author: Jay, J.

text:
    Zachary M. MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3996
    District Court of Appeal of Florida, First District.
    June 20, 2019
    Andy Thomas, Public, Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Jay, J.

In this appeal from his conviction for ten counts of possession of photographs depicting sexual conduct by a child, Appellant claims that the trial court committed reversible error in denying his motion to suppress, which asserted that law enforcement conducted an illegal warrantless search by opening and reviewing an image file that had been flagged by a private party as matching known child pornography. We affirm because the trial court properly found that Appellant failed to demonstrate that he had a reasonable expectation of privacy when he uploaded child pornography to an anonymous online chat room. Alternatively, we conclude that Appellant's motion was properly denied under the private search doctrine.

I.

Appellant uploaded a digital image file to an anonymous chatroom hosted by ChatStep, a private company in California. ChatStep had a subscription with PhotoDNA-a private company run by Microsoft-that compared the hash value of the file with the hash values of known images of child pornography. Upon receiving notification from PhotoDNA that the hash value of the file matched the hash value of known child pornography, ChatStep sent the image file to the National Center for Missing and Exploited Children (NCMEC), which then sent the file to the Florida Department of Law Enforcement (FDLE). It is undisputed that no person connected with PhotoDNA, ChatStep, or NCMEC had opened and viewed the file before it was sent to FDLE. An FDLE agent opened the file and confirmed that it contained child pornography, which was used to obtain a search warrant for Appellant's home and two computers.

After he was charged with ten counts of possession of photographs depicting sexual conduct by a child, Appellant filed a motion to suppress on the ground that FDLE conducted an unlawful search in violation of the Fourth Amendment when its agent opened the image file prior to obtaining a warrant. Appellant claimed that all evidence of child pornography-as well as his incriminating statements concerning the child pornography-had to be suppressed because the unlawful opening of the file tainted the subsequent search of Appellant's home and computers.

At the suppression hearing, the only witness to testify was Christopher Wilkinson, a forensics specialist for the Escambia County Sheriff's Office. Wilkinson testified that the hash value of a file was a secure computer-generated algorithm that ensured the authenticity of data shared between two or more users. Wilkinson further testified (1) that a hash value was so sensitive that if one took a picture file and changed the shading of one pixel out of the millions of pixels that made up the picture, the hash value would be completely different; (2) that there had never been two different files with the same hash value other than in a lab setting where it took two supercomputers over two years to manufacture an identical hash value for two different and very small (four kilobyte) files; (3) that it was not possible for the average home computer to create the same hash value for two different pictures, each of which would contain from 256 kilobytes to 17 megabytes of data; and (4) that there was more of a chance that two random individuals shared the same DNA than two random files shared the same hash value. According to Wilkinson, when a hash value was identified in a database as child pornography, it had been identified by a human being as being child exploitative at one point in time, and it was not necessary for a company to have their employees repeatedly view such images, which often resulted in posttraumatic stress.

After Wilkinson's testimony, the parties presented argument on whether the opening of the image file constituted a search under the Fourth Amendment. The trial court then inquired about whether Appellant had a reasonable expectation of privacy when he uploaded child pornography to an online chatroom. After taking the matter under advisement, the trial court denied the motion to suppress on the ground that Appellant had not demonstrated that he had a reasonable expectation of privacy that would invoke the protections of the Fourth Amendment.

Afterwards, Appellant entered an open plea of nolo contendere to all ten counts, reserving the right to appeal the denial of his dispositive motion to suppress. The trial court adjudicated Appellant guilty and sentenced him to 36.4 months in prison followed by 2 years of community control and 5 years of probation. This appeal followed.

II.

Under article I, section 12 of the Florida Constitution, the right of individuals to be free from unreasonable searches and seizures must be construed in conformity with the Fourth Amendment to the United States Constitution as interpreted by the United States Supreme Court. Clayton v. State , 252 So. 3d 827, 829 (Fla. 1st DCA 2018). "For purposes of the Fourth Amendment, a 'search' occurs only when an individual's reasonable expectation of privacy is infringed by an agent of the government." Duke v. State , 255 So. 3d 478, 480 (Fla. 1st DCA 2018) (citing United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). Thus, "a Fourth Amendment search does not occur ... unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.' " Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (quoting California v. Ciraolo , 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ). "Before a defendant may invoke the protections of the Fourth Amendment, he must establish standing by showing that he has a legitimate expectation of privacy in the area searched or the item seized." State v. Williams , 184 So. 3d 1205, 1208-09 (Fla. 1st DCA 2016).

We conclude that the trial court properly denied Appellant's motion to suppress on the ground that Appellant failed to establish that he had a reasonable expectation of privacy when he uploaded child pornography to an online chatroom. The United States Court of Appeals for the First Circuit addressed a similar issue in United States v. Morel , 922 F.3d 1 (1st Cir. 2019).

In that case, Morel uploaded images to a digital album on Imgur, an image-hosting website. Following an anonymous tip to NCMEC, Imgur reviewed the images and reported six of them as containing child pornography to NCMEC, which provided the reports to law enforcement authorities in New Hampshire who used the reports to obtain a warrant to search Morel's computer. After he was charged with possession of child pornography, Morel filed a motion to suppress.

In denying the motion, the trial court concluded that Morel failed to demonstrate a reasonable expectation of privacy in the uploaded images absent any indication that Morel took affirmative steps to protect or prevent others from accessing images uploaded to Imgur's servers. The court observed that "[a]n individual who places a file on the Internet, without taking affirmative steps to protect the information it contains, cannot reasonably expect it to remain private." United States v. Morel , No. 14-cr-148-JL, 2017 WL 1376363, at *6-7 (D.N.H. Apr. 14, 2017).

On appeal, the First Circuit affirmed the denial of the motion to suppress. The court noted that in order to challenge the admissibility of evidence on Fourth Amendment grounds, "[t]he defendant carries the burden of making the threshold showing that he has 'a reasonable expectation of privacy in the area searched and in relation to the items seized' " and that "[t]his burden must be carried at the time of the pretrial hearing and on the record compiled at that hearing." Morel , 922 F.3d at 8 (quoting United States v. Stokes , 829 F.3d 47, 51 (1st Cir. 2016) (quoting United States v. Aguirre , 839 F.2d 854, 856 (1st Cir. 1988) )). The court went on to explain:

Whether a defendant has a reasonable expectation of privacy is a fact-specific inquiry. Aguirre , 839 F.2d at 857. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States , 389 U.S. 347, 351, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967). "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id.
Factors especially relevant to determining whether one has a reasonable expectation of privacy include "ownership, possession and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case." Stokes , 829 F.3d at 53 (quoting Aguirre , 839 F.2d at 856-57 ).

Id. at 10. The court concluded that Morel failed to establish that he had a reasonable expectation of privacy in the images he uploaded to Imgur based on the lower court's findings that the images were publicly available and no evidence suggested that Morel took affirmative steps to protect the images. Id.

Likewise, in this case, Appellant failed to establish that he had a reasonable expectation of privacy in the image file he uploaded to the anonymous online chatroom hosted by ChatStep. There is nothing in the record indicating the number of participants in the chat room, whether Appellant had exclusive control to admit people into the chat room, or whether ChatStep monitored the chat room for illegal activity as part of its service agreement. Although the chat room was characterized below as "private," this alone was not sufficient to establish a reasonable expectation of privacy. Appellant presented no evidence that the uploaded file was password-protected, or that he took any affirmative steps to restrict access to the file. Because Appellant did not carry his burden of making a threshold showing that he had a reasonable expectation of privacy, he could not challenge the admissibility of the evidence on Fourth Amendment grounds.

III.

Even if Appellant had established a reasonable expectation of privacy, "[t]he Fourth Amendment is 'wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " Duke , 255 So. 3d at 480-81 (quoting Jacobsen , 466 U.S. at 113, 104 S.Ct. 1652 ). Thus, "[w]here a warrantless search by law enforcement is prompted by a prior search by a private party, the warrantless search does not violate the Fourth Amendment so long as it does not exceed the scope of the private party's search." Id. at 481.

Here, the warrantless search by law enforcement did not violate the Fourth Amendment where it was prompted by a prior search by a private party and did not exceed the scope of the private party's search. This same issue was addressed by the United States Court of Appeals for the Fifth Circuit in United States v. Reddick , 900 F.3d 636 (5th Cir. 2018).

