAY, JJ., CONCUR.


text:
    Jeffery PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5034
    District Court of Appeal of Florida, Second District.
    Opinion filed October 18, 2017

      Jeffery Phillips, pro se.
    Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Jeffery Phillips appeals the summary denial o¡f his motion for postcoriviction relief filed under Florida Rule of Criminal Procedure 3.850. Because the postconviction court’s order fails to conclusively refute Mr. Phillips’ claims for relief, we reverse and remand for further proceedings.

Background

Mr. Phillips, was serving a Florida probationary sentence for battery, .lewd or lascivious exhibition, and lewd or lascivious conduct when he pleaded guilty to and was convicted of a new child molestation offense in Indiana. As a result, the State sought to revoke his probation. Following an evidentiary, hearing where Mr, Phillips had counsel, the trial court revoked probation on two of the three counts. The trial court imposed consecutive sentences of fifteen and ten years’ imprisonment, ordered five years - of sexual offender probation, and designated Mr. Phillips as a sexual predator. After an unsuccessful appeal, Mr. Phillips sought relief under rule 3.850. The postconviction court summarily denied Mr. Phillips’ amended motion. This is his appeal.

Discussion

The postconviction court’s order was unaccompanied by any record attachments and does not conclusively refute, Mr. Phillips’ claims of ineffective assistance of trial counsel at the revocation stage. The State acknowledges as much. It asks us to relinquish jurisdiction to allow the postcon-viction court to attach record documents or order the postconviction court to supplement the record. See Harvester v. State, 817 So.2d 1048 (Fla. 2d DCA 2002). We will do neither. Harvester applies when “this court could determine whether the [postconviction] court’s initial order was correct merely by obtaining a few more documents” or when the postconviction court’s order “references attachments that are not actually attached.” Id. at 1049. Here, the postconviction court did not reference any documents in denying three of Mr. Phillips’ four claims. We cannot conclude that supplementing the record with identifiable documents would allow us to determine the correctness of the order. Relinquishing jurisdiction or supplementing the record are not easy fixes to dispose of this appeal. See Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”); see also Swanson v. State, 825 So.2d 507 (Fla. 1st DCA 2002) (declining to apply Harvester when the postconviction court “did not rely upon any court documents” in denying a motion). We will;- accordingly, review the postcon-viction court’s order based on the record before us.

We review the summary denial of a rule 3.850,motion de novo' and “must accept the movant’s factual allegations as true to the extent that they aré not refuted by the record.” Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013). We “must examine-each claim to determine if it is legally sufficient, and, if so, whether the record refutes it.” Allen v. State, 854 So.2d 1255, 1258 (Fla. 2003). Mr. Phillips must establish each claim by alleging specific facts. Allen, 854 So.2d at 1259. “[U]nless the record shows conclusively that the appellant is entitled‘to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R. App. P. 9.141(b)(2)(D).

For each claim he asserted, Mr. Phillips must show that (1) counsel’s performance was deficient and that (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 693-694, 104 S.Ct. 2052, 80 L.E.d.2d 674 (1984). Mr. Phillips, must overcome a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 690, 104 S.Ct. 2052. Moreover, Mr. Phillips “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2062. If the claim fails on either the deficiency or prejudice prong, the postconviction court can deny the motion. Id. at 687, 104 S.Ct. 2062.

Mr. Phillips first asserted that counsel was ineffective by misadvising him that he faced a fifteen-year maximum potential sentence and that he rejected the State’s fifteen-year offer based on that advice. The postconviction court denied relief, reasoning that Mr. Phillips could not show prejudice because the trial court correctly informed him at the beginning of the revocation hearing that he faced thirty years in prison. However, significantly, Mr, Phillips also alleged that no offer was “on the table” when the court informed him of the accurate potential sentence. As a result, the trial court’s colloquy did not cure counsel’s alleged deficiency or .eliminate any prejudice to Mr. Phillips.

Although counsel allegedly told him that he was facing only a potential sentence of fifteen years’ imprisonment, Mr. Phillips, upon revocation of probation, was actually facing thirty years for two second-degree felonies. See § 800.04(7)(a), Fla. Stat. (2002) (making lewd or lascivious exhibition a second-degree felony punishable by a maximum of fifteen years’ imprisonment); § 800.04(6)(b) (same for lewd or lascivious conduct); Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013) (noting that misadvice concerning the maximum sentence faced is deficient performance). As for prejudice, Mr. Phillips adequately alleged, and the order before us does not refute, that:

(1) he ... would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would; have been less se-veré than under the judgment and sen- - tence that in fact were imposed.

Alcorn, 121 So.3d at 422.

As we explained in Armstrong v. State, 148 So.3d 124 (Fla. 2d DCA 2014), when a defendant rejects a plea offer based on the alleged misadvice of counsel, the trial court cannot cure the deficiency by later informing the defendant of the actual sentence faced.

In the context of ineffective assistance resulting in the rejection of a plea offer, “[prejudice ... is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.” The State incorrectly focused on what occurred after Armstrong rejected the plea offer; what happened after did not rectify counsel’s failure to provide Armstrong with all of the information necessary to make an informed decision on whether to accept the offer.

Id. at 126 (quoting Alcorn, 121 So.3d at 432) (alteration in original and citation omitted).

Mr. Phillips cannot go back and accept the offer that he previously rejected and that was no longer available; the damage has been done. See Wilson v. State, 189 So.3d 912, 913 (Fla. 2d DCA 2016) (“[Ejvents occurring after [the defendant] rejected the plea offer could not cure counsel’s alleged failure to provide him with all of the information necessary to make an informed decision concerning the offer.”). Mr. Phillips sufficiently alleged deficient performance and prejudice. The postcon-viction court’s order fails to refute the first claim.

In.his second claim, Mr. Phillips faults counsel for failing to seek a competency evaluation. Allegedly, Mr. Phillips informed counsel that he suffered from mental illnesses and was experiencing symptoms that affected his ability to understand the proceedings, notwithstanding that he was taking medications. This claim is facially sufficient and the postconviction court’s cursory comments on this claim fail to refute it. See Thompson v. State, 88 So.3d 312 (Fla. 4th DCA 2012); Jackson v. State, 29 So.3d 1161 (Fla. 1st DCA 2010).

Mr. Phillips’ third claim for relief is. that counsel failed to inform him of the elements that the State needed to establish a violation of probation. Seemingly, the post-conviction court read this claim to assert counsel’s failure to properly advise Mr. Phillips of the State’s burden of proof. The postconviction court reasoned that even if the highest burden of proof applied, Mr. Phillips still would have been found in violation and, as a result, he cannot show prejudice.

If counsel did not explain to Mr. Phillips the elements of proving revocation and the dire chance for his success in light of the Indiana conviction, that would likely constitute deficient performance. See Fla. R. Crim. P. 3.171(c)(2)(B) (“Defense counsel shall advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.”). And, as with his first claim, Mr. Phillips has sufficiently alleged prejudice by asserting that he would have accepted the State’s offer had counsel informed him about the elements of a probation violation. This claim is sufficient and unrefuted by the postconviction court.

