author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Dennis TAYLOR, DOC #R51908, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5268
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018
    Howard L. Dimmig, II, Public Defender, and James Dickson Crock, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

A jury found Dennis Taylor guilty of robbery with a deadly weapon. See § 812.13(2)(a), Fla. Stat. (2014). Taylor now challenges his conviction, raising numerous claims-some preserved, some unpreserved-of trial court error and prosecutorial misconduct. We reject most of these claims without comment, but we agree with Taylor that the trial court abused its discretion by allowing the prosecutor to repeatedly and improperly suggest to the jury that defense counsel had influenced the victim to change his story between the robbery and trial. And because we further agree that on this record, the error was not harmless, we reverse and remand for a new trial.

Background

In the early evening of April 26, 2015, Taylor, apparently intoxicated, entered a convenience store in Pasco County, walked back to the cooler section, and began stuffing liquor bottles into his pockets. The clerk, Raif Bader, confronted Taylor; Taylor pulled an object from under his shirt, brandished it at Bader, and warned, "Don't you dare." Afraid, Bader returned to the front counter to retrieve his firearm. As Taylor walked out the door with one of the bottles, Bader "ordered him to drop his weapon, or whatever it was in his hand." Taylor did not drop the object. Security cameras recorded the incident.

Deputies later arrested Taylor in the yard of his house, which was approximately one-eighth of a mile from the store. Taylor had a liquor bottle in his hand and was intoxicated and belligerent. There were several other liquor bottles on the porch. Although the deputies looked along the route from the store to the house and around the yard, they found no knife or other weapon. They did not go into the house.

On the car ride to the jail, Taylor spontaneously volunteered to the lone deputy who was transporting him that he was going to jail for stealing a beer. Taylor also volunteered that he had had a knife while he was in the store. The deputy did not ask Taylor any questions, there was no video or audio recording of Taylor's statement, and the deputy did not ask Taylor to write it down despite having a pen and paper in the car.

At trial, Bader testified on direct examination that Taylor had pulled "a-I don't want to say [a] knife, I would say it's a long spatula, as far as I know." Bader testified further, "As far as I remember, it had a round edge, round point, and it's-I wasn't thinking of a weapon at the time, I was perturbed but later on as far as I remember it, looked like just a spatula, so it was not a weapon." Bader testified that the object was "about a foot long."

The prosecutor asked Bader if he recalled providing a verbal and written statement to deputies right after the incident. Bader acknowledged that both verbally and in writing, he had indicated that the object in Taylor's hand had been a knife, explaining: "At that time-I wasn't concentrating on what he had in his hand, it was an object. I assumed it was a knife[.]" Immediately after that acknowledgment, the prosecutor asked Bader, "How many times have you talked to the defense attorneys since this happened?" And immediately after that, Taylor's counsel objected.

At sidebar, Taylor's counsel asserted that the prosecutor was "going to try to smear me as counsel." The prosecutor responded:

No, this is impeachment. He's testified to something different than what he said, I'm impeaching my witness. I'm going to impeach him with the fact that he's spoken to these attorneys, including last night, and then all of a sudden this object has gone from a knife to a spatula. I think that's a fair comment. I think that's fair impeachment.

Acknowledging that "[i]t's completely fine for attorneys to talk to witnesses, there's a jury instruction that says that," the prosecutor continued:

But that's not what I'm offering it for. I'm offering it for impeachment, where all of a sudden he's talked to, he's talked to attorneys for the Defendant and now his testimony's changed from what he's previously stated.

The trial court excused the jury and heard additional argument, ultimately overruling Taylor's objection and concluding that the prosecutor's line of questioning was valid impeachment. The court then took a proffer of Bader's testimony, in which Bader proffered that he had spoken with defense counsel several times and that he had told defense counsel that the object had been about a foot long with a rounded edge and no point. Bader proffered further that the object had seemed "wobbly" and not "like a long piece of solid metal steel."

When the jury returned, the prosecutor picked up where he had left off, and the following exchange took place:

Q Okay. How many times did you talk to the defense attorney?
A Twice.
Q Was one of those yesterday?
A Monday, the day before.
Q Okay, Monday. And when was the other time?
A Two, three weeks ago, maybe.
Q Okay. Is that the first time that you remember that this all of a sudden was a spatula instead of a knife?
A No, no, no, from before.

Bader then explained that during the incident, he had thought that Taylor had a knife, which is what had prompted him to retrieve his firearm. Upon later reflection, however, he had thought that it would not make sense for Taylor to have had a sharp object tucked into the front of his shirt because it would have cut him, "So that's what led me to believe ... what I saw was actually the spatula, not a knife."

The prosecutor's next question was, "Has the Defendant's mom been down to the store to talk to you?" Taylor did not object. When Bader said that he had not spoken with her, the prosecutor continued, again without objection:

Q Okay. But she's been down to the store?
A She talked to another employee.
Q About [Taylor's] case?
A About [Taylor's] case, yeah.

On cross-examination, Bader reiterated that the tip of the object had been rounded off rather than sharp and that it would not have hurt anybody. He also testified that it had appeared "wobbly" to him rather than as a sharp piece of metal.

Both parties' closing arguments focused on whether the object in Taylor's hand had been a knife or a spatula. The prosecutor urged the jury to focus on the video and on Taylor's admission to the transporting deputy.

In response, defense counsel argued that the jury should rely on Bader's description of the object as something other than a knife. He also vigorously challenged the transporting deputy's testimony concerning Taylor's admission.

In rebuttal, the prosecutor attacked Bader's credibility regarding his inconsistent statements and again urged the jury to rely on the video, to which the prosecutor repeatedly referred as "the silent witness." In doing so, the prosecutor argued that the video was not "somehow impacted by the Defendant's mother coming to the store. It's not impacted all of a sudden after meeting with Defense counsel two times, including yesterday where all of a sudden ...." At that point, defense counsel objected that the prosecutor was relying on facts not in evidence. Although the trial court sustained the objection to the extent that the evidence had established that Bader had spoken to counsel two days earlier, rather than on the previous day, it agreed with the prosecutor that the jury could rely on its own recollection concerning when Bader had reassessed the nature of the object in Taylor's hand. The prosecutor apologized that he had gotten "a little excited" but then continued:

I'm sorry, Mr. Bader didn't say he talked to the defense attorney yesterday, he said he talked to him Monday, so excuse me. But he talked to him Monday, he talked to him a couple weeks ago, then all of a sudden, it's a spatula. It was a knife when he talked to [the responding deputy]; knife, knife, knife, knife, knife. When he wrote out the statement for [the responding deputy], knife. But now today after family's been by the store, you know, smile and wave everything's okay,[ ] now it's just a spatula.

The prosecutor further argued, without objection:

Mr. Bader ... his story changes and you can determine from your notes, from your memory exactly when it changes from a knife to a spatula and why he would want to change that. Keep in mind, you know, he said he was visited by somebody from the Defendant's family. He wasn't there but another employee told him that.

During deliberations, the jury asked to again view portions of the video in which the object in Taylor's hand was visible. Thereafter, it returned its guilty verdict.

Discussion

The primary issue in dispute at trial was the nature of the object in Taylor's hand. Taylor argues that the trial court abused its discretion by allowing the prosecutor to repeatedly suggest through his questioning of Bader that defense counsel had somehow pressured or persuaded Bader to change his story and further abused its discretion by then allowing the prosecutor to reiterate that suggestion during closing argument. See Hayward v. State, 24 So.3d 17, 29 (Fla. 2009) ("A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. The trial court's discretion is constrained, however, by the application of the rules of evidence and by the principles of stare decisis." (citations omitted) ); Abdulla v. State, 223 So.3d 276, 279 (Fla. 4th DCA 2017) ("Claims of improper closing arguments by a prosecutor are reviewed for an abuse of discretion.").

We agree. "Generally, comments by the State implying that the defense tampered with a witness without evidentiary support constitute reversible error." Penalver v. State, 926 So.2d 1118, 1129 (Fla. 2006). In Penalver, the State had also persuaded the trial court that the jury should be permitted to draw an inference as to whether a witness who had changed her story "could have been influenced or affected by the conversations" with defense counsel. Id. at 1128. But the supreme court concluded otherwise:

Evidence that [the witness] Munroe had conversations with Penalver's attorney is irrelevant because standing alone it does not support the argument that Munroe changed her testimony at trial based on these conversations. In fact, as Penalver contends, this entire line of questioning could have suggested to the jury that Penalver or his attorney exerted pressure on Munroe to change her testimony. Such a suggestion made without evidentiary support undermines one of the foundations on which our criminal justice system is premised: equal access by the State and the defense to witnesses.

