author: Bilbrey, J.

text:
    Diane RODRIGUEZ and David Rodriguez, her husband, Appellants, v. Ernst NICOLITZ, M.D. and Lenka Champion, M.D., Appellees.
    No. 1D16-4604
    District Court of Appeal of Florida, First District.
    May 18, 2018 Rehearing Denied June 27, 2018
    Brandon S. Vesely of Albertelli & Whitworth, Tampa; Wesley T. Straw and Matthew D. Emerson of Emerson Straw PL, St. Petersburg, for Appellants.
    Michael R. D'Lugo and Richard E. Ramsey of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellee Lenka Champion, M.D.
   Bilbrey, J.

Diane Rodriguez and her husband, David Rodriguez, appeal an order dismissing with prejudice their medical malpractice complaint as to Lenka Champion, M.D. Dr. Champion was one of two defendants sued by the Rodriguezes after Mrs. Rodriguez experienced an infection following eye surgery. Because the presuit notice requirements were not met as to Dr. Champion, the trial court correctly dismissed the complaint as to Dr. Champion. We therefore affirm.

I. Background

On April 23, 2013, Mrs. Rodriguez underwent a blepharoplasty on her upper and lower eyelids, a procedure to repair droopy eyelids and to remove excess tissue around the eyes. The surgery was performed by Ernst Nicolitz, M.D., an ophthalmologist. Following the surgery, Mrs. Rodriguez developed an infection in her left eye. Three post-operative examinations of Mrs. Rodriguez were performed by Dr. Champion, also an ophthalmologist, who was employed by the same professional association as Dr. Nicolitz. According to Mrs. Rodriguez, the infection left her with serious visual impairments, dizziness, continued risk of infection, and an asymmetrical facial appearance.

By letter dated Jan. 13, 2014, Dr. Nicolitz was advised by Mr. and Mrs. Rodriguez of their intent to initiate litigation for medical malpractice. Attached to the letter was the affidavit of Eliot B. Siegel, M.D., whose stated specialty was ophthalmology. The letter indicated that no other defendants were known at the time, and Dr. Champion was identified in the letter as one of the known medical treatment providers to Mrs. Rodriguez.

Thereafter, by a complaint filed May 19, 2014, Mrs. Rodriguez sued Dr. Nicolitz, but not his professional association (Ernest Nicolitz, M.D., P.A., d/b/a Nicolitz Eye Consultants), for medical negligence. A loss of consortium claim was alleged in the complaint against Dr. Nicolitz by Mr. Rodriguez.

By letter dated June 15, 2015, Dr. Champion was for the first time advised of the Rodriguezes' intent to initiate litigation against her for medical malpractice. Dr. Champion was employed by Nicolitz Eye Consultants, and as noted, she had conducted some post-operative examinations of Mrs. Rodriguez. Unlike Dr. Nicolitz however, Dr. Champion was not an officer, director, or shareholder of Nicolitz Eye Consultants. Attached to the notice of intent was an affidavit of Richard K. Sall, M.D., whose medical specialty was listed as "Infectious Diseases."

Thereafter, the Rodriguezes sought leave to amend their complaint to add Dr. Champion as a defendant. The amended complaint alleged Dr. Champion committed medical negligence for failing to accurately diagnose the nature of Mrs. Rodriguez' eye infection.

After a stay requested by Dr. Nicolitz was denied and after leave was granted to file the amended complaint, Dr. Champion moved to dismiss that amended complaint. Dr. Champion argued that the notice of intent to initiate litigation did not comply with section 766.102(5)(a), Florida Statutes (2012), which mandates that in litigation involving a specialist defendant, a plaintiff's expert be of the same or similar specialty as the defendant. Dr. Champion is an ophthalmologist while Dr. Sall is an infectious disease specialist. In support of her position, Dr. Champion cited Edwards v. Sunrise Ophthalmology Assoc. , 134 So.3d 1056 (Fla. 4th DCA 2013), where the reviewing court held that an ophthalmologist and an infectious disease specialist were too dissimilar to satisfy section 766.102(5)(a) under the facts of that case.

The trial court here agreed that Dr. Sall's affidavit was inadequate since his specialty differed from Dr. Champion, and thus the mandatory presuit notice of June 15, 2015, was insufficient as to Dr. Champion.

The Rodriguezes countered by asserting that the presuit notice and affidavit of Dr. Siegel, filed with respect to Dr. Nicolitz on January 13, 2014, should also apply to Dr. Champion as the doctors are in a "legal relationship." The trial court conducted an evidentiary hearing to determine whether the doctors were in a legal relationship such that it would be appropriate, per rule 1.650, Florida Rules of Civil Procedure, to impute to Dr. Champion knowledge of the prior presuit notice directed to Dr. Nicolitz.

In the written order dismissing with prejudice the amended complaint as to Dr. Champion, the trial court held that under rule 1.650, the January 13, 2014, notice with corroborating affidavit of Dr. Siegel, did not operate as presuit notice to Dr. Champion. The trial court explained that the notice would have been effective as to Dr. Champion only if Dr. Champion was a "prospective defendant" at the time Dr. Nicolitz received the notice and Dr. Champion had a "legal relationship" with Dr. Nicolitz.

The presuit notice to Dr. Nicolitz "plainly stated there were no other 'prospective defendants,' " the trial court observed. Further, the trial court concluded that the two doctors did not have a legal relationship. The Rodriguezes now take issue with that conclusion. They argue on appeal that the notice given to Dr. Nicolitz, which was accompanied by the affidavit of Dr. Siegel was sufficient as to Dr. Champion as well. We reject the Rodriguezes' arguments.

II. Analysis

Before a complaint alleging medical malpractice may be filed, Florida law requires that certain activities be taken prior to the filing of a lawsuit. See Williams v. Oken , 62 So.3d 1129, 1133 n.1 (Fla. 2011). While these presuit requirements are conditions precedent to a malpractice suit, the provisions of the statute were not intended to deny access to the courts on the basis of technicalities. Fort Walton Beach Med. Ctr., Inc. v. Dingler , 697 So.2d 575 (Fla. 1st DCA 1997).

By Florida's presuit requirements, a potential plaintiff first must serve on a potential defendant notice of intent to initiate litigation for medical negligence. § 766.106(2)(a), Fla. Stat. (2012). With the notice, a potential plaintiff is required to submit a "verified written medical expert opinion from a medical expert as defined in s. 766.202(6)" which supports a claim of medical negligence. § 766.203(2)(b), Fla. Stat. (2012).

A medical expert as defined in section 766.202(6) is "a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." (Emphasis added).

An expert witness as defined in section 766.102 is, in turn, a "health care provider who holds a valid and active license and conducts a complete review of the pertinent medical records," and if the expert witness is presented as a specialist, the expert must

[s]pecialize in the same specialty as the [potential defendant]; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; ....

§ 766.102(5)(a) 1, Fla. Stat. (2012).

In finding that Dr. Sall was not engaged in the "same" specialty as Dr. Champion, the trial court relied on Edwards . The defendant in Edwards was an ophthalmologist, as is Dr. Champion, and the expert retained by the plaintiff in Edwards was an infectious disease specialist, as is Dr. Sall. 134 So.3d at 1057. The plaintiff in Edwards , like Mrs. Rodriguez here, suffered a bacterial infection following eyelid surgery. Id.

The majority in Edwards held that an infectious disease doctor is not within the "same specialty" as an ophthalmologist. The court explained:

If we were to allow an infectious disease doctor to be considered a similar specialty to an ophthalmologist or one "that includes the evaluation, diagnosis, or treatment of the medical condition"-a bilateral blepharoplasty-we would impose the infectious disease doctor's expertise on a dissimilar eye-surgery specialist. This vitiates the very nature of a physician's specialization. Neither could we impose the eye surgeon's specialization on the infectious disease doctor.

Id. at 1059. We agree and hold that based on the record here, Dr. Champion, an ophthalmologist, and Dr. Sall, an infectious disease specialist, did not practice the "same specialty."

Further, the Edwards majority rejected the suggestion made by the dissent that the expert qualified as an expert in a "similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim." Id. The majority in Edwards said that in the case before it

the medical condition was ophthalmic in nature, a bilateral blepharoplasty. The infectious disease doctor does not "specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of" a bilateral blephroplasty or any type of surgery. And, the infectious disease doctor's affidavit does not suggest otherwise.

Id.