Mr. Phillips’ last claim is that counsel was ineffective for failing to seek jail credit for the time served in an Indiana jail. The postconviction court denied this claim, asserting simply that the award of out-of-state jail credit is discretionary and that Mr. Phillips, therefore, cannot show prejudice. The postconviction court was correct that awarding of such jail credit is discretionary. But that “discretion is not unbridled but is subject to the test of reasonableness.” Wombaugh v. State, 25 So.3d 707, 709 n.2 (Fla. 2d DCA 2010). In order to allow the reviewing court to apply the test of reasonableness, the postconviction court “must attach documentation or state the reason for denying the claim.” Id. The postconviction court did neither; we are unable to evaluate the reasonableness of the denial of this claim.

Conclusion

We reverse the summary denial of all four claims and remand for the postconviction court to either attach record documents conclusively refuting Mr. Phillips’ claims or hold an evidentiary hearing.

Reversed and remanded with instructions.

LaROSE, C.J., and SILBERMAN and MORRIS, JJ., Concur.


author: JAY, J.

text:
    Artemio Milares BUCSIT, Former Husband, Appellant, v. Marie Jean Camara BUCSIT, Former Wife, Appellee.
    CASE NO. 1D17-801
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017.

      Anthony P. Penoso, Jacksonville, for Appellant.
    Roberta E. Blush, Orange Park, for Ap-pellee.
   JAY, J.

We affirm in all respects the Amended Order on All Pending Motions, which grants in part and denies in part each of the parties’ respective petitions to modify the earlier Consent Final Judgment of Dissolution of Marriage. We write only to explain the propriety of the trial court’s decision—without notice to, or input from,, either party—to “rehear” and amend its initial order. The trial court’s power to do so directly derives from the unambiguous provisions of Florida Rule of Civil Procedure 1.530(d).

Within nine days of entering its Order on All Pending Motions, the trial court entered an amended order, explaining its reason for doing so as follows:

Following the entry of this Court’s January 24, 2017, Order on All Pending-Motions, the Court realized that the pro-, visions of the Order pertaining to over-payments of child support by Former Husband, including paragraphs k and 5, are in error. Accordingly, pursuant to the provisions of Rule 12.530, Florida Family Rules'of Procedure, and Rule 1.530, Florida Rules of Civil Procedure, this Amended Order modifies those provisions ....

(Emphasis added.)

Florida Family Law Rule of Procedure 12.530 provides that in the ordinary course of family law matters, “[mjotions for new trial and rehearing and amendments of judgments shall be governed by Florida Rule of Civil Procedure 1.530.” Parties, therefore, believing the final judgment to be in error, are authorized by rule 1.530(a) to file a motion for rehearing, whereby the trial court “may open the judgment' if one has been entered, take additional testimony, and enter a new judgment,”

But, rule 1.530(d) permits the trial court—perceiving error—to apt on its -own motion to correct it, without the participation of the parties; The rule states:

(d) On Initiative of Court. Not later than 15 days after entry of judgment or within the time of ruling on a timely motion -for a rehearing or a new' trial made by a party,'the court of its own-initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.[ ]

The plain text of the rule alerts the. reader that for any reason a party may move for rehearing, so. may the trial court op its own “initiative.”

Preliminarily, we recognize that the finality of a trial court’s judgment is one of the cornerstones of our system of justice. See Witt v. State, 387 So.2d 922, 925 (Fla. 1980). It is a doctrine that “should be abridged only.when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications.” Witt, 387 So.2d at 925. Therefore, “[u]nless a proper [rehearing] motion or petition is filed within the allotted time, the judgment or order of the trial' court becomes absolute.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla. 1970). Of course, there must be an appropriate balance between .this need for certitude and the interest in making necessary corrections to final orders. Balmoral Condo. Ass’n v. Grimaldi, 107 So.3d 1149, 1151 (Fla. 3d DCA 2013). This symmetry is reflected in rule 1.530(d), where the trial court, on its own motion, may grant a timely rehearing. Id.

By granting rehearing, the trial court is given a second opportunity to evaluate “any error, omission, or oversight that may have been committed in the first consideration.” Cole v. Cole, 130 So.2d 126, 130 (Fla. 1st DCA 1961). It is provided with a mechanism to reassess “some point which it overlooked or failed to consider....” Id. And, it is given a chance to “reopen the case and reconsider any or all of the provisions of its final decree.” Langer v. Aerovias, S.A., 584 So.2d 175, 176 (Fla. 3d DCA 1991).

Rule 1.530(d) permits the trial court to do all of this on its own initiative, if it is accomplished in a timely fashion. In Romano v. Mechaia Investments, LLC, 201 So.3d 4 (Fla. 3d DCA 2009), the Third District said as much, and included a pointed reminder to all litigants:

“The effect of the rehearing rule ‘is to put the world on notice that at any time within ten days after entry of a decree by a court of equity in Florida the court may, on petition for rehearing or on its own initiative, order a rehearing or enter a new or amended decree. Any person that acts in reliance upon such a decree within that time does so at his own peril.’ ”,

Id. at 6 (emphasis added) (quoting Marsh & McLennan v. Aerolineas Nacionales Del Ecuador, 530 So.2d 971, 973 (Fla. 3d DCA 1988) (on motion to dismiss)).

The decision in DND Mail Corp. v. Andgen Properties, LLC, 28 So.3d 111 (Fla. 4th DCA 2010), is consistent With this conclusion. There, the Broward circuit court, sitting in its appellate capacity, found that the county court erred in vacating a default final judgment. Id. at 112. Specifically, it determined that the county court did not have jurisdiction-to vacate the default final judgment because the court did not have the authority to sua sponte reconsider its initial ruling. Id. at 112-13.

On a petition for writ of certiorari to the Fourth District Court of Appeal, the Fourth District quashed the circuit court’s decision, finding that the county court lawfully “reconsidered the default final judgment the day after the judgment was rendered and well within the tén days permitted” under rule 1.530(d), Id. at 113, Stated differently, the county “court [was] permitted to sua .sponte order rehearing ... within ten days after entry of a judgment.” Id.; see also Muniz v. Muniz-Baerga, 679 So.2d 888, 888 (Fla. 1st DCA 1996) (“Appellant alleges' that the trial court erred by sua sponte reversing its judgment -that the appellant was entitled, to have her attorney’s fees paid. We affirm for the reason that rule 1.530(d) ... authorizes the action taken within the time period provided by the rule.”) (emphasis added); Crum v. State, 507 So.2d 759, 760 (Fla. 1st DCA 1987), (“In nonjury cases, the trial court may, either on motion of a party or on its own initiative, grant rehearing and, in its discretion, consider additional evidence.”).

Here, when it reconsidered its initial order and corrected its preliminary error, the trial court was ensuring that its rulings were accurate and reflective of the evidence and the equities presented. By entering its amended final order, the trial court exercised a power expressly afforded it by rule 1.530(d), which it carried out in a Manner consistent with the terms of, and the essential rationale behind, this impór-tant rule.

AFFIRMED.

ROWE and MAKAR, JJ., CONCUR.'

      . "[T]he orders entered in modification proceedings have all of the aspects of final judg-mente. We therefore conclude that they are final judgments, subject to motions for rehearing under Florida Rule of Civil Procedure 1.530(a), and appealable as plenary appeals.” Roshkind v. Roshkind, 717 So.2d 544 (Fla. 4th DCA 1997).