In that case, Reddick uploaded digital image files to Microsoft SkyDrive, a cloud hosting service that used PhotoDNA to automatically scan the hash values of user-uploaded files and compare them against the hash values of known images of child pornography. When PhotoDNA detected a match, it created a CyberTip and sent the file to NCMEC. In early 2015, Microsoft sent CyberTips to NCMEC based on the hash values of the files Reddick had uploaded to SkyDrive. In turn, NCMEC forwarded the CyberTips to the Corpus Christi Police Department where Detective Ilse opened each of the suspect files and confirmed that each contained child pornography. Shortly thereafter, Detective Isle applied for and received a warrant to search Reddick's home and seize his computer and related materials.

After being indicted for possession of child pornography, Reddick filed a motion to suppress on the ground that the detective's warrantless opening of the files associated with the CyberTips constituted an unlawful search. After the trial court denied the motion, Reddick entered a guilty plea reserving the right to appeal the denial of his suppression motion.

On appeal, the Fifth Circuit affirmed the denial of the motion to suppress, explaining:

When Reddick uploaded files to SkyDrive, Microsoft's PhotoDNA program automatically reviewed the hash values of those files and compared them against an existing database of known child pornography hash values. In other words, his "package" (that is, his set of computer files) was inspected and deemed suspicious by a private actor. Accordingly, whatever expectation of privacy Reddick might have had in the hash values of his files was frustrated by Microsoft's private search.
When Detective Ilse first received Reddick's files, he already knew that their hash values matched the hash values of child pornography images known to NCMEC. As our court has previously noted, hash value comparison "allows law enforcement to identify child pornography with almost absolute certainty," since hash values are "specific to the makeup of a particular image's data." United States v. Larman , 547 F. App'x 475, 477 (5th Cir. 2013) (unpublished). See also United States v. Sosa-Pintor , 741 F. App'x 207, 208 (5th Cir. 2018) (unpublished) (describing a file's hash value as its "unique digital fingerprint").
Accordingly, when Detective Ilse opened the files, there was no "significant expansion of the search that had been conducted previously by a private party" sufficient to constitute "a separate search." Walter v. United States , 447 U.S. 649, 657, 100 S. Ct. 2395, 65 L.Ed.2d 410 (1980). His visual review of the suspect images-a step which merely dispelled any residual doubt about the contents of the files-was akin to the government agents' decision to conduct chemical tests on the white powder in [ United States v. Jacobsen , 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ]. "A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy." 466 U.S. at 123, 104 S. Ct. 1652. This principle readily applies here-opening the file merely confirmed that the flagged file was indeed child pornography, as suspected. As in Jacobsen , "the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband." Id. at 125, 104 S. Ct. 1652.

Id. at 639.

Similarly, in this case, the FDLE agent's warrantless review of the digital image file did not violate the Fourth Amendment because (1) whatever expectation of privacy Appellant might have had in the hash value of the file was frustrated by ChatStep's private search, which matched the hash value of the file to known child pornography; (2) the visual review of the file was not a significant expansion of ChatStep's private search because it merely confirmed what the hash value match already had established with almost virtual certainty; and (3) there was no indication that the agent had searched any of Appellant's files not flagged as child pornography. Accordingly, we conclude that the denial of Appellant's motion to suppress was also proper under the private search doctrine.

IV.

The trial court properly denied Appellant's motion to suppress because Appellant failed to carry his threshold burden of demonstrating that he had a reasonable expectation of privacy when he uploaded child pornography to an anonymous online chatroom hosted by ChatStep. Alternatively, even if Appellant had demonstrated a reasonable expectation of privacy, the denial of Appellant's motion to suppress was proper under the private search doctrine because FDLE's search was prompted by a prior search by private parties-ChatStep and PhotoDNA-and did not exceed the scope of that private search.

AFFIRMED .

Rowe and M.K. Thomas, JJ., concur.


source: Caselaw Access Project

author: GROSSHANS, J.

license: Public Domain

text:
    Sherrye PARKER, Appellant, v. SHELMAR PROPERTY OWNER'S ASSOCIATION, INC., Karl Burgunder and Sheila Burgunder, Appellees.
    Case No. 5D18-2105
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019
    Steven J. Tomesko, of Dan Newlin & Partners, Orlando, for Appellant.
    John R. McDonough, of Meier, Bonner, Muszynski, O'Dell & Harvey, P.A., Longwood, for Appellee, Shelmar Property Owner's Association, Inc.
    No Appearance for other Appellees.
   GROSSHANS, J.

Sherrye Parker (Appellant) appeals a final summary judgment in favor of Shelmar Property Owner's Association, Inc. (Appellee). Concluding that material issues of fact remain regarding Appellee's duty to maintain the premises in a reasonably safe condition, we reverse and remand for further proceedings.

Appellant sustained injuries when she tripped on a wheel stop in Appellee's parking lot. Based on this incident, Appellant filed an action for damages. She alleged that Appellee had a duty to maintain the premises in a reasonably safe condition and that the specific placement of the wheel stop breached that duty, resulting in her injury.

After conducting discovery, Appellee moved for summary judgment, arguing entitlement to judgment as a matter of law pursuant to the open and obvious danger doctrine. Appellee further claimed that it did not breach the duty to maintain the premises in a reasonably safe condition because invitees should be reasonably expected to see wheel stops and protect themselves. In support of its summary judgment motion, Appellee attached the affidavit of Karl Burgunder, a former party to the case. Among other things, Burgunder asserted that the wheel stops were in place when Appellee obtained the property, the area was well-maintained, and there had been no reports of any prior accidents related to the wheel stops.

Appellant filed a response to the summary judgment motion, arguing that Appellee "violated Chapter 10, Section 1002.1 of the Florida Building Code, by placing the subject parking bumper in the pathway of an ingress and egress into the subject building." In support of her response, Appellant attached photos of the parking lot, wheel stop, and building entry. Additionally, she attached the affidavit of a forensic engineer, who maintained that the placement of the wheel stop in front of the walkway created a dangerous condition, violated the Florida Building Code, and did not follow the Standard Practice for Safe Walking Surfaces, which he explained was "an industry standard for construction guidelines and minimum maintenance criteria for new and existing buildings and structures."

Before the scheduled hearing on the motion, the trial court granted summary judgment in favor of Appellee. Appellant filed a motion for rehearing, which the court summarily denied. This appeal timely followed.

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999) ). Accordingly, we review de novo the trial court's decision to grant summary judgment. Id. When reviewing an order granting summary judgment, "[a]n appellate court must examine the record in the light most favorable to the non-moving party." Vander Voort v. Universal Prop. & Cas. Ins. Co., 127 So. 3d 536, 538 (Fla. 4th DCA 2012).

A landowner owes an invitee a duty to: (1) "use ordinary care in keeping the premises in a reasonably safe condition," and (2) "give timely warning of latent or concealed perils which are known or should be known by the owner or occupier." Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001). To establish a lack of negligence, the landowner must demonstrate that there is no duty owed to the invitee or that it did not breach a duty which is owed. See Smith v. Grove Apartments, LLC, 976 So. 2d 582, 586 (Fla. 3d DCA 2007).

In the summary judgment motion, Appellee's defense rested primarily on the open and obvious danger doctrine. However, this doctrine does not completely discharge the property owner's duty to maintain the premises in a reasonably safe condition. See Trainor v. PNC Bank, N.A., 211 So. 3d 366, 368 (Fla. 5th DCA 2017). Furthermore, when an injured party alleges a breach of the duty to maintain the premises in a reasonably safe condition, factual issues frequently exist "as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious." Aaron v. Palatka Mall, L.L.C., 908 So. 2d 574, 578 (Fla. 5th DCA 2005) ; see also Burton v. MDC PGA Plaza Corp., 78 So. 3d 732 (Fla. 4th DCA 2012).

Here, Appellant claimed that the placement of the wheel stop near or at the egress of the building created an unreasonably dangerous condition. Her expert's affidavit supported this claim. Specifically, her expert opined that the placement of the wheel stop constituted a dangerous condition in violation of the Florida Building Code and industry safety standards. Evidence of a building code violation is prima facie evidence of negligence. See Holland v. Baguette, Inc., 540 So. 2d 197, 198 (Fla. 3d DCA 1989).

Viewing the record in the light most favorable to Appellant, we find a material issue of fact exists as to whether Appellee violated the duty to maintain the premises in a reasonably safe condition. Therefore, summary judgement was improper.

Accordingly, we reverse the final summary judgment entered in favor of Appellee and remand for further proceedings.

REVERSED and REMANDED.

BERGER, J., concurs.