Likewise, it cannot be said on the record before us that Dr. Sall specializes in a specialty "similar" to that of Dr. Champion. Nothing in this record indicates that Dr. Sall has evaluated, diagnosed, or treated a post-blepharoplasty infection. Dr. Sall's affidavit does not express any familiarity with the standard of care applicable to physicians who perform blephroplasty. Thus, as a matter of law, Dr. Sall cannot qualify as specialist for purposes of presuit notification with regard to Dr. Champion given his qualifications.

It is worth noting that the purpose of the presuit requirements is to provide a means for "prompt resolution of medical claims." See 766.201(2), Fla. Stat. (2012) (statement of legislative findings and intent). Said another way, the statutory presuit screening provisions were intended by the Legislature to facilitate the expedient, and preferably amicable, resolution of medical malpractice claims. Williams, 62 So.3d at 1133 n.1 ; Ingersoll v. Hoffman , 589 So.2d 223, 224 (Fla. 1991). In the case at bar, although the nature of Mrs. Rodriguez' injury was known within weeks of April 23, 2013, surgery, there was no attempt to bring Dr. Champion into the litigation until June 15, 2015, a year after notice was given to Dr. Nicolitz, a notice which, incidentally, acknowledged Dr. Champion as a medical provider.

As for the Rodriguezes' argument that the trial court erred in finding an insufficient legal relationship between Dr. Champion and Dr. Nicolitz so as to impute the presuit notice given to Dr. Nicolitz (the adequacy of which as to Dr. Nicolitz is not now before us), we find no basis to reverse. The findings of fact made by the trial court in concluding an insufficient legal relationship existed are supported by the record. Nor do we find merit in Rodriguezes' claim that the trial court erred in not applying the equitable tolling doctrine.

AFFIRMED .

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

      The parties disagree whether the trial court applied the 2012 or 2013 version of section 766.102(5)(a). The 2013 version requires that a plaintiff's expert be of the same specialty as the defendant. On appeal, the parties agree that the 2012 version of section 766.102 applies. See Ch. 2013-108, §§ 2, 6, & 7, Laws of Fla. (applying a July 1, 2013, effective date to the statutory amendment). Below, we analyze the issue under the 2012 version of the statute and hold that the trial court did not commit error.

      While the Edwards court did not apply the 2012 version of chapter 766, the 2009 version which it did apply is substantially the same as the 2012 version.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Justin BAILEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-357
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, and Amit Agarwal, Solicitor General (Tallahassee), for respondent.
    Before EMAS, LOGUE and LINDSEY, JJ.
   PER CURIAM.

Justin Bailey petitions this court for a writ of prohibition to quash the trial court's December 2016 order denying his motion for immunity under Florida's Stand Your Ground law, section 776.032, Florida Statutes (2016), following an evidentiary hearing. Under the version of the statute existing on the date of the offense (and at the time of the evidentiary hearing), Bailey shouldered the burden of proof, requiring him to establish his entitlement to statutory immunity by a preponderance of the evidence. The trial court concluded in its order that Bailey "failed to prove by the preponderance of the evidence that he is immune from prosecution pursuant to § 776.032 and § 776.012." The instant petition followed.

While the petition was pending in this court, the Florida Legislature amended section 776.032(4). See Ch. 2017-72, § 1-2, Laws of Fla. As amended, the statute now provides that once a defendant raises a prima facie claim of entitlement to self-defense immunity, the burden of proof is upon the State to overcome that immunity claim, which the State must do by a standard of clear and convincing evidence. The Legislature provided that "[t]his act shall take effect upon becoming a law," id., which occurred when the Governor signed the bill into law on June 9, 2017.

As a result of this amendment, we ordered supplemental briefing to address, inter alia , whether these statutory amendments are retroactively applicable to the instant case. Since that time, this court has answered the question of retroactive application in our recent decision of Love v. State, No. 3D17-2112, --- So.3d ---- (Fla. 3d DCA May 11, 2018). Therein, we held that section 776.032(4) does not apply to a crime alleged to have been committed before June 9, 2017, the effective date of the statute. Id. We also acknowledged, and certified conflict with, the Second District Court of Appeal's decision in Martin v. State, No. 2D16-4468, --- So.3d ---- (Fla. 2d DCA May 4, 2018), which held that where the defendant's appeal remained pending when the amendment took place, and the amendment was procedural in nature, it must be applied to the defendant's case.

Following our precedent in Love, we therefore hold that the June 9, 2017 amendment does not apply to Bailey's case, and Bailey is not entitled to a new evidentiary hearing on that basis.

On the merits, after reviewing the record and the trial court's thorough and thoughtful order denying Bailey's immunity motion, we conclude the trial court's factual determinations are supported by competent substantial evidence and that the trial court committed no error in its legal determinations. See State v. Vino, 100 So.3d 716, 719 (Fla. 3d DCA 2012) (holding that, in reviewing a trial court's order on a motion seeking immunity under the Stand Your Ground Law, "the trial court's legal conclusion is reviewed de novo, but its findings of fact are presumed correct and can be reversed only if they are not supported by competent substantial evidence.") Accordingly, we deny the petition for writ of prohibition.

Petition for writ of prohibition denied.

      See § 776.032(4), Fla. Stat. (2017), providing:
      In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

      Neither the State nor Bailey contends that the 2017 amendment to section 776.032(4) is unconstitutional.


author: ROTHENBERG, C.J.

text:
    C.H., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D18-291
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Thomas Butler, P.A., and Thomas J. Butler, for appellant.
    Karla Perkins, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

The mother, C.H., appeals the trial court's order adjudicating her minor child, L.W., dependent. Because the trial court's determination that L.W. was at substantial risk of imminent harm is not supported by competent substantial evidence, we reverse the order adjudicating L.W. dependent as to the mother.

In late May 2017, the Department of Children and Families ("DCF") initiated an abuse investigation after a weapon was discharged in L.W.'s presence. Following the investigation, in June 2017, DCF filed a verified petition for dependency, alleging, in part, as follows: (1) the mother abandoned L.W., as defined in section 39.01(1); and (2) L.W. is "at a substantial risk of imminent abuse, abandonment, or neglect" based, in part, on the mother's alleged use of illegal drugs and the mother leaving L.W. with an inappropriate caregiver-the mother's sister ("maternal aunt").

At the adjudicatory hearing, DCF called its Child Protective Investigator ("CPI"); L.W.'s maternal grandmother, who was granted temporary custody of L.W. following a shelter hearing; and the mother. The testimony at the adjudicatory hearing reflects that the mother lived with the maternal grandmother during her pregnancy, and following L.W.'s birth in February 2016, the mother continued to live at the maternal grandmother's home with L.W. until December 2016, when the mother and L.W. moved out. While living at the maternal grandmother's home, the mother actively cared for L.W. and bought him necessities.

Sometime in March 2017, the mother gave the maternal aunt physical custody of L.W. because she was unable to care for L.W. The mother decided to leave L.W. with the maternal aunt because the maternal grandmother worked full-time whereas the maternal aunt was not working. Prior to the mother leaving L.W. with the maternal aunt, the mother knew that the maternal aunt had a prior case with DCF, which was closed following the maternal aunt's successful completion of her case plan and the return of the child to the maternal aunt. Despite knowing that the maternal aunt had a history with DCF, the mother did not inquire into any specific facts relating to the closed case.

In late May 2017, DCF became involved with L.W. following an abuse report against the maternal aunt. The abuse report was based on a gun being discharged in the presence of L.W. and the maternal aunt's daughter. When the CPI became involved, L.W. and the maternal aunt's daughter were clean, had no bruises or marks, appeared to be well-fed, and were appropriately clothed.

At the conclusion of DCF's case, the trial court found that DCF had failed to establish by a preponderance of the evidence that the mother had abandoned L.W. or was using illegal drugs. The trial court, however, adjudicated L.W. dependent as to the mother based on its finding that L.W. was at substantial risk of imminent harm because the mother had left L.W. in the custody of an inappropriate caregiver-the maternal aunt. Specifically, the trial court's order provides that the fact that a gun was discharged in L.W.'s presence "proves" that the mother's placement of L.W. with the maternal aunt was inappropriate. The trial court's order also states:

The Mother was aware of the maternal aunt's own child's removal, yet never sought to inquire why that removal occurred. This leaves the Court to conclude that the Mother is willing to leave the Child anywhere without questioning the environment so that she could go out and do something else. The Court finds that these actions have placed the Child at risk of harm.

The mother's appeal followed.

A child is considered dependent if the trial court finds the child, among other things, is at "substantial risk of imminent abuse ... by the parent ...." § 39.01(15)(f), Fla. Stat. (2017). In section 39.01(2), Florida Statutes (2017), "abuse" is defined as "any willful act or threatened act that results in any physical, mental, or sexual abuse, injury or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions."