      . In 2013, subdivision (d) was amended to lengthen the deadline from ten to fifteen days for a trial court to act of its own accord. See In re Amendments to the Florida Rules of Civil Procedure, 131 So.3d 643, 651 (Fla. 2013) (Mem,). As will be seen, the cases cited in this opinion involved the pre-amendment deadline of ten days.


text:
    Marlene GALLARDO, Appellant, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    No. 3D17-388
    District Court of Appeal of Florida, Third District.
    Opinion filed October 18, 2017
    Mario Serralta & Associates-and Mario Serralta, for appellant.
    Methe & Rockenbach and Kara Berard Rockenbach (West Palm Beach), for appel-lee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Marlene Gallardo appeals the trial court’s entry of final summary judgment in favor of appellee, Tower Hill Signature Insurance Company.

Appellee properly and commendably concedes error in light of this court’s recent decisions Siegel v. Tower Hill Signature Ins. Co., 225 So.3d 974 (Fla. 3d DCA 2017) and Francis v. Tower Hill Prime Ins. Co., 224 So.3d 259 (Fla. 3d DCA 2017), each of which was issued after the trial court’s entry of judgment in the instant case.

Given appellee’s concession of error, and upon our own review of the record in this case, genuine issues of material fact remain in dispute and we therefore reverse the final summary judgment and remand for further proceedings.


author: BADALAMENTI, Judge.

text:
    Nicholas EADY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3153
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017

      Howard L. Dimmig, II, Public Defender, and Lauren R. Riley, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Derrips, Assistant Attorney General, Tampa, for Appel-lee.
   BADALAMENTI, Judge.

Nicholas Eady, a juvenile tried as an adult, appeals his jury conviction 'for attempted second-degree murder. He argues that the trial court erred by instructing the jury, over his timely objection, that he had a duty to retreat if the jury determined he was engaged in unlawful activity while defending himself during a brawl. He claims that this jury instruction deprived him of his sole defense, which was self-defense pursuant to section 776.012(1), Florida' Statutes (2012). Eady asserts that the trial court’s refusal to omit the instruction was erroneous because the circumstances underlying Eady’s attempted-murder conviction occurred in 2012, whereas the self-defense statute which Eady had invoked did not suggest a duty to retreat until 2014. We agree. Because we cannot conclude that the trial court’s error was harmless, we reverse Eady’s conviction arid remand for a new trial.

I. FACTS AND PROCEDURAL BACKGROUND

A. The Trial Testimony

In the early morning hours of July 8, 2012, a seventeen-year-old Eady was with a group of his friends at a house party. During the party, some beer belonging to one of Eady’s friends went missing. Eady’s group confronted a second group of guests about the missing beer, suggesting they might have stolen it. This initial confrontation did not become violent. Eventually, both groups left the first party and proceeded to a second house party.

Joshua Febus and Ryan Leavitt were among the guests in' this second group accused -of stealing the beer. Outside the location ■ of the second house party, the issue of the missing beer resurfaced between the two groups, and this time, tensions boiled oyer. Febus testified that he threw the first punch, causing an all-out brawl involving approximately fifteen or twenty people. Eady testified that he tried to break up the brawl but ended up getting attacked, by “[a] bunch of people” and stabbed in the hand. Eady further testified that as he was being attacked, he pulled a pocket knife he used for fishing from his pocket to defend himself. Specifically, Eady testified that he began swinging the pocket knife around at people “in self-defense” because he was “scared for [his] life” and “didn’t know what else'to do.” During the brawl, Febus was stabbed five times in the back and Leavitt was stabbed in the neck. The State charged Eady with attempted second-degree murder for stabbing Leavitt. ■ ■

B. The Jury Instructions

During the charge conference, Eady’s counsel objected to the inclusion of any jury instruction language suggesting that Eady had a duty to retreat if he was engaged in an “unlawful activity.” He asserted that he was, proceeding under a self-defense theory pursuant to the 2012 version of section 776.012(1), which had no such language. Over defense counsel’s timely objection, the trial court instructed the jury that Eady had a duty to retreat if he was “engaged in an unlawful activity,” a requirement that did not exist in tiie 2012 version of section 776.012(1). The court’s instruction went as follows:

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

(Emphasis added.)

Eady argues that the trial court’s inclu-sión of the “not engaged in an unlawful activity” charge to the jury undercut his sole defense, which was that he was acting in self-defense and had no duty:to retreat pursuant to the 2012 • version of section 776.012(1).

II. DISCUSSION

“Where there is- any evidence which supports a theory of the defense, a defendant is entitled to have the jury instructed ;on the law applicable to his theory when he so requests.” Wenzel v. State, 459 So.2d 1086, 1087 (Fla. 2d DCA 1984) (citing Bryant v. State, 412 So.2d 347, 350 (Fla. 1982)). While a trial court’s refusal to give an instruction in the form requested by the defendant is normally reviewed for abuse of discretion, “the trial court’s discretion is limited [in criminal eases] because ‘a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory,’ ’’ assuming the defendant’s theory is legally valid. Williams v. State, 34 So.3d 768, 770-71 (Fla. 2d DCA 2010) (quoting Worley v. State, 848 So.2d 491, 492 (Fla. 5th DCA 2003)).

Under the 2012 version of Florida’s Stand Your Ground Law, section 776.032(1) provides for immunity • from criminal prosecution for any person who uses force as permitted in .section 776.012, section 776.013, or section 776.031. Here, Eady raised his theory of self-defense under tHe 2012 version of section 776.012. Although section 776.013 precludes immunity where a person engages in unlawful activity at the time they use force, the version of section 776.012 in effect in 2012 did not. See Little v. State, 111 So.3d 214, 221-22 (Fla. 2d DCA 2013).

At the time of Eady’s charged criminal conduct in 2012, section 776.012(1) read, in relevant part, as follows;

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against. the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to. retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or. another or to prevent the imminent commission of a forcible felony ....

§ 776.012(1). Construing the identical text of section 776.012(1) set forth above, our court has held that this version of section 776.012(1) did not impose a duty to retreat upon a defendant engaged in unlawful activity. See Andujar-Ruiz v. State, 205 So.3d 803, 806-07 (Fla. 2d DCA 2016) (citing, inter alia, Little, 111 So.3d at 220-22; Dorsey v. State, 149 So.3d 144, 147 (Fla. 4th DCA 2014)); cf. Miles v. State, 162 So.3d 169, 171-72 (Fla. 5th DCA 2015) (“[Ujnder the prior Stand Your Ground law, a defendant could assert immunity under section 776.012 even if he or she was engaged in an unlawful act at the time.”); Garrett v. State, 148 So.3d 466, 471 (Fla. 1st DCA 2014) (“The fact that [defendant] was a convicted felon in unlawful possession of a firearm did not apply to the jury’s consideration of whether [defendant] had a duty to retreat under section 776.012(1).”); Hill v. State, 143 So.3d 981, 985-86 (Fla. 4th DCA 2014) (en banc) (holding that the application of section 776.012 is not limited to persons not engaged in unlawful activity); Pages v. Seliman-Tapia, 134 So.3d 536, 539 (Fla. 3d DCA 2014) (holding that defendant need not establish that he was not engaged in unlawful activity under section 776.012). Indeed, our court explained that an individual may assert self-defense by the. use of deadly force under this version of section 776.012(1) with no duty to retreat, even if that defendant was engaged in unlawful activity while standing his ground. See Andujar-Ruiz, 205 So.3d at 805.