LAMBERT, J., concurs specially, with opinion.

LAMBERT, J., concurring specially.

I fully concur with the majority opinion. I write separately to note that, although not argued by Appellant, the trial court committed fundamental error by granting Appellee's dispositive motion for final summary judgment without holding a hearing as required under Florida Rule of Civil Procedure 1.510(c). See Chiu v. Wells Fargo Bank, N.A. , 242 So. 3d 461, 464 (Fla. 3d DCA 2018) (holding that the trial court committed fundamental error in entering final summary judgment in favor of the movant without conducting a hearing as provided by rule 1.510(c) ).

      In its order granting summary judgment, the trial court cited two cases to support its decision. First, in Ramsey v. Home Depot U.S.A., Inc., 124 So. 3d 415 (Fla. 1st DCA 2013), a woman tripped over a parking lot wheel stop. Id. at 416. In support of the motion for summary judgment, Home Depot included an expert engineer's report, surmising there were no code violations in the parking lot. Id. In response, the plaintiff's expert offered only a conclusory statement that the parking lot could be maintained in a safer condition, but did not allege any specific guideline or code violations. Id. The district court upheld the order granting summary judgment, noting that an expert's personal preferences could not establish a genuine issue of material fact without reference to the requirements of any law, code, regulation, or recognized industry safety standard. Id. at 418. This case is distinguishable from Ramsey as Appellant's expert maintains that the placement of the wheel stop violated a specific Florida Building Code and industry safety standard, resulting in an unreasonably dangerous condition.
      Second, the trial court relied on Hunt v. Slippery Dip of Jacksonville, Inc., 453 So. 2d 139 (Fla. 1st DCA 1984), in which the First District upheld summary judgment in a negligence case. Id. at 139. Hunt focused on the plaintiff's knowledge of the danger and the landowner's duty to warn, but did not discuss the duty to maintain the premises in a reasonably safe condition. Thus, Hunt's reasoning did not support the summary judgment below.


author: SCALES, J. concurring.

text:
    Saintamen EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-734
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019.
    INTRODUCTION
    Saintamen Edwards, a former Miami-Dade County police officer, appeals her conviction and sentence for two counts of official misconduct. Her primary contention on appeal is that the trial court erred in denying her motion to suppress evidence obtained from a personal flash drive plugged into her work computer. Following our review of the record, and the issues raised on appeal, we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    In 2013, Edwards was arrested and charged with two counts of official misconduct after an investigation revealed she had falsified police records in an apparent attempt to get her husband, Clyde Edwards (Clyde), fired from his job at a sports apparel and footwear store. Clyde's boss, Jose Raij, contacted police after he received a phone call from someone identifying herself as Miami-Dade police detective Diann Mich. The caller told Raij that Clyde should be fired because he was being investigated by police, and that there were police reports regarding the investigation. Raij asked to see a copy of the police reports and, at 4:09 p.m. on July 8, 2013, Raij received the following email:
    Mr. Raij, attached are two reports I am able to release to you at this time. As we discussed, please do not discuss the open case with the suspect. I will forward you the complete file in a couple of days. Thank you, Diann
    Two police reports were attached to the email, indicating that Clyde was being investigated for selling counterfeit sports shoes. However, further investigation by Raij and Miami-Dade Police revealed that the two police reports had been falsified, and were emailed to Raij from a copy machine located on the second floor of the Miami-Dade County Police Department Intracoastal District Station, where Edwards worked. The evidence against Edwards included the testimony of three fellow police officers, who testified that they saw Edwards near that copy machine on the second floor of the police department on July 8 around 4 p.m., and the contents of a USB flash drive (the "flash drive") that was seized from Edwards' work computer prior to her arrest.

      Police determined that the falsified records were placed on the flash drive on July 8, 2013 between 3:47 p.m. and 4:01 p.m.

   Edwards' defense was that she could not have created and sent the falsified police reports because she was not at the police department at the time the reports were emailed to Raij, having left work early that day not feeling well. She claimed that she had an office visit with her therapist from 2 to 3 p.m., and thereafter, had lunch and picked up her daughter from daycare at 4:20 p.m.

Prior to trial, Edwards moved to suppress the evidence obtained from the flash drive attached to her work computer at the time it was seized, asserting that the flash drive was her personal property, and was thus illegally seized at the time her work computer was legally seized. After an evidentiary hearing, the court denied Edwards' motion to suppress the evidence obtained from the flash drive, determining she had no reasonable expectation of privacy in the flash drive and its contents.

Following trial, a jury convicted Edwards of both counts of official misconduct, and she was thereafter sentenced to probation.

STANDARD OF REVIEW

When reviewing a trial court's ruling on a motion to suppress, the appellate court "affords a presumption of correctness to a trial court's findings of fact but reviews de novo the mixed questions of law and fact that arise in the application of the historical facts to the protections of the Fourth Amendment."

Wyche v. State, 987 So. 2d 23, 25 (Fla. 2008). Generally, a person's Fourth Amendment rights are implicated only if the search or seizure infringes on "an expectation of privacy that society is prepared to consider reasonable." O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (quoting U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). Importantly, "[g]iven the great variety of work environments in the public sector, the question whether any employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." Id. at 718, 107 S.Ct. 1492.

In analyzing the legitimacy of one's expectation of privacy in an office setting, a court must consider the following legal principles:

To invoke the protection of the Fourth Amendment, a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. The reasonableness of an expectation of privacy in a particular place or item depends on context. Specifically, the reasonableness of an employee's expectation of privacy in his or her office or the items contained therein depends on the "operational realities" of the workplace, and not on legal possession or ownership. The likelihood that a person has an objectively reasonable expectation of privacy in an office setting is increased where the area or item searched is "reserved for [the defendant's] exclusive personal use." Other factors that have been considered in determining the legitimacy of an expectation of privacy in an item seized from an office include the employee's relationship to the item, whether the item was in the employee's immediate control when it was seized, and whether the employee took actions to maintain a sense of privacy in the item. Many times, an employee may have a legitimate expectation of privacy in his or her personal office and in personal items stored in a desk or file cabinet.

Kelly v. State, 77 So. 3d 818, 822-23 (Fla. 4th DCA 2012) (quoting State v. Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008) (internal citations omitted)). It is the defendant's burden to establish she had a subjective expectation of privacy and that such an expectation was objectively reasonable. Hicks v. State, 929 So. 2d 13 (Fla. 2d DCA 2006).

THE MOTION TO SUPPRESS HEARING

The relevant testimony adduced at the evidentiary hearing on the motion to suppress can be summarized as follows:

Edwards' work computer was located on her desk in the station control office at the police station, an office which is known as "the armory" because it contains various items needed by the officers (such as extra weapons). The armory is kept locked at all times, but several administrative officers had keys to the office, and one master key is hidden somewhere in the department in case officers get locked out. At all relevant times, Edwards and her co-worker, Officer Michnowicz, both had desks and computers in the armory. The password for Edwards' work computer was written down on the calendar blotter, in open view on Edwards' desk, so that Michnowicz could access Edwards' computer at any time.

The computers owned by the Miami-Dade Police Department, including Edwards' work computer, are all connected to a network, and anyone with county credentials can access the County's "O Drive"

from any County computer, using their own login credentials. When an employee logs in to a County computer, a login banner appears, setting forth a warning and terms and conditions of use. The employee is required to acknowledge this warning and consent to the terms of use before inputting their individual password for access. The login banner reads:

This computer system is the property of the Miami-Dade Police Department. It is for authorized use only. Users have no explicit or implicit expectation of privacy. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized personnel. By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection and disclosure. Unauthorized or improper use of this system may result in administrative disciplinary action or civil/criminal penalties. By continuing to use this system, you indicate your awareness of and consent to these terms and conditions.

(Emphasis added.)

When internal affairs officers seized Edwards' computer in July 2013, Edwards' flash drive was plugged into a USB port in her work computer. Accordingly, and following police department protocol that anything attached to the work computer, including external media, is part of the "computer system," the officers seized the flash drive as well.

Officer Tompkins, with the police department's digital forensic unit, testified that if he had logged onto Edwards' computer with his own password, he could have accessed the contents of Edwards' flash drive. Edwards was not present at the time her work computer and flash drive were seized; at the request of internal affairs, her superior had sent Edwards out on an errand so that the computer could be seized without interference.

