text:
    Christopher Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3133
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Christopher Lee Clark, appeals his judgment and sentence, arguing that the trial court abused its discretion by denying his request to represent himself. We agree, reverse the judgment, and remand for further proceedings.

Appellant advised the trial court that he was dissatisfied with his appointed counsel and that if he could not have a different lawyer, he would represent himself at trial. A few days prior to trial, the court conducted a Nelson hearing which resulted in a ruling that appointed counsel was not ineffective and would not be removed. Next, the same judge conducted a Faretta hearing, during which Appellant testified that he was 51 years old, he was a U.S. citizen who could read and write English, his highest level of education was a G.E.D., he had no legal training, and he had no mental, physical, drug, or alcohol impairments. The trial court explained the many reasons why Appellant could benefit from representation; however, Appellant remained adamant that he would rather represent himself than be represented by his current counsel. Appellant told the judge that he did not understand everything the judge was saying, but he was certain that he would rather represent himself than be represented by the appointed lawyer. The first judge concluded that Appellant was making a poor decision and denied his request for self-representation on the basis that Appellant was lacking the insight and capacity to make a proper, informed, constitutionally-permitted decision. After the court announced its ruling, Appellant stated that he would not allow his appointed counsel to represent him.

On the day of trial, a second Faretta hearing was conducted by a different judge after Appellant's appointed counsel advised the court that Appellant would not participate in trial if the appointed counsel was going to represent him. The second judge also explained the benefits of having counsel and the disadvantages of self-representation and heard testimony from Appellant in which he repeated his age, education, literacy, and training as he had during the first Faretta hearing. Appellant told the second judge that he would have no problem with any other lawyer, but he would rather represent himself than be represented by his appointed counsel. The second judge also denied Appellant's request to represent himself, finding that he was not competent to make the decision as to whether it was appropriate to be represented by counsel or not. The trial court then allowed him to leave the courtroom and the trial proceeded without him, resulting in his conviction.

We review the trial court's decision on the defendant's right to self-representation for an abuse of discretion. Slinger v. State , 219 So.3d 163, 164 (Fla. 5th DCA 2017). "In Faretta , the United States Supreme Court held that an accused's right to self-representation at trial is protected by the Sixth and Fourteenth Amendments." Dickerson v. State , 228 So.3d 658, 659 (Fla. 5th DCA 2017). "Once a defendant makes an unequivocal request for self-representation, the trial court must 'hold a hearing[ ] to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.' " Id. (alteration in original) (quoting Tennis v. State , 997 So.2d 375, 378 (Fla. 2008) ).

"[T]he defendant must knowingly and intelligently forego the benefits of counsel, and to that end it is necessary that he be made aware of the dangers and disadvantages of self-representation so that the record will demonstrate that 'he knows what he is doing and his choice is made with his eyes open.' "

Brevard Cty. Bd. of Cty. Comm'rs v. State , 516 So.2d 968, 969 (Fla. 5th DCA 1987) (quoting Faretta , 422 U.S. at 836, 95 S.Ct. 2525 ). "This is established where the record substantiates that the defendant is literate, competent, and understanding, and is exercising his informed free will in rejecting counsel." Id.

Appellant's testimony at both Faretta hearings made it clear that he was literate, competent, and was not suffering from any mental, physical, or substance-related infirmity. While he testified that he did not understand everything that was being said, Appellant said that he understood the advantages of being represented and the disadvantages of being unrepresented. The first judge's finding that Appellant lacked capacity to make the choice to represent himself focused on Appellant's apparent lack of comprehension of the serious nature of the charges and the lack of merit of the defense theory that Appellant intended to pursue. The second judge's decision that he was not competent to make that decision was stated in a conclusory fashion, without any specific reason given. Neither judge's finding that Appellant was incompetent to make the decision to represent himself was supported by competent, substantial evidence.

Furthermore, Appellant clearly and unequivocally told both judges at both hearings that he wanted to represent himself rather than be represented by his appointed counsel. Appellant repeatedly made that statement before and after each judge thoroughly explained the benefits of attorney representation compared to the risks of self-representation. See Dickerson , 228 So.3d at 659 ; Fla. R. Crim. P. 3.111(d)(1)-(5).

Under the circumstances set forth in the record, we hold that in accordance with Faretta , Appellant was constitutionally entitled to represent himself; thus, it was an abuse of discretion to not permit him to do so. Accordingly, we reverse the judgment and sentence, and remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      Nelson v. State , 274 So.2d 256 (Fla. 4th DCA 1973).

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


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Gary Anthony PENTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3765
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018.
    Gary Penton, pro se.
   SILBERMAN, Judge.

Gary Penton appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of claims two(a), two(b), and four without comment, but we reverse the denial of claims one and three and remand for further consideration of those claims.

Penton was convicted of one count of robbery after Penton's roommates, Mike and Billy, robbed a passenger who was waiting in Penton's stranded vehicle while Penton was walking to a gas station to obtain gas. Following the robbery, Penton gave three statements to law enforcement. He gave his first statement at the scene of the robbery to a responding deputy. According to the deputy's trial testimony, Penton said that he had given the victim, George Ray Flagg, a ride to the dollar store and the bank. Penton started running out of gas so he turned off the road, circled through a parking lot, and began driving to a Circle K that they had just passed. The truck then ran out of gas, so Penton retrieved a gas can from the rear of the truck and walked to the Circle K. When Penton returned, he saw Flagg standing in the road on the phone with 911. Flagg said that he had been robbed. According to the deputy, Penton "said that he didn't see the incident or didn't know who it was." The deputy testified that Penton did not mention his roommates in any way.

About one month later, after the girlfriend of one of the roommates was caught using one of Flagg's credit cards, a detective went to Penton's house to interview him further. Penton gave an oral statement that was then reduced to writing. In the written statement, which was read aloud at trial, Penton explained that he picked up Flagg with the intention of taking him to Flagg's son's house and to look at a job for Penton's tree business. Flagg instructed Penton to go to his son's house first and told him that they would look at the job afterwards. Penton called Mike and Billy, who planned on meeting him to look at the potential job, and told them that he needed to take Flagg to Flagg's son's house and to go shopping. During the trip, Mike and Billy kept calling to find out what was taking so long. Penton updated them and told them that Flagg also wanted to stop by the bank.