Id. at 1130. Here, the prosecutor told the trial court that the very purpose of his questioning was to impeach Bader by establishing that Bader's story had "suddenly" changed after Bader had met with defense counsel. Under Penalver, this was plainly impermissible impeachment, and the court abused its discretion in allowing it.

The trial court compounded the error by allowing the prosecutor to exploit this improper line of questioning during rebuttal closing argument. There, the prosecutor continued to suggest that defense counsel had influenced Bader to change his story, despite Bader's unequivocal testimony that he had changed his mind about the nature of the object before any meeting with defense counsel and the State's utter failure to offer any evidence to indicate otherwise. See Abdulla, 223 So.3d at 280 (holding that prosecutor improperly implied "that the witness, through speaking with defense counsel and Appellant, came up with a defense strategy involving perjury," which could have been reasonably interpreted "as the prosecutor conveying to the jury that Appellant and his counsel were complicit in the witness's alleged perjury" (emphasis omitted) ); see also Tindal v. State, 803 So.2d 806, 810 (Fla. 4th DCA 2001) ("This court has repeatedly held that it is impermissible for the state to suggest, without evidentiary support, that the defense has 'gotten to' and changed a witness's testimony or that a witness has not testified out of fear." (citing Johnson v. State, 747 So.2d 436, 439 (Fla. 4th DCA 1999) ; Henry v. State, 651 So.2d 1267, 1268-69 (Fla. 4th DCA 1995) ) ).

We cannot agree with the State's argument that these errors were harmless. In assessing whether an error was harmless, we ask if there is a reasonable possibility that the error affected the verdict, and it is the State's burden to establish that there is not. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). We do not merely evaluate whether the jury ultimately reached the correct result or whether overwhelming evidence of guilt exists. See Ventura v. State, 29 So.3d 1086, 1090-91 (Fla. 2010). Rather, we must determine whether a reasonable possibility exists that the jury, in reaching its decision, considered the prosecutor's improper questions and argument regarding Bader's contact with defense counsel. See id. at 1090 ; Rigterink v. State, 2 So.3d 221, 256 (Fla. 2009) ("Under a proper analysis, we conclude that the jury most assuredly, and very seriously, considered and substantially included Rigterink's videotaped interrogation in reaching its verdicts.... [U]nder these facts, we cannot say that the videotape-which should have been suppressed based upon proper legal analysis-did not 'contribute to' his convictions."), vacated on other grounds, Florida v. Rigterink, 559 U.S. 965, 130 S.Ct. 1235, 176 L.Ed.2d 175 (2010). Our review "requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." DiGuilio, 491 So.2d at 1138. Further, we must view the erroneously admitted evidence and improper argument together and in the context of the entire record. See Penalver, 926 So.2d at 1137 ("[E]ven when we find multiple harmless errors, we must still consider whether 'the cumulative effect of [the] errors was such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation.' " (second alteration in original) (quoting Brooks v. State, 918 So.2d 181, 202 (Fla. 2005) ) ).

The prosecutor's argument not only impermissibly impugned defense counsel's integrity but went so far as to imply that defense counsel had committed some form of witness tampering. See Howard v. State, 152 So.3d 825, 829 (Fla. 2d DCA 2014) ("It is ... improper to make any statement during closing argument that denigrates defense counsel or the defense strategy, including any comments made to suggest that the defense is attempting to perpetrate a fraud on the jury." (citation omitted) ); Henry, 651 So.2d at 1268 ("The implication by the prosecutor in this case was that the defense 'got to' the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial."). That the pertinent witness was the sole eyewitness to the charged offense made the implication all the more damaging.

Moreover, the prejudice of the improper suggestions was further compounded when the prosecutor also suggested through his questions and argument-again without any evidentiary foundation-that Taylor's mother had also somehow persuaded or pressured Bader to change his story. By tying Bader's changed story both to his conversations with defense counsel and to Taylor's mother's visit to the store-at some unspecified point in time after the robbery, when Bader had not even been at the store-the prosecutor improperly insinuated that he knew more than he was telling the jury. See Tindal, 803 So.2d at 810 (explaining that "because the prosecutor is an agent of the state," comments suggesting that the defense has pressured a witness to change his testimony or to refuse to testify "imply that the prosecutor has unique knowledge that has not been presented to the jury").

In addition, we agree with Taylor that the prosecutor's comments impermissibly invited the jury to view Bader's prior inconsistent statements as substantive evidence. "Prior inconsistent statements are admissible for impeachment purposes so long as the goal is to have the jury 'disbelieve both statements' rather than to convince the jury 'that the prior statement is true and the in-court testimony is false.' " Abdulla, 223 So.3d at 279 (quoting Espinoza v. State, 37 So.3d 387, 388 (Fla. 4th DCA 2010) ). Here, however, although the prosecutor urged the jury to ultimately focus on the video from the security cameras, the obvious implication of his argument was that Bader's prior inconsistent statements were the truth, as the video was "the silent witness that's not somehow impacted by the Defendant's mother coming to the store. It's not impacted all of a sudden after meeting with Defense counsel two times ...."

Finally, the only evidence that could properly support a finding that the object was a knife was the video and Taylor's vigorously challenged statement to the deputy. And contrary to the State's closing argument, the video is far from dispositive: all that can be discerned is a roughly foot-long, flat, and narrow object, the lower part of which appears to be a handle and the upper part of which appears to be a silver-colored metal, all of which could be consistent with either a knife or a metal spatula. The resolution is not high enough to establish whether the tip is pointed or rounded.

Especially given the paucity of the evidence, we cannot say that the jury did not consider the prosecutor's improper questioning and argument in ultimately finding that the object in Taylor's hand had been a knife. See Penalver, 926 So.2d at 1138 ("In light of the scant evidence connecting Penalver to this murder [, i.e., a photograph from a grainy videotape and "a statement allegedly made by Penalver to another inmate that he had a chance of being acquitted because he did not remove his mask,"] and the consequent importance of identifying the individual depicted on the videotape in sunglasses and hat, we conclude that the improperly admitted evidence and the State's suggestion that the defense tampered with or suborned perjury by an identification witness meet the cumulative error requirements outlined above and require reversal."). We therefore cannot hold that the State has carried its burden of showing harmless error when the prosecutor persisted in improperly impeaching the only eyewitness, impugning the integrity of defense counsel, and further insinuating that defense counsel, as well as the defendant's mother, had committed criminal offenses of their own. Accordingly, we reverse and remand for a new trial.

Reversed; remanded.

NORTHCUTT and SALARIO, JJ., Concur.

      In his closing argument, defense counsel had pointed out that Bader and Taylor had "smiled and waved at each other" in the courtroom and had argued that this showed that Bader had no fear of Taylor.

      We note that although Taylor relies heavily on Penalver and similar cases in his initial brief, the State's response brief fails to even mention, let alone distinguish, that line of caselaw. Instead, the State supports its perfunctory assertion that the trial court did not abuse its discretion with references to a party's general right to inquire into a witness's possible biases.

      Taylor did not object at trial to the prosecutor's questions or argument concerning his mother. We express no opinion as to whether they constituted fundamental error in themselves but consider them, and the rest of the record, as part of our harmlessness analysis of the error that we have already identified. See DiGuilio, 491 So.2d at 1135 (explaining that the application of the harmless error analysis requires an examination of the entire record); see also Whitton v. State, 649 So.2d 861, 864-65 (Fla. 1994) ("Although Whitton did not object to the first two alleged comments on Whitton's post-arrest silence, he argues that the cumulative impact of all three comments requires reversal. We agree that we must consider all three comments in our harmless error analysis because the harmless error test requires an examination of the entire record.").

      As in Abdulla, no exceptions to this general rule are pertinent to this case.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Jeffery WATERMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4423
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
    Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Jeffery Waterman appeals his judgment and sentences for sexual battery and lewd molestation upon a child less than twelve years of age. Though Waterman raises four issues on appeal, we find merit in only one. Because Waterman was not competent to knowingly and intelligently waive his Miranda rights at the time of his confession to law enforcement, we conclude that the trial court erred in denying his motion to suppress. Accordingly, we reverse his convictions and sentences and remand for a new trial.