The flash drive was later returned to the police department-specifically to Officer King, who had assumed Edwards' duties and position as Station Control Officer. Officer King accessed the contents of the flash drive because Edwards told King it contained documents which King would need to perform her job as Station Control Officer. King testified that she did in fact find work-related documents on the flash drive, which she utilized, and that Edwards never asked King to return the flash drive to her. Edwards testified that she kept recipes and pictures of her daughter on the flash drive, but she acknowledged there were work-related documents on the flash drive as well, documents which she needed to perform her duties.

DISCUSSION AND ANALYSIS

In Kelly, 77 So. 3d at 823, the appellate court held that the defendant had no expectation of privacy in the contents of his desk where he: (1) shared the office with another employee and other employees had full access to the office; and (2) there were no locks on the desk and others occasionally looked through the desk without the defendant's permission. Similarly, in the present case, Edwards shared an office with a co-worker who had access to Edwards' work computer at all times because Edwards left a sticky note with her computer password on her desk for that express purpose.

In this context, the U.S. Supreme Court has said:

The workplace includes those areas and items that are related to work and are generally within the employer's control .... These areas remain part of the workplace context even if the employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board. Not everything that passes through the confines of the business address can be considered part of the workplace context, however. An employee may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each workday. While whatever expectation of privacy the employee has in the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer's business address. Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police.

Ortega, 480 U.S. at 715-16, 107 S.Ct. 1492. A "public employee's expectation of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation." Id. at 717, 107 S.Ct. 1492.

In assessing the reasonableness of a search or seizure involving a work computer, relevant factors "include whether the office has a policy regarding the employer's ability to inspect the computer, whether the computer is networked to other computers, and whether the employer (or a department within the agency) regularly monitors computer use." Young, 974 So. 2d at 609. See also U.S. v. Angevine, 281 F.3d 1130 (10th Cir. 2002) (holding, where professor made "a careless effort to maintain a privacy interest" in his office computer, he had no reasonable expectation of privacy.") And "where an employer has a clear policy allowing others to monitor a workplace computer, an employee who uses the computer has no reasonable expectation of privacy in it." Young, 974 So. 2d at 609.

In the instant case, Edwards' work computer contained a login banner, warning users about the police department's computer policy and requiring their acknowledgment before logging in. However, the issue here is not whether Edwards had a reasonable expectation of privacy in her work computer, but whether she had an expectation of privacy in her flash drive, which at the time of its seizure was plugged into her work computer. We hold, under the facts of this case, that the trial court correctly concluded Edwards did not have a reasonable expectation of privacy.

In an analogous situation, the Eleventh Circuit Court of Appeals in U.S. v. Durdley, 436 Fed.Appx. 966 (11th Cir. 2011) considered whether a county-employed paramedic had a reasonable expectation of privacy in a thumb drive he had inadvertently left plugged into a computer at work. The computer itself was located at a medic station, in a common area available to all the county medic employees. Durdley had left his personal thumb drive plugged into the computer when his shift was over, and it was discovered by a co-worker who accessed the files on the thumb drive and discovered child pornography. The police were contacted, and seized the thumb drive without a warrant. Durdley later admitted that it was his thumb drive and that he commonly used it for storing work-related information. The Eleventh Circuit held that "Durdley did not have a reasonable expectation of privacy in the thumb drive he left in a county-owned, common-use computer."

Similarly, U.S. v. King, 509 F.3d 1338 (11th Cir. 2007), considered whether King, a civilian contractor stationed at an American air base in Saudi Arabia, had a reasonable expectation of privacy in his personal laptop computer which he had left in his dormitory room connected to the base network. As a user of the base network, King understood his activities were subject to monitoring, but he believed he had secured his computer so others could not access its contents. However, when an airman came across the contents of King's hard drive on the base network, he discovered pornographic material, which later led to an investigation and King's arrest for possession of child pornography. The Eleventh Circuit held that King did not have a legitimate expectation of privacy in the contents of his personal laptop computer when it was connected to the base network from his dorm room because everyone on the network had access to his files.

In Miller v. State, 335 S.W.3d 847 (Tex. App. 2011), a police officer moved to suppress evidence seized from his personal thumb drive, which he left in a computer located in the patrol room accessible to other police department employees. The trial court denied the motion to suppress, and the appellate court affirmed, holding that Miller "did not exhibit an actual subjective expectation of privacy in the thumb drive" because he left it in the patrol room, it had no external identifying marks, and he did "nothing to prevent others from accessing the thumb drive, such as protecting it with a password, encrypting the data, or even placing the drive in a locked case." Id. at 855. Further, the court held, even if Miller had a subjective expectation of privacy in the thumb drive, such an expectation was not objectively reasonable under the circumstances. Id. The court listed several factors to consider in reaching this conclusion: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy.

Assessing these factors, the Miller court held that the defendant's expectation of privacy was not objectively reasonable because, inter alia, he "did not take precautions to maintain his expectation of privacy;" "did not protect his drive with a password or secure the drive in a locked case;" and "he used the thumb drive for storing police activity reports, which the district court could have reasonably inferred was not a private use." Id. at 856.

Similarly, in Kane v. State, 458 S.W.3d 180 (Tex. App. 2015), a university student left his flash drive in a public computer at the university, where it was later discovered by a university employee, who found child pornography on the drive, and called police. Relying upon its sister court's earlier decision in Miller, the Kane court held that the student had no subjective expectation of privacy because he left the drive in a classroom available to other students, faculty and staff, with no identifying marks and without it being password protected or locked. Id. at 184-85. Further, the Kane court held, even assuming a subjective expectation of privacy, such an expectation was not objectively reasonable under the circumstances. Id. at 185.

Finally, in U.S. v. Barrows, 481 F.3d 1246 (10th Cir. 2007), a city treasurer shared desk space with the city clerk in an area where "city employees regularly entered their space to use the city's fax machine and photocopier." Because the city provided the treasurer and the clerk with only one computer, the treasurer, Barrows, brought his personal computer to work, which he kept on the common desk and connected via the city network to the office computer. Barrows conducted all of his city work on his personal computer, and he did not install a password or attempt to exclude anyone from using it, rather leaving it running at all times on his shared desk at the office. When a city employee attempted to troubleshoot a problem with the office computer, he went on Barrows' personal computer, while Barrows was absent, and discovered child pornography. When this was reported to the sheriff, Barrows' computer was seized. The trial court denied Barrows' motion to suppress the files found on his computer.

The appellate court affirmed, finding that Barrows had no reasonable expectation of privacy in the personal computer. Although the court recognized that "private ownership is an important factor telling in favor of Fourth Amendment protection, ... the significance of personal ownership is particularly weakened when the item in question is being used for business purposes." Id. at 1248. Furthermore, the court held that even more important "is Mr. Barrows's failure to password protect his computer, turn it off, or taken any other steps to prevent third-party use. ... Given these facts, we are hard-pressed to conclude that Mr. Barrows harbored a subjective expectation of privacy. He certainly did not possess a reasonable one." Id. at 1248-49. Finally, the court pronounced: "Those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private." Id. at 1249. See also, Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (noting: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.") Compare Young, 974 So. 2d at 611 (in which the defendant, a pastor, kept his computer, which was only used by him, in his private office, which was locked at all times, and only himself and the church administrator had keys).

CONCLUSION

In this case, the evidence established that Edwards' flash drive was plugged into a work computer owned by her employer, the Miami-Dade Police Department. The computer was kept in an office Edwards shared with another police officer who had full access to Edwards' computer, because Edwards left the password in plain view on her desk for the express purpose of allowing her co-worker to use the computer. The computer was connected to a network which anyone with county credentials could access.

A login banner warned the employee that the computer system is the property of the Miami-Dade Police Department; that users of the computer system have no expectation of privacy; and that all uses of the system, and all files on the system, may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized personnel.

The item for which Edwards claims an expectation of privacy-the flash drive-was normally kept in Edwards' possession, but at the time it was seized, she had left it plugged into the work computer. We hold that the trial court properly denied the motion to suppress, as Edwards had no reasonable expectation of privacy in the flash drive and its contents.

Affirmed.

HENDON, J., concurs.

SCALES, J. concurring.

I concur in Chief Judge Emas's excellent opinion, but write separately to emphasize how Fourth Amendment jurisprudence may sometimes upset common sense. The Chief's opinion skillfully, methodically, and with unassailable precedential support, concludes that this public sector worker has no reasonable expectation of privacy in the contents of a personally owned flash drive when the flash drive is confiscated while plugged into her work computer. This holding, while correct, may come as quite a surprise to anyone who has ever used a personally owned flash drive at work with non-nefarious intentions.