After Flagg's errands were complete, Penton called Mike and Billy and told them to meet him at Publix so that they could follow him to take a look at the potential job. Mike and Billy asked Penton how much money Flagg had gotten from the bank, and Penton told them that he did not know. Penton said that as he passed Publix "[Mike and Billy] called us," but his statement did not provide the contents of the conversation or indicate whether he had answered that call. Penton continued, saying, "I ran out of gas at the parts store and they went up to him and robbed him." Penton concluded the statement by saying that later that day Mike and Billy were high on meth and were mad at him because they did not get enough money.

At trial, in addition to describing the sequence of events and Penton's statements, the detective testified that Penton orally told him that, based on his phone conversations with Mike and Billy, Penton assumed that they wanted to take Flagg's money as he had told them that he took Flagg to the bank, but "he didn't have direct knowledge at that point."

The detective later arrested Penton and took another written statement. The statement was largely consistent with the previous written statement, with some additional details:

I was living with Mikey Gaber and working [with] him and Jason[.] They and Billy kept wanting me to drive them to [steal] things they saw while working with me. The day the robbery happened Mikey and Billy [were] high on meth[.] Mr. Ray [Flagg] called me to do some work around his house [and] give him a ride to take his son some money[.] I told Mikey and Billy we could make some money doing some work around Ray's house[,] [but] first I had to take him to his son. While I was doing that they kept calling wanting to know where I was and when I would be back[.] I talk[ed] to them several time[s] and [told] them we had to stop by the bank[.] They wanted to know how much [money] he got[.] I told them I don't know, he keep[s] [money] all the time for his son. They said something about robbing his old ass but I didn't think they were going to do it[.] On the way back to Ray they wanted me to stop somewhere so they [could] rob him[.] They [told] me to stop at Publix or [Circle K][.] I didn't but I ran out of gas passing the parts house[.] I tried to turn around and make [it] back to [the] [Circle K] but could not. While I was gone to get gas Mikey and Billy robbed him and left. When I got back Mr. Ray was by the road on the phone with the Sheriff [Department]. We gave our statement and left[.] I went and pick[ed] up my wife from work[.] When I got home Jason and Jamie told me Mikey and Billy had come by with a generator and [had] gone to sell it. Later that night Mikey and Billy came back mad because they only got $60-70. They told me Mikey drove and Billy robbed Mr. Ray.

The detective testified that at the time of the second written statement Penton verbally told him that "before he went to Mr. Ray, what he called Mr. Ray, he knew then that they were going to try to rob him." When asked how that statement differed from Penton's February statement, the detective asserted that "this time he said that he was aware that they were trying to make him steal things .... He didn't take ownership of it the first time that he had knowledge that they were going to rob him before it started. The second statement he had knowledge before they ever left."

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 are not refuted by the record." Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013). "[W]e 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). A defendant must establish each claim by alleging specific facts. Id. 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 asserted claim of ineffective assistance of trial counsel, a defendant must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. Moreover, "[t]he defendant 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. 2052.

In his first claim for postconviction relief, Penton asserted that counsel provided ineffective assistance by advising him not to testify. Penton stated that his testimony was necessary to refute the detective's testimony that he had prior knowledge of the robbery. Penton averred that the detective mischaracterized his statements as to his knowledge of a robbery plan and that he never made that statement. Regarding deficient performance, Penton alleged that counsel advised him not to testify because the State would be able to inquire into "every detail" of Penton's criminal history on cross-examination, including Penton's prior convictions for drug possession and burglary, his probation violations, his prior DWI, and his drug and alcohol counseling history. Penton claimed that he told counsel during the detective's testimony that the detective was misrepresenting his statements and that he needed to testify to clarify his story, especially in light of defense counsel's decision to not cross-examine the detective. According to Penton, counsel told him that if he testified his past "would kill [him]." As a result, Penton stated that he acquiesced to counsel's advice and agreed to waive his right to testify.

Penton's allegation that counsel told him that the State would be able to impeach him with "every detail" of his convictions was sufficient to show deficient performance. See Tyler v. State, 793 So.2d 137, 141 (Fla. 2d DCA 2001) ("Where counsel incorrectly informs a defendant regarding the use of prior convictions as impeachment, specifically, that upon testifying the jury will hear the specific nature of the prior convictions, and the defendant shows that because of the misinformation he did not testify, he has satisfied the deficient performance prong of an ineffective assistance of counsel claim." (emphasis added) ); Everhart v. State, 773 So.2d 78, 79-80 (Fla. 2d DCA 2000) (holding that the defendant sufficiently alleged deficient performance when he asserted that counsel informed him that the jury would be told of "the specific nature of his prior convictions" if he testified).

As to prejudice, Penton alleged that he would have testified about several points that would have helped his case, including that Flagg was both a friend and a good client of his tree business; that he was negotiating a $1000 contract with Flagg and therefore had an interest in maintaining a good relationship with him; that prior to the trip Flagg did not mention going to the bank so Penton would not have had a basis to plan a robbery; and that he knew that after going to the bank Flagg had placed several hundred dollars in his pants pocket rather than his wallet, something that the robbers were apparently unaware of and something that he presumably would have relayed to the robbers if he were involved. Penton further alleged that he would have testified that he never told the detective that he knew before the trip that Mike and Billy planned to rob Flagg.

The postconviction court denied relief as to this claim, citing to Penton's statements to law enforcement and the detective's trial testimony. The court concluded that Penton could not establish prejudice because he had claimed that he did not know about the robbery beforehand and then stated that he did not take Mike and Billy's statement about robbing the victim seriously. The court added that Penton's statements and his proposed trial testimony were contradictory and, taken together with the sequence of events as described in Penton's statements, his trial testimony would not be believed by a jury.

We cannot agree with the postconviction court's analysis. Penton's first statement indicated he did not know who committed the robbery. In a later statement, Penton acknowledged receiving a call while he was driving with Flagg, during which Mike and Billy "said something about robbing his old ass" but he did not think they would do so. He explained in his motion why he did not believe Mike and Billy were serious, saying that he had "actually laughed at that" and "attributed [their statement] to their state of inebriation." Further, he would have pointed out the inaccuracies, assumptions, and inferences in the detective's trial testimony and would have testified that he never said that he knew in advance that Flagg would be robbed or that he had been involved in planning the robbery. While it is possible that a jury may disbelieve Penton, based on the record before us we cannot agree that Penton's claim was refuted by the record. See Tyler, 793 So.2d at 142 (concluding that the defendant sufficiently demonstrated prejudice when he alleged that he would have refuted a witness' claim that he had confessed to the crime and would have testified that he was not involved in the crime and was instead an unintended victim); Everhart, 773 So.2d at 79 (holding that the defendant sufficiently demonstrated prejudice by alleging that his testimony would have refuted a police officer's testimony and explained that the officer mischaracterized his statements, which would have turned the resolution of his defense into a credibility determination).