Waterman, who was eighteen years old at the time of his arrest, was charged with one count of capital sexual battery and one count of lewd or lascivious molestation. Sergeant Darlene Rivas and another deputy of the Polk County Sheriff's Office brought Waterman into an interview room at the police station, where Sergeant Rivas read Waterman his Miranda rights. Waterman indicated that he understood each of his rights and signed a waiver form.

During the interrogation, Waterman was upset and initially denied committing the crimes. He asked the other deputy to leave the room because he felt uncomfortable with a uniformed officer being present. When confronted with the victim's allegations, Waterman started to cry and asked for his "mommy." Waterman stated that his mother would have the answers to Sergeant Rivas' questions. Upon observing Waterman's emotional state, Sergeant Rivas left the interview room to allow Waterman time to collect himself. After some time had elapsed, Sergeant Rivas returned to the room and continued questioning Waterman, who then confessed to committing the crimes and agreed to give a recorded statement. During the recorded statement, Waterman again denied committing the crimes. However, upon further questioning, Waterman confessed to the crimes.

Following his confession, Waterman underwent several competency evaluations by four licensed psychologists between August of 2006 and July of 2007. All four doctors diagnosed Waterman with "mild mental retardation" and concluded that he was not competent to proceed. Indeed, they discovered that Waterman had been a special education student since kindergarten, had a low IQ, possessed a third-or fourth-grade reading and comprehension level, was susceptible to suggestability, and was not malingering. Three of those doctors, Henry Dee, William Kremper, and Joel Freid, further examined Waterman to determine whether he was capable of understanding his Miranda rights. They ultimately opined in written evaluations that were filed with the trial court that Waterman was most likely unable to understand his rights. Consequently, in 2009, the trial court dismissed without prejudice the charges against Waterman, finding that he was "incompetent to proceed due to mental retardation" and that there was "no reasonable likelihood that Mr. Waterman will ever become competent to proceed."

In 2013, the State refiled the charges against Waterman. The trial court ordered two new competency evaluations. Dr. Suzanne Lavelle and Dr. Cecilia Yocum conducted the tests. Though both doctors again concluded that Waterman was incompetent to proceed due to his intellectual disability, Dr. Yocum opined that Waterman could be found competent to proceed to trial after three to six months of competency training. After receiving such training, Waterman underwent another competency evaluation by Dr. William Prather and was ultimately deemed competent to proceed. However, these three doctors did not evaluate Waterman for the purpose of determining whether he was capable of understanding his Miranda rights.

Waterman's counsel subsequently filed a motion to suppress his statements to law enforcement, arguing in part that he did not knowingly and intelligently waive his Miranda rights. The trial court held an evidentiary hearing on the motion where it received Waterman's prior evaluations and heard testimony from four witnesses, including Sergeant Rivas and Dr. Gregory DeClue. Like his predecessors, Dr. DeClue, who had evaluated Waterman in 2015, opined that Waterman "would not have been able to understand the warnings in the form that they were given to him." Dr. DeClue's findings were nearly identical to the earlier doctors' written findings in 2006 and 2007. He also found that the Miranda warnings were administered at a seventh-grade level.

The trial court, however, denied the motion. It concluded that the State proved by a preponderance of the evidence that Waterman's waiver was knowing, intelligent, and voluntary. Specifically, in its "conclusions of law," the trial court ruled that though it was "clear" that Waterman "had ongoing competency issues," Dr. DeClue's 2015 evaluation "and the competency issues that occurred subsequent to [Waterman's] arrest[ ] provide[d] limited guidance in determining" the nature of Waterman's waiver at the time of his arrest in May of 2006. The trial court also based its denial on the following facts: (1) Waterman acknowledged that he understood each of his rights, (2) Waterman was responsive to the questions, and (3) Waterman asked one of the uniformed deputies to leave the interrogation room without any prompting.

Following the denial of his motion, Waterman proceeded to trial. During closing arguments, the State emphasized Waterman's confession to the jury on multiple occasions. The jury found Waterman guilty on both counts, and he was subsequently sentenced to life in prison. On appeal, Waterman contends that the trial court erred in denying his suppression motion because the State failed to prove by a preponderance of the evidence that he knowingly and intelligently waived his Miranda rights. In response, the State argues that we should affirm the trial court's ruling even though "it remains uncertain whether ... Waterman's waiver of his Miranda rights in May of 2006 was knowingly, voluntarily, and intelligently made."

In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's findings of fact that are supported by competent substantial evidence, but we review de novo the trial court's application of the law to the facts. Young v. State, 207 So.3d 267, 269 (Fla. 2d DCA 2016) (citing Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003) ). "Whether under those ... facts a Miranda waiver is knowing, voluntary, and intelligent is a question of law that we independently review de novo." State v. Herrera, 201 So.3d 192, 196 (Fla. 2d DCA 2016) (citing Thomas v. State, 894 So.2d 126, 136 (Fla. 2004) ).

"A defendant's waiver of Miranda rights is valid only when 'made voluntarily, knowingly and intelligently.' " Herrera, 201 So.3d at 196 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602 ). To be a voluntary, knowing, and intelligent waiver, the waiver must be (1) " 'voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception,' and (2) it must be 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' " Id. (quoting Ramirez v. State, 739 So.2d 568, 575 (Fla. 1999) ). Determining whether these two elements have been satisfied "depends on the totality of the circumstances, an analysis that requires examination of 'all the circumstances surrounding the interrogation.' " Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) ). The State has the burden to show by a preponderance of the evidence that under the totality of the circumstances the defendant knowingly, voluntarily, and intelligently waived his Miranda rights. Herrera, 201 So.3d at 196 (citing Colorado v. Connelly, 479 U.S. 157, 167-68, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ).

The defendant's intellectual disability is one factor the court should consider in the totality of the circumstances. Thompson v. State, 548 So.2d 198, 203 (Fla. 1989). And though an intellectual disability alone does not render a confession involuntary, it may render a confession involuntary in those "rare cases" where the disability is "so severe as to render the defendant unable to communicate intelligibly or understand the meaning of Miranda warnings even when presented in simplified form." Id.; see also State v. Crosby, 599 So.2d 138, 142 (Fla. 5th DCA 1992) (noting that expert testimony may establish that a defendant's intellectual limitations "were severe enough to make him incapable of understanding his rights"). The court should also consider other factors, including "mental capacity or I.Q., age, physical condition, demeanor, coherence, articulateness, capacity to make full use of one's faculties, memory, level of education, level of reading skill, time of interrogation, prior record or experience with the criminal justice system." Crosby, 599 So.2d at 142 ; see also Benitez v. State, 952 So.2d 1275, 1277 (Fla. 2d DCA 2007) (listing similar factors, including the "(1) the manner in which the Miranda rights were given, including any trickery or cajoling; (2) the defendant's age, intelligence, background, and experience; (3) whether the juvenile's parents were contacted and given an opportunity to speak with him before questioning; (4) the location of the questioning; and (5) whether police obtained a written waiver of the Miranda rights").

Here, the trial court erred in denying Waterman's suppression motion because its conclusions of law were not supported by the record. The trial court erroneously concluded that because Dr. DeClue's evaluation occurred in 2015 and Waterman's "competency issues" occurred after his arrest, there was "limited guidance" in determining the nature of Waterman's waiver at the time of his arrest. Such a finding is simply unsupported by the record. A review of the record shows there was ample evidence presented that provided clear guidance on the issue of whether Waterman's waiver was knowing and intelligent at the time of his arrest. Indeed, even if the trial court completely discounted Dr. DeClue's testimony that Waterman "would not have been able to understand the warnings in the form that they were given to him," the trial court failed to consider the other competency evaluations in the record.

In particular, the trial court overlooked the fact that Dr. Dee, Dr. Freid, and Dr. Kremper all evaluated Waterman within thirteen months of his arrest, each concluding that Waterman was most likely not able to understand his rights at the time of his arrest. Dr. Dee, who evaluated Waterman only three months after his arrest, opined that Waterman "clearly ... d[id] not understand [the Miranda Warnings]" at the time of both his interrogation and evaluation. He also had "the impression that [Waterman] does not now and probably never has understood Miranda Warnings." In fact, when Dr. Dee read Waterman his rights and asked Waterman to explain in his own words what the right to remain silent meant, Waterman responded incorrectly, "You have to be quiet until the person says to talk."