'In Little, this court granted a writ of prohibition in favor of the defendant, holding that the trial court improperly denied his motion for pretrial Stand Tour Ground immunity and therefore lacked- contínúing jurisdiction to prosecute him. 111 So.3d at 216. The defendant, Aaron Little, shot an acquaintance in Self-defense. Id. at 217. Little moved for prétriál immunity and argued that his use of deadly force in self-defense was justified under section 776.012(1). Id. at 217-18. Little, however, was a convicted felon who could not legally possess a firearm and thus was engaged in unlawful activity at the time of the shooting. Id. at 219. The trial court denied his motion, and he appealed. Id. at 217. On appeal to our court, the State argued that Little was not entitled to immunity because he was engaged in unlawful activity under section 776.013(3). Id. at 218-19. Our court disagreed and held (1) that a person may pursue immunity if they qualify “under either section 776.012(1) or 776.013(3)”; (2) that' section 776.0i2(l) does not preclude immunity where the person who üsés force engaged in unlawful activity; and (3) that any person who did hot meet the requirements of section 776.013(3) could look to section 776.012(1) as “another means of obtaining immunity.” See id. at 219-22.'

. Three years later, our court applied the holding of Little to the identical versions of section 776.012(1) and , section 776.013(3) that are at operation here. In Andujar-Ruiz, the trial court used nearly identical language as the instruction at issue in the case at bar to instruct the jury that Andu-jar-Ruiz had a duty to retreat if he was engaged in unlawful activity. 205 So.3d at 805. Our court held that an appellate public defender gave ineffective assistance to Andujar-Ruiz where he failed to argue on direct appeal that the trial court’s instruction was fundamental error. Id. at 805-06. We reasoned that because Andujar-Ruiz wished to base.his theory of self-defense solely on section 776.012(1), “[t]he trial court’s instraction misled the jury by informing it that it was required to find that Andujar-Ruiz retreated before resorting to force, contrary, to the plain language of section 776.012(1).” Id. at 807 (emphasis added). We held that this flawed jury instruction negated the defendant’s only defense—self-defense. Id. (citing Williams v. State, 982 So.2d 1190, 1194 (Fla. 4th DCA 2008)).

Our holdings in Little and Andujar-Ruiz dictate the outcome of this appeal. Eady’s counsel made it clear that Eady wished for his theory of self-defense to be rooted in section 776.012(1) and objected to the inclusion of any language suggesting that Eady had a duty to retreat were the jury to determine he was engaged in unlawful activity. Although defense counsel alerted the trial court of our decision in Little, the trial court nevertheless instructed the jury that Eady had a duty to retreat if he was engaged in unlawful activity. The plain language of the applicable 2012 version of section 776.012(1) required no such thing. As in Andujar-Ruiz, the trial court here erroneously charged the jury that if it determined that Eady was engaged in unlawful activity, he had a duty to retreat. The only real point of contention at trial was the role Eady played in the fight. As the trial court itself mused, it was unclear “whether the jury would consider the fight [to be Eady’s] fault or someone else’s fault.” Eady openly admitted that he took part in the brawl outside the location of the second house party and that he swung his knife around in a manner that could have hurt others. The jury may have concluded that Eady’s use of deadly force was inappropriate because he was engaged in unlawful activity of wielding his pocket knife and therefore had a duty to retreat. By charging the jury that Eady had a duty to retreat were it to determine Eady was engaged in unlawful activity, the trial court impermissibly negated Eady’s sole defense at trial—self-defense. Although the trial court’s jury instruction may have been proper had Eady’s conduct occurred after the legislature’s 2014 amendment of section 776.012, his conduct in fact occurred prior to that amendment. We therefore reverse Eady’s conviction for attempted second-degree murder and remand for a new trial.

III. CONCLUSION

The trial court erred by incorrectly charging the jury that Eady had a duty to retreat if he was engaged in unlawful activity while attempting to stand his ground; This negated Eady’s sole defense at trial, which was self-defense. We therefore reverse Eady’s conviction and remand for a new trial.

Reversed and remanded for a new trial.

CASANUEVA and KHOUZAM, JJ., Concur.

      . The State charged Eady with one count of attempted second-degree murder (for stabbing Leavitt) and one count of aggravated battery (for stabbing Febus). After the State’s case-in-chief, the trial court granted Eady’s motion for judgment of acquittal as to the aggravated battery count. Accordingly, the only charge presented to the jury was for the attempted second-degree murder of Leavitt.

      . §§ 776.032, .012, .013, Fla. Stat. (2012).

      . In 2014, the legislature amended section 776,012 to conform with section 776.013 so as to require the person using force or threatening to use force not be engaged in unlawful activity. See ch. 2014-195, § 3, Laws of Fla.; Andujar-Ruiz, 205 So.3d at 806 n.3. We note that our opinion is limited to application of those charged for conduct occurring prior to implementation of the 2014 amendments.


author: ORFINGER, J.

text:
    Nixon LAZARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3976
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017

      Troy Nader, Flushing, New York, for Appellant. . •
    Joseph S. White, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee..
   ORFINGER, J.

Nixon Lazard appeals the trial court’s order denying his motion to compel the Florida Department of Law Enforcement (FDLE) to issue a certifícate of eligibility to seal' his criminal history record under section 943.059(2), Florida Statutes (2016). Because the FDLE erroneously denied* Lazard’s application for the certifícate, we reverse.

In 2003, after Lazard was arrested for aggravated child abuse for allegedly hitting a child he was caring for with an extension cord, the State filed an information charging him with aggravated child abuse. Lazard later pled guilty to contributing to the dependency of a child, a misdemeanor, in violation of section 827.04, Florida Statutes (2003). The trial court withheld adjudication and pláced Lazard on one year of probation, which he completed.

In 2016, Lazard applied to the FDLE for a certificate of eligibility to seal his criminal history record pertaining to the 2003 charge and plea, pursuant to section 943.059, Florida Statutes (2016). The FDLR sent Lazard a letter stating that it would not issue a certificate because his criminal history related to “a violation enumerated in s.907.041” (specifically, an act of domestic violence), an offense which rendered his criminal history ineligible for sealing under section 943.059. Lazard then filed a motion to compel the FDLE to issue the certificate. After conducting a hearing on the motion, at which the only evidence discussed was the charging affidavit, the trial court issued an order denying the motion to compel. It found that Lazard pled guilty to a charge that “relates to” an act of domestic violence, and that “[t]he Court file fully supports a finding that the record [Lazard] seeks to seal relates to a criminal offense that resulted' in physical injury to one family' or household member by another family or household member.”