      Edwards contends that the trial court erred in refusing to admit certain evidence which Edwards asserts would show she was not at the police department at the relevant time period and therefore could not have emailed the falsified police reports. We review the trial court's decision to admit or exclude evidence for an abuse of discretion. Penalver v. State, 926 So. 2d 1118, 1133 (Fla. 2006) (holding: "It is within the sound discretion of the trial judge to determine the admissibility of evidence, and the trial judge's ruling on such an issue will not be disturbed on appeal absent a showing of an abuse of discretion"); Linde v. Linde, 199 So. 3d 1102 (Fla. 3d DCA 2016). After reviewing the record, including the trial transcript, we find no abuse of discretion by the trial court in these evidentiary rulings.

      Edwards testified that she purchased the flash drive at Kmart and that it was her personal property. There is no evidence to the contrary.

      Edwards denied that she had such conversation with Officer King, but both King and her supervisor, Sergeant Gilligan, testified otherwise, and the trial court was free to determine which competing version of the evidence to accept.

      The Florida Constitution contains a provision protecting against unreasonable searches and seizures. See Art. I, § 12, Fla. Const. (providing in part: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ... shall not be violated.") However, that same section contains a conformity clause: "This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." In the absence of controlling precedent from the United States Supreme Court, our appellate courts may look to other state and federal court decisions for guidance. See D.P. v. State, 65 So. 3d 123, 129 n.6 (Fla. 3d DCA 2011) ; Higerd v. State, 54 So. 3d 513 (Fla. 1st DCA 2010).


author: Per Curiam.

text:
    Charles Litton MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-658
    District Court of Appeal of Florida, First District.
    June 21, 2019
    Charles Litton Morris, pro se, Petitioner.
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Wetherell, Osterhaus, and Winokur, JJ., concur.


author: LOGUE, J.

text:
    CASCAR, LLC, Appellant, v. CITY OF CORAL GABLES, etc., et al., Appellees.
    No. 3D18-1051
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Hall, Lamb, Hall & Leto, P.A., and Andrew C. Hall, Matthew P. Leto, and Roarke Maxwell, for appellant.
    John C. Lukacs, P.A., and John C. Lukacs, Sr. ; Weiss Serota Helfman Cole & Bierman, P.L., and Laura K. Wendell and Susan L. Trevarthen, for appellees.
    Before LOGUE, SCALES, and HENDON, JJ.
   LOGUE, J.

Cascar, LLC, appeals the summary final judgment entered in favor of the City of Coral Gables, the City of Coral Gables Commission, and the Historic Preservation Board of the City of Coral Gables (collectively, the "City"). On appeal, we review whether the City's 2012 application of a 1984 ordinance to the subject property gives rise to a cause of action under the Bert J. Harris, Jr., Private Property Rights Protection Act. § 70.001, Fla. Stat. Because the grandfather provision of the Harris Act expressly bars claims that arise from the application of an ordinance enacted on or before May 11, 1995, including when the application of the ordinance occurs after that date, we affirm the trial court's grant of summary judgment finding that Cascar did not have a cause of action under the Harris Act.

Background

At the heart of this controversy is a historic residence located on two acres of waterfront property in Coral Gables, Florida. The residence was designed by architect Alfred Browning Parker and the owner, noted philanthropist Beulah Carlin, in 1966. Several years after Ms. Carlin built her residence, the City Commission created the Historic Preservation Board and vested it with the power to designate properties as historic landmarks. On August 28, 1984, in furtherance of its preservation efforts, the City Commission enacted Ordinance No. 2508. Coral Gables, Fla., Ordinance No. 2508 (Aug. 28, 1984), codified at Coral Gables Zoning Code, Art. III, §§ 3-1103 & 3-1107(D). Ordinance No. 2508 promulgated preservation standards, review procedures, and the criteria to determine, among other things, whether to designate a landmark historic or to issue a demolition permit.

Ms. Carlin passed away in 2007 and title to the property transferred to Cascar. In 2012, the residence was designated a historic landmark by resolution pursuant to Section 3-1103. Cascar asserted that modern buyers found the residence undesirable and requested a permit to demolish the residence, but its request was denied by resolution pursuant Section 3-1107(D). The denial was based primarily on the residence's designation as a historic landmark.

Cascar filed a Harris Act claim to recover for diminution of the property's value allegedly caused by the refusal to allow demolition of the historic residence. The City moved for summary judgment and submitted the affidavit of Historic Preservation Officer Donna Spain, in support of its motion. Her uncontested affidavit stated the designation and the denial of the application to demolish were based on Ordinance 2508 as codified:

6. In designating the property as a local historic landmark, the Historic Preservation Board and the City Commission applied the criteria for designation of historic landmarks which appear in the Coral Gables Zoning Code at Article III, Section 3-1103.
7. The criteria that appear in Section 3-1103 were in effect in the City since the City enacted Ordinance No. 2508 on August 28, 1984.
....
9. In denying Cascar's application [for a demolition permit], the Historic Preservation Board and the City Commission considered the record and applied the criteria set forth in the Coral Gables Zoning Code, Article III, Section 3-1107(D).... These criteria have been in effect since 1984.

Cascar did not present contradictory evidence.

After a hearing, the trial court granted the City's motion for summary judgment, finding that because Ordinance No. 2508 was enacted in 1984, Cascar did not have a viable cause of action under section 70.001(12). This appeal followed.

Standard of Review

This Court reviews a trial court's ruling on a motion for summary judgment de novo.

Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. Summary judgment "is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So. 3d 329, 334-35 (Fla. 3d DCA 2015).

A court considering summary judgment must avoid two extremes. On one hand, a "party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict." Perez-Rios v. Graham Cos., 183 So. 3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d 1105, 1108 (Fla. 4th DCA 2000) ). On the other hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez-Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017).

Analysis

Florida's legislature enacted the Harris Act to provide a remedy for private landowners where their property has been inordinately burdened by government action, but the government action does not amount to a constitutional taking. See § 70.001(1), Fla. Stat. "The Act filled a void in then-existing Florida law because, prior to its enactment, there was no means by which a property owner could receive compensation for adverse financial effects of government regulation of his land without satisfying the constitutional standards for a taking ...." City of Jacksonville v. Smith, 159 So. 3d 888, 892 (Fla. 1st DCA 2015). To do so, the legislature provided a limited waiver of sovereign immunity. § 70.001(13), Fla. Stat.

The legislature, however, also provided a grandfather provision. The Harris Act expressly states that its provisions do not apply "to the application of any law enacted on or before May 11, 1995." The grandfather provision reads:

No cause of action exists under this section as to the application of any law enacted on or before May 11, 1995, or as to the application of any rule, regulation, or ordinance adopted, or formally noticed for adoption, on or before that date.

§ 70.001(12), Fla. Stat. The question in this case is whether the grandfather provision bars claims when the ordinance at issue was enacted prior to May 11, 1995, but the application of the ordinance took place after that date.

In Bair v. City of Clearwater, 196 So. 3d 577, 581 (Fla. 2d DCA 2016), the Second District considered this issue and held that the grandfather provision does bar claims in this circumstance:

The reference to the enactment of an ordinance or the adoption or formal notice for adoption of an ordinance on or before May 11, 1995, makes it clear that the legislature intended to bar claims based on the application of grandfathered legislation, i.e., any law, rule, regulation, or ordinance that was in effect or formally noticed to be in effect on or before the specified date. If the legislature intended merely to preclude claims based on a governmental entity's application of an ordinance that occurred prior to May 11, 1995, it could have specified that no cause of action existed for any application of a law, rule, regulation, or ordinance that occurred prior to that date. But by its terms, section 70.001(12) precludes claims for the application of an ordinance that was in effect prior to May 11, 1995, without regard to when the application of the ordinance occurred.

Bair, 196 So. 3d at 583 (original emphasis omitted; emphases added). Because Bair properly interprets the plain and obvious meaning of the statute, we are bound to follow it: "when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) ).

Applying Bair to this case, the undisputed evidence reveals that Ordinance No. 2508 was enacted on August 28, 1984 - more than ten years before the statutory cut-off date of May 11, 1995. When the City designated the residence a historic landmark in 2012, it merely applied the grandfathered-in Ordinance as codified in Section 3-1103. For the same reason, when the City denied Cascar's request for a demolition permit, it merely applied the grandfathered-in Ordinance as codified in Section 3-1107(D). Under Bair, therefore, the application of the Ordinance to the subject property does not give rise to a cause of action under the Harris Act.