In 2007, Dr. Freid and Dr. Kremper made similar observations in their evaluations of Waterman. Dr. Freid opined that because "Mr. Waterman does not understand his Miranda rights," he was "very likely not competent to waive Miranda at the time of interrogation." Likewise, Dr. Kremper concluded that "Waterman was not considered to have the capacity to knowingly, intelligently and voluntarily waive Miranda" because Waterman (1) was functioning in "the mild range of mental retardation"; (2) did not understand the meaning of key words found in the warnings, such as "right," "afford," and "appointed"; and (3) had a "limited ability to understand the longer term consequences of his actions and statements." These evaluations were unrefuted. Thus, the trial court erred in concluding that there was "limited guidance" regarding Waterman's ability to comprehend his rights at the time of the interrogation.

Furthermore, the trial court erred in denying the suppression motion based on Waterman's responsiveness to the questions and acknowledgement that he understood his rights. While we recognize that an accused's responsiveness is an appropriate factor for the trial court to consider in reaching its determination, mere acknowledgement that one understands his or her rights is not sufficient to show comprehension of those rights. See B.M.B. v. State, 927 So.2d 219, 223 (Fla. 2d DCA 2006) (holding that even though juvenile acknowledged to law enforcement that she understood her Miranda rights, such acknowledgement without any evidence that she "clearly understood [her] rights and their significance" was insufficient to show that she had validly waived her rights).

Nor does asking a uniformed officer to leave the interview room indicate that Waterman comprehended and validly waived his rights.

Waterman was eighteen years old at the time of the interrogation and had no prior criminal experience with law enforcement. He was crying and asking for his "mommy." He was a special education student since kindergarten, had a very low IQ that placed him in the "mild mental retardation" range, read at a third or fourth-grade level, and was susceptible to suggestability. And given the uncontroverted evidence that the Miranda warnings were administered at a seventh-grade reading level and in the police station, we conclude that Waterman did not knowingly and intelligently waive his rights. We further conclude that the error was not harmless beyond a reasonable doubt, especially considering that the prosecutor repeatedly made Waterman's confession a feature of her closing argument. We, therefore, reverse and remand for a new trial.

Reversed.

LUCAS and SALARIO, JJ., Concur.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      While we are aware and sensitive to the fact that the Florida Legislature substituted the term "intellectual disability" for the term "mental retardation" throughout the statutes of Florida in 2013, see ch. 2013-162, Laws of Fla., this opinion still uses the term "mental retardation" because this was the term actually used by the doctors in their evaluations of Waterman. It was also the generally accepted medical term used at the time of Waterman's evaluations.


author: ROTHENBERG, C.J.

text:
    Ralph ROBLES and Norma Robles, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, etc., Appellee.
    No. 3D17-2798
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellants.
    Popkin & Rosaler, P.A., and Daniel S. Stein and Mary Pascal Stella (Deerfield Beach), for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   ROTHENBERG, C.J.

Ralph and Norma Robles (collectively, "the appellants") appeal from a summary final judgment of foreclosure entered on November 27, 2017 in favor of the appellee, Federal National Mortgage Association ("Fannie Mae"). The summary judgment of foreclosure followed the order of a judicial default entered on June 22, 2017. For the reasons that follow, we affirm.

BACKGROUND

Ralph Robles ("Robles") executed a note in favor of Bank of America, N.A. on September 16, 2005. The note was secured by real property located in Miami, Florida. Fannie Mae is the owner and holder of the note. Robles stopped making payments on the note on February 1, 2012, and defaulted on the note; Fannie Mae initiated a foreclosure action on January 12, 2017; and the appellants were served with the complaint on January 26, 2017.

On February 15, 2017, counsel representing the appellants filed a notice of appearance, a notice of unavailability, and a motion for a thirty-day extension of time to file an answer, which was unopposed and granted on May 1, 2017, thereby giving counsel until May 31, 2017 to file an answer. When no answer was filed by the appellants, Fannie Mae filed an ex parte motion for a default on June 16, 2017. Despite being captioned as "ex parte ," the motion was served on all parties, including counsel for the appellants. Counsel for the appellants, who does not dispute that he was served with the motion, took no action, filed no answer, and did not move for an extension of time. On June 22, 2017, the trial court entered a default and the order was sent to all parties, including the appellants' counsel. Again, counsel for the appellants took no action, including failing to petition the trial court to set aside the order of default, even though it is undisputed that he received the order indicating that a default had been entered.

Four months after the entry of the default and the trial court's notice to the appellants and their counsel, Fannie Mae filed a motion for summary judgment of foreclosure. Thereafter, on October 27, 2017, Fannie Mae filed a notice of hearing setting its motion for summary judgment of foreclosure for November 27, 2017, and served all parties, including counsel for the appellants. Again, the appellants took no action, and on November 27, 2017, the trial court entered a final judgment of foreclosure. This appeal followed.

STANDARD OF REVIEW

The parties agree that the question of whether a judgment is void is reviewed de novo . Infante v. Vantage Plus Corp., 27 So.3d 678, 680 (Fla. 3d DCA 2009). Foreclosure judgments based on an order of default are reviewed for an abuse of discretion. Jacaranda, LLC v. Green Tree Servicing, LLC, 203 So.3d 964, 965 (Fla. 2d DCA 2016).

The appellants contend that because they filed a motion for an extension of time, they were entitled to a hearing prior to the entry of a default. Because there was no hearing, they contend that the entry of the default and the default final judgment are void. The appellants also contend that the judicial default entered by the trial court amounted to a sanction, and thus the trial court was required to consider the requisite factors announced in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). As will be discussed below, because the appellants failed to file a responsive pleading , no hearing was required, and because they received notice and an opportunity to be heard, the default was properly entered, and the judgment is not void. We also reject the argument that the default was issued as a sanction, thus requiring consideration of the Kozel factors.

ANALYSIS

The true purpose of the entry of a default is to speed the cause of action and to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, 11 (1942). It is well-established that under rule 1.500(b), Florida Rules of Civil Procedure, when a party against whom affirmative relief is sought has appeared in the action by filing or serving "any papers," no default may be entered against such party without prior notice of the application for default. Int'l Energy Corp. v. Hackett, 687 So. 2d 941, 942-43 (Fla. 3d DCA 1997) ; see also Jacaranda 203 So.3d at 966. This rule has been interpreted to require sufficient notice to afford an opportunity to be heard. McClenon v. Zartemi, 710 So.2d 737, 739 (Fla. 3d DCA 1998) ;

Green Solutions Int'l Inc. v. Gilligan, 807 So.2d 693, 696 (Fla. 5th DCA 2002) ; Zeigler v. Huston, 626 So.2d 1046, 1048 (Fla. 4th DCA 1993).

Failure to provide notice of a default when "any paper" has been filed renders the default void. M.W. v. SPCP Grp. V, LLC, 163 So.3d 518, 522 (Fla. 3d DCA 2015). The appellants' motion for an extension of time constitutes "any paper." Thus, the appellants were entitled to receive sufficient notice of Fannie Mae's application for a court default. This notice requirement was satisfied in the instant case when the appellants, through their counsel, were served with the motion seeking a default. This notice was sent on June 16, 2017 and, after hearing nothing from the appellants, the trial court entered the default on June 22, 2017. The appellants do not suggest, and we do not find, that the appellants did not receive sufficient notice and an opportunity to be heard.

Contrary to the appellants' argument, there is no requirement to conduct a hearing prior to the entry of a default where the non-moving party has failed to defend the action. See Picchi v. Barnett Bank of S. Fla., N.A., 521 So.2d 1090, 1091 (Fla. 1988) ; Fierro v. Lewis, 388 So.2d 1361, 1362 (Fla. 5th DCA 1980). Although the filing of a notice of appearance or a motion for an extension of time constitutes "any paper" requiring notice prior to the entry of a default, they are not "responsive pleadings" reflecting the intent to defend the merits of the action and requiring a hearing prior to the entry of the default. See Geer v. Jacobsen, 880 So.2d 717, 719 (Fla. 2d DCA 2004) (finding that a motion for extension of time does not constitute a responsive pleading for purposes of rule 1.190(a) ); see also Ziff v. Stuber, 596 So.2d 754, 755 (Fla. 4th DCA 1992) (finding that a notice of appearance constitutes a non-responsive paper).

