author: COHEN, C.J.

text:
    Christopher M. RAYMOND, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2759
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

Christopher Raymond appeals his conviction following a jury trial for attempted second-degree murder by discharging a firearm. We reverse and remand for a new trial.

The State alleged that Raymond attempted to kill his mother, Nicole Raymond, by firing a shotgun over her head when she was in her bedroom. Mrs. Raymond did not testify at the trial. To prove its case, the State heavily relied on the 911 phone call Mrs. Raymond made after the shooting as well as her statements to the responding officers. The State also presented inculpatory statements Raymond made to officers and photographic evidence of the shooting.

Casey Biuk, a 911 communications officer, testified that on the night of the incident, she answered a call from Mrs. Raymond, who sounded distraught. Mrs. Raymond was crying and relayed that her son had just shot at her in her bedroom. Mrs. Raymond told Officer Biuk that "he's going to kill me ... hurry ... please hurry." The State played a recording of Mrs. Raymond's call for the jury.

Deputy Knight, a responding officer, testified that when he entered the residence, Mrs. Raymond was alone in her bedroom, crying hysterically and shaking uncontrollably. Upon Deputy Knight's questioning, Mrs. Raymond detailed the evening's events that led to Raymond firing the weapon. Deputy Knight observed a spent shotgun shell at the foot of the bed as well as evidence on the pillow and wall consistent with the firing of a shotgun.

Deputy Fernandez, who also responded to the scene, testified that upon making contact with Mrs. Raymond, she stated that she had just been shot at by her son and that he fled to his grandmother's house nearby. Deputy Fernandez subsequently approached Raymond at his grandmother's house and testified that as Raymond was exiting the house, he stated, "The devil is going to give her hers ... she's going to get hers." The deputies recovered a shotgun from the grandmother's house and a hooded sweatshirt containing four unspent shotgun shells consistent with the shell recovered from Mrs. Raymond's bedroom.

The State's last witness, Detective Ricci, testified regarding an interview of Raymond conducted upon his arrest. During the interview, Raymond stated that on the night of the shooting, he had been drinking alcohol in the home, then entered his mother's bedroom, fired a shot, and left the residence. Raymond offered no explanation for his actions but expressed remorse for what he had done. The jury heard a recording of the interview.

On appeal, Raymond raises two issues, only one of which merits discussion: the trial court erred in admitting Mrs. Raymond's 911 call with Officer Biuk and the testimony of Deputies Knight and Fernandez regarding statements made by Mrs. Raymond to them. We separately analyze Mrs. Raymond's statements made during the 911 call and to the responding deputies.

Raymond's arguments regarding Mrs. Raymond's statements conflate his right to confront witnesses against him under the Confrontation Clause of the Sixth Amendment and the excited utterance exception to the hearsay rule. These are two distinct analyses. Statements admitted against a criminal defendant must be both nonviolative of the Confrontation Clause and permissible under the hearsay rules. See, e.g., State v. Contreras, 979 So.2d 896 (Fla. 2008).

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court discussed in depth the history of the Confrontation Clause. The Court held that "[w]here testimonial evidence is at issue ... the Sixth Amendment demands [witness] unavailability and a prior opportunity for cross-examination." Id. at 68, 124 S.Ct. 1354. The Court left open the precise qualities of testimonial statements but provided that "[w]hatever else the term covers, it applies at a minimum to ... police interrogations." Id.

In two consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Court defined the nature of testimonial statements. Both cases involved statements officers obtained in the course of their investigations. The Court explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822. The Court found that the statements made by the victim in Davis when calling 911 described events "as they were actually happening" and objectively indicated that their main purpose was to assist police with an ongoing emergency. Id. at 827-28, 126 S.Ct. 2266. The Court held that these statements were nontestimonial and outside the scope of the Confrontation Clause. Id. at 826-28, 126 S.Ct. 2266. In contrast, the statements made by the victim to responding officers in Hammon, when there was no ongoing emergency, described past events and were "part of an investigation into possibly criminal past conduct." Id. at 829, 126 S.Ct. 2266. The Court held that these statements were testimonial and subject to the requirements of the Confrontation Clause. Id. at 829-30, 126 S.Ct. 2266.

We find the circumstances of Mrs. Raymond's 911 call to be akin to those in Davis because her statements described events "as they were actually happening" in order to assist law enforcement with the ongoing emergency she faced. Thus, the statements were nontestimonial and not in violation of the Confrontation Clause. See id. at 826-28, 126 S.Ct. 2266.

The next step in the analysis is to determine whether the statements fall within the excited utterance exception in section 90.803(2), Florida Statutes (2017). "[T]o qualify as an excited utterance, the statement must be made: (1) 'regarding an event startling enough to cause nervous excitement'; (2) 'before there was time to contrive or misrepresent'; and (3) 'while the person was under the stress or excitement caused by the event.' " Pasha v. State, 225 So.3d 688, 707 (Fla. 2017) (quoting Hudson v. State, 992 So.2d 96, 107 (Fla. 2008) ).