In his third claim for relief, Penton asserted that counsel provided ineffective assistance by failing to interview Mike and Billy and by failing to call them to testify at trial. Specifically, Penton alleged,

as he had stated to counsel on several occasions, [that he] had spoken to each witness prior to his arrest[,] knew [their] whereabouts, and had been assured, and was confident in their assurances, that they would tell the jury the truth in that [he] had no part in the participation, planning[,] or execution of the robbery and knew nothing of it until later that evening.

The postconviction court rejected this claim, stating that it was unreasonable to believe that the codefendants, Mike and Billy, would have implicated themselves in committing an armed robbery and subjected themselves to conviction as codefendants. The court added that even if they had so testified, it was unlikely that the jury would have believed them in light of Penton's statements to law enforcement.

As with claim one, we reverse because Penton's claim is facially sufficient and the record does not conclusively refute the claim. First, while Mike and Billy might have refused to testify favorably for Penton, that assumption is simply not conclusively established based on the limited record that has been provided to us. See Neal v. State, 854 So.2d 666, 669-70 (Fla. 2d DCA 2003) (concluding that a defendant's allegation that a co-defendant was willing to provide exculpatory testimony on the defendant's behalf, and that the co-defendant would have acknowledged facts implicating the co-defendant, presented a facially sufficient claim of ineffective assistance for failure to call a witness). Second, had Mike and Billy so testified, we cannot agree that no reasonable jury would have accepted such testimony. Our conclusion is buttressed by our determination that Penton's first claim was not conclusively refuted by the record.

For these reasons, we reverse and remand for further proceedings on claims one and three.

Affirmed in part, reversed in part, and remanded for further proceedings.

CRENSHAW and LUCAS, JJ., concur.


author: Per Curiam.

text:
    Rebecca M. GAY, Appellant, v. Christopher M. GAY, Appellee.
    No. 1D18-1098
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Kim Anthony Skievaski of Kim Anthony Skievaski, P.A., Pensacola, for Appellant.
    Christopher M. Gay, pro se, Appellee.
   Per Curiam.

Rebecca M. Gay appeals a final judgment of marriage dissolution's imputation of income, which affected the child support calculations. The lower court imputed two thousand dollars of monthly income to Ms. Gay without finding that her unemployment was voluntary. We reverse.

Our standard for reviewing decisions imputing income under section 61.30(2)(b), Florida Statutes, is whether the trial court's decision is supported by competent, substantial evidence. Leonard v. Leonard , 971 So.2d 263, 266 (Fla. 1st DCA 2008). According to the statute, monthly income can be imputed to an unemployed parent only if such unemployment "is found ... to be voluntary." § 61.30(2)(b), Fla. Stat. (2017). See, e.g. , Marlowe v. Marlowe , 123 So.3d 1194, 1195-96 (Fla. 1st DCA 2013) (reversing where the trial court failed to "provide any factual basis for its conclusion that the former wife was voluntarily underemployed"). Here, the judgment imputes income to Ms. Gay without a finding that she was voluntarily unemployed. The trial court's order noted that Ms. Gay had been dismissed from prior employment in 2010 due to work performance issues and refusing to take a drug test. It did not find, however, that this termination was voluntary. The order also noted that Ms. Gay was employed more recently by family members. This work also came to an end, but again there was no indication that this work ended voluntarily. Other record evidence indicates that Ms. Gay was applying for jobs on a weekly basis and intended to take classes and become registered to work as an echocardiogram and ultrasound technician. On this record, and without key findings supporting the imputation of income, we must reverse and remand for reconsideration of the decision to impute income and of the child support calculation.

REVERSED and REMANDED .

Rowe, Osterhaus, and Kelsey, JJ., concur.


author: LAGOA, C.J.

text:
    Felix ZAMOT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-945
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Linda S. Katz and Nikole Hiciano, Assistant Attorneys General, for appellee.
    Before LAGOA, C.J., and LOGUE and LINDSEY, JJ.
   LAGOA, C.J.

Affirmed. See Franklin v. State, 43 Fla. L. Weekly S556, 258 So.3d 1239, 2018 WL 5839174 (Fla. Nov. 8, 2018) (reaffirming Michel's determination that the "majority's analysis in Atwell improperly applied Graham and Miller" and holding that Franklin's three 1000-year concurrent sentences with parole, and presumptive parole release date of 2352, for non-homicide juvenile offenses "fulfills Graham's requirement that juveniles be given a 'meaningful opportunity' to be considered for release during their natural life based upon 'normal parole factors' " (quoting Virginia v. LeBlanc, --- U.S. ----, 137 S.Ct. 1726, 1729, 198 L.Ed.2d 186 (2017) ); State v. Michel, 257 So.3d 3 (Fla. 2018) (holding "that juvenile offenders' sentences of life with the possibility of parole after 25 years do not violate the Eighth Amendment of the United States Constitution as delineated by the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Virginia v. LeBlanc, --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017)").


author: SUAREZ, Senior Judge.

text:
    The PINNACLE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Richard HANEY, et al., Appellees.
    No. 3D17-2723
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019.
    Cole Scott & Kissane, P.A., and Kathryn L. Ender, Miami and Therese A. Savona, Orlando, for appellant.
    Baron & Herskowitz, and Jon Herskowitz, Miami, for appellees.
    Before SCALES, and LINDSEY, JJ., and SUAREZ, Senior Judge.
   SUAREZ, Senior Judge.

Appellant, The Pinnacle Condominium Association, Inc., appeals the trial court's November 9, 2017 non-final order certifying a class of condominium unit owners encumbered by a settlement agreement in a prior cause. For the reasons that follow, we affirm.

This Court reviews a trial court's order on class certification for an abuse of discretion; examines a trial court's factual findings for competent, substantial evidence; and reviews conclusions of law de novo. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102-103, 105 (Fla. 2011).

To certify a class, a trial court must determine whether the class representative(s) and putative class members meet the requirements for class certification enumerated in Florida Rule of Civil Procedure 1.220. The proponent of class certification has the burden of pleading and proving the class certification requirements contained in rule 1.220(a) : (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. "A trial court should resolve doubts with regard to certification in favor of certification, especially in the early stages of litigation." Sosa, 73 So.3d at 105 (citing Chase Manhattan Mortg. Corp. v. Porcher, 898 So.2d 153, 156 (Fla. 4th DCA 2005) ).