The case of Lisca v. Florida Atlantic Construction, Inc., 219 So.3d 872 (Fla. 4th DCA 2017), is instructive. In that case, Lisca failed to file an answer, or some other substantive response, to the counter-claim despite being given multiple opportunities to do so. Id. at 878. Instead, Lisca filed a motion to dismiss, and when that motion was denied, he filed multiple motions for extensions of time and for reconsideration. Id. There, like here, Lisca was also provided with notice of the plaintiff's motion for a default, id., and when Lisca failed to file a responsive pleading, the trial court entered a default against him. Id. at 873. On appeal, the Fourth District Court of Appeal noted that under rule 1.500(b), trial courts are permitted to enter defaults against parties who engage in dilatory practices such as the filing of numerous non-responsive motions, and based upon the record, affirmed the entry of the default. Id.

Here, the record reflects that the appellants took no action after receiving their thirty-day extension of time; receiving notice that Fannie Mae was seeking a judicial default based on their failure to respond to the complaint; and receiving notice that based on the default, Fannie Mae was seeking to set, and had set, for hearing, its motion for summary judgment. In fact, the only documents filed by the appellants from the time the action was filed, until the entry of the final judgment, were the motions referenced above: counsel's notice of appearance, counsel's notice of unavailability, and the motion seeking an extension of time to file an answer to the foreclosure complaint. These documents contain no indicia that Robles intended to defend against the foreclosure action. We, therefore, conclude that the trial court committed no error by entering the order of default without first conducting a hearing.

We are likewise unpersuaded by the appellants' argument that the order of default entered in this case was entered as a sanction. The record in the instant case is devoid of any suggestion that the order of default in the instant case was entered as a sanction. Instead, the record unambiguously reflects that the default was entered due to appellants' failure to file a responsive pleading, establish excusable neglect, or otherwise defend against the foreclosure action. Accordingly, we conclude that the appellants received more than sufficient notice and failed to take action, and thus the record supports the entry of the order of default.

CONCLUSION

Based on this record, we find that: (1) the appellants received sufficient notice that Fannie Mae was seeking a default against them for failing to file an answer or other responsive pleading to its foreclosure action; (2) despite this notice, the appellants filed no responsive pleading; (3) because the appellants filed no responsive pleading they were not entitled to a hearing prior to the entry of the default; (4) the order of default did not constitute a sanction; and (5) the default was warranted. Accordingly, we find no error and affirm.

Having found no error, we likewise find that the appellants are not entitled to an award of attorney's fees.

Affirmed.


author: SLEET, Judge.

text:
    Michael P. GORZYNSKI, DOC #R42807, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4793
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Michael P. Gorzynski challenges his judgment and sentence for battery on a law enforcement officer. He was convicted following a jury trial, and the trial court sentenced him to three years in prison. On appeal, Gorzynski argues that the trial court erred at sentencing by admitting into evidence, over a defense hearsay objection, booking reports associated with two prior convictions. We conclude, however, that if it was error to allow the booking reports, the error was harmless as the reports were admissible as part of the presentence investigation report. See § 921.231(1), Fla. Stat. (2016) (stating that a full presentence investigation report "shall include," among other things, "(c) [t]he offender's prior record of arrests and convictions" and "(m) [a]n explanation of the offender's criminal record, if any, including his or her version and explanation of any previous offenses"); see also Mendoza v. State, 700 So.2d 670, 678 (Fla. 1997) ("[E]rroneously admitted evidence concerning a defendant's character in a penalty phase is subject to a harmless error review ....").

Additionally, at the sentencing hearing, where the defense sought a sentence of six months' county jail followed by two years' probation, the trial court reviewed Gorzynski's history of prior violations of supervision and stated, "[Y]ou're not a candidate for any type of supervision. That's obvious from your record." As such, we can say beyond a reasonable doubt that the admission of the booking reports did not affect the outcome of sentencing. See State v. Anderson, 905 So.2d 111, 115 (Fla. 2005) ("[H]armful error [is] error about which an appellate court cannot say 'beyond a reasonable doubt that the error complained of did not contribute to the verdict.' The test focuses on the effect of the error on the verdict or the sentence." (citation omitted) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) ) ).

Affirmed.

VILLANTI, J. Concurs.

LUCAS, J., Concurs separately with opinion.

I fully concur in affirming the judgment and sentence in the appeal Michael Gorzynski has brought before us. Mr. Gorzynski's appeal focuses solely on his thirty-six-month prison sentence, which, he argues, was based upon improper evidence the State presented to the sentencing judge. Specifically, he claims that the circuit court should have sustained his hearsay objection to the admission of booking reports from another county reflecting two prior arrests for resisting arrest.

Insofar as much of the pertinent information within the booking reports was essentially set forth in a presentencing investigation report that was properly before the court below, I must agree with my colleagues that the admission of these booking reports was harmless in this case. See State v. Anderson, 905 So.2d 111, 115 (Fla. 2005) ("We defined harmful error as error about which an appellate court cannot say 'beyond a reasonable doubt that the error complained of did not contribute to the verdict.' " (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) ) ). But the reports themselves were clearly hearsay; and their admission-as a separate proffer apart from the PSI report-was erroneous. The State argues otherwise in this appeal, citing the Fourth District's decision in McInerney v. State, 213 So.3d 933, 935 (Fla. 4th DCA 2017), a case that announced a broad, categorical rule concerning hearsay in sentencing hearings: "We now hold that hearsay is admissible in non-capital sentencing hearings." I write separately to address the State's argument concerning McInerney's holding, which I do not believe should be followed in our district.

The Florida Evidence Code applies to sentencing hearings. See § 90.103(2), Fla. Stat. (2016) ("This act shall apply to criminal proceedings related to crimes committed after the effective date of this code ...."); Engle v. State, 438 So.2d 803, 813 (Fla. 1983) (observing that "sentencing is a critical stage of the criminal proceeding"); cf. In re Fla. Evidence Code, 372 So.2d 1369, 1369 (Fla. 1979) (approving and adopting Florida Evidence Code to the extent that any provisions within the code were procedural). That code, as we all know, prohibits the admission of hearsay evidence, absent a statutory exception or exclusion. See § 90.802 ("Except as provided by statute, hearsay evidence is inadmissible."). Thus far, the legislature has crafted one-and only one-statutory hearsay exception unique to sentencing hearings. Section 921.141(1), Florida Statutes (2015), states that in a sentencing proceeding for a capital felony, "[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements." This statute has been deemed a substantive enactment, which permits a sentencing court to consider hearsay for capital offenses. See Booker v. State, 397 So.2d 910, 918 (Fla. 1981) (rejecting separation of powers constitutional challenge that section 921.141 attempts to govern practice and procedure, remarking that " section 921.141, Florida Statutes (1977), does not violate the requirements of article V, section 2(a), Florida Constitution" (citing Dobbert v. State, 375 So.2d 1069 (Fla. 1979) ) ); In re Commitment of Cartwright, 870 So.2d 152, 160 (Fla. 2d DCA 2004) ("In Booker , the supreme court specifically addressed the issue of the admission of hearsay evidence in capital sentencing proceedings under a provision of the Florida statute governing such proceedings."); McInerney, 213 So.3d at 935 (observing that "[t]he capital sentencing statute speaks directly to the issue [of admissibility of hearsay at a sentencing hearing]").

To my mind, that really should be the beginning and end of any inquiry over whether section 90.802's prohibition against hearsay applies in noncapital sentencing hearings. See Koppel v. Ochoa, 243 So.3d 886, 891 (Fla. 2018) ("[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation." (alteration in original) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ) ); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013) (explaining that statutory interpretation "begins with the plain meaning of the actual language of the statute"); Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla. 1995) ("When the legislature has used a term ... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded."). There is a substantive, statutory exception to hearsay for capital sentencing hearings. There is no such statutory exception for noncapital sentencing hearings. Therefore, absent some independent basis for admission, hearsay evidence remains inadmissible in a noncapital sentencing hearing.