We find that Mrs. Raymond's statements made during the 911 call meet these requirements: she called 911 immediately after Raymond shot at her, while under the stress of the shooting, and explained what had just happened before she had time for reflective thought or the capacity for conscious misrepresentation. See id. (finding witness's statements made during 911 call qualified as admissible excited utterances); see also Taylor v. State, 146 So.3d 113, 114-16 (Fla. 5th DCA 2014) (finding victim's statements to law enforcement following shooting were admissible excited utterances because there was no evidence that victim had sufficient time for reflection and the State presented evidence that victim was still in a state of panic as she relayed the events, which had occurred just minutes before); Barron v. State, 990 So.2d 1098, 1101 (Fla. 3d DCA 2007) (finding statements made during 911 call placed immediately after shooting were excited utterances, nontestimonial, and nonviolative of the Confrontation Clause).

Raymond also argues that under Tucker v. State, 884 So.2d 168 (Fla. 2d DCA 2004), the trial court per se reversibly erred by admitting the 911 call without making necessary specific findings that the statements were excited utterances. Raymond is correct that the trial court erred by failing to make any findings prior to admitting the 911 call. See Stoll v. State, 762 So.2d 870, 873-74 (Fla. 2000) (explaining that "[w]hether the necessary state of mind is present" when analyzing if a statement is an excited utterance "is a preliminary fact for the court to determine"); see also Taylor, 146 So.3d at 116 ("Whether the declarant made an excited utterance is a preliminary question of fact for the trial court ...."). However, our review of the record indicates that Raymond failed to bring this deficiency to the trial court's attention with an objection. Cf. Tucker, 884 So.2d at 171 (noting that defense requested that the trial court take evidence as to witness's state of mind, which the court refused); see also § 90.104(1)(a), Fla. Stat. (explaining that a court may predicate an evidentiary error when, in part, "a timely objection ... appears on the record, stating the specific ground of objection ...."). Thus, we find the error unpreserved for our review.

Mrs. Raymond's statements made during the 911 call sit in stark contrast to the statements made to Deputies Knight and Fernandez upon their arrival at the scene. Those statements, explaining in detail the events leading up to the incident, occurred after the threat ceased and were the result of a police interrogation similar to the one conducted in Hammon, intended to capture historical information. See 547 U.S. at 829-30, 126 S.Ct. 2266. Because Mrs. Raymond did not testify at trial, nor was she ever cross-examined, we agree with Raymond that the introduction of these statements violated his Sixth Amendment right to confrontation. See Bartee v. State, 922 So.2d 1065, 1070 (Fla. 5th DCA 2006) (finding statements victim made to officers in response to questioning after incident were testimonial and that the use of statements at trial violated defendant's right to confront victim where victim was unavailable).

The State bears the burden of establishing that this error was harmless under the circumstances of the case. See Contreras, 979 So. 3d at 911; State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). The entirety of the State's argument as to harmless error is as follows:

VICTIM'S COMMENTS CLEARLY FALL UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE. ANY ERROR HARMLESS.

The body of the argument within the brief is completely devoid of any analysis or attempt to demonstrate how the error was harmless. That said, we have an obligation to conduct an independent harmless error analysis. Goodwin v. State, 751 So.2d 537, 545 (Fla. 1999).

This was not a case where the fact that a shot was fired or the identity of the shooter were in dispute. However, the nature of Raymond's act was the critical issue at trial. To establish the second element of attempted second-degree murder, the State was required to prove beyond a reasonable doubt that Raymond committed an act "imminently dangerous to another and demonstrating a depraved mind without regard for human life." Fla. Std. Jury Instr. (Crim.) 6.4; § 782.04(2), Fla. Stat. (2017). An act is imminently dangerous if "a person of ordinary judgment would know [it] is reasonably certain to kill or do serious bodily injury to another, and [it] is done from ill will, hatred, spite, or an evil intent, and [it] is of such a nature that the act itself indicates an indifference to human life." Fla. Std. Jury Instr. (Crim.) 6.4.

The evidence established that Raymond fired one shot, at close range, from a shotgun. Unlike a single projectile fired from a rifle, a shotgun shell is loaded with multiple projectiles which spread after being fired. Despite his close proximity, not one projectile struck Mrs. Raymond. The physical evidence reflected that Raymond opened the shotgun and expelled the shell, leaving it at the scene. The evidence also established that Raymond possessed four additional unspent shells but had made no effort to reload and fire a second shot, notwithstanding the State's theory that Raymond attempted to kill his mother.

The issue is not whether the evidence might or might not have been sufficient to support a conviction for second-degree murder. Rather, it is whether the State met its burden of establishing beyond a reasonable doubt that Raymond's conviction for attempted second-degree murder would have been reached even in the absence of the improperly admitted testimony. We find it did not. Because "there is a reasonable possibility that the error affected the verdict," we reverse Raymond's conviction and remand for a new trial. See Bartee, 922 So.2d at 1071-72.