On appeal, Appellant argues the trial court abused its discretion in certifying the class because Appellees, the putative class representatives, failed to fulfill the numerosity, typicality, and adequacy requirements of rule 1.220(a). We find Appellant's arguments to be unfounded.

First, numerosity speaks to whether "the members of the class are so numerous that separate joinder of each member is impracticable." Fla. R. Civ. P. 1.220(a)(1). Appellant contends the trial court failed to address the impracticability of joinder and that the Appellees failed to present evidence that identified the class. Appellant incorrectly suggests the trial court was required to make findings as to the individual ability of each putative class member to bring separate actions. The plain language of rule 1.220(a)(1) requires no such thing. Moreover, as the Florida Supreme Court has made clear, no specific number is needed to sustain the numerosity requirement, and class certification is proper if the class representative does not base the projected class size on mere speculation. Sosa, 73 So.3d at 114 (citing Toledo v. Hillsborough Cty. Hosp. Auth., 747 So.2d 958, 961 (Fla. 2d DCA 1999) ).

Here, the projected class size of 230 members is based on record evidence and not on speculation. Thus, the trial court did not abuse its discretion in finding Appellees satisfied the numerosity element by determining the putative class members were so numerous as to make separate joinder of each member impracticable.

Second, "[t]he key inquiry for a trial court when it determines whether a proposed class satisfies the typicality requirement is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members." Sosa, 73 So.3d at 114. Appellant contends that one of the putative class representatives may not have been encumbered by the subject settlement agreement underlying the proposed class action. However, as was noted at the relevant hearing on the motion to certify the class, Appellees produced affidavits attesting to said putative class member's encumbrance. Appellant produced no such evidence to the contrary. Here, the claims of the putative class representatives are typical of the claims of each member of the class. Therefore, the trial court properly concluded the Appellees satisfied the typicality requirement.

Third, adequacy rests on whether "the representative party can fairly and adequately protect and represent the interests of each member of the class." Fla. R. Civ. P. 1.220(a)(4). Appellant argues the trial court failed to address Appellees' "unreasonable delay" in moving for class certification, and instead only relied on the qualifications of class counsel. On the contrary, the trial court's order specifically finds that class counsel have acted in a diligent and timely manner. This finding is supported by competent, substantial evidence. A trial court's determination as to the qualifications of class counsel to adequately represent a class will not be disturbed on appeal absent a showing of clear abuse of discretion. Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 854 (Fla. 3d DCA 1997). Absent such a showing here, the trial court's adequacy determination stands.

Based on the foregoing, the trial court did not abuse its discretion in certifying class. We therefore affirm.

Affirmed.

      Rule 1.220(a) Prerequisites to Class Representation.
      Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued as the representative of all members of a class, the court shall first conclude that (1) the members of the class are so numerous that separate joinder of each member is impracticable [numerosity], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class [commonality], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class [typicality], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy].

      Appellant does not raise commonality as an issue.

      For these same reasons, and based on the record evidence before us, we find no merit to Appellant's argument with regard to standing.

      In examining adequacy, a trial court's inquiry is two-pronged: (1) whether class counsel has the qualifications, experience, and ability to conduct the litigation; and (2) whether the class representative's interests are antagonistic to the interests of the class members. See Sosa, 73 So.3d at 115, see also Leibell v. Miami-Dade Cty., 84 So.3d 1078, 1085 (Fla. 3d DCA 2012).


author: PER CURIAM.

text:
    J.S., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3932
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    Robert Wesley, Public Defender, Orlando, and Joanna S. Opato, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 8, 2018 disposition and sentence in Case No. 2018-CJ-1991-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, C.J., BERGER and HARRIS, JJ., concur.


text:
    Naylor SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3248
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Naylor Scott, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Gerald J. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3618
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Gerald J. Carter, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Patrick M. BADGETT, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3650
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    Patrick M. Badgett, Sr., Lake Butler, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant to pursue administrative remedies through the Department of Corrections.

AFFIRMED.

ORFINGER, BERGER and EDWARDS, JJ., concur.


text:
    Jenna Rae TANNER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3594
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    Blaise Trettis, Public Defender, and Michael Mario Pirolo, Assistant Public Defender, Viera, for Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 9, 2018 judgments and sentences rendered in Case Nos. 05-2018-CF-040334-A and 05-2018-CF-043557-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, COHEN, and LAMBERT, JJ., concur.


text:
    William LITZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2913
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    William Litz, Polk City, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

William Litz appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Litz raised four grounds of ineffective assistance of trial counsel in his motion. However, he claims only ground three constitutes error in his pro se brief. Therefore, he has abandoned the other grounds alleged in his motion. See Ward v. State, 19 So.3d 1060, 1061 (Fla. 5th DCA 2009).

In ground three, Litz alleged that his trial counsel was ineffective for failing to file a motion to suppress the warrantless tracking of a cell phone that was used in the crimes. The trial court denied this ground, concluding that Litz lacked standing to challenge the cell phone tracking because the cell phone did not belong to him.

The records attached to the order denying Litz's motion do not conclusively demonstrate that Litz lacked standing. See, e.g., United States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014) ("Stringer makes no argument that he has a reasonable expectation of privacy in the contents of G.R.'s cell phone, so he may not challenge the seizure of evidence from that device."). It is unclear from the record attachments whether Litz had a reasonable expectation of privacy in the tracked cell phone, thereby giving him standing to seek its suppression. Hence, we reverse and remand for attachments of portions of the record that conclusively refute ground three or an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Latasha CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2669
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    James S. Purdy, Public Defender, and Scott G. Hubbard, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without further discussion, the judgment and sentence imposed by the trial court following Appellant's plea to violating her community control. However, we remand for the entry of a proper written order revoking Appellant's community control that specifies the conditions of community control that Appellant was found to have violated. Cf. Rey v. State , 904 So.2d 566, 566 (Fla. 4th DCA 2005) (remanding "for entry of a written order of revocation of probation specifying the conditions [of probation] appellant was found to have violated").

AFFIRMED; REMANDED for entry of written order of revocation of community control.