McInerney holds otherwise. It appears the Fourth District was persuaded that this evidentiary issue was guided by Florida Rule of Criminal Procedure 3.720(b). That procedural rule requires a sentencing court to "entertain submissions and evidence by the parties that are relevant to the sentence." The rule does not address which submissions or what evidence are ultimately admissible; it requires only that the sentencing court should "entertain" their proffers. More importantly, the rule does not purport to expand or amend what, as Booker and Cartwright recognized, is a substantive enactment within the Florida Evidence Code. And it couldn't if it tried. See State v. Garcia, 229 So.2d 236, 238 (Fla. 1969) ("The rules adopted by the [s]upreme [c]ourt are limited to matters of procedure, for a rule cannot abrogate or modify substantive law.").

While I concur in today's decision, I do not endorse the State's argument concerning the hearsay exception the Fourth District fashioned in McInerney. Should an appropriate case arise, I think it would be appropriate to certify conflict with McInerney's holding that "hearsay is admissible in non-capital sentencing hearings," 213 So.3d at 935, because that rule does not reflect the substantive statutory law on this evidentiary issue.

      See § 921.231, Fla. Stat. (2016). Mr. Gorzynski was ultimately convicted of the charges reflected in the booking reports.

      Quod erat demonstrandum.

      I would point out-to the extent the rule is relevant at all-its operative term, "entertain," is not a precise fit for the manner in which McInerney uses it. Given the relative infrequency that that term is used in statutes and rules-as juxtaposed against "consider"-it seems likely that the two words may hold different operative meanings. In my view, to "entertain" a submission or piece of evidence seems to connote the idea that the sentencing court must consider whether relevant information is admissible. That is, the court cannot preclude a proffer of otherwise relevant evidence. But entertaining the possibility of evidence is a qualitatively different kind of decision than considering the substance of the evidence as if it were already admitted. The former meaning more neatly aligns with a procedural function of a sentencing court; the latter seems more substantive.


author: PER CURIAM.

text:
    Gregory Frank TOTH, Appellant, v. Stephanie MILLER-TOTH, Appellee.
    Case No. 2D16-2984
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    Margaret H. White-Small of Margaret H. White-Small, Attorney at Law, Sanibel, and Stacy L. Sherman of Stacy L. Sherman, P.A., Cape Coral, for Appellee.
   PER CURIAM.

Gregory Toth appeals the judgment for fees and costs in his dissolution of marriage case. The fees and costs awards were premised on findings set forth in the parties' amended final judgment of dissolution.

In Toth v. Miller, No. 2D15-3835, --- So.3d ----, 2018 WL 4167598 (Fla. 2d DCA Aug. 31, 2018), this court reversed that judgment other than its provision dissolving the parties' marriage. Accordingly, we reverse the fees and costs judgment. See Nolan v. Nolan, 188 So.3d 977, 978 (Fla. 1st DCA 2016) ("The reversal and remand of the equitable distribution portion of the final judgment necessitates reversal and remand of the alimony and attorney's fees portions of the final judgment as well.").

Reversed.

NORTHCUTT, KELLY, and MORRIS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Kristopher HADDOCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2060
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

In this Anders appeal, we affirm Kristopher Haddock's convictions and sentences but remand for the trial court to correct the sentencing documents. See In re Anders Briefs, 581 So.2d 149, 152 (Fla. 1991) ; Mobley v. State, 968 So.2d 632, 632 (Fla. 2d DCA 2007). The trial court had granted Haddock's motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), but no corrections have been made. Therefore, we remand for the trial court to correct the costs by removing the cost imposed pursuant to section 938.10, Florida Statutes (2016), and to reduce the cost imposed pursuant to section 938.085 from $453 to $302. In addition, the trial court shall correct the judgment and sentence to change the description of count one from "Kidnap-False Imprisonment Adult" to "False Imprisonment Adult." The trial court shall also correct the probation order to reflect these changes.

Our affirmance is without prejudice to Haddock's right to file a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed and remanded.

CASANUEVA and MORRIS, JJ., Concur.

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


author: Per Curiam.

text:
    STATE of Florida, Petitioner, v. Rachel Lynn SCHARLEPP, Respondent.
    No. 1D18-1511
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Petitioner.
    Thomas M. Findley of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Tallahassee, for Respondent.
   Per Curiam.

The state seeks a writ of prohibition disqualifying the trial judge in a pending criminal matter. We agree that in denying the state's second motion to disqualify, the trial judge attempted to refute the charges of partiality. This created an independent basis for disqualification. See Bundy v. Rudd , 366 So.2d 440, 442 (Fla. 1978) ("When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and has attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification."); accord Lee Mem'l Health Sys. v. State, Agency for Health Care Admin. , 910 So.2d 892, 893 (Fla 1st DCA 2005) ; Martin v. State , 820 So.2d 403, 404 (Fla. 3rd DCA 2002).

We grant the petition but withhold formal issuance of the writ as we are confident the judge will promptly issue an order of disqualification.

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Daryll COLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2099
    District Court of Appeal of Florida, First District.
    October 24, 2018
    Daryll Coleman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Roberts, Bilbrey, and Winsor, JJ., concur.


text:
    Lauri BURRIS, Gregory F. Burris, Douglas O. Rowe, Ronald E. Brown, Jr., Jacob Chapman, and Melissa Burris, Petitioners, v. STATE of Florida, Respondent.
    No. 1D17-4536
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Mitchell A. Stone, Jacksonville Beach, H. Franklin Robbins, Jr., Orlando, and Steven G. Mason, Altamonte Springs, for Petitioners.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
    ON MOTION FOR CLARIFICATION
   Per Curiam.

We grant the motion for clarification. Our prior opinion is withdrawn and the following opinion is substituted in its place:

The petition for writ of prohibition is denied. As to the application of chapter 499, Florida Statutes (2015), Petitioners have not shown that the trial court is attempting to act in excess of its jurisdiction. See Scott v. Francati , 214 So.3d 742, 748 (Fla. 1st DCA 2017) (noting that "[p]rohibition is an extraordinary writ by which a superior court may prevent an inferior court ... from acting outside its jurisdiction" (quoting Mandico v. Taos Const., Inc. , 605 So.2d 850, 853 (Fla. 1992) ) ). Going forward in the trial court, it will be the State's burden to prove its charges that the substances allegedly misbranded by the Petitioners were drugs for purposes of chapter 499. See § 499.003(18), Fla. Stat. (2015) (defining a "drug" as that term is used in Part I of the Florida Drug and Cosmetic Act).

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Kristina Leightner WOOLF, Petitioner, v. Anthony M. WOOLF, Respondent.
    No. 1D18-1899
    District Court of Appeal of Florida, First District.
    October 31, 2018
    A. Richard Troell and William L. Ketchersid of Ward & Ketchersid, P.A., Destin, for Petitioner.
    Anthony M. Woolf, pro se, Respondent.
   Per Curiam.

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

Ray, Kelsey, and Jay, JJ., concur.


text:
    NORTHERN JACKSONVILLE ENTERPRISE, LLC d/b/a Lanier Manor Care Center; Brightsnfcare, LLC d/b/a Carestrong ; ES, LLC ; Millennium Management, LLC; and Eli Strohli, Petitioners, v. Anna R. BUFFINGTON, as Personal Representative of the Estate of Shirley Jewell Blackwell, Respondent.
    No. 1D18-3190
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa and Lars Bodnieks of Quintairos, Prieto, Wood & Boyer, P.A., Miami, for Petitioners.
    Bryan S. Gowdy and Daniel Mahfood of Creed & Gowdy, P.A., Jacksonville, for Respondent.
   Per Curiam.

DISMISSED . See Caldwell v. Wal-Mart Stores, Inc. , 980 So.2d 1226, 1228 (Fla. 1st DCA 2008) ; McClellan v. Florida Parole Comm'n , 959 So.2d 827 (Fla. 1st DCA 2007). We will rule on Respondent's motion for sanctions by separate order.

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    Trevor Ewell THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5045
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Tabitha Herrera and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

We affirm the revocation of Appellant's probation and his resulting sentence without discussion, but we remand for entry of a corrected revocation order that conforms to the trial court's oral pronouncement that Appellant committed one violation (not two) of condition 3, one violation of condition 7, and two violations (not six) of condition 5. Appellant need not be present.