"[I]n a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence." D.A. v. Dep't of Children & Family Servs., 84 So.3d 1136, 1138 (Fla. 3d DCA 2012). "A court's final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Competent substantial evidence is tantamount to legally sufficient evidence." In re M.F., 770 So.2d 1189, 1192 (Fla. 2000) (footnote omitted); J.C. v. Fla. Dep't of Children & Family Servs., 937 So.2d 184, 186 (Fla. 3d DCA 2006).

Although DCF advanced several theories in its attempt to adjudicate L.W. dependent, the trial court ultimately found that L.W. was dependent because he was at substantial risk of imminent harm based solely on the mother leaving him with an inappropriate caregiver-the maternal aunt. See § 39.01(15)(f), Fla. Stat. (2017). The trial court determined that the maternal aunt was an inappropriate caregiver because she had a prior history with DCF. The trial court also questioned the mother's decision to leave L.W. in the maternal aunt's custody without first questioning her as to the specifics of the closed DCF case. Finally, the trial court found that the fact that a gun was discharged in L.W.'s presence "proves" that the mother left L.W. with an inappropriate caregiver. In essence, the trial court found that (1) a caregiver who has a prior history with DCF, despite its successful resolution, is an inadequate caregiver, and (2) if a gun is discharged in the presence of a child, it "proves" that the child is being cared for by an inappropriate caregiver.

First, a caregiver, such as the maternal aunt, is not necessarily rendered inappropriate based solely on the fact that she has a prior history with DCF. After all, DCF deemed the maternal aunt to be an adequate caregiver following her completion of her case plan. If DCF had not, we cannot imagine that it would have permitted the maternal aunt to regain custody of her own child. Although it may have been prudent for the mother to inquire as to the facts leading to DCF's initial involvement with the maternal aunt, this alone does not indicate that the mother, as the trial court determined, was "willing to leave [L.W.] anywhere without questioning the environment." Prior to leaving L.W. with the maternal aunt, the mother knew that the maternal aunt had regained custody of her own child following the successful completion of her case plan. Moreover, during the almost three months that the maternal aunt had custody of L.W., the mother would stay at the maternal aunt's home or visit L.W., which allowed her to gauge whether L.W. was being properly cared for. In fact, when DCF took custody of L.W. following the discharging of the gun, it is undisputed that L.W. and the maternal aunt's daughter were clean, being well-fed, appropriately dressed, and had no marks or bruises.

Second, the fact that a gun was discharged in L.W.'s presence does not by itself establish that the maternal aunt was an inappropriate caregiver. The testimony at the adjudicatory hearing reflects that the gun was discharged by someone other than the maternal aunt, and the testimony does not shed light as to the facts leading to the discharging of the gun. Although there clearly may be situations where the discharging of a gun in the presence of a child may properly lead to a finding that a child was left with an inappropriate caregiver, thereby placing the child at substantial risk of imminent harm, there were no additional facts brought out during the adjudicatory hearing that would support such a finding.

We additionally note that the CPI testified during cross-examination that following his investigation, he drafted his investigative summary. The investigative summary reflects that he determined that the mother had no prior involvement with DCF, there were no indicators for substance abuse, and the claim that the mother subjected L.W. to inadequate supervision was not substantiated.

Based on the evidence presented at the adjudicatory hearing, we conclude the trial court's ruling that L.W. was at substantial risk of imminent harm was not supported by competent substantial evidence. Accordingly, we reverse the order under review adjudicating L.W. dependent as to the mother.

Reversed.

      The verified petition for dependency sought to adjudicate L.W. dependent as to both the mother and L.W.'s father, J.C.W. L.W. was adjudicated dependent as to the father pursuant to the father's consent plea. The adjudication of dependency as to the father is not at issue in this appeal.


author: LAMBERT, J.

text:
    TRAVELERS HOME AND MARINE INSURANCE COMPANY, Appellants, v. Michael J. GALLO and Tyler R. Brock, Appellees.
    Case No. 5D16-3158 5D16-4214
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Jack R. Reiter, Jordan S. Kosches, and Tiffany M. Walters, of GrayRobinson, P.A., Miami, for Appellants.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, and O. John Alpizar and Andrew B. Pickett, of Alpizar Law, LLC, Palm Bay, for Appellee, Michael Gallo.
    No Appearance for Appellee, Tyler R. Brock.
   LAMBERT, J.

In these consolidated appeals, Travelers Home and Marine Insurance Company ("Travelers") challenges the final judgment entered against it and in favor of the insured, Michael J. Gallo ("Gallo"), after the jury returned a verdict for Gallo on his uninsured/underinsured motorist claim against Travelers. Travelers also contests the separate final judgments awarding Gallo attorney's fees under section 768.79, Florida Statutes (2014), and Florida Rule of Civil Procedure 1.442 and taxing court costs. We find merit in one of the four arguments raised by Travelers. Concluding that the trial court erred in disallowing one of Travelers' peremptory challenges, we reverse and remand for a new trial.

A peremptory challenge is one of the primary tools by which a party removes an unfavorable juror from the jury panel. Spencer v. State , 238 So.3d 708, 711 (Fla. 2018) (citing Hayes v. State , 94 So.3d 452, 460 (Fla. 2012) ). Traditionally, peremptory challenges, which are limited in number, have been exercised "according to a party's unfettered discretion," id. (quoting Hayes , 94 So.3d at 459 ), with the only limitation being that they not be used to purposely discriminate against members of a distinctive group by excluding them from jury service. Id. (citing Batson v. Kentucky , 476 U.S. 79, 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ). To provide some clarity and direction to trial courts when faced with the possibility that a party is exercising a peremptory challenge in a purposely discriminatory manner, the Florida Supreme Court established the following three-step process and analysis to be applied under such circumstances (e.g., alleged racial discrimination):

A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout the process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Melbourne v. State , 679 So.2d 759, 764 (Fla. 1996) (footnotes omitted).

In the present case, following voir dire of the venire, Travelers used a peremptory challenge to strike an African-American female as a juror. Consistent with Step 1 of Melbourne , Gallo's trial counsel timely objected, placed on the record that the venireperson is a member of a distinct racial group, and requested a race-neutral reason for the strike. At that point, in an effort to comply with Step 2, Travelers' counsel explained that based upon his personal observations of the prospective juror, he was striking her because she was inattentive and did not appear engaged in the jury selection process, thus giving counsel concern that if seated as a juror, this individual would not be "focused," "pay attention," and "actually consider the evidence." At that point, and without requesting a response from Gallo's counsel, the trial court determined that Travelers' explanation or basis for the strike was "legally insufficient." This, however, was incorrect because much like verbal responses to questioning, a juror's lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason (Step 2) for a peremptory strike. Dorsey v. State , 868 So.2d 1192, 1196 (Fla. 2003).

Immediately after the trial court found the strike to be legally insufficient, Gallo's counsel placed on the record that his observations of this juror "were completely opposite of [Travelers'] counsel." This is not uncommon and may simply illustrate that "[a] person's demeanor, subjective as it is, is subject to more than one interpretation." See People v. Munson , 171 Ill.2d 158, 215 Ill.Dec. 125, 662 N.E.2d 1265, 1275 (1996). Under such circumstances, when the parties disagree as to the existence of the nonverbal behavior proffered as the basis for the peremptory challenge, the only way that the proponent of the strike can satisfy the burden of production of its race-neutral reason under Melbourne 's second step is "if the behavior is observed by the trial court or otherwise has record support." Dorsey , 868 So.2d at 1199. Importantly, if this burden of production is satisfied, then the proponent of the strike is entitled to the presumption that the proffered race-neutral reason for the strike based upon the juror's nonverbal behavior is genuine (Step 3). Id. Conversely, if the potential juror's nonverbal behavior is disputed by opposing counsel and is not observed by the trial court nor otherwise supported by the record, then the nonverbal behavior is not a proper basis under Step 2 of Melbourne to sustain a peremptory challenge as genuinely race neutral. Id. at 1202-03 ; see also Wright v. State , 586 So.2d 1024, 1029 (Fla. 1991) (holding that "[p]eremptory challenges based on bare looks and gestures are not acceptable reasons unless observed by the trial judge and confirmed by the judge on the record").