WALLIS, LAMBERT, and EDWARDS, JJ., concur.


text:
    Richard S. GARRETT, Jr., Appellant, v. STATE of Florida, Appellee.
    Case Nos. 5D18-816 5D18-817 5D18-818 5D18-819
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    James S. Purdy, Public Defender, and Brittany N. O'Neil and Edward J. Weiss, Assistant Public Defenders, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Richard S. Garrett, Jr., appeals the imposition of costs, arguing that the trial court erred in failing to cite statutory authority for the same. We agree and reverse the order imposing costs.

"The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order." Hornstra v. State , 218 So.3d 979, 980 (Fla. 5th DCA 2017) (quoting Kirby v. State , 695 So.2d 889, 890 (Fla. 2d DCA 1997) ). We therefore reverse the order of costs and remand so that the State "may seek reimposition" of costs. Kirby , 695 So.2d at 890. We otherwise affirm.

REVERSED and REMANDED with instructions.

EVANDER, C.J., EISNAUGLE and HARRIS, JJ., concur.


text:
    Offeyette SPEED, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-621
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the imposition of investigative costs for the Seminole County Sheriff's Office in the amount of $156.76 and for the Sanford Police Department in the amount of $250.00, and the cost of prosecution in excess of $100.00 because there was no competent, substantial evidence to support those amounts. See § 938.27(7) - (8), Fla. Stat. (2016). We therefore remand to give the State an opportunity to produce the appropriate documentation. Munoz v. State , 884 So.2d 1070 (Fla. 5th DCA 2004) ; see also Phillips v. State , 942 So.2d 1042 (Fla. 2d DCA 2006).

We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, C.J., WALLIS and EISNAUGLE, JJ., concur.


text:
    Jake Allen DAILEY, Appellant, v. Michael Jeffrey ROTH, Appellee.
    No. 1D17-3449
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Jason K. Hutchinson, Jacksonville, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Florida law authorizes a "cause of action for an injunction for protection in cases of repeat violence." § 784.046(2), Fla. Stat. (2017). Michael Roth pursued such an action against Jake Dailey, and the trial court entered a permanent injunction. Dailey now appeals, contending there was insufficient evidence to support the injunction.

The evidence presented below showed an acrimonious relationship between Dailey and Roth, whose ex-wife was engaged to Dailey. The two men exchanged uncivil text messages and had a tense exchange at a Little League game. The evidence proved the men behaved badly, but it was insufficient to support the injunction. See § 784.046(1)(b) (defining "repeat violence"); cf. Russell v. Doughty , 28 So.3d 169, 170 (Fla. 1st DCA 2010) ("Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction." (quoting Sorin v. Cole , 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) ); cf. also Jones v. Jackson , 67 So.3d 1203, 1205 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) ("It might occasionally be helpful if the circuit courts had the power to enter an order requiring adults to act like grownups. But a permanent injunction for protection against repeat violence cannot be used simply to compel civility and common decency.").

REVERSED.

Roberts, Ray, and Winsor, JJ., concur.


text:
    J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3256
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 18, 2019
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, but remand for the trial court to enter an amended order specifying the amount of time Appellant served in secure detention before disposition. See Fla. R. Juv. P. 8.115(d)(2).

AFFIRMED and REMANDED with Instructions.

EVANDER, C.J., COHEN and GROSSHANS, JJ., concur.


text:
    PT CAPITAL INVESTMENTS, LLC, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Robert J. Lang, a/k/a Robert James Lang, Community West Bank, National Association, Suntrust Bank, Windsor Estates Homeowners Association, Inc., et al, Appellees.
    Case No. 5D17-3574
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 22, 2019
    Ian P. Hudson and Francis M. King, of King Hudson PLLC, St. Petersburg, for Appellant.
    Robert R. Edwards, of Choice Legal Group, PA, Ft. Lauderdale, for Appellee, Federal National Mortgage Association.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ; Sullivan v. Sullivan, 791 So.2d 1119 (Fla. 4th DCA 2000).

BERGER, LAMBERT, and GROSSHANS, JJ., concur.


author: HARRIS, J.

text:
    Daniela FLOYD, Appellant, v. BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP and Middlebrook Pines Condominium Association, Inc., Appellees.
    Case No. 5D17-2712
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Thomas Eross, Jr., and Kendrick Almaguer, of The Ticktin Law Group, PLLC, Deerfield Beach, for Appellant.
    Jason D. Silver, of Greenspoon Marder, of Ft. Lauderdale, Roy A. Diaz and Adam A. Diaz, of SHD Legal Group PA, Ft. Lauderdale, for Appellee Bank of America, N.A., Successor By Merger to BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP.
    No Appearance for Appellee, Middlebrook Pines Condominium Association, Inc.
   HARRIS, J.

Appellant appeals the trial court's final order denying her motion for attorneys' fees following the involuntary dismissal of Appellee's residential mortgage foreclosure action. Appellant argues that she is entitled to attorneys' fees under section 57.105(7), Florida Statutes (2018), because she prevailed below by proving that while Appellee had standing at the time of trial, it lacked standing at the inception of the foreclosure suit. We agree. See Madl v. Wells Fargo Bank N.A., 244 So.3d 1134 (Fla. 5th DCA 2017) ; see also Glass v. Nationstar Mortg., LLC., 44 Fla. L. Weekly S100a --- So.3d ----, 2019 WL 98152 (Fla. Jan. 4, 2019) ; Harris v. Bank of N.Y. Mellon, 44 Fla. L. Weekly D141a, --- So.3d ----, 2018 WL 6816177 (Fla. 2d DCA Dec. 28, 2018).

Therefore, we reverse and remand for entry of an order granting Appellant's motion for attorneys' fees.

REVERSED and REMANDED

ORFINGER and EDWARDS, JJ., concur.


text:
    Stephen J. BYERS, Appellant, v. BANK OF NEW YORK MELLON F/K/A the Bank of New York, Successor in Interest to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, etc., Appellee.
    Case No. 5D18-1131
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Stephen J. Byers, Delray Beach, pro se.
    Mary J. Walter, of Liebler, Gonzalez & Portuondo, Miami, for Appellee.
   PER CURIAM.

Stephen Byers appeals from a nonfinal order denying his motion to quash constructive service of process in this foreclosure case. Because the nonfinal order did not determine personal jurisdiction over Byers, it is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), and this court lacks jurisdiction. We therefore dismiss the appeal. See Archer v. U.S. Bank Nat'l Ass'n , 220 So.3d 477, 478 (Fla. 5th DCA 2017).

DISMISSED.