Cascar argues that a different result is mandated by the cases of Wendler v. City of St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013), Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5th DCA 2009), and Brevard County v. Stack, 932 So. 2d 1258 (Fla. 5th DCA 2006). But these cases are inapposite. They do not deal with the grandfather provision of section 70.001(12). They deal instead with section 70.001(11), which establishes when a Harris Act claim is ripe and creates a one-year time limit for bringing a Harris claim. Obviously, whether a regulation was grandfathered-in is separate and distinct from whether a Harris Act claim is ripe. Cascar's argument improperly confounds these different issues and sections.

Affirmed.

      Subsection 11 provides, in pertinent part:
      (11) A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue.
      (a) For purposes of determining when this 1-year claim period accrues:
      1. A law or regulation is first applied upon enactment and notice as provided for in this subparagraph if the impact of the law or regulation on the real property is clear and unequivocal in its terms and notice is provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction's most current ad valorem tax records....
      2. Otherwise, the law or regulation is first applied to the property when there is a formal denial of a written request for development or variance.
      § 70.001(11), Fla. Stat.


author: PER CURIAM.

text:
    Jimmy Lee WARD, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3679
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    Jimmy L. Ward, III, Monticello, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant appeals the trial court's summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure Rule 3.850. We affirm the trial court's summary denial of grounds two and three without further discussion. In ground one, Appellant alleges that his trial counsel provided ineffective assistance by failing to object to the jurors seeing him in handcuffs during the trial. We find that this first ground was facially sufficient. See Jones v. State, 998 So. 2d 573, 588 (Fla. 2008) (stating postconviction claim alleging trial counsel was ineffective for failing to object to defendant being in restraints must specifically allege jury saw restraints). Because the record does not conclusively refute whether any jurors saw Appellant in handcuffs, we reverse and remand to the trial court to conduct an evidentiary hearing or to attach records conclusively refuting the claim. See, e.g., Way v. State, 41 So. 3d 425 (Fla. 1st DCA 2010) ; Torres v. State, 9 So. 3d 746 (Fla. 4th DCA 2009) ; Jensen v. State, 964 So. 2d 812 (Fla. 4th DCA 2007) ; Miller v. State, 852 So. 2d 904 (Fla. 4th DCA 2003).

AFFIRMED in Part; REVERSED in Part; REMANDED with Instructions

ORFINGER, WALLIS and EDWARDS, JJ., concur.


text:
    K.R., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3137
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

K.R., a juvenile, appeals her commitment to a nonsecure residential program. She asserts that the trial court erred when it failed to make the written findings mandated by section 985.441(2)(d), Florida Statutes (2018). The State correctly and commendably concedes error.

A juvenile, who is on probation for a misdemeanor and who is being adjudicated for a technical probation violation, may be committed to a nonsecure residential placement only if the court finds by a preponderance of the evidence that the protection of the public or the particular needs of the child would best be served by such a placement. § 985.441(2)(d), Fla. Stat. (2018). Such findings must be in writing. Id. The court errs in sending a juvenile to a nonsecure residential program without making the required written findings. R.L.C. v. State, 241 So. 3d 199, 201 (Fla. 4th DCA 2018).

Here, the trial court's oral reasoning demonstrated that it found K.R.'s particular needs would best be served by placing her in a nonsecure residential program. We affirm the adjudication of delinquency, but reverse K.R.'s commitment. We remand the matter to the trial court so that it may reduce its oral findings to writing.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, BERGER and SASSO, JJ., concur.


author: LAMBERT, J.

text:
    Verne Ecedro GOMEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2903
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Verne Ecedro Gomez appeals his judgment and sentence for attempted second-degree murder. The sole argument that he raises here is that the trial court committed fundamental error by failing to instruct the jury on justifiable attempted homicide and excusable attempted homicide as contained in Florida Standard Jury Instruction (Criminal) 6.1 (2017). Because Gomez's trial counsel affirmatively agreed to the instruction being read to the jury without the definitions of justifiable attempted homicide and excusable attempted homicide, we affirm.

A trial court's failure to instruct the jury on either justifiable or excusable attempted homicide is fundamental error when a defendant is convicted of attempted manslaughter or a greater offense not more than one step removed. State v. Spencer , 216 So. 3d 481, 483 (Fla. 2017). However, there are two exceptions to the application of the one-step-removed fundamental error analysis regarding the trial court's failure to instruct the jury on justifiable or excusable attempted homicide. Id. at 485-86. The first exception, recognized in State v. Lucas , 645 So. 2d 425 (Fla. 1994), and Armstrong v. State , 579 So. 2d 734 (Fla. 1991), provides that there is no fundamental error where defense counsel affirmatively agreed to or requested an incomplete instruction, and it is directly applicable here.

During the jury instruction charge conference in Gomez's trial, the prosecutor specifically announced that based upon her earlier discussions with defense counsel, she had removed the justifiable and excusable attempted homicide language from the proposed introduction to attempted homicide jury instruction. The prosecutor further explained that the applicable case law also required the defense to make an express affirmative representation of its intent not to seek these instructions. In response, Gomez's trial counsel affirmatively agreed on the record and to the court that she was not seeking this instruction.

In Spencer , the court "reiterate[d] that the Lucas / Armstrong exception to the fundamental error rule continues to apply in situations where defense counsel affirmatively agreed to or requested an incomplete [introduction to attempted homicide] instruction." 216 So. 3d at 488. Accordingly, although Gomez's conviction is one step removed from attempted manslaughter, we hold that under the circumstances of this case, no fundamental error was committed by the trial court by failing to instruct the jury on justifiable and excusable attempted homicide. We affirm Gomez's judgment and sentence.

AFFIRMED.

EVANDER, C.J., and EDWARDS, J., concur.


text:
    Brian BETANCOURTH, Appellant, v. Angelica LEON, Appellee.
    Case No. 5D18-1578
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    Moses Robert Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant.
    Jamie Billotte Moses, B.C.S., of Holland & Knight LLP, Orlando, for Appellee.
   PER CURIAM.

Appellant asks us to set aside the three-year, permanent injunction entered against him and in favor of Appellee. We find that the trial court's order granting the injunction following an evidentiary hearing is supported by competent, substantial evidence. See Disston v. Hanson , 116 So. 3d 612, 612 (Fla. 5th DCA 2013). The trial court properly considered testimony from both parties regarding current incidents together with historical information regarding the parties' behavior and incidents of domestic violence during the course of their relationship. See Leal v. Rodriguez , 220 So. 3d 543, 545 (Fla. 3d DCA 2017). Accordingly, we affirm the order imposing the three-year injunction against domestic violence because the trial court did not abuse its discretion.

AFFIRMED.

LAMBERT, EDWARDS, and GROSSHANS, JJ., concur.


text:
    Terry Allen REGISTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3916
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 28, 2019
    Marcella Ann Beeching, Ponte Vedra Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Deborah Chance, Assistant Attorney General, Daytona Beach, for Appellee
   PER CURIAM.

Following Appellant's open plea in which he admitted to violating his probation, the trial court revoked Appellant's probation and sentenced him to serve eight years in prison on his conviction for possession of methamphetamine with intent to sell. On December 17, 2018, at 7:51:34 p.m., Appellant simultaneously filed both a timely motion to withdraw his plea and a notice of appeal. The trial court entered an order dismissing the motion, determining that it lacked jurisdiction to rule on the motion. As the State properly concedes, this was error.

The disposition of this appeal is controlled by our decision in Davis v. State , 763 So. 2d 519 (Fla. 5th DCA 2000). In that case, as was done here, the notice of appeal and the defendant's motion to withdraw his plea were both filed at precisely the same moment. Id. at 521. We concluded that, under these "peculiar and particular circumstances," Florida Rule of Appellate Procedure 9.020(h) provided the trial court with jurisdiction to hear the motion to withdraw plea and that the appeal would be held in abeyance until the filing of a signed, written order disposing of the motion. Id.

Accordingly, we reverse and remand for the trial court to rule on Appellant's motion to withdraw his plea. This appeal will be held in abeyance pending the filing of the written order from the trial court disposing of the motion.

REVERSED and REMANDED.

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


text:
    Christopher Randall COLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1689
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Andy Thomas, Public Defender, and Carrie McMullen, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant's convictions and sentences for both possessing methamphetamine, and possessing the same meth with intent to sell it, within a thousand feet of a single proscribed location, do not violate double jeopardy. Thomas v. State , 61 So. 3d 1157 (Fla. 1st DCA 2011) ; see also Johnson v. State , 150 So. 3d 214, 216 (Fla. 1st DCA 2014) (collecting cases).