Here, after Gallo's counsel disagreed with Travelers' assessment of the prospective juror's nonverbal behavior, the trial court next commented that the juror was "not particularly different" from other "introverted" venirepersons that it sees on a regular basis, but it specifically agreed with Travelers' counsel's observation that this juror was "not particularly engaged." Thus, under Dorsey , Travelers, as the proponent of the strike, was entitled to the presumption that its proffered reason for the strike was genuine. The court further elaborated that Travelers' counsel was "well-intentioned" in moving to strike the juror and that it did not believe that counsel was "making a race-based strike." The court reiterated that it did not find counsel's explanation for the strike to be "disingenuous" and that it would not "disparage an attorney [who] attempts to make a strike on a visibly less than active participant in the [jury selection] process." The trial court nevertheless reaffirmed its ruling that Travelers' reason for striking the juror was legally insufficient, concluding that a venireperson appearing to have an "introverted personality" is not a sufficient race-neutral reason for a peremptory challenge. The jury was sworn shortly thereafter, with the individual remaining on the jury.

The following trial day, before opening statements, the court and counsel again discussed this juror. The court first confirmed that the day before, and prior to the jury being sworn, it never reached Step 3 of the Melbourne analysis as to whether the reason offered by Travelers for striking this juror was genuine. The court again recognized that Travelers had a "bona fide" belief that the juror was not engaged, but it found that to be "irrelevant" to evaluating whether it was a race-neutral reason for the strike. The court then offered that it never saw the juror "fall asleep" and did not see the juror exhibit a "lack of attention." Additionally, although Travelers never moved to strike the juror because she was "introverted," the court also concluded that Travelers' striking of an introverted person from a jury is neither genuine nor relevant and is a "completely deficient race-neutral reason" for the strike.

We conclude that the trial court misapplied and conflated the Melbourne analysis and thus erred in disallowing the strike. First, we begin with the premise and reminder that a peremptory challenge is presumed to be exercised in a nondiscriminatory manner and that the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination. Melbourne , 679 So.2d at 764. Here, the trial court never altered its earlier observation, consistent with that of Travelers' counsel, that the juror was not particularly engaged. Under Dorsey , this satisfied Step 2 under Melbourne and established a presumption that Travelers' use of its peremptory challenge on this juror was genuine. 868 So.2d at 1199.

This determination triggered the trial court's obligation to undertake a Step 3 "genuineness" analysis prior to disallowing the juror strike and swearing the jury. The court admitted that it did not do this nor did it find any reason to do so because it concluded that the race-neutral reason proffered by Travelers for the strike was "legally insufficient." Moreover, a Step 3 "genuineness" analysis under Melbourne focuses not only on the proffered reason for the strike but also on the credibility of the attorney or party proffering the reason. See Young v. State , 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) ("[I]dentifying the true nature of an attorney's motive behind a peremptory strike turns primarily on an assessment of the attorney's credibility."). Here, the trial court repeatedly recognized that Travelers' counsel's reason and explanation for the strike was genuine. Finally, the presumption that Travelers' peremptory challenge was genuine could have been rebutted by other relevant factors such as "the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment." See Rodriguez v. State , 753 So.2d 29, 40 (Fla. 2000) (citing Melbourne , 679 So.2d at 764 n.8 ). However, there is no indication in our record that the trial court either expressly or impliedly undertook this analysis prior to disallowing this strike or that Gallo, as the opponent of the strike, separately made this argument.

Accordingly, we reverse and remand for a new trial. See Hayes , 94 So.3d at 461 ("[T]he proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial."). Lastly, having reversed the underlying judgment in favor of Gallo, we also reverse the separate final judgments awarding him attorney's fees and court costs. See Marty v. Bainter , 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("[A]n award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed.").

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.

      Black's Law Dictionary defines "bona fide" as "1. Made in good faith; without fraud or deceit. 2. Sincere; genuine." Bona fide , Black's Law Dictionary (10th ed. 2014).

      Travelers never asserted that this juror fell asleep during voir dire.


text:
    Leonardo COMESANAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-554
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Leonardo Comesanas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla. 2004) (holding that habeas corpus may not be used as a substitute for an otherwise procedurally-barred or time-barred motion for postconviction relief pursuant to rule 3.850); Jenkins v. State, 6 So.3d 71 (Fla. 3d DCA 2008) ; Thompson v. State, 994 So.2d 1176 (Fla. 3d DCA 2008) ; Griffin v. State, 976 So.2d 107 (Fla. 3d DCA 2008) ; Thomas v. State, 949 So.2d 319 (Fla. 3d DCA 2007) ; Barnard v. State, 949 So.2d 250 (Fla. 3d DCA 2007).


text:
    Jacqueline TEODORO, Appellant, v. Emilio TEODORO, Appellee.
    No. 3D17-830
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018 Rehearing Denied June 28, 2018
    John J. Anastasio (Stuart), for appellant.
    David L. Margolesky, Miami, for appellee.
    Before, EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Watt v. Watt, 966 So.2d 455, 458 (Fla. 4th DCA 2007) ("Shared parental responsibility assumes that the parties can come to agreement on the welfare of their children. Where the parties cannot and will not come to agreement, the trial court can determine that such an impasse constitutes a substantial change in circumstance, requiring modification of the final judgment in the best interest of the children. Because competent substantial evidence supports the trial court's determinations in this case, we affirm the final judgment of modification.").


text:
    Reginald PRESIDENT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1488
    District Court of Appeal of Florida, Third District.
    Opinion filed June 13, 2018 Rehearing Denied July 6, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Vennisee v. State, 235 So.3d 947 (Fla. 3d DCA 2017) ; Rooks v. State, 224 So.3d 272 (Fla. 3d DCA 2017). See also Stern v. State, 240 So.3d 131 (Fla. 2d DCA 2018) ; Rogers v. State, 223 So.3d 281 (Fla. 4th DCA 2017) ; Currie v. State, 219 So.3d 960 (Fla. 1st DCA 2017).


author: Per Curiam.

text:
    Milena ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2227
    District Court of Appeal of Florida, First District.
    June 8, 2018 Rehearing Denied June 26, 2018
    Jason Cromey, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges on appeal the revocation of her probation and the resulting judgment and sentence for the original offenses of organized fraud and fraudulent use of a credit card.

The order revoking probation is remanded for correction of a clerical error regarding admissions by Appellant. The corrected order should reflect that Appellant was found in willful violation of her probation for failure to pay restitution and costs as ordered, upon the evidence presented at the probation revocation hearing. Upon remand for this correction, Appellant need not be present. Knight v. State , 114 So.3d 1067 (Fla. 1st DCA 2013). In all other respects, the judgment, sentence, and order on appeal are affirmed.

AFFIRMED and REMANDED .

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    CITY OF MIAMI GENERAL EMPLOYEES' AND SANITATION EMPLOYEES' RETIREMENT TRUST, et al., Appellants, v. Jose RODRIGUEZ, et al., Appellees.
    No. 3D17-2802
    District Court of Appeal of Florida, Third District.
    Opinion filed June 13, 2018
    Klausner, Kaufman, Jensen & Levinson, and Robert D. Klausner, Adam P. Levinson, and Paul A. Daragjati (Plantation), for appellants.
    No appearance for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   ROTHENBERG, C.J.

The defendants below, City of Miami General Employees' and Sanitation Employees' Retirement Trust, et al. (collectively, "the defendants"), appeal from a non-final order which granted their motion to dismiss Counts I and III of the operative complaint, but denied their motion to dismiss Count II. Following our review of the non-final order denying the defendants' motion to dismiss, and the defendants' response to this Court's order to show cause, we dismiss this non-final appeal for lack of jurisdiction.

The defendants moved to dismiss all counts of the plaintiffs' operative complaint, raising several arguments, including sovereign immunity. During the hearing held on the defendants' motion to dismiss, the issue of sovereign immunity, among others, was raised by the defendants' counsel. At the conclusion of the hearing, the trial court took the defendants' motion to dismiss under advisement, and thereafter, the trial court issued a twenty-eight page order granting the defendants' motion to dismiss as to Counts I and III of the operative complaint, but denying the motion to dismiss as to Count II.

Despite the length of the non-final order, the order fails to address the issue of sovereign immunity and there is nothing in the order which reflects that the trial court has ruled on the immunity issue. Thus, this non-final order is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x), which permits the appeal of a non-final order that determines "that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes," or rule 9.130(a)(3)(C)(xi), which permits the appeal of a non-final order that determines "that, as a matter of law, a party is not entitled to sovereign immunity." See generally Citizens Prop. Ins. Corp. v. Calonge, 246 So.3d 447, 2018 WL 1832325 (Fla. 3d DCA Apr. 18, 2018) ; Miami-Dade Cty. v. Pozos, 242 So.3d 1152, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017). Accordingly, we dismiss the defendants' appeal of the non-final order as we lack jurisdiction.