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


text:
    Stefan ARMSTRONG, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4847
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Stefan Armstrong, pro se, Petitioner.
    Ashley B. Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


text:
    Walter Leroy CORBETT, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4635
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Walter LeRoy Corbett, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


text:
    George WALKER IV, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4794
    District Court of Appeal of Florida, First District.
    January 28, 2019
    George Walker IV, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

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


text:
    Omar AYA, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-0925
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Omar Aya, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Gayla Grant and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Roberts and Osterhaus, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Jerman NEVEAUX
    No. 2019-KK-0031
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE 24TH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON
   PER CURIAM

Stay lifted; motion to modify stay order denied as moot; writ granted in part. We lift the stay order previously issued so that the district court can act expeditiously on defendant's motion to proceed in fonna pauperis. We grant defendant's application in pah to remand to the court of appeal to reconsider its ruling in light of the outcome, f the proceedings on defendant's motion to proceed in forma pauperis. The application is otherwise denied. REMANDED


text:
    IN RE: ELLA CORTLAND GOODYEAR
    NO. 2018-B-2032
    Supreme Court of Louisiana.
    January 28, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent was arrested and charged with driving under the influence of alcohol. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Ella Cortland Goodyear, Louisiana Bar Roll number 23099, be suspended from the practice of law for a period of one year and one day.

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


author: PER CURIAM:

text:
    STATE of Louisiana v. Phillip NEWTON
    No. 2017-KP-1997
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE of Louisiana v. Darryl WINFREY
    No. 2017-KP-1937
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

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

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


text:
    STATE IN the INTEREST OF K.D.L., et al.
    No. 2018-CJ-1933
    Supreme Court of Louisiana.
    January 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF VERMILION
    Writ denied.
    Hughes, J., concurs for the reasons assigned by Judge Cooks.


text:
    STATE of Louisiana v. James Ray EVANS
    No. 2017-KP-1594
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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

The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Lori D. PERRILLOUX
    No. 2017-KP-1572
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Harold OZENNE
    No. 2017-KP-0097
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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

Hughes, J., would grant the writ.


text:
    STATE of Louisiana v. Jose LAGOS
    No. 2018-KK-1724
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Writ granted. Miranda v Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to the suspect before questioning begins. Id. , 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. When an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona , 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). In the present case, while demonstrating some confusion regarding his rights, defendant nonetheless clearly and unambiguously invoked his right to counsel at which point the detective should have ceased further inquiry. Accordingly, we grant defendant's application to reverse the district court's denial of his motion to suppress his statement, and remand for further proceedings consistent with the views expressed here.

REVERSED AND REMANDED

WEIMER, J., would grant and docket.

GUIDRY, J., would deny.


text:
    STATE of Louisiana v. Ashley DIETZ
    No. 2016-KP-1538
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted in part. The district court erred in summarily ruling that the application for post-conviction relief, which is based on a sealed videotaped interview with the victim to which post-conviction counsel did not obtain access until 2016, is barred by the post-conviction limitations period. See La.C.Cr.P. art. 930.8(A)(1). Accordingly, we grant the application in part and remand to the district court to conduct an evidentiary hearing on the claim of ineffective assistance of counsel. In addition, the district court is ordered to allow the transcription of the victim's videotaped interview, which is to be introduced into evidence and maintained under seal. In all other respects, the application is denied.

GUIDRY, J., would deny.

CLARK, J., would deny.


text:
    STATE of Louisiana v. Christopher MARTIN
    No. 2018-KK-1722
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. "Remoteness in time, in most cases, is only one factor to be considered when determining whether the probative value of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go to the weight of the evidence, rather than to its admissibility." State v. Jackson , 625 So.2d 146, 149 (La. 1993). In the present case, while the prior crimes occurred between six and eleven years ago, their probative value would not appear to be substantially outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time," La.C.E. art. 403, considering defendant stands charged with ten burglaries and the state only seeks to admit evidence of three prior offenses-an attempted burglary and two burglaries-which are probative of defendant's intent and absence of mistake. Accordingly, we reverse the district court's ruling, which excluded the prior crimes from trial, and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

WEIMER, J., would deny.


text:
    Charles H. PARKER v. Kristen WOLKART, RN, MHA, President/CEO, St. Francis Medical Center
    NO. 2017-CI-1556
    Supreme Court of Louisiana.
    January 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE EX REL. Otis BEDWELL v. STATE of Louisiana
    NO. 2018-KH-0092
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Harold J. BROWN
    NO. 2018-KO-0480
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0864
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Jermaine JACKSON
    NO. 2018-KK-1135
    Supreme Court of Louisiana.
    January 18, 2019
    Rehearing denied.
    JOHNSON, C.J., would grant for reasons originally assigned. GENOVESE, J., would grant.


text:
    STATE EX REL. Fard A. DICKERSON v. STATE of Louisiana
    NO. 2017-KH-0355
    Supreme Court of Louisiana.
    January 18, 2019
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Dickerson v. State, 16-1076 (La. 9/29/17), 227 So.3d 259.


text:
    STATE EX REL. Fard A.R. DICKERSON v. STATE of Louisiana
    NO. 2017-KH-0731
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Billy Dean COTTEN
    NO. 2018-KO-0565
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    BENTON PROPERTIES, LLC v. 213 UPLAND, LLC, et al.
    NO. 2018-CC-1913
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Cordell Kendrick WILLIAMS
    NO. 2017-KP-1385
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0162
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Latroy O'Neal SIMMONS
    NO. 2018-KK-1919
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Fard A. DICKERSON
    NO. 2018-KH-0222
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Fard A. DICKERSON
    NO. 2018-RH-0308
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Donovan CARMAN
    NO. 2018-KO-0454
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Natalie Wall FOWLKES v. Justin David FOWLKES
    NO. 2018-CJ-1989
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Joseph Michael KURZ
    NO. 2018-KO-0512
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Janeiro L. MCBRIDE
    NO. 2018-KO-0580
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Darryl GRIFFIN
    NO. 2018-KP-0641
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. TRUNG LE
    NO. 2018-K-0741
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE EX REL. Willie FULLILOVE v. STATE of Louisiana
    NO. 2018-KH-0087
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. TRUNG LE
    NO. 2018-K-0755
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0860
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0861
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NOS. 2018-INT-0348 AND 2018-INT-0347
    NO. 2018-OB-1990
    Supreme Court of Louisiana.
    January 18, 2019
    Not considered. See Louisiana Supreme Court Rule XIX, § 11(A).