AFFIRMED .

Roberts, Rowe, and Kelsey, JJ., concur.


text:
    STATE of Florida, Appellant, v. Yolanda Denise HARVEY, Appellee.
    No. 1D18-1606
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee; Yaritza Flores-Collazo, Assistant State Attorney, Office of the State Attorney, Pensacola, for Appellant.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   Per Curiam.

The State appeals the trial court's imposition of a downward-departure sentence for Appellee's violation of community control, which was her fourth violation of supervision following an original sentence of probation. Although the trial court erred in failing to make oral or written findings supporting the downward departure as required by section 921.00265(2), Florida Statutes (2017), we are constrained to affirm because the error was not preserved-the State did not object. "The State must call the court's attention to the need for downward departure reasons with a proper objection." State v. Green , 12 So. 3d 796, 797 (Fla. 3d DCA 2009) ; see also State v. Colbert , 968 So. 2d 1043, 1045 (Fla. 5th DCA 2007) (finding general objection insufficient); State v. Dort , 929 So. 2d 1190, 1191 (Fla. 4th DCA 2006) (finding no preservation, and affirming, where State did not object to downward departure sentence);

State v. Jackson , 789 So. 2d 512, 513 (Fla. 1st DCA 2001) (affirming for lack of preservation although trial court failed to give oral or written grounds for downward departure).

AFFIRMED .

Rowe, Bilbrey, and Kelsey, JJ., concur.


author: Gay, Shonna Young, Associate Judge.

text:
    Tyris Devante HAWKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D18-2362 1D18-2365
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Gay, Shonna Young, Associate Judge.

Appellant's sentences are reversed, and we remand for imposition of nonstate prison sanctions. See Johnson v. State , 260 So. 3d 502 (Fla. 1st DCA 2018).

REVERSED .

M.K. Thomas, J., concurs; B.L. Thomas, C.J., dissents without opinion.


author: Long, Jr., Robert E., Associate Judge.

text:
    Shemaka HALL, L.P.N., Appellant, v. State of Florida, DEPARTMENT OF HEALTH, Appellee.
    No. 1D18-0438
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Luis A. Bonilla, West Palm Beach, for Appellant.
    Christine E. Lamia, Chief Appellate Counsel, Sarah Young Hodges, Chief Appellate Counsel, and Katelyn R. Boswell, Assistant General Counsel, Florida Department of Health, Prosecution Services Unit, Tallahassee, for Appellee.
   Long, Jr., Robert E., Associate Judge.

Shemaka Hall appeals the permanent revocation of her license as a practical nurse by the Department of Health, Board of Nursing, in its final administrative order after an informal hearing. Because we find no ground under section 120.68(7), Florida Statutes for setting aside the final administrative order, we affirm.

On May 26, 2016, Hall was working as a licensed practical nurse at a healthcare facility in Pahokee, Florida. Hall had a dispute with a patient at approximately 11:30 p.m. During this dispute, the patient threw water on Hall's face. As the patient was walking away, Hall got up and chased her out of the room, grabbed her by the hair, and dragged her by the hair across the floor. Hall was then separated from the patient and restrained by other staff members. After being separated and restrained, Hall tried to attack the patient a second time. The incident was captured on the facility's security cameras.

The Department filed an administrative complaint which alleged that on May 26, 2016, while employed as a licensed practical nurse, Hall "used force and/or struck" a patient. The complaint alleged this amounted to "unprofessional conduct," as defined by rule 64B9-8.005(13), Florida Administrative Code, and the conduct was grounds for disciplinary action against Hall by the Board pursuant to section 464.018(1)(h), Florida Statutes (2015). The complaint requested the Board permanently revoke or suspend Hall's license, impose other penalties, or order "other relief" the Board may deem appropriate.

Because Hall did not dispute the facts alleged, the parties proceeded to an informal hearing before the Board. §§ 120.569(1), 120.57(2), Fla. Stat. (2016). The hearing began with motions for the Board to accept the Department's investigative report and the video of the incident into evidence and to accept the facts as alleged in the administrative complaint. Both motions were seconded and adopted. Hall then testified, providing context for the incident and mitigation for the undisputed facts. Hall explained the patient had been difficult to deal with, had demanded medications she could not provide, and had thrown water on her. Hall's counsel then made a similar argument.

The Department then requested the Board adopt the conclusions of law set forth in the complaint. The Board unanimously agreed. The Board also unanimously found the undisputed facts sufficient to meet two aggravating factors identified in the rule - that Hall was a "danger to the public" and a "deterrent effect" was necessary. Fla. Admin. Code R. 64B9-8.006(5)(b)1., (5)(b)5. The Board voted unanimously to permanently revoke Hall's license. In its written order, the Board reiterated its adoption of the facts and conclusions of law as alleged in the administrative complaint and found the aggravating factor that Hall presented a danger to the public.

On appeal, Hall first argues that revocation of her license was improper because section 456.072(3)(b) limits the penalty for a single violation of section 464.018(1)(h) to a non-disciplinary citation. However, section 456.072(3)(b) provides for the penalty of "a citation ... and ... a penalty as determined by rule ." (emphasis added). The penalty of revocation was "as determined by rule" 64B9-8.006(5)(a), Florida Administrative Code. The Board made no error here.

Next Hall argues the Board considered matters outside the administrative complaint in finding Hall presented a danger to the public. We disagree. The investigative report and the video admitted into evidence address only the single incident alleged in the complaint. At no time during the hearing did the Board delve into circumstances outside the incident alleged in the administrative complaint.

Hall was expressly noticed that these circumstances would be considered because the complaint identified the incident and stated that she "us[ed] force against and/or struck" a patient. Hall was also expressly noticed of the penalty sought by the Department. The complaint clearly stated the Department was seeking permanent revocation, among other options. The available sanctions, and the Board findings necessary to impose them, are set forth in the statute and applicable rule. Revocation of Hall's license was an available sanction if the Board found an aggravating circumstance. Fla. Admin. Code R. 64B9-8.006(3)(f)3. and 64B9-8.006(5)(a). The Department is not required to restate the law in its complaint. Rather, the Department must notice Hall of the factual allegations against her. The Board then makes findings, including potential aggravators, when fashioning an appropriate sanction. Hall argues she was disciplined for an "offense not charged in the complaint, " Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005), but being a danger to the public is not an offense - it is an aggravating circumstance fairly considered when deciding on an appropriate penalty. Because only the facts noticed in the complaint were used in considering aggravators, the Board's action was not based on matters outside the scope of the complaint.

Last, Hall argues there was no competent and substantial evidence to find she was a danger to the public. We find there was. The video of the incident shows Hall violently attacking a patient under her care and having to be restrained by her colleagues. The Department also presented other evidence, but the video alone is competent and substantial evidence that Hall presents a danger to the public.

AFFIRMED .

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

      The written order made no mention of deterrence.

      At one point members of the Board inquire of Hall about her training for dealing with difficult patients. While this technically is inquiry about something other than the incident itself, it was clearly intended to probe the allegations at hand and to specifically address Hall's behavior during the events alleged in the complaint.


text:
    Mario Antez KEITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1494
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant claims he is entitled to a new trial because the trial court erred in granting the State's request to strike a juror for cause. We find Appellant's argument meritless, because he failed to preserve the argument by objecting before the jury was sworn. Carratelli v. State , 961 So. 2d 312, 318 (Fla. 2007) (requiring counsel to renew an objection before the jury is sworn); Zach v. State , 911 So. 2d 1190, 1204 (Fla. 2005) (finding waiver absent a timely objection before the jury is sworn). Absent the required objection, this issue was waived below and is not preserved for appeal. Appellant has not argued or demonstrated fundamental error. We therefore affirm his conviction and sentence.

AFFIRMED .

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    CRD2, INC., Appellant, v. NATIONSTAR MORTGAGE, LLC, Frank Williams, et al., Appellees.
    No. 1D18-2108
    District Court of Appeal of Florida, First District.
    June 28, 2019
    Matthew D. Wolf of the Law Office of Matthew D. Wolf, PLLC, Riverview, for Appellant.
    Jacqueline Costoya, Fort Lauderdale, for Appellee Nationstar Mortgage.
    No appearance for Appellee Frank Williams.
   Per Curiam.

In light of Appellee's confession of error, we reverse the order on appeal and remand for further proceedings.