Dismissed.


text:
    Richard SHEPPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-829
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, FERNANDEZ, and LUCK, JJ.
   PER CURIAM.

Affirmed. See Vennisee v. State, 235 So.3d 947 (Fla. 3d DCA 2017).


text:
    William N. EDWARDS, Appellant, v. WILMINGTON TRUST, NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D17-879
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Spittler & Associates, P.A., and John Spittler, Jr., for appellant.
    Law Office of Gary Gassel, P.A., and Gary I. Gassel (Sarasota); Susan J. Silverman (Sarasota), for appellee.
    Before EMAS, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; All Counties Surplus LLC v. Flamingo South Beach I Condo. Ass'n, Inc, 211 So.3d 1096 (Fla. 3d DCA 2017).


text:
    Kirenia FERNANDEZ, Appellant, v. LIFEMARK HOSPITALS OF FLORIDA, INC., Appellee.
    Nos. 3D17-2558 & 3D17-1726
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018
    Thomas Butler, P.A., and Thomas J. Butler, for appellant.
    Billing, Cochran, Lyles, Mauro & Ramsey, P.A., and John W. Mauro, and Scott C. Cochran (Fort Lauderdale), for appellee.
    Before SUAREZ, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Vazquez v. Wal-Mart Stores, Inc., 245 So.3d 977, 2018 WL 2027025 (Fla. 3d DCA 2018) ; Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275 (Fla. 3d DCA 2017) ; Wilson-Greene v. City of Miami, 208 So.3d 1271 (Fla. 3d DCA 2017) ; § 768.0755, Fla. Stat. (2014).


text:
    J.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2359
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey P. DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. Beasley v. State, 774 So.2d 649, 657 (Fla. 2000) (observing: "In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence' ") (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) ); State v. Rodriguez, 71 So.3d 154 (Fla. 3d DCA 2011) (observing that when a defendant moves for a judgment of acquittal based upon insufficiency of the evidence, all reasonable inferences and conclusions that may be drawn from the evidence must be viewed in the light most favorable to the State).


text:
    R.J., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1452
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ, and LUCK, JJ.
   PER CURIAM.

Affirmed. See J.A. v. State, No. 3D16-2381, --- So.3d ----, 2018 WL 2422884 (Fla. 3d DCA May 30, 2018).


text:
    James Wyatt MCGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2041
    District Court of Appeal of Florida, First District.
    June 21, 2018
    James Wyatt McGriff, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Rivera v. Department of Health , 177 So.3d 1 (Fla. 1st DCA 2015).

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Eduardo SANTIAGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-360
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Jeffrey Paul DeSousa, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before, EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See State v. Hinman, 100 So.3d 220 (Fla. 3d DCA 2012) ; State v. Sherrod, 893 So.2d 654 (Fla. 4th DCA 2005) ; State v. Stone, 889 So.2d 999 (Fla. 5th DCA 2004).


author: SUAREZ, J.

text:
    Torrance Kenneth ROGERS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-0213
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018.
    Torrance Kenneth Rogers, in proper person.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for respondent.
    Before SUAREZ, LAGOA and LUCK, JJ.
   SUAREZ, J.

Torrance Rogers petitions this Court for a writ of prohibition seeking to dismiss a petition, filed below, for civil commitment of a sexually violent predator (a "Ryce Act" petition). Rogers claims the trial court violated his rights under section 394.916, Florida Statutes (2017), when it did not commence a jury trial within thirty days of his request in open court. Because Rogers has an adequate remedy below, we dismiss his petition for writ of prohibition as premature. See Osborne v. State, 907 So.2d 505, 507 (Fla. 2005) ("[Defendant] moved to dismiss the Ryce Act petition against him on the basis that the State failed to bring the case to trial within the thirty days of the trial court's probable cause finding, as required by section 394.916(1), Florida Statutes (1999)."); State v. Goode, 830 So.2d 817, 819 (Fla. 2002) ("[W]hile [Defendant] was still being detained without trial, defense counsel filed two additional motions to dismiss the proceedings, and ... a hearing on [Defendant's] motions to dismiss was held before ... the assigned judge. At the conclusion of the hearing, [the judge] dismissed the proceedings on a violation of the statutory provision requiring a final hearing to commence within thirty days of the ex parte finding of probable cause.").

Dismissed.


text:
    John Domenick AGLIO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1219
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    George T. Pallas, Miami, for petitioner.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

John Domenick Aglio petitions this court for a writ of habeas corpus, contending that the $700,000 bond set by the trial court on his felony charge violates his right to pretrial release on reasonable conditions as guaranteed under Article I, section 14 of the Florida Constitution.

Upon consideration of the petition and response, as well as the relevant allegations and circumstances established in this record, we grant the petition.

We withhold formal issuance of the writ and remand this cause to the trial court with the following directions. If it so chooses, the State may, no later than three business days following issuance of this opinion, file a legally sufficient motion for pretrial detention. Should the State fail to file such a motion, the trial court shall immediately thereafter conduct a hearing to determine the reasonable conditions of release pursuant to Florida Rule of Criminal Procedure 3.131 and sections 903.046-.047, Florida Statutes (2018). This opinion shall take effect immediately, notwithstanding the filing of any motion for rehearing.

      Aglio is charged with violating section 836.10, Florida Statutes (2018), which provides:
      Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, or any person who makes, posts, or transmits a threat in a writing or other record, including an electronic record, to conduct a mass shooting or an act of terrorism, in any manner that would allow another person to view the threat, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      That section provides:
      Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.


text:
    Jeffery L. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1655
    District Court of Appeal of Florida, First District.
    June 27, 2018
    Jeffery L. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    OHL BUILDING, INC., etc., Appellant, v. MURPHY CONSTRUCTION FINISHERS, INC., etc., Appellee.
    No. 3D17-1716
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Malka & Kravitz, P.A., and Ian T. Kravitz and Harry Malka (Fort Lauderdale), for appellant.
    Mansfield, Bronstein & Stone, LLP, and Robert J. Mansen and Gary N. Mansfield (Fort Lauderdale), for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. Underwater Eng'g Servs., Inc. v. Utility Bd. of City of Key West, 194 So.3d 437, 444 (Fla. 3d DCA 2016) (holding: "In reviewing a judgment rendered after a bench trial, 'the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous.' Thus, they are reviewed for competent, substantial evidence." (citing Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 535 (Fla. 3d DCA 2015) ; Verneret v. Foreclosure Advisors, LLC, 45 So.3d 889, 891 (Fla. 3d DCA 2010) ) ). See also Friedman v. Virginia Metal Prods. Corp., 56 So.2d 515, 517 (Fla. 1952) (holding: "A word or phrase in a contract is 'ambiguous' when it is of uncertain meaning and may be fairly understood in more ways than one" and, under such circumstances, "parol testimony may be received, not to vary or change the terms of the contract, but to explain, clarify or elucidate" the ambiguity).


text:
    Ernest COLEMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1922
    District Court of Appeal of Florida, First District.
    June 27, 2018
    Ernest Coleman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Jamail D. ZIEGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1572
    District Court of Appeal of Florida, First District.
    June 27, 2018
    Jamail D. Ziegler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

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


text:
    ACE AMERICAN INSURANCE COMPANY, Petitioner, v. Kenneth Mark GREGORSKI, et al., Respondents.
    No. 3D18-508
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Cooney Trybus Kwavnick Peets, and Warren Kwavnick (Fort Lauderdale), for petitioner.
    Kenneth Gregorski, pro se, respondent.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Ace American Insurance Company ("Insurer") seeks a writ of certiorari quashing a circuit court order denying the Insurer's motion to dismiss the respondent's, Mr. Gregorski's, complaint for declaratory relief. The petition and appendix established that Mr. Gregorski's complaint for third-party coverage failed to comply with the non-joinder provisions of section 627.4136, Florida Statutes (2017).

Mr. Gregorski's counsel in the circuit court proceeding did not appear in response to the petition, nor did Mr. Gregorski himself file a response. Finding the petition well taken, we grant it and quash the order denying the Insurer's motion to dismiss. Lantana Ins., Ltd. v. Thornton, 118 So.3d 250 (Fla. 3d DCA 2013). See also GEICO Gen. Ins. Co. v. Martinez, 240 So.3d 43 (Fla. 3d DCA 2018).

Petition granted, order quashed.


text:
    Benjamin ATKIN, Appellant, v. Murray L. KANE, M.D., Appellee.
    No. 3D17-1838
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Dickinson Wright PLLC, and Alan J. Perlman and Vijay G. Brijbasi (Fort Lauderdale), for appellant.
    Simon, Schindler & Sandberg, LLP, and Sherryll Martens Dunaj and Neal L. Sandberg, Miami, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Benjamin Atkin, defendant below, appeals from the trial court's order striking his answer and affirmative defenses to the complaint, and the resulting final judgment entered in favor of Murray Kane, plaintiff below.