AFFIRMED and REMANDED with instructions.

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    STATE of Louisiana v. Dexter ALLEN
    No. 2018-KO-1042
    Supreme Court of Louisiana.
    November 5, 2018
    Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 15-4483; to the Court of Appeal, Fifth Circuit, No. 17-KA-685;
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
    CRICHTON, J., would grant and docket and assigns reasons.
   Having been convicted of second degree murder and 21 counts of simple burglary, this defendant, age seventeen at the time of the offenses, requested public funds to retain experts for a hearing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Without complying with the guidelines set out by State v. Touchet , 93-2839 (La. 9/6/94), 642 So.2d 1213, defense counsel specifically requested public funds for the hiring of "a mitigation investigator, a fact investigator, a psychologist, an expert in trauma and a prison adjustment expert," arguing that the rules of capital sentencing should apply in a non-capital sentencing hearing. While I agree with the decisions of the lower courts denying such relief on the showing made, I would grant and docket this case in order for this Court to address the defense's analogy to a capital penalty hearing. Moreover, there is a growing need for this Court to set specific parameters and guidelines concerning the scope of a hearing pursuant to both Miller, supra and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

The issue in such cases is ultimately whether or not a defendant, who committed such crimes as a juvenile, is entitled to parole eligibility at a certain point of incarceration. As I have previously written, in making this determination, a court should focus on the facts of the underlying conviction and defendant's criminal history, if any, as well as the defendant's behavior record during confinement. Education, family background, and issues of family support would also likely prove helpful in the judge's determination. In this matter, while defense counsel has made no showing whatsoever for the necessity of public money for the five experts, I do believe that the Court has passed on a valuable opportunity to weigh in on the important issues bearing on a Miller hearing, and consequently, I would grant and docket the defendant's writ application for the Court to provide much needed guidance in this regard.

      See State of Louisiana v. Montgomery, 13-KP-1163, 194 So.3d 606 (6/28/16) (Crichton, J., concurring) (.... "parole eligibility may be denied in the rare case of "irreparable corruption or irretrievable depravity"); and State ex rel. Alden Morgan , 15-0100 (La. 10/19/16), 217 So.3d 266 (Crichton, J., concurring) (noting the Orleans Parish District Attorney took stunning position that a "defendant does not face the functional equivalent of life imprisonment and that he would have-in the year 2082 and at age 101-a 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' ")


author: PER CURIAM

text:
    IN RE: Raymond Charles BURKART III
    NO. 2018-B-1077
    Supreme Court of Louisiana.
    November 5, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Raymond Charles Burkart III, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 16-DB-006 and 17-DB-007. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

The matters were then considered by separate hearing committees. No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration in either matter.

Following their consideration by the hearing committees, the matters were consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

FORMAL CHARGES

16-DB-006

Count I

On February 5, 2014, the ODC received notice from Chase Bank that a $431.83 check drawn on respondent's client trust account was returned unpaid for insufficient funds. The ODC then sent respondent a letter requesting an explanation for the returned check as well as copies of six months of bank records for the account; however, respondent did not comply with the request. As a result, a formal complaint was opened.

Notification of the formal complaint was mailed to respondent in June 2014, again requesting the previously sought information. The correspondence was returned unclaimed. One month later, the ODC resent the notification to respondent. Respondent signed for the notice on August 2, 2014, but he did not respond to the request.

In September 2014, the ODC requested that a subpoena and a subpoena duces tecum be served upon respondent for his sworn statement and for the production of his financial information. Respondent was served on September 16, 2014. The ODC finally received the requested information from respondent on September 24, 2014, although the response was dated March 14, 2014. As a result, the sworn statement was cancelled.

In his response, respondent apologized and expressed regret for writing an NSF check, which he stated was unintentional. (The check represented a refund to a client of unearned fees and unused costs.) Respondent indicated that he notified the client of the violation and wired the amount to his client on February 10, 2014.

Respondent also hired a CPA to audit his trust account. According to the CPA report, dated March 12, 2014, respondent's trust account had a negative balance of $3,721.71. By way of explanation for the shortfall, respondent stated that he had assumed responsibility for handling the client trust account after his law partner, who had previously handled administrative duties, removed her name from the account. Respondent admitted that he never realized the responsibility entailed in handling the administrative aspects of the firm. Respondent stated that in 2013, his professional duties to the local police union lodge became overwhelming and he lost his law partner, for all practical purposes. Respondent stated that he planned to repay the shortfall in his trust account, although he has yet to confirm that he has complied with these plans.

In October 2014, the ODC's auditor asked respondent to identify numerous online transfers, cash withdrawals, and credit card payments from his trust account. Respondent failed to respond, and he was served with a subpoena duces tecum as well as a subpoena to appear for a sworn statement. On January 13, 2015, respondent appeared at the ODC for his sworn statement and produced additional copies of deposit and withdrawal slips, but the submitted information was not responsive to the ODC's request.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II

In November 2010, Davina Witte hired respondent's firm to represent her in a divorce, paying the firm a $2,000 retainer. The last service provided was in July 2012. Between September 2014 and March 2015, Ms. Witte repeatedly asked respondent to return the unearned portion of the fee she had paid. After Ms. Witte threatened to file a disciplinary complaint, the firm's office assistant called Ms. Witte and informed her that she would be receiving a check. Thereafter, Ms. Witte continued to leave messages regarding the refund. In December 2014, respondent finally answered Ms. Witte's phone call, at which time he informed her that he would "look into the situation." Ms. Witte never heard anything further from respondent, even after she left several more messages.

In March 2015, Ms. Witte filed a complaint against respondent and his law partner with the ODC. In response to the complaint, respondent's law partner advised that Ms. Witte began calling her in October 2014 to inquire about the refund. Because she was unaware of any balance due to Ms. Witte, she instructed her assistant to forward the inquiry to respondent. She also e-mailed respondent to inquire about the status of the refund. In response, respondent advised that he would send the refund to Ms. Witte.

On April 30, 2015, the ODC received a letter from Ms. Witte, advising that she had finally received the remainder of her balance from respondent. On May 6, 2015, respondent responded to the complaint. In his response, respondent informed the ODC that the delay in returning the funds was due to a 2013 "computer crash," which resulted in the loss of Ms. Witte's contact information. Respondent admitted that after speaking with Ms. Witte in December 2014, he failed to investigate the issue in a timely manner.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.15, 8.1(b), and 8.4(a).

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. The committee also made the following additional findings of fact:

There is strong and overwhelming support for the allegations brought forth by the ODC. The ODC provided respondent with multiple opportunities to assist in the investigation of this disciplinary matter. For reasons unknown, respondent has been unresponsive and less than cooperative. The record clearly establishes respondent's failure to safeguard money entrusted to him for the benefit of his clients. Moreover, respondent has violated the duty owed to the legal profession by failing to cooperate with the ODC in its investigation of misconduct. These acts are not befitting of an individual engaged in the practice of law.

Based on these facts, the committee determined respondent violated Rules 1.4, 1.5(f)(5) (failure to refund an unearned fee), 1.15, 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) of the Rules of Professional Conduct.

After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is suspension.

After further considering the ODC's argument and submission on the issue of an appropriate sanction, the committee recommended respondent be suspended from the practice of law for one year and one day.

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

17-DB-007

Count I

In November 2013, Kelly Boyd hired respondent on a contingency fee basis to represent her in a personal injury matter. On June 1, 2015, Ms. Boyd terminated respondent's services and requested a copy of her file via certified mail. Respondent signed the delivery receipt for the written request, but he failed to return the file after numerous requests by Ms. Boyd and her new attorney.

In September 2015, Ms. Boyd filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.16(d) (obligations upon termination of the representation), 8.1(b), 8.1(c), and 8.4(a).

Count II

In July 2009, Blaine G. Austin, Sr. paid respondent a retainer fee to represent him in a civil matter. Thereafter, respondent failed to communicate with Mr. Austin. In 2014, Mr. Austin grew concerned over the delay in the litigation, and he requested a status update from respondent. At that time, respondent informed Mr. Austin that these cases "always settled." Respondent then stopped answering Mr. Austin's phone calls and text messages. In November 2014, Mr. Austin sent respondent a Facebook message stating that he intended to file a disciplinary complaint due to the lack of communication. Respondent acknowledged the message and promised to keep Mr. Austin informed, but there was still no communication. Respondent blocked Mr. Austin on Facebook, and Mr. Austin's texts and phone calls went unanswered. Mr. Austin sent respondent a message asking for the return of all unearned fees, but he has not complied with the request or provided Mr. Austin an accounting.