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0862
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0863
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Otis BEDWELL
    NO. 2018-KH-0865
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE of Louisiana v. Eldrick Dontrail CARTER
    NO. 2018-KO-0767
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    Yolanda CRESSY, et al. v. Pete LEWIS, et al.
    NO. 2018-CC-1936
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Otis L. BEDWELL
    NO. 2018-KO-1247
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Candido PERDOMO v. CITY OF KENNER and Veolia Water Logistics LLC D/B/A/ Veolia Water
    NO. 2018-C-1860
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


author: HUGHES, J., recused.

text:
    Peter J. ABADIE, Jr. v. Ann Rau ABADIE
    Ann Rau v. Peter Abadie, Jr.
    NO. 2018-C-1897
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.
   HUGHES, J., recused.


text:
    Bobbie J. SANDERS, Jr. v. SWIFTSHIPS, INC.
    NO. 2018-C-1912
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Earlis WILLIAMS and Kaonta, Minor, Individually and on Behalf of Her Father Earlis, Minor v. PEL HUGHES PRINTING COMPANY
    NO. 2018-OC-1915
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Tolonda Ricard AGE v. Burnell AGE, Jr.
    NO. 2018-CA-0179
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2018
    KRISTYL R. TREADAWAY, TREADAWAY LAW, LLC, 3008 20th Street, Suite A, Metairie, Louisiana 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    BURNEL H. AGE, JR., 1919 Van Buren, Apartment 616A, Hollywood, Florida 33020, IN PROPER PERSON/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Paula A. Brown )
   JAMES F. MCKAY III, CHIEF JUDGE

In this community property case, the plaintiff/appellant, Tolanda Ricard, appeals the trial court's judgment in favor of the defendant/appellee, Burnell Age, Jr. For the following reasons, we affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

Burnell Age, Jr. and Tolanda Richard were married on December 29, 1990 and entered into a community property regime. The parties acquired both movable and immovable property during their marriage.

On March 17, 2011, Ms. Ricard filed for divorce pursuant to Louisiana Civil Code Article 103. A judgment of divorce was granted on July 29, 2011, and the community property regime was terminated retroactive to March 17, 2011, the date of filing the petition for divorce.

On January 6, 2012, Ms. Ricard filed a petition to partition the community of acquets and gains that previously existed between them. Prior to the trial to partition the community, the real property of the community was sold. On May 2, 2017, the parties consented to partially settle and liquidate the community that formerly existed between them. By consent, Mr. Age received the Navy Mutual Aid Life Insurance account ending in 8858, the Navy Federal checking account ending in 0703, the Navy Federal savings account ending in 2000, the carved elephant and carved rhino, the 2001 Volvo S-40, the Bali vase, the Wosene Portrait of the Artist, and the china and flatware. Ms. Ricard received the Norikane Rubata, Shinoda Epical, teak table and chairs, medicine chest, side table, and the Asian vase. The parties also agreed that the Navy Mutual Aid Life Insurance account ending in 4781 was Ms. Ricard's separate property. Additionally, it was agreed that Mr. Age's Marine Corps retirement would be partitioned by qualified domestic relations order, and that Mr. Age would be reimbursed for payment of the Navy Federal overdraft line of credit, Navy Federal Visa, the IRS tax bill, and the Louisiana tax bill.

On July 21, 2017, Mr. Age filed a rule for contempt against Ms. Ricard for failure to deliver to her attorney's office the Wosene Portrait of the Artist and the china and flatware agreed to in the consent judgment. The petition to partition the community of acquets and gains that previously existed between the parties and the rule for contempt came before the trial court on September 5, 2017.

On October 23, 2017, the trial court rendered its judgment in the instant case. The trial court found that the assets of the community were as follows: 1) JetBlue retirement in the name of Burnell Age ($85,724.03); 2) American Airlines retirement in the name of Burnell Age ($16,696.87); 3) JetBlue stock options in the name of Burnell Age ($42,873.51); 4) Navy Mutual Aid Life Insurance account ending in 9161 ($27,636.09); 5) Chase checking account ending in 4596 ($651.29); 6) escrow refund from 448 Whitney Avenue ($1,317.12); 7) insurance proceeds from 512 Monroe ($448,700.22); 8) insurance proceeds from 448 Whitney Avenue ($13,057.82); 9) proceeds from Florida condo sale with contents ($59,310.58); 10) proceeds from the sale of the Lennox property ($48,893.93); 11) Wells Fargo check ending in 3615 ($23,598.53); 12) Jefferson Parish retirement in the name of Tolanda Ricard Age ($22,278.37); 13) Roth IRA in the name of Tolanda Ricard Age ($14,446.42); 14) Navy Federal Credit Union checking account ending in 4265 ($2,679.32); 15) Navy Federal Credit Union Savings account ending in 5001 ($8,152.22); 16) Norikane Rubata ($110.00); 17) Shinoda Epical ($1,750.00); 18) teak table & chairs ($500.00); 19) medicine chest ($250.00); 20) side table ($100.00); 21) Asian vase ($50.00); 22) Navy Mutual Aid Life Insurance account ending in 8858 ($29,613.00); 23) Navy Federal checking account ending in 0703 ($1,005.35); 24) Navy Federal Savings account ending in 2000 ($85.00); 25) carved elephant ($50.00); 26) carved rhino ($50.00); 27) 2001 Volvo S-40 ($1,200.00); 28) Bali vase ($50.00); 29) Wosene Portrait of the Artist ($17,000.00); 30) china and flatware ($1,050.00); 31) proceeds from the sale of 800 Whitney Avenue (-$4,135.50); 32) proceeds from the sale of 2017 Evergreen Avenue (-$9,088.64); 33) proceeds from the sale of 402 Huntlee Drive (- $9,088.64); 34) proceeds from the sale of 512 Monroe (-$2,628.67); and 35) proceeds from the sale of 448-450 Whitney Avenue (-$34,646.63). These assets had a total value of $409,290.19.

The trial court found that the following assets were the separate property of Ms. Ricard: 1) Sarah Brayer Raindrops ($240.00); 2) Sarah Brayer Sprint ($2,500.00); 3) Shinoda Interval ($2,000.00); and 4) Navy Mutual Aid Life Insurance account ending in 4781 ($26,280.04). The trial court valued Ms. Ricard's separate property at a total value of $31, 020.04.