Section 943.059, Florida’Statutes, establishes the requirements that a petitioner must satisfy to have his or her criminal history record sealed. Anderson v. State, 692 So.2d 250, 251 (Fla. 3d DCA 1997), Under the statute, a person seeking to seal a criminal history record must first request and receive a certificate of eligibility for sealing from the FDLE, and then file a petition to seal the record with the court. § 943.059, Fla. Stat, (2016). In this appeal, we must determine if the FDLE exceeded its authority under section 943.059(2) in denying Lazard’s application based on its determination that his record related to an act of domestic violence.

We review questions of statutory interpretation de novo. Patrick v. Hess, 212 So.3d 1039, 1041 (Fla. 2017). Our goal “is to determine legislative intent.” Crews v. State, 183 So.3d 329, 332 (Fla. 2015). To do so, we begin with the plain language of the statute, Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013), and consider the statute as a whole, rather than piece-by-piece, State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008). We also “construe related statutory provisions in harmony with one another.”'Larimore v. State, 2 So.3d 101, 106 (Fla. 2008).

Under section 943.059(2), the FDLE “shall issue” a certificate of eligibility, provided that the applicant:

(a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.'
(c) Has never, prior to the date on which the application for a certificate of eligibility is' filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged ■ criminal activity to which the petition to seal pertains. •'
(e) Has never secured a prior sealing or expunction of a criminal history record under this section, s. 943.0585, former s. 893.14, former s. 901.33,' or former s. 943.058.
(f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal -activity to which the petition to seal pertains.

Once the applicant receives the certificate of eligibility, he or she then petitions the court to seal the record. § 943.059, Fla. Stat. (2016). However, criminal records that “relate to” certain enumerated offenses, such as violations listed in section 907.041, Florida Statutes, which includes an act of domestic violence, cannot be sealed by the court. Id

Here, the FDLE should have issued the certificate because Lazard satisfied the conditions of section 943.059(2). Then, upon a petition to seal, it would be for the trial court to hold an evidentiary hearing to determine whether Lazard’s offense “related, to” an act of domestic violence precluding his record from being sealed. See J.A.H. v. State, 198 So.3d 884, 886 (Fla. 4th DCA 2016) (holding that before denying petition, trial court must “conduct an evidentiary hearing and state specific reasons for denying the petition”), At this hearing, the court must consider all of “the facts and circumstances of the individual case,” not just the allegations in the information and charging affidavit. Gotowala v. State, 184 So.3d 568, 570 (Fla. 4th DCA 2016).

For these reasons, we reverse the trial court’s order denying Lazard’s motion to compel and remand for entry of an order granting the motion to compel because Lazard is statutorily eligible for a certificate of eligibility under section 943.059(2).

REVERSED and REMANDED.

COHEN, C.J. and EDWARDS, J., concur.

      . ' The State did not file an amended informa-' tion setting forth facts about the offense of contributing to the dependency of a child.

      . The correct procedure to challenge the denial of a certificate of eligibility is a petition for writ of mandamus naming the FDLE as the respondent. See Williams v. State, 879, So.2d 77, 78 (Fla. 3d DCA 2004); see State v. Harvill, 860 So.2d 999, 1000 (Fla. 5th DCA 2003) (holding that party may challenge revocation of certificate by filing either mandamus petition or other appropriate action in trial court). However, as the FDLE concedes, it waived any procedural objection to Lazard’s, motion to compel by appearing and defending its position. Williams, 879 So.2d at 78.


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Laron Cartrell BENJAMIN, Appellee.
    Case No. 5D16-4152
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and David.M. Dixon, Assistant Public Defender, Daytona Beach, for Appellee.
   EVANDER, J.

The State appeals an order granting Laron Cartrell Benjamin’s motion to suppress evidence seized after Benjamin was removed from his vehicle during a valid traffic stop. The trial court granted Benjamin’s motion after determining that the officer’s decision to order Benjamin to exit his vehicle was not based on a valid safety concern. We reverse.

While on routine patrol, two Orlando Police Department officers observed Benjamin driving a vehicle with illegally tinted windows. Benjamin entered a shopping plaza and parked in front of a restaurant. The officers parked their patrol car behind Benjamin’s ear. After the officers approached Benjamin’s vehicle, one of the officers informed Benjamin that his windows were dark and would be tested. During the conversation, the officer also asked Benjamin, for permission to search his car. Benjamin refused. The officer then requested a canine unit to conduct an exteri- or search of the vehicle. While the officer was writing the citation, the canine unit arrived.

The canine handler told the initial responding officer, ‘Whenever you guys are ready, you can do whatever you do to pull him out.” At that time, an officer directed Benjamin to step out of the vehicle for the canine sniff. As Benjamin exited his vehicle, the officer saw a firearm under the driver’s seat that had previously been hidden by Benjamin’s leg. The firearm was seized, and Benjamin was arrested and charged with possession of a firearm by a convicted felon.

At the suppression hearing, the State presented testimony that for the safety of occupants, the canine handler, and the canine itself, Orlando Police Department policy required all occupants of a vehicle to be removed prior to conducting a canine sniff. However, the trial court rejected this testimony, stating:

The problem arises when they remove the defendant from the car. And to—in order for a dog to do a sniff, it’s news to me that you have to extricate the defendant from the vehicle. It was—it’s concerning because the Court heard the— the speaking of the two officers indicating that they were going to find a way to search that car, and that’s not appropriate.
... [Njeeding to extricate the defendant from the car in order for the dog to do an exterior sniff is not something that this Court believes is an officer safety issue, and I do not find that part of the testimony to be credible. Therefore, I am granting the motion to suppress

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that once a motor vehicle has been lawfully detained for a traffic violation, police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures. In reaching its decision, the Mimms Court found the “legitimate and weighty” interest of officer safety far outweighed a driver’s interest in not being directed to step out of his or her vehicle:

We think it too plain for argument that the State’s proffered justification— the safety of the officer—is both legitimate and weighty.
Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimus. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.

Id. at 110-11, 98 S.Ct. 330 (citations omitted).

In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the United States Supreme Court recited that Mimms stood for the proposition that “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” 519 U.S. at 410, 117 S.Ct. 882. Indeed, the Court characterized its holding in Mimms as creating a bright-line rule, stating, “[Tjhat we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line ....” Id. at 413 n.1, 117 S.Ct. 882; see also Presley v. State, 227 So.3d 95, 101, 2017 WL 4296316 (Fla. Sep. 20, 2017) (stating that “[ijn Mimms, the Supreme Court held that law enforcement officers during a traffic stop could ask the driver to exit the vehicle without violating the Fourth Amendment”).

In the instant case, the evidence established that Benjamin was lawfully detained. As a result, the police officer , could properly order Benjamin to exit his vehicle, even if the officer did not, have a particularized basis to believe that Benjamin was a threat to the officer’s safety. Thus,. the trial court erred in granting Benjamin’s motion to suppress.

REVERSED and REMANDED.

TORPY and EDWARDS, JJ., concur.