We affirm that portion of the trial court's order which concluded that the actions and conduct of Atkin, including his answer to the complaint and answers to interrogatories, "at best were inaccurate and, at worst ... are deceptive." We also affirm the trial court's order insofar as it determined that Atkin's conduct and actions justified the imposition of sanctions.

However, we reverse that portion of the trial court's order striking Atkin's pleadings, leading to entry of a final judgment against him. We hold that imposition of this severest of sanctions-foreclosing any further defense of the action and the resulting entry of final judgment-was simply too severe under the circumstances presented and was not commensurate with the conduct and actions at bar. See, e.g., Prater v. Comprehensive Health Ctr., LLC, 185 So.3d 559, 560 (Fla. 3d DCA 2016).

We therefore vacate the final judgment, reverse in part the order striking Atkin's pleadings, and remand to the trial court for consideration of commensurate sanctions and for further proceedings consistent with this opinion.

      Atkin also seeks to appeal the trial court's order which determined only entitlement to attorney's fees pursuant to section 57.105, Florida Statutes (2016) but deferred a determination of the amount of those fees. We dismiss this portion of the appeal as one taken from a nonfinal, nonappealable order. See Tower Hill Prime Ins. Co. v. Torralbas, 176 So.3d 374 (Fla. 3d DCA 2015) ; Reid v. Estate of Sonder, 63 So.3d 7 (Fla. 3d DCA 2011) ; Chaiken v. Suchman, 694 So.2d 115 (Fla. 3d DCA 1997) ; Gonzalez Eng'g, Inc. v. Miami Pump and Supply Co., Inc., 641 So.2d 474 (Fla. 3d DCA 1994).


text:
    STATE of Louisiana v. Kenneth MOORE
    No. 2018-KK-1051
    Supreme Court of Louisiana.
    June 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
    Stay denied. Writ denied.
    CRICHTON, J., additionally concurs and assigns reasons.
   I additionally concur in the denial of the State's writ application because the trial court has not made a final judgment on the motion in limine that is the subject thereof, thus rendering the application premature.


author: PER CURIAM:

text:
    STATE of Louisiana v. Justin D. GRANIER
    No. 2018-KP-0690
    Supreme Court of Louisiana.
    June 18, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Granted. Defendant's complaint regarding the seating of the now-deceased juror fails to allege a claim which, if established, would entitle him to relief. La.C.Cr.P. art. 928. See also Burton v. Johnson , 948 F.2d 1150, 1156 (10th Cir. 1991) ("A party who seeks a new trial because of non-disclosure by a juror during voir dire must show actual bias, either by express admission or proof of specific facts showing a close connection to the circumstances at hand that bias must be presumed."). In addition, defendant has failed to show 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). Therefore, we grant the State's application to vacate the district court's ruling setting this matter for an evidentiary hearing, and we remand for further proceedings consistent with this ruling.

Defendant has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Defendant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, defendant 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. Elijah MEALANCON
    NO. 2017-KK-0933
    Supreme Court of Louisiana.
    June 25, 2018
    Denied. Moot.


text:
    STATE of Louisiana v. Marvin ACEVEDO
    NO. 2018-KK-0922
    Supreme Court of Louisiana.
    June 25, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Matthew DAUZAT
    NO. 2018-KK-0972
    Supreme Court of Louisiana.
    June 25, 2018
    Denied.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-17816
    NO. 2018-BA-0882
    Supreme Court of Louisiana.
    June 21, 2018
    Denied. See Supreme Court Rule XVII, § 4(C). Any fees previously paid by applicant to take the February 2018 bar exam may be applied to a subsequent application. See Supreme Court Rule XVII, Appendix A.


text:
    STATE of Louisiana v. Elijah MEALANCON
    NO. 2017-K-1777
    Supreme Court of Louisiana.
    June 25, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana IN the INTEREST OF S.C.
    NO. 2017-CK-2052
    Supreme Court of Louisiana.
    June 25, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


author: Judge Joy Cossich Lobrano

text:
    IN RE the ROUGE HOUSE, LLC, Appeal from Decision of State of Louisiana Dept. of Revenue, Office of Alcohol and Tobacco Control Denying Alcoholic Beverage Permit
    NO. 2017-CA-0602
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 2, 2018
    Tracy Riley, 13482 Hwy. 23, Belle Chasse, LA 70037, APPELLANT/IN PROPER PERSON
    Michael G. Bagneris, DAVILLIER LAW GROUP, 935 Gravier Street, Suite 1702, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   Judge Joy Cossich Lobrano

Plaintiff/Appellant, The Rouge House, LLC ("Rouge House"), appeals the June 13, 2016 judgment of the district court, which granted the motion for summary judgment by the State of Louisiana, Department of Revenue, Office of Alcohol and Tobacco Control ("ATC") and dismissed Rouge House's petition seeking review of ATC's denial of Rouge House's application for a Class A Restaurant Beer and Liquor Permit. For the following reasons, we dismiss the appeal.

The particular issue before this Court stems from a series of filings by Tracy Riley ("Riley"). Riley is the member-manager of Rouge House and is not an attorney.

Following the district court's denial of a new trial on the motion for summary judgment, Rouge House filed a motion for devolutive appeal on August 22, 2016, through its counsel of record, Ernest L. Jones ("Jones"). The district court record contains no formal motion by Jones to withdraw as counsel of record. The record also contains no motion for appeal filed by Riley.

On July 21, 2017, this Court issued a notice of lodging to the parties advising that the appellant brief was due on August 15, 2017. On September 8, 2017, Riley filed a "motion to enroll as pro se appellant" on behalf of herself and on behalf of Rouge House. In this motion, Riley represented to this Court that she is the appellant in these proceedings, that Jones' "health prevents him from being able to handle this appeal," and that she wished to "represent herself." On the same date, Riley filed motions for extension of time to file a brief and to reinstate oral argument. Riley attached to these motions a statement signed by Jones asserting that: (1) Jones advised Riley that he "could not handle an appeal and showed her on what to do to protect her rights"; (2) Jones does not recall filing a motion for appeal but he has since seen one bearing his signature; and (3) Jones does not recall receiving this Court's notice of lodging and did not inform Riley of any appellate briefing deadlines.

Based on Riley's representation that she is an appellant in these proceedings, on September 11, 2017, this Court issued orders enrolling Riley in this matter pro se and allowing an extension of time to file a brief. Riley filed a brief with this Court on October 23, 2017. On further review of the record, however, on February 20, 2018, this Court vacated the aforementioned orders dated September 11, 2017. On February 21, 2018, this Court ordered Riley to show cause why she should be permitted to file a brief, as she was not a party to the underlying litigation before the district court and did not file a motion for appeal.

On March 5, 2018, Rouge House and Riley filed motions to file amended brief and amend case caption, which were signed by Jones as "attorney in trial court." The motions requested various forms of relief, including: (1) leave to file an amended brief; (2) to add Riley as a plaintiff; (3) for Riley to appear on behalf of Rouge House; (4) to amend the case caption to add Riley as a party; and/or (5) for thirty (30) days for Rouge House to retain an attorney and file an appellant brief.

On March 7, 2018, this Court ordered Jones to advise this Court whether he remained counsel for Rouge House and/or to withdraw as counsel of record. In the event of Jones' withdrawal as counsel, we permitted Rouge House thirty (30) days within which to retain new counsel and file a brief through counsel. In our March 7, 2018 order, we cautioned Rouge House that if no such brief was filed within this Court's thirty-day deadline, this appeal would be dismissed as abandoned.

On April 2, 2018, Jones filed a statement with this Court that he does not represent Riley or Rouge House in this appeal, that he advised his clients that he would not represent them on appeal, and that he signed the March 5, 2018 motions at Riley's request but did not intend his signature to be an appearance of record.

This Court's deadline for Rouge House to file an appellant brief through counsel expired on April 6, 2018. On April 6, 2018, Riley filed a motion for extension of time, requesting an additional six months to retain counsel to prepare a brief.

On April 9, 2018, Kenneth C. Bordes filed a motion to enroll as counsel of record for "plaintiff," for a stay of this appeal due to a purportedly pending matter in the district court to which Rouge House is a party, and/or alternatively for an extension of time to file a brief.

For the reasons that follow, we are constrained to deny the relief requested as untimely and to dismiss Rouge House's appeal as abandoned and for failure to comply with the orders of this Court.