In March 2016, Mr. Austin filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4, 1.5, 8.1(c), and 8.4(a).

Count III

In December 2015, Samantha Houghton hired respondent to represent her in a child support matter. She paid respondent $500 to accept and start the case, but respondent failed to perform any legal work on her behalf.

In September 2016, Ms. Houghton filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.

The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(a).

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent knowingly violated duties owed to his clients and the legal profession. His violations resulted in actual harm to clients, by depriving them of the use of funds they intended to pay for litigation and of material needed for litigation, and potentially resulted in loss of valid claims and defenses. His failure to accept the ODC's communications resulted in additional costs and delays in resolving the complaints, causing injury to the court and the legal profession. Based on the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the applicable baseline sanction is disbarment.

The sole aggravating factor found by the committee is a pattern of misconduct. The committee added that respondent's "utter lack of response to these complaints and formal charges is greatly disturbing, whether it results from an unexplained inability to respond, a lack of interest in remaining a lawyer, or disrespect for this proceeding." The committee found that no mitigating factors are present.

Based on the foregoing, the committee recommended respondent be disbarred.

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

Disciplinary Board Recommendation

16-DB-006 and 17-DB-007

After reviewing these consolidated matters, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the legal conclusions of the committees are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that respondent violated Rules 1.3, 1.4, 1.5, 1.15, 1.16, 8.1(b), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

The board determined respondent violated duties owed to his clients and the legal profession. His conduct was knowing and resulted in actual harm to his clients, whom he essentially abandoned. He neglected legal matters, refused to respond to requests for information, and failed to return files and unearned fees. He also took active steps to block communications from a client. His conduct caused potential harm to clients who may have lost valid claims or defenses. The record establishes that respondent improperly used or otherwise mismanaged his client trust account, but it does not establish that any client harm was sustained from that misconduct. However, his failure to cooperate with the ODC caused the unnecessary expenditure of limited resources of the disciplinary agency and delayed the resolution of complaints, all of which damage the reputation of the legal profession. Based on the ABA's Standards for Imposing Lawyer Sanctions , the board determined the applicable baseline sanction is disbarment.

The board found the following aggravating factors present: a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by failing to comply with the rules and orders of the disciplinary agency. The board found that no mitigating factors are present.

After reviewing prior jurisprudence involving similar misconduct, the board recommended respondent be disbarred. The board also recommended respondent be required to pay full restitution to Mr. Austin and Ms. Houghton for any unearned fees, and that he be ordered to return all of Ms. Boyd's file materials to her. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

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

The evidence in the record of this deemed admitted matter supports a finding that respondent neglected client matters, failed to communicate with his clients, failed to return unearned fees, failed to return client file materials, mishandled his client trust account, and failed to cooperate with the ODC in its investigations. This conduct amounts to a violation of Rules 1.3, 1.4, 1.5, 1.15, 1.16, 8.1(b), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

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).

The record supports a finding that respondent knowingly, if not intentionally, violated duties owed to his clients and the legal profession, causing potential and actual harm. The aggravating and mitigating factors found by the disciplinary board are supported by the record. The baseline sanction for this type of misconduct is disbarment.

In recommending a sanction, the disciplinary board cited two cases addressing misconduct similar to the misconduct engaged in by respondent. We agree that these cases provide guidance here, and they indicate that disbarment is the appropriate sanction. In 2016, we disbarred an attorney for neglecting legal matters, failing to communicate with clients, failing to account for or refund unearned fees, failing to properly withdraw from a representation, engaging in dishonest conduct, and failing to cooperate with the ODC in its investigations. In re: Gilbert , 16-0044 (La. 3/4/16), 185 So.3d 734. In 2014, we disbarred an attorney for neglecting legal matters, failing to communicate with her clients, failing to refund unearned fees, and failing to cooperate with the ODC in its investigation. In re: Jones-Joseph , 14-0061 (La. 2/26/14), 134 So.3d 1153. Several aggravating factors were present in both of these cases, which like the instant case, were also deemed admitted.

After further considering the jurisprudence cited by the board, we will accept the board's recommendation and disbar respondent. We will further order respondent to (1) promptly return Kelly Boyd's file, (2) make full restitution of unearned fees, with legal interest, to Blaine G. Austin, Sr., and (3) make full restitution of unearned fees, with legal interest, to Samantha Houghton.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Raymond C. Burkart III, Louisiana Bar Roll number 30320, be and he hereby is disbarred. 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 promptly return Kelly Boyd's file and shall refund unearned fees to his clients as set forth in this opinion. 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.

      On June 3, 2016, respondent was declared ineligible to practice law in Louisiana for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failure to pay his bar dues and the disciplinary assessment and failure to file his trust account registration statement.

      Respondent's law partner accepted a diversion for her role in this matter.


text:
    STATE of Louisiana v. Kenneth Ray JOHNSON, Jr.
    No. 2018-KK-1661
    Supreme Court of Louisiana.
    November 5, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF IBERVILLE
    Writ denied.
    WEIMER, J., would grant and docket.
    CRICHTON, J., would grant and docket and assigns reasons.
   Although I agree with the result reached by the court of appeal, I write separately to note that, in my view, this paramount issue warrants this Court's full attention. Specifically, under Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the record in a guilty plea must reflect that the defendant fully understands the nature of the charge(s), the allegations levied against him, the right to counsel, the right to a trial by jury or by the court, and the right to confront and cross-examine witnesses at trial. Moreover, La. C.Cr.Pr. art. 556.1 specifies the mandatory duty of the trial court in accepting guilty pleas, ensuring that defendant understands all of the following, as previously set forth in Boykin :

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

As La. C.Cr.Pr. art. 556.1 notes the court "shall" perform the above colloquy with defendant, I do not find the article allows for any discretion on the part of the trial court in these instances. As I have stated before, "scrupulously adhering to these procedures in the district courts prevents the extensive expenditure of appellate resources later...." State ex. Rel. Calvin Hayes v. State , 15-KH-1789 (La. 9/23/16), 200 So.3d 364 (writ denied ) (Crichton, J., additionally concurring). See also State v. Trahan, 16-2083 (La. 4/16/18), 241 So.3d 286 (writ denied ) (Crichton, J., additionally concurring); and State v. Peters , 18-KK-1417 (La. 9/28/18), 253 So. 3d 785, 2018 WL 4701717 (writ denied ) (Crichton, J., would grant and assigning reasons). The trial court's failure to comply with the requirements of Boykin and La. C.Cr.Pr. art. 556.1 in this case merits the conviction being vacated and the case remanded, but it also highlights the continuing pressing need for this Court's guidance in this regard.


text:
    Phillip TERRELL, District Attorney for the Parish of Rapides v. RAPIDES PARISH POLICE JURY, et al.
    NO. 2018-CC-1622
    Supreme Court of Louisiana.
    November 5, 2018
    ON SUPERVISORY WRITS TO THE 9TH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
    Denied.
    CRICHTON, J., additionally concurs and assigns reasons.
   GENOVESE, J., additionally concurs for reasons assigned by Justice Crichton.

I agree with the decision to deny this application. I write separately to point out that the District Attorney is free to request from the trial court expedited consideration of this important public matter in order to resolve the issues presented. See La. C.C.P. art. 1551.

Attachment

SUPREME COURT OF LOUISIANA NO. 2018-CC-1622 PHILLIP TERRELL, DISTRICT ATTORNEY VS. RAPIDES PARISH POLICE JURY, ET AL. ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, FOR THE PARISH OF RAPIDES

ORDER

IT IS ORDERED that the Motion for Leave to File Amicus Curiae Brief on Behalf of the Louisiana District Attorneys Association is hereby granted.

IT IS FURTHER ORDERED that the Motion to Present Oral Argument is hereby denied.

IT IS FURTHER ORDERED that the Motion to Present Oral Argument is hereby denied.

FOR THE COURT:

__________________________________

JUSTICE, SUPREME COURT OF LOUISIANA