Lewis, Osterhaus, and M.K. Thomas, JJ., concur.


author: PER CURIAM

text:
    IN RE: Lynden James BURTON
    NO. 2019-B-0893
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent pleaded guilty to failure to file a tax return and, in connection with his guilty plea, admitted that he engaged in acts which constitute the felony crimes of tax evasion and filing false tax returns. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lynden James Burton, Louisiana Bar Roll number 24988, be and he hereby is suspended from the practice of law for a period of two years, retroactive to September 22, 2017, the date of his interim suspension.

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.


text:
    IN RE: Channing J. WARNER
    NO. 2019-B-0663
    Supreme Court of Louisiana.
    June 3, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent committed serious attorney misconduct, including neglect of his clients' legal matters, failure to communicate with his clients, failure to refund unearned fees, failure to placed advanced deposits for costs and expenses into his client trust account, and failure to return his clients' files upon the termination of the representation. Respondent also practiced law while he was ineligible to do so, failed to cooperate with the ODC in its investigation, and was charged with issuing worthless checks. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Channing J. Warner, Louisiana Bar Roll number 29017, be suspended from the practice of law for a period of three years, which suspension commences from the effective date of this order.

IT IS FURTHER ORDERED that respondent shall make full restitution to all clients to whom refunds are owed.

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.

Guidry and Genovese, JJs, would reject consent discipline.

Crichton, J., would reject consent discipline and assigns reasons.

Crichton, J., would reject the petition for consent discipline.

I dissent from this per curiam, because, in my view, the discipline of a three year suspension is too lenient. I would accept only disbarment of this petitioner.

Genovese, J., would reject consent discipline.

      I note that disbarment would not prevent this respondent from reapplying to this Court in five years. See La. Sup. Ct. R. XIX, Sec. 10 (Commentary of the Court amending Rule XIX). See also In re: Perricone , 18-1233 (La. 12/5/18), 263 So. 3d 309 (Crichton, J., concurring and highlighting the difference between disbarment and permanent disbarment).


author: WEIMER, J., would grant.

text:
    SBN V FNBC LLC v. VISTA LOUISIANA, LLC
    NO. 2019-C-651
    Supreme Court of Louisiana.
    June 17, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Denied.
   WEIMER, J., would grant.

CRICHTON, J., would grant for the reasons assigned by Justice Genovese.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant and assigns the following reasons:

This case involves a summary judgment in connection with a suit on a $1,000,000.00 promissory note executed by defendant, Vista Louisiana, LLC ("Vista"), and sold by the Federal Deposit Insurance Corporation to plaintiff, SBN V FNBC LLC, when First NBC Bank closed and was placed in receivership.

I found error by the lower courts in the granting of plaintiff's motion for summary judgment when the non-mover (defendant) has outstanding discovery requests and is precluded from adequate discovery. There were approximately four months from the date of filing suit to the date of the hearing on plaintiff's motion for summary judgment.

Louisiana Code of Civil Procedure Article 966(A)(3) calls for "an opportunity for adequate discovery" before granting a motion for summary judgment. Four months is hardly a sufficient amount of time to conduct adequate discovery. Additionally, the trial court ruled on plaintiff's motion for summary judgment while defendant's discovery requests (interrogatories, production of documents, and admissions of fact) were still outstanding and subsequently denied defendant a continuance.

I find the trial court "jumped the gun" in granting a summary judgment without affording the non-mover an opportunity for adequate discovery and while there were outstanding discovery requests. Additionally, the trial court employed the wrong summary judgment standard when it clairvoyantly stated: "No amount of additional discovery on Vista's asserted defense would create a genuine issue as to which reasonable persons could disagree." Louisiana Code of Civil Procedure Article 966(A)(3) sets forth the summary judgment standard and states that a motion for summary judgment shall be granted when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law, not when there is a genuine issue as to "which reasonable persons could disagree." Summary judgment has taken over the procedural spotlight and is a critical procedural tool in civil litigation. Therefore, it is imperative that the rules be strictly construed and closely followed.

For these reasons, I would grant this writ, reverse the lower courts, and deny plaintiff's motion for summary judgment.


text:
    IN RE: Ashton Devan PARDUE
    NO. 2019-B-0901
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, and engaged in a personal relationship with a current client. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.3, 1.4(a)(3), 1.7, and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Ashton DeVan Pardue, Louisiana Bar Roll number 25815, be and he hereby is suspended from the practice of law for a period of one year.

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.


text:
    IN RE: Todd A. HARRIS
    NO. 2019-B-0827
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent, Todd A. Harris, was arrested for alcohol-related misconduct on four occasions, three of which involved driving while intoxicated. For this misconduct, we accepted a joint petition for consent discipline filed by respondent and the Office of Disciplinary Counsel ("ODC") and suspended respondent for a period of one year and one day, with all but six months deferred, subject to a period of probation to coincide with respondent's recovery agreement with the Judges and Lawyers Assistance Program ("JLAP"). In re: Harris , 17-0726 (La. 9/15/17), 224 So. 3d 963 (" Harris I "). The court's order stated in pertinent part as follows:

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Todd A. Harris, Louisiana Bar Roll number 18937, be suspended from the practice of law for a period of one year and one day, with all but six months deferred. Following the active portion of the suspension, respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. [Emphasis added.]

On January 14, 2019, respondent tested positive for alcohol use. On February 12, 2019, respondent again tested positive for alcohol use. Respondent admitted to JLAP that he had consumed alcohol on both occasions. Respondent then participated in an inpatient professional assessment at the Professionals' Wellness Evaluation Center ("PWEC"). During his evaluation at PWEC, which took place from March 4, 2019 through March 6, 2019, respondent admitted to consuming alcohol on at least six occasions during his JLAP monitoring. PWEC recommended respondent enroll in a JLAP-approved inpatient program for relapse treatment, which respondent has failed to do.

On May 20, 2019, the ODC filed the instant "Request for Revocation of Probation and to Impose Previously-Deferred Suspension," alleging that respondent failed to comply with the conditions of his probation in Harris I by violating the terms of his JLAP recovery agreement as set forth above. Accordingly, the ODC

prayed for the revocation of respondent's probation and the imposition of the previously deferred portion of the one year and one day suspension. Respondent, through counsel, filed a response indicating that he did not oppose the ODC's petition.

DISCUSSION

The record reveals that respondent violated the terms of his JLAP recovery agreement by consuming alcohol and failing to enroll in an inpatient program for relapse treatment. In light of this violation, respondent has failed to comply with the conditions of his court-ordered probation in Harris I .

Accordingly, we will revoke respondent's probation, making the previously-deferred portion of the one year and one day suspension imposed in Harris I immediately executory.

DECREE

For the reasons assigned, the previously deferred portion of the one year and one day suspension imposed in In re: Harris , 17-0726 (La. 9/15/17), 224 So. 3d 963, is hereby made immediately executory, and respondent is hereby suspended from the practice of law for a period of six months and one day from the date of this decree. All costs and expenses in the matter are assessed against respondent, Todd A. Harris, Louisiana Bar Roll number 18937, 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.

      Justice Crichton dissented and would have rejected the joint petition for consent discipline.


text:
    IN RE: Matthew Vance SHELTON
    NO. 2019-B-0791
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent pleaded no contest to felony possession of a Schedule II CDS and no contest to first offense DWI. Prior to 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 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 Matthew Vance Shelton, Louisiana Bar Roll number 34349, be suspended from the practice of law for a period of three years. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be subject to a period of probation to coincide with the remaining term of his monitoring agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

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.


text:
    IN RE: Victor Roy LORASO, III
    NO. 2019-B-0688
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent was convicted of possession and distribution of child pornography. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. The parties stipulate to respondent's misconduct, and seek his permanent disbarment from the practice of law.

Based on our review of the petition, we agree that permanent disbarment is the appropriate sanction in this matter. Accordingly, having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted. The name of Victor Roy Loraso, III, Louisiana Bar Roll number 31239, shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

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.


text:
    IN RE: Lucretia Patrice PECANTTE
    NO. 2019-B-0892
    Supreme Court of Louisiana.
    June 17, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent pleaded guilty to failure to file a tax return and, in connection with her guilty plea, admitted that she engaged in acts which constitute the felony crimes of tax evasion and filing false tax returns. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lucretia Patrice Pecantte, Louisiana Bar Roll number 23545, be and she hereby is suspended from the practice of law for a period of two years, retroactive to September 22, 2017, the date of her interim suspension.

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.