While Riley seeks to appear on behalf of Rouge House, she also represents to this Court that she is not an attorney. This Court "has routinely held that corporate entities must be represented by counsel." Bankston v. Tasch, LLC , 2009-1573, p. 5 (La. App. 4 Cir. 6/2/10), 40 So.3d 495, 498. "[E]ven where a limited liability company has a sole shareholder, it is an entity separate and distinct from that shareholder in terms of procedural capacity." Id. , 2009-1573 at pp. 5-6, 40 So.3d at 498. See also Torregano v. Imperium Builders S., LLC , 2016-0644, pp. 5-6 (La. App. 4 Cir. 2/15/17), 212 So.3d 638, 641 (citing La. R.S. 37:212, 37:213) ; Deal v. Lexing-Powell , 36,168, p. 10 (La. App. 2 Cir. 8/16/02), 824 So.2d 541, 547 (holding that a president of a corporate defendant, who had not been licensed and admitted to practice law by the Louisiana Supreme Court, could not bring an appeal of an order and judgment rendered against the corporation; if the president did so, he would be carrying on the unauthorized practice of law under La. R.S. 37:212 and 37:213 ). Rouge House, as a limited liability company, is a separate and distinct entity from Riley. Riley cannot represent Rouge House on appeal, as she is not an attorney. Instead, Rouge House must be represented by counsel.

Riley also seeks to appear pro se and represent her own interests on appeal. Riley, however, is not a party to this appeal. No motion for appeal was filed by Riley in the lower court. The only motion for appeal herein was filed by Rouge House, through Jones as counsel of record, on August 22, 2016, and granted by the district court that same date. Rouge House is the only appellant herein. As discussed, Rouge House, as a corporate entity, must be represented by an attorney to proceed on appeal. Jones represents to this Court that he was counsel for Rouge House for trial purposes only, and that he advised Rouge House, through Riley, of his inability to represent Rouge House on appeal at the time the June 13, 2016 judgment was rendered.

Rule 2-8.6 of the Uniform Rules-Courts of Appeal provides for the abandonment of civil appeals as follows:

For civil appeals, if an appellant does not file a brief within the time prescribed by Rule 2-12.7 or any extension thereof granted by the court as provided by Rule 2-12.8, a notice shall be transmitted by the clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days thereafter unless a brief is filed in the meantime. If an appellant does not file a brief within 30 days after such notice is transmitted, the appeal shall be dismissed as abandoned. Provided, however, that irrespective of the time limit provided in Rule 2-12.7 for the appellee to file a brief, the appellee's brief shall be filed within 20 days from the due date shown on the notice of abandonment.

In the present case, this Court issued an order on March 7, 2018 permitting Rouge House thirty (30) days within which to retain counsel and file a brief, through counsel. This Court's order admonished that if a brief was not filed within thirty (30) days, the appeal would be dismissed as abandoned. This Court's deadline expired on April 6, 2018. As of the date of this opinion, Rouge House has not filed a brief through an attorney. "If the brief is still not filed, the rule provides that the appeal 'shall' be dismissed." Talley v. Hughes , 438 So.2d 263, 264 (La. App. 4th Cir. 1983) (citing Rule 2-8.6, Uniform Rules-Courts of Appeal ). Accordingly, we dismiss the appeal.

While Riley filed a "pro se " motion for an extension of time on April 6, 2018, her motion contains no reference to Rouge House and does not purport to request such relief on Rouge House's behalf. Regardless, for the reasons described above, Riley is not permitted to represent Rouge House on appeal. Therefore, this motion is denied.

Additionally, the April 9, 2018 motion by Rouge House, seeking to enroll new counsel and for stay of the appeal and/or extension of time to file an appellant brief, is untimely and cannot now revive this appeal, as the motion was not filed until after the brief was due. This Court may only grant an extension of time within which to file the brief, for good cause shown, where a written motion for extension was filed on or before the date the brief was due. Rule 2-12.8, Uniform Rules-Courts of Appeal. "An extension of time may not be granted if such extension will retard the hearing or determination of the case." Id. The untimely motion also fails to demonstrate that granting a stay or additional time to file an appellant brief would not further delay the determination of this matter. Accordingly, the motion is denied.

Additionally, this Court vacated its order of September 11, 2017 ruling on the motions filed by Riley on September 8, 2017 to appear pro se , for extension of time to file a brief, and to reinstate oral argument. The motions of September 8, 2017 are denied.

Though we acknowledge that dismissal of this appeal seems a harsh remedy, it cannot be overlooked that Rouge House and Riley have long been aware that trial counsel, Jones, would not represent Rouge House on appeal. No dispute exists that Jones advised Rouge House and Riley of such nearly two years ago at the time the ruling on appeal was rendered in the district court. Moreover, the requirement of obtaining counsel to represent Rouge House was previously litigated in the district court when ATC filed an exception of lack of procedural capacity, in response to Riley filing a petition in the district court, ultimately resulting in Rouge House retaining Jones as counsel of record in the district court. Notwithstanding the above, this Court properly notified Rouge House of briefing deadlines and alerted Rouge House that if an appellant brief was not filed by counsel within thirty (30) days, the appeal would be dismissed. No brief was filed with this Court, and Rouge House has failed to comply with this Court's order; Rouge House's request for further extension of briefing deadlines is untimely, and we lack authority to grant it. Rule 2-12.8, Uniform Rules-Courts of Appeal.

For these reasons, we dismiss the appeal of the June 13, 2016 judgment of the district court. The motions of September 8, 2017, April 6, 2018, and April 9, 2018 detailed in this opinion are denied.

APPEAL DISMISSED; MOTIONS DENIED

JENKINS, J., CONCURS IN THE RESULT

      Rouge House was also represented at the summary judgment hearing by co-counsel, John S. Williams. While the district court record contains no formal motion to withdraw by Williams, neither his name nor signature appears on the motion for appeal or in any filings in this Court.

      This Court deferred ruling on the motion to reinstate oral argument, and we rule on said motion in this opinion.

      This Court also denied all other requests in the motions of March 5, 2018.

      While La. C.C.P. art. 2086 provides that a "person who could have intervened in the trial court may appeal," Riley has not raised this argument, and it is therefore waived. Likewise, Riley failed to file a motion for appeal within the deadlines provided by La. C.C.P. art. 2087 and has not otherwise shown that any appeal she may bring now would be timely.

      "If appellant's counsel was supposed to have filed a brief for appellant or owed some other duty to appellant that he did not perform, appellant may complain against him, but that does not oblige other litigants to wait forever, never knowing whether a lawsuit is over." Talley , 438 So.2d at 264.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Dillion Wade TRAHAN aka Dillon Wade
    17-1060
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Keith A. Stutes, District Attorney, Fifteenth Judicial District, J.N. Prather, Jr., Roger P. Hamilton, Jr., Assistant District Attorneys, P. O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, P. O. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Dillion Wade Trahan
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   SAUNDERS, Judge.

On May 27, 2015, Defendant, Dillion Wade Trahan aka Dillon Wade, was charged by bill of indictment with the January 28, 2015 second degree murder of Silas Tate, in violation of La.R.S. 14:30.1. On September 7, 2017, a jury found Defendant guilty as charged. On September 14, 2017, Defendant was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence, as required by La.R.S. 14:30.1.

Defendant now appeals his conviction and sentence, raising a single assignment of error: the evidence introduced at trial is insufficient to support his conviction for second degree murder.

FACTS:

Staff Sergeant Michael Hiatt of the Lafayette Parish Sheriff's Office testified that he was a detective in the "crimes against persons unit" at the time Silas Tate was killed. Sergeant Hiatt testified he was the on-call detective and was called out with information that someone had been shot and there were witnesses and officers on the scene. He stated that when he arrived at the scene Anthony Savoy and Charlotte Broussard were attempting to transport Silas Tate to the hospital; Kelsey Trahan, Dylan Guidry, and Steve Trahan, Jr. were in Steve Trahan, Jr.'s home; and Steve Trahan, Sr. and Heather Trahan were in their home. Anthony, Charlotte, Steve Trahan Sr., and Steve Trahan Jr., live in trailer homes near one another.