      . The trial court found that the duration of the stop was not unlawfully prolonged. This finding was supported by the evidence presented at the motion to suppress hearing.


text:
    Trey HARRIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1476
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017
    Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence, but remand for the trial court -to correct two scrivener’s errors in the order revoking his probation. Although Appellant was on probation for one count of grand theft, the revocation order states that he was on probation for two counts of .grand theft. Additionally,, while, the State alleged, and the trial court orally pronounced its finding, that Appellant violated . Conditions 5 and 6 of his probation by committing one new law offense and associating with. a person engaged in criminal activity, respectively, the revocation order states that he violated his probation “[b]y violating Condition 5 by committing new law offenses.” We, therefore, remand for the trial court to correct the revocation order. See Williams v. State, 138 So.3d 1102, 1103 (Fla. 1st DCA 2014) (affirming a judgment and sentence in an Anders appeal, but remanding for the trial court to correct the revocation order to conform to its oral pronouncement as to which alleged violations supported revocation); see also Nickolas v. State, 66 So.3d 1077 (Fla. 1st DCA 2011); Washington v. State, 37 So.3d 376 (Fla. 1st DCA 2010); Appellant need not be present. See Williams, 138 So.3d at 1103.

AFFIRMED and REMANDED.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.

       Anders v. California, 386 U.S, 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM

text:
    Derek Leon WALTERS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3209
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017

      Derek Leon: Walters, pro se, Appellant.
    Pamela Jo:Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM

Appellant filed a rulé1 3.800(a) motion raising' several arguments challenging the legality of his sentences fdr possession of a firearm by a convicted felon and aggravated assault with possession and discharge of á firearm. We affirm the trial court’s conclusion that the sentences are legal, but write to note that the twenty-year sentence for the aggravated assault is legal because of the minimum-mandatory sentence provision of section 775,087(2)(a)2., Florida Statutes (2010). The offense is not subject to reclassification pursuant to section 775.087(1) because a firearm is an essential element of aggravated assault. See § 784.021(1)(a). See Patterson v. State, 693 So.2d 74 (Fla. 1st DCA 1997).

AFFIRMED.

LEWIS, KELSEY, and M.K. THOMAS, JJ„ CONCUR.


text:
    Jose M. SANABRIA, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1807
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017
    Jose M. Sanabria, pro se, Petitioner.
    Pamela Jo Bondi,-Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). We encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below.

WOLF, JAY,, and M.K. THOMAS, JJ., CONCUR.


text:
    James D. SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5826
    District Court of Appeal of Florida, First District.
    Opinion filed November 6, 2017
    James D Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R. App. P. 9.140(b)(3).

WINOKUR, JAY, and WINSOR, JJ., CONCUR.


text:
    Ivan Ramond RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4778
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017
    Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Ivan Richardson appeals the trial court’s finding that he violated probation and the resulting prison sentence. Richardson represented'himself for both the VOP hearing and the sentencing hearing held immediately after. While the court conducted a sufficient Faretta inquiry before the violation hearing, it failed to renew the offer of counsel before sentencing. Therefore, we vacate the sentence and remand for resentencing. See Cuyler v. State, 131 So.3d 827, 828 (Fla. 1st DCA 2014) (‘While a full Faretta inquiry need not be conducted at every stage of criminal proceedings, once counsel has been waived under Faret-ta, the offer of assistance of counsel must be renewed by the court at each critical stage of the proceedings .... Sentencing is a critical stage of a criminal proceeding.”).

REVERSED and REMANDED.

B.L. THOMAS, C.J., and OSTERHAUS and WINSOR, JJ., CONCUR.

        Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Maurice A. BENNETT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2596
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017
    Maurice A. Bennett, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Sharon S. Trader, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on fhe merits.

RAY, WINOKUR, and WINSOR, JJ., CONCUR.


author: • PER CURIAM.

text:
    Adriano REIS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3123
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017
    Adriano Reis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   • PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

LEWIS, BILBREY, and M.K. THOMAS, JJ., CONCUR.


text:
    Barry SCHAAL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3159
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017.
    Barry Schaal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WINOKUR, JAY, and WINSOR, JJ., CONCUR.


text:
    Derrick CHARLESTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3317
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017

      Derrick Charleston, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

WINOKUR, JAY, and WINSOR, JJ., CONCUR.


author: CRICHTON, J.,

text:
    Preston HUNTER v. WIND RUN APARTMENTS, LLC, Triangle Real Estate of Fastonia, Inc., Southwood Realty Company, Paul Mills, et al.
    No. 2017-CC-1068
    Supreme Court of Louisiana.
    09/15/2017
    CRICHTON, J., additionally concurs and assigns reasons.
   ON SUPERVISORY WRIT TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

CRICHTON, J.,

additionally concurs and assigns reasons:

|TI agree with the denial of .this writ application. See, e.g., Johnson v. State, 02-2382 (La. 5/20/03), 851 So.2d 918, 921 (“We cannot consider contentions raised for the first time in this court which were not pleaded in the court below and which the district court has not addressed.”).

I write separately to note that the issue presented here—whether a jury is entitled to see unadjusted medical bills that do not account for any write-offs—is res nova in Louisiana jurisprudence. We have had held in the past that, pursuant to the collateral source rule, plaintiffs cannot collect amounts of medical bills “written off’ as damages. See, e.g., Bozeman v. State, Dep’t of Transp. and Dev., 03-1016 (La. 7/2/04), 879 So.2d 692; Hoffman v. 21st Century N. Am. Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702. In a future ease, this Court may wish to consider whether certain unadjusted amounts of a medical bill have probative value to a plaintiffs case. See, e.g., Thibodeaux v. Wellmate, Civ. No. 12-1375, 2016 WL 2983950 (E.D. La. May 22, 2016) (Morgan, J.).


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-945794
    NO. 2017-BA-0224
    Supreme Court of Louisiana.
    11/13/2017
   BAR ADMISSIONS PROCEEDING.

PER CURIAM

1 ] Petitioner applied to take and successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) subsequently declined to certify petitioner for admission to the bar based on facts and circumstances pertaining to the neglect of his financial responsibilities. Petitioner then applied to this court, seeking admission. We denied the application, with the provision that he could not reapply for admission for a period of three months, “and only after providing documentation that he has made arrangements to satisfy his financial responsibilities.” In re: Committee on Bar Admissions CFN-945794, 15-2299 (La. 2/5/16), 183 So.3d 507

One year later, petitioner filed the instant petition, representing that he had obtained an order of discharge in bankruptcy of the debts cited by the Committee. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. During the proceedings, petitioner introduced evidence that although some of his debts had been discharged in bankruptcy due to circumstances beyond his' control,he had reaffirmed other' debts, including his vehicle and an office building. Furthermore, petitioner introduced evidence that he had entered into a monthly payment arrangement with his student loan creditor. Petitioner also introduced evidence that he had made payments to the

IRS to satisfy 12a portion of a federal tax lien against him and had entered into a monthly installment agreement with the IRS to satisfy the remaining sum due. Thereafter, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner’s recommendation and the entire' record of this proceeding, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of three years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that (1) he is timely repaying his student loans in accordance with his agreement with the creditor; (2) he is making monthly payments to the IRS in accordance with the provisions of his installment agreement; and (3) he is otherwise making a good faith effort to satisfy his financial obligations. Should petitioner fail to comply with these conditions, or should he commit any misconduct during the period of probation, ■ his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    Charles THOMPSON, individually and in his capacity as Representative of the Estate of Aaron Thompson v. David CRAWFORD, Desire Crawford, Shane Courrege, individually and d/b/a Spanish Moon, Entergy Corporation, Entergy Gulf States Louisiana, LLC, and Entergy Louisina LLC
    No. 2017-C-1400
    Supreme Court of Louisiana.
    11/13/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

PER CURIAM

I ⅜WRIT GRANTED IN PART. This wrongful death and survival action was brought as a result of a horrendous accident wherein decedent, Aaron “Dan” Thompson, was ¿le'ctrocuted and killed after coming in contact with a live electrical wire at the Spanish Moon Bar in Baton Rouge, Louisiana. Nearly 8,000 volts of electricity flowing through the wire immediately transferred to the decedent’s body, causing his right hand to catch aflame and bum off as the electricity coursed through his body to exit out of his back. The decedent then' slumped down dead as a result of his contact with the wire. A jury awarded $450,000 in survival damages in addition to wrongful death damages. The court of appeal vacated the jury’s award for survival damages.

Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La. 1976). A jury may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however‘brief, on the part of the deceased, based on his actions or otherwise. Leary v. State Farm Mut. Auto. Ins. Co., 07-1184 (La. App. 3 Cir. 3/5/08), 978 So.2d 1094, 1098, writ denied, 08-0727 (La. 5/30/08), 983 So.2d 900; Etcher v. Neumann, 00-2282 (La. App. 1 Cir. 12/28/01), 806 So.2d 826, 840, writ denied, 02-0905 (La. 5/31/02), 817 So.2d 105; Patrick v. Employers Mut. Gas. Co., 99-94 (La. App. 3 Cir. 8/11/99), 745 So.2d 641, 652, writ denied, 99-2661 (La. 11/24/99), 750 So.2d 987.

In vacating the jury’s award of survival damages, the majority, of the court of appeal found the record provided no discern-able basis for finding: the decedent suffered. We disagree. As Judge Whipple correctly noted in her dissent:

Both the bar owner and the other witness testified that the decedent began shaking after clutching the wire, and that this went on for what seemed like .“a long time.” And while his voluntary grasp of .the wire soon became or resulted in an involuntary clutching of the Wire, it is undisputed that the decedent remained'.standing.throughout his electrocution, and slumped only after his hand was completely burned away.

Thompson v. Crawford, 15-1957 (La. App. 1 Cir. 7/12/17), 223 So.3d 1163, 1174. (Whipple,dissenting). We agree with Judge Whipple that “the plaintiff produced evidence which was sufficient to establish, by more than a scintilla, that the decedent suffered for some.period of time, albeit brief, until his hand was burned off and he slumped to the ground.” Id, - Thus, we find the court of .appeal erred in vacating the jury’s award of survival damages.

For these reasons, we grant the plaintiffs writ application in part and reinstate the jury’s award of $450,000 in survival damages. In all other respects, the plaintiffs writ application is denied.

WEIMERj J., would grant and docket.


author: PER CURIAM:

text:
    STATE of Louisiana v. Michael WHITFIELD
    No. 2017-KK-1384
    Supreme Court of Louisiana.
    11/13/2017
   ON WRIT OF CERTIORARI TO THE . FOURTH CIRCUIT COURT OF APPEAL, PARISH OF ORLEANS

PER CURIAM:

11Writ granted. Defendant was arrested pursuant to an alias capias that was issued after he failed to appear.in court.in an unrelated prosecution. While still in custody, police arrested him for, a series, of armed robberies based on surveillance videos they obtained after his arrest on the capias, which videos police believed confirmed his identity as the armed robber. On that same ddy, he appeared before a magistrate commissioner. Therefore, the commissioner erred in ordering him released pursuant to La.C.Cr.P; arts. 230.1 and 230.2 for failure to timely hold 48 and 72-hour hearings based on the initial date he was arrested on the unrelated alias capias. We reverse the magistrate commissioner’s ruling and remand for further proceedings consistent with this order.

REVERSED AND REMANDED


author: . CRICHTON, J.,

text:
    Jane DOE v. The ROMAN CATHOLIC CHURCH FOR the ARCHDIOCESE OF NEW ORLEANS, Loyola University New Orleans, and USA Central and Southern Province, Society of Jesus
    No. 2017-CC-1246
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

11 Writ denied.

GUIDRY, J., would-grant and remand to the court of appeal for briefing, oral ■ argument and full opinion.

HUGHES, J., would grant.

CRICHTON, J., would grant and assigns reasons.

. CRICHTON, J.,

would grant and docket and assigns reasons

hi would grant and docket this matter to examine whether plaintiff has met the stringent burden .of proof required for renunciation of prescription under La. C.C. arts. 3449, 3450, and 3451. . .


text:
    Jane DOE v. The ROMAN CATHOLIC CHURCH FOR the ARCHDIOCESE OF NEW ORLEANS, Loyola University New Orleans, and USA Central and Southern Province, Society of Jesus
    No. 2017-CC-1243
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

| /Writ denied.

GUIDRY, J., would grant and remand to the court of appeal for briefing, oral argument and full opinion.

HUGHES, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J.,

would grant and docket and assigns reasons

hi would grant and docket this matter to examine whether plaintiff has met the stringent burden of proof required for renunciation of prescription under La. C.C. arts. 3449, 3450, and 3451.


text:
    Jane DOE v. The ROMAN CATHOLIC CHURCH FOR the ARCHDIOCESE OF NEW ORLEANS, Loyola University New Orleans, and USA Central and Southern Province, Society of Jesus
    No. 2017-CC-1238
    Supreme Court of Louisiana.
    11/13/2017
    GUIDRY, J., would grant and remand to the court of appeal for briefing, oral argument and full opinion.
    HUGHES, J., would grant.
    CRICHTON, J., would grant and assigns reasons.
   ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

CRICHTON, J.,

would grant and docket and assigns reasons

|,I would grant and docket this matter to examine whether plaintiff has met the stringent burden of proof required for renunciation of prescription under La. C.C. arts. 3449, 3450, and 3451.


text:
    QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin, and Virginia Rayne St. Martin v. IP PETROLEUM COMPANY, INC., International Paper Company, Montgomery Barnett, L.l.p., and John Y. Pearce
    No. 2017-C-0970
    Supreme Court of Louisiana.
    11/13/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TERREBONNE

JjWrit denied. ■

HUGHES, J., recused.

CRICHTON, J., would grant and assigns reasons.

GENOVESE, J., would grant for the reasons assigned by Justice Crichton. .

CRICHTON, J.,

would grant and docket and assigns reasons:

lil would grant and docket this writ application to address the narrow issue of whether the court of appeal correctly relied on La. C.C. art. 2000 to reduce the damages award in this case.


text:
    STATE of Louisiana v. Jabari WILLIAMS
    No. 2016-K-1952
    Supreme Court of Louisiana.
    11/13/2017
   ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL, PARISH OF ORLEANS

PER CURIAM:

Writ granted. “The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.” Johnson v. California, 545 U.S. 162, 172, 125 S.Ct. 2410, 2418, 162 L.Ed.2d 129 (2005). As in State v. Crawford, 14-2153, p. 33 (La. 11/16/16), 218 So.3d 13, 34, we find that the record here “hinders our ability to discern a clearly defined three-step Batson analysis.” Therefore, we remand this matter to the trial court to conduct a hearing and clarify its ruling on defendant’s Bat-son challenges.