The trial court also ordered that Ms. Ricard's claim for reimbursement be granted in part and denied in part. The trial court granted reimbursement to Ms. Ricard for the following claims: 1) Navy Federal Mortgage account ending in 7173 ($27,826,28); 2) art appraisal for Wosene ($900.00); 3) art appraisal for Sprint ($200.00); and 4) On Time Movers ($240.00). These amounts totaled $29,166.28, with one-half of reimbursement at $14,583.14. The trial court denied Ms. Ricard's claim for reimbursement for Public Storage in the amount of $2,638.09.

Likewise, the trial court also ordered that Mr. Age's claims for reimbursement be granted in part and denied in part. The trial court granted Mr. Age's following claims for reimbursement: 1) Allied Pilots Association furlough loan ($4,000.00); 2) Navy Federal overdraft line of credit ($10,480.00); 3) Navy Federal Visa ($19,405.20); 4) IRS tax bill ($955.00); 5) Louisiana tax bill ($1,173.10); Navy Mutual Aid Loan accounts ending in 8858 and 9161 ($23,760.05); 7) 4821 Lennox repairs required for closing and mortgage ($5,158.00); and Mutual Art Appraisal ($182.00). These amounts totaled $65,113.35, with one-half reimbursement at $32,556.68. The trial court denied Mr. Age's reimbursement claims for fair market rental value for 4821 Lennox in the amount of $36,000.00 and the household items removed from 4821 Lennox in the amount of $65,000.00.

Based on the reimbursement claims it granted, the trial court awarded Mr. Age a net reimbursement of $17,973.54 ($32,556.68 representing ½ of Mr. Age's reimbursement claims less ½ of Ms. Ricard's reimbursement claims of $14,583.14). The trial court also ordered that Mr. Age's net share of the community was $172,514.88 and Ms. Ricard's share of the community was $183,911.56.

Finally, the trial court ordered that Mr. Age's rule for contempt against Ms. Ricard for failure to deliver the Wosene Portrait of the Artist and china and flatware pursuant to the May 2, 2017 consent judgment was granted. The trial court also cast Ms. Ricard with the cost of the proceedings, totaling $67.00, and the cost to insure and ship the items to Mr. Age in Florida.

Ms. Ricard now appeals the trial court's judgment.

DISCUSSION

On appeal, Ms. Ricard raises the following assignments of error: 1) the trial court committed manifest error when it found the value of the JetBlue stock options to be $42,873.51; 2) the trial court committed manifest error when it did not include the $18,500.00 in the partition judgment it previously recommended; and 3) the trial court committed manifest error when it found a deficiency judgment against Ms. Ricard for the sale of the six remaining properties in the value of $10,694.15.

A trial court's rulings regarding the partitioning of community property are reviewed under the "manifest error" standard, granting great discretion to the trial court. Raymond v. Fluellen, 2011-1290 (La.App. 4 Cir. 3/7/12), 88 So.3d 652, 654. Reasonable findings of fact and credibility assessments made by the trial court may not be set aside by a court of appeal. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

In her first assignment of error, Ms. Ricard contends that the trial court erred when it found the value of the JetBlue stock options to be $42,873.51. Ms. Ricard alleged that the stock options were worth $157,712.99, the gross proceeds after taxes. Mr. Age argued that the stock options were worth $64,713.60, the gross proceeds less the cost. However, the trial court valued the stock options at $42,873.51, lower than either party and with no explanation as to how it arrived at this value.

The crewmember stock purchase plan overview states that the employee would have a payroll deduction. Then, every six months the plan administrator would take the deducted money and purchase shares of JetBlue stock. The payroll deductions were community property. The right to purchase the stock at a certain price (stock options) was also a fruit of Mr. Age's employment and therefore community property. See Hansel v. Holyfield, 2000-0062 (La.App. 4 Cir. 12/27/00), 779 So.2d 939. Accordingly, the trial court erred when it valued the stock options at $42,873.51. The correct value, as alleged by Ms. Ricard, was $157,712.99.

In her second assignment of error, Ms. Ricard contends that the trial court committed manifest error when it did not include the $18,500.00 in the partition judgment it previously recommended. This assignment of error is too speculative. Ms. Ricard also fails to adequately brief this assignment of error for a more thorough analysis. Accordingly, we are unable to find any error with regard to this assignment of error.

In her third and final assignment of error, Ms. Ricard alleges that the trial court committed manifest error when it found a deficiency judgment against Ms. Ricard for the sale of the remaining six real properties in the value of $10,694.15. The six real properties referred to are: 512-514 Monroe, Gretna; 4821 Lennox, New Orleans; 402 Huntlee Drive, New Orleans; 448-450 Whitney Avenue, New Orleans; and 2017 Evergreen Avenue, New Orleans. Regarding the sales of these six pieces of real property, the October 16, 2012 consent judgment states that Ms. Ricard "will owe reimbursement out of any net proceeds from sales of properties, or insurance payment overages, if any, and only up to the actual net proceeds (there will be no deficiency reimbursement owed for real estate)."

The combination of the proceeds from the sale of the six aforementioned properties resulted in a collective loss of $10,694.15. This loss was included in the partition, meaning that Ms. Ricard was held responsible for $5,347.07 in debt, when the record clearly states that there should not be a deficiency judgment against her. If a trial court's valuations are reasonably supported by the record and do not constitute an abuse of discretion, its determination should be affirmed. Alford v. Alford, 94-1464 (La.App. 3 Cir. 4/5/95), 653 So.2d 133. In the instant case, the trial court's valuations are contrary to the record. Accordingly, it must be reversed.

CONCLUSION

For the above and foregoing reasons, we affirm in part and reverse in part the trial court's judgment. With regards to Ms. Ricard's second assignment of error, involving the trial court's failure to include $18,500.00 mentioned in an earlier judgment, we find no error and affirm the judgment of the trial court. However, regarding Ms. Ricard's first and third assignments of error, we do find merit as stated above. The trial court was clearly wrong in its valuation of the JetBlue stock options and its valuation of the six referenced pieces of real property. These errors caused the trial court's overall valuation of the community and the recapitulation to also be in error.

Based on our review of the record, we are unable to determine what community property is in the actual possession of each party. Accordingly, this matter is remanded to the trial court for the limited purpose of partitioning the community property consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

      The consent judgment was submitted, rendered, and signed as a stipulation on October 16, 2012. The judgment was read and signed by Judge Regina Bartholomew on January 24, 2013.