Sergeant Hiatt stated that Charlotte Broussard advised him that she had given Anthony Savoy permission to use a trailer located on the Trahans' property, and that in the process of retrieving the trailer Anthony knocked down the Trahan's gate, which resulted in an altercation in front of Anthony's trailer between her, Anthony Savoy, Silas Tate, Steve Trahan Sr., Steve Trahan, Jr., Dylan Guidry, and Defendant, during which time Heather Trahan made two 9-1-1 calls. Sergeant Hiatt testified that Charlotte advised him that at onset of the altercation Steve Sr. was chasing her with a knife, then he began chasing Silas with it, that she heard gun shots, and saw Silas fall. Initially Charlotte said the shots came from where Dylan Guidry was standing, but later said that the shots came from where Defendant was standing. She also stated that when Silas went down, Steve Sr., Steve Jr., and Dylan Guidry were all in front of her and none of them had a gun.

The others involved in the altercation were also interviewed. However, the statements given by those witnesses were either evasive, inconsistent, or later recanted.

Sergeant Hiatt testified that Kelsey and Dylan's stories changed over time. Initially they both stated that they were inside their home when the altercation occurred, had not seen anything, and neither recalled seeing Defendant that night. Later Kelsey stated that Defendant could have been there, although she was not certain. Whereas, Dylan later stated that both he and Kelsey had seen Dillion that night.

Sergeant Hiatt testified he believed that the Trahan family was trying to cover up Dillion's involvement:

During my interviews with the family, it was a lot of trying to cover up where Dillion was. He wasn't there. Then, some said he was there. Then, some said they never saw him. Some said he was camping. And so it was a bunch of misdirection from the family during the interviews.

Steve Trahan, Sr.'s story changed repeatedly. Initially he stated that during the altercation he was inside his home waiting on law enforcement, then he stated that his involvement consisted of yelling at Anthony from across the yard, then he stated that he was at Anthony's during the altercation. He also stated that he was unsure if Defendant was there, but subsequently stated that he had told Defendant not to go to Anthony's. Finally, he stated "he fucked up", meaning Defendant.

Heather Trahan, Defendant's mother, initially claimed that none of her family had gone to Anthony's, but the State introduced recordings of her 9-1-1-calls that disprove that. In her initial 9-1-1 call regarding Anthony taking the trailer, Heather tells law enforcement they needed to hurry up and get there before "somebody is gonna really get badly hurt." She also states that there are four vehicles at Anthony's: Anthony's truck, Charlotte's car, a black SUV, and a grey car, but that she does not know to whom the last two vehicles belong. In her follow up call to 9-1-1 Heather repeatedly stops speaking to the dispatcher so that she can yell at people at the scene, at some point yelling at "Dillion" to quit and at other times yelling at both "Dillion" and "Steve" to "get back here." After the 9-1-1 calls were played so that Heather could hear herself screaming at her sons, Defendant and Steve Jr., she admitted people went to Anthony's but still claimed Defendant was not there; rather, she was screaming at Dylan Guidry. She later admitted it may have been Defendant, as Dylan Guidry had never gone down to Anthony's.

Steve Jr., Defendant's brother, denied that he shot Silas and began to cry when asked whether Defendant had shot Silas. He did, however, place Defendant at the scene.

The Defendant and his girlfriend Courtney, were located the following morning at Courtney's mother's house. Initially Courtney stated that neither she nor Defendant were present when Silas was shot. Later she admitted that Defendant had dropped her off at her mother's house for a while.

Lieutenant Drew Leblanc with the Lafayette Parish Sheriff's Office interviewed Dylan Guidry, who stated that he saw Dillion Trahan shoot Silas Tate. Dylan Guidry's statement was consistent with Charlotte's. He stated that during the altercation he saw Dillion Trahan break from the group, go down the fence line, get into his vehicle, pull down the street, stop his vehicle, step outside of it, take a shooter's stance, fire two rounds in the direction of Anthony's trailer, scream for his girlfriend to get in the car, and flee the scene.

Detective Leblanc testified Defendant became a suspect based on the consistent stories given by Charlotte Broussard and Dylan Guidry. Furthermore, according to the witnesses, the only person with a firearm that night was Defendant. The pathologist ruled out suicide; therefore, Silas Tate could not have possessed the gun that shot him. As a result, there was sufficient evidence to charge Defendant with the second-degree murder of Silas Tate.

Dr. Christoper Tape, a forensic pathologist, testified that the decedent's body had a gunshot wound in front of the external ear and right above the ear canal on the temple. Furthermore, there was no strippling that means it was not a close shot. Dr. Tape's testimony corroborates the testimony of Dylan Guidry who stated that Dillion Trahan shot Silas Tate and that Tate was shot in the head.

On September 7, 2017, a jury found Defendant guilty as charged. On September 14, 2017, Defendant was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence, as required by La.R.S. 14:30.1. On December 11, 2017, Defendant appealed his conviction.

ASSIGNMENT OF ERROR:

In his sole assignment of error, Defendant argues "[t]he evidence adduced at trial was insufficient to support his conviction for second degree murder." Defendant's argument is essentially that the State's case is made up entirely of circumstantial evidence, and the State failed to exclude "several reasonable hypothes[e]s of innocence."

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Under La.R.S. 14:30.1, second degree murder is defined as the killing of a human being "when the offender has a specific intent to kill or to inflict great bodily harm." As the fourth circuit recently noted in State v. White , 14-397, p. 17 (La.App. 4 Cir. 7/29/15), 174 So.3d 177, 189, writ denied , 15-1577 (La. 10/10/16), 207 So.3d 408 (footnote omitted), "to prove second degree murder the state must prove the killing of a human being either with specific intent or when the offender is engaged in one of the listed crimes."

Defendant's argument is that he was convicted based mostly on circumstantial evidence as there was no direct evidence linking him to the shooting. There was no positive identification, no indication he had a gun, no gun residue test, and more importantly, no gun." We note that this argument fails to apply the Jackson standard of viewing the evidence in the light most favorable to the prosecution.

As noted above, "[i]t is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review." Id. Detective Hiatt introduced the jury to Dylan Guidry's claim that he saw Defendant get out of his car, shoot twice towards Silas, then yell at his girlfriend to get in the car before speeding away from the scene. Furthermore, Dylan confirmed he made those statements to law enforcement at trial, though he recanted and claimed those statements were made under threats from law enforcement. It is clear that at some point Dylan Guidry lied about what happened the night Silas Tate was murdered. It was up to the jury to decide whether he was lying when he said Defendant committed the murder or when he claimed at trial that he never left the trailer and, therefore, had no idea who shot Silas.

We recognize that the State's case was based almost entirely on eyewitness testimony, namely the testimony of Charlotte Broussard and the recanted statement of Dylan Guidry, Defendant's brother-in-law. The testimony presented to the jury, primarily from Defendant's family, was inconsistent with prior statements given by themselves and with each other on various aspects. We find that in the light most favorable to the prosecution, the State proved its case beyond a reasonable doubt. As this court has previously noted regarding an eyewitness who gave different statements at different times:

Clearly, the jury was made aware of the witness's lies but still found him credible regarding the offense. As the jurisprudence makes clear, a jury's credibility assessment is not to be second-guessed on appeal. This court has only a cold record to analyze, while the jury was able to view the witness's demeanor and hear the inflections in his voice.

State v. Kato , 12-1356, p. 6 (La.App. 3 Cir. 5/15/13), 157 So.3d 695, 700.

While the witness in Kato was a codefendant, the jury in the instant case was presented with an eyewitness, Dylan Guidry, who admitted to telling law enforcement that he saw Defendant get out of his car, shoot the victim, then drive away. Although Dylan returned at trial to his original story of having never gone outside during the whole incident, "the jury was free to believe or not to believe all or part of [the witness's] testimony." State v. Dugar , 93-718, p. 13 (La.App. 3 Cir. 10/5/94), 643 So.2d 870, 878, writ denied , 94-2712 (La. 6/30/95), 657 So.2d 1019. As this court noted in State v. Dyson , 17-21, p. 4 (La.App. 3 Cir. 5/17/17), 220 So.3d 785, 789, "the supreme court has established that positive identification by one witness only is sufficient to support a conviction." Viewing the evidence in the light most favorable to the prosecution, we find that a rational jury could have decided Dylan was telling the truth when he identified Defendant as the shooter rather than when he testified at Defendant's trial. Given that Dylan's story at trial cannot be reconciled with Heather Trahan's testimony and 9-1-1 calls, it is reasonable for the jury to make such a decision on witness credibility.

We find that viewing the evidence in the light most favorable to the prosecution, Dylan Guidry's statement to law enforcement, which corroborates the information Charlotte Broussard gave to law enforcement, is sufficient to support Defendant's conviction for the second-degree murder of Silas Tate.

CONCLUSION:

For the foregoing reasons, we affirm the trial court's September 7, 2017, conviction of Defendant for the charge of second degree murder.

AFFIRMED.