The trial court is directed to determine whether defendant has made a prima facie showing of racial discrimination as to all five individuals challenged by the state in the second venire panel. We emphasize that to satisfy Batson’s first-step requirement for the establishment of - a prima facie case of purposeful discrimination, “a moving party need only produce ‘evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ ” State v. Elie, 05-1569, p. 6 (La. 7/10/06), 936 So.2d 791, 796 (quoting Johnson, 545 U.S. at. 170, 125 S.Ct. at 2417).

If the trial court determines that a pri-ma facie showing has been made, it is directed to proceed with Batson’s second and third steps and issue a written ruling thereon, with reasons. See generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As for- those steps, we remind the trial court that La. C.Cr.P. art. 795(C), to the extent it affords a .court discretion to forego demanding race-neutral reasons from the state after it has found a prima facie showing of discrimination, does not comport with the Supreme Court’s Batson jurisprudence. See Johnson, supra; see also Crawford, supra.

The trial court is also directed to reconstruct and expand the record in this case, to whatever extent possible, in any areas relevant to the three-step Batson inquiry. For instance, the court should attempt to determine the races of all members of the venire, particularly of those in the second panel; and produce to the extent’possible' a full transcript , of the entirety of voir dire to facilitate appellate review of its rulings.

REMANDED


text:
    STATE EX REL. Paul A. DION, Jr. v. STATE of Louisiana
    No. 2016-KH-1585
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TER-REBONNE

PER CURIAM:

|, Denied. Relator shows no error in the lower courts’ rulings. La.C.Cr.P. art.. 930.4(A).

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

WEIMER, J., recused.


text:
    STATE EX REL. James DAVIS v. STATE of Louisiana
    No. 2016-KH-1526
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

|,WRIT NOT CONSIDERED. Relator has not demonstrated that he sought review in the court of appeal of the .district court’s ruling denying his post-conviction claims before he filed in this Court, nor has he shown any “extraordinary circumstances” that would justify his bypassing that level of review. La.S.Ct.R. X, § 5(b).


text:
    STATE EX REL. Arthur Lee FUNCHESS v. STATE of Louisiana
    No. 2016-KH-1491
    Supreme Court of Louisiana.
    11/13/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TAN-GIPAHOA

PER CURIAM:

11Writ not considered. La.S.Ct.R, X, § 5(b). Though this court originally had exclusive appellate jurisdiction over defendant’s pre-1982 felony conviction and sentence, see La. Const. art. V, § 5(E), following his resentencing in 2016, pursuant to La.C.Cr.P. art. 878.1 and State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, appellate jurisdiction is now vested in the intermediate court of appeal. See La. Const. art. V, § 10(A) (eff. July 1, 1982, “[A] court of appeal has appellate jurisdiction, of ... all criminal cases triable by a jury,” except when a law has been declared unconstitutional or when the death penalty has been imposed). Thus, to whatever extent defendant desires to seek review of his new judgment of sentence, the law envisions him pursuing an appeal (or, considering time constraints, an out-of-time appeal) before filing here. See La. C.Cr.P. art. 912(C)(1); cf. State v. Counterman, 475 So.2d 336, 339 (La. 1985) (acknowledging “constitutional right to appeal (or to other review on the record) in criminal cases in Louisiana when the defendant is to be subjected to imprisonment or fine” under La. Const, art, I, § 19).


author: PER CURIAM: Hughes, J.,

text:
    STATE of Louisiana v. Rebecca Joy OWENS
    No. 2017-KK-1258
    Supreme Court of Louisiana.
    11/13/2017
   ON WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL, PARISH OF IBERIA

PER CURIAM:

| /Writ granted. Defendant was stopped in traffic after' an officer saw her veer across the fog line and then determinéd that her license plate was registered to a different vehicle. Defendant did not have a driver’s license with her and' the officer discovered that she had an outstanding warrant for failure to pay child support. After the officer announced his intent to search the vehicle arid inquired aborit contraband, defendant admitted she had Su-boxone in her purse: After he seized the Suboxone, the officer arrested defendant, Mirandized her, and searched the vehicle.

The court of appeal found the trial court erred in denying defendant’s motion to suppress the Suboxone found in defendant’s purse. State v. Owens, 17-0369 (La. App. 3 Cir. 6/15/17) (unpub’d). The court of appeal found the search was not incident to arrest, the officer did not obtain the defendant’s consent to search, and the officer did not Mirandize her. until after he asked whether she had any contraband in the vehicle or on her person. Judge Saunders dissented that the search was valid because it was incident to arrest. We agree.

| ¿There is no question the traffic stop here was lawful. While conducting the traffic stop, the officer discovered an outstanding warrant. The officer’s decision to run the warrant check was a “negligibly burdensome precautiofn]” for officer safety. Rodriguez v. United States, 575 U.S. -, -, 135 S.Ct. 1609, 1616, 191 L.Ed.2d 492 (2015). Furthermore, “[a] warrant is a judicial maridate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon, 468 U.S. 897, 920 n.21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984) (internal quotation marks omitted). Once the officer was authorized to arrest defendant, it was uridis-putedly lawful to search her as an incident of the arrest. See Arizona v. Gant, 556 U.S. 332, 339, 129 S.Ct. 1710, 1716-17, 173 L.Ed.2d 485 (2009) (explaining the permissible scope of searches incident to arrest); see also State v. Butler, 12-2359, p. 5 (La. 5/17/13), 117 So.3d 87, 89-90 (per curiam) (finding defendant could be searched after he was seen riding his bicycle on the sidewalk, which municipal ordinance violation rendered him subject to arrest). Furthermore, where the formal arrest followed quickly on the heels of the challenged search, it is “not ... particularly important that the search preceded the arrest rather than vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Therefore, we reverse the court of appeal, reinstate the trial court’s ruling denying defendant’s motion to suppress, and remand to the trial court for further proceedings.

REVERSED AND REMANDED

Hughes, J., dissents.and assigns reasons.

Hughes, J.,

dissenting

hi respectfully dissent and would grant the writ. Defendant was stopped' for a license plate violation and then arrested for an outstanding warrant. After being placed in custody, the officer asked her a direct incriminating question and threatened to search her vehicle. Only after her incriminating answer did the officer give the Miranda warning, as shown by his body cam. The sequence of events should not be ignored. Defendant’s statement and its fruits should be suppressed.


text:
    IN RE: Raymond J. PAJARES
    NO. 2017-OB-1779
    Supreme Court of Louisiana.
    11/13/2017
   ORDER

11 Considering the Petition for Transfer to Disability Inactive Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Raymond J. Pa-jares, Louisiana Bar Roll number 17343, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

IT IS FURTHER ORDERED that respondent’s motion to seal be denied as moot. Pursuant to Supreme Court Rule XIX, § 16(C), proceedings for transfer to or from disability inactive status ar;e confidential.

NEW ORLEANS, LOUISIANA, this ___ day of_, 2017.