REVERSED AND REMANDED.

WALLIS, J. concurs.

EISNAUGLE, J. concurs specially, with opinion

I agree that admission of the victim's statements to law enforcement violated the Confrontation Clause. I write simply to observe that the error is not harmless beyond a reasonable doubt because the improperly admitted statements were the most direct, and perhaps most damaging, evidence rebutting one of Raymond's primary defenses at trial.

      Raymond was convicted under sections 784.04(2), 777.04(1), 775.087(1), 775.087(2)(a)1., and 775.087(2)(a)2., Florida Statutes (2017). However, the correct statute regarding second-degree murder is section 782.04(2), not section 784.04(2), which has been renumbered to section 784.021 and pertains to aggravated assault. See, e.g., Williams v. State, 244 So.3d 1200, 1203-04 (Fla. 1st DCA 2018) (discussing second-degree murder conviction pursuant to section 782.04(2) ).

      The Clause states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Fourteenth Amendment renders the Clause binding on the States. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      In Michigan v. Bryant, 562 U.S. 344, 361, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Supreme Court noted that the logic behind the determination that statements made during an "ongoing emergency" do not violate the Confrontation Clause is similar to the rationale supporting the admission of excited utterances as sufficiently reliable.


source: Caselaw Access Project

author: Bilbrey, J.

license: Public Domain

text:
    Jason Bradley SIMS, Appellant, v. Robert F. BARNARD and Jelks & White, P.A., Appellees.
    No. 1D17-4545
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Jason Bradley Sims, pro se, Appellant.
    Larry A. Bodiford of Hutto & Bodiford, Panama City, for Appellee Robert F. Barnard; Clifford W. Sanborn of Barron & Redding, P.A., Panama City, for Appellee Jelks & White, P.A., for Appellees.
   Bilbrey, J.

Jason Bradley Sims appeals the final summary judgment in favor of Robert F. Barnard and the law firm of Jelks & White, P.A., defendants in the trial court. In his suit against Barnard and the law firm, Appellant alleged that the defendants had committed embezzlement, gross negligence, and malpractice in the administration of Appellant's father's estate. However, two years before Appellant filed his suit, Barnard was discharged as the personal representative (PR) of the estate after the probate court approved the final accounting and distributions. See Fla. Prob. R. 5.401(f). Based on the res judicata effect of the final orders in the earlier probate case, and on section 733.901, Florida Statutes, the trial court entered summary judgment for the defendants in Appellant's subsequent action. Because there were no genuine disputes of material fact and the defendants were entitled to judgment as a matter of law, we affirm the summary judgment. Regarding defendant Jelks & White, we affirm without further comment. We write only to discuss the application of section 733.901 as a bar to Appellant's lawsuit against Bernard.

The facts material to the trial court's application of section 733.901(2) were undisputed. Upon stipulation of the parties, the trial court took judicial notice of the record in the probate case and portions of that record were incorporated into the record of this appeal. The record shows that the probate action commenced in January of 2004 and administration of the estate continued for over ten years. Barnard was the second successor PR appointed by the probate court and the law firm served as the PR's counsel. After a duly-noticed hearing, the probate court approved the final accounting by order entered February 11, 2015. Upon the PR's report of distribution, the probate court entered its order of discharge of Barnard on February 17, 2015. Neither order was appealed. See Fla. R. App. P. 9.170(b) (setting forth a number of appealable orders in probate cases).

Section 733.901(2) provides: "The discharge of the personal representative shall release the personal representative and shall bar any action against the personal representative, as such or individually, and the surety." Accordingly, absent facts in the record justifying an exception to the general statutory rule, the trial court correctly entered summary judgment in favor of Barnard as a matter of law pursuant to section 733.901.

Appellant argues that the trial court's summary judgment based on section 733.901 and res judicata must be reversed to avoid manifest injustice and under the exceptions to the statutory bar for cases where fraud and intentional misrepresentation are shown. Appellant raised this issue in the trial proceedings, and the summary judgment on appeal addresses it, so the issue is preserved for appellate review.

Appellant correctly asserts that section 733.901"does not serve as an absolute bar to the suits filed after the discharge of the personal representative." Van Dusen v. Southeast First Nat'l Bank of Miami , 478 So.2d 82, 89 (Fla. 3d DCA 1985). The statutory bar codifies "a modified res judicata concept ... applicable in probate cases." Id. at 91. The bar will not be applied to a suit for fraud by concealment, where its application "would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period." Karpo v. Deitsch , 196 So.2d 180, 181 (Fla. 3d DCA 1967) (holding that suit was not barred by discharge where suit alleged PR concealed from heirs the true value of estate and concealed from the court the identities of the heirs preventing heirs from asserting objection or claim prior to discharge). Likewise, where the PR conceals its intentional transfer of an estate asset by failing to report the distribution in the petition for distribution or otherwise, the PR "is not entitled to the sanctuary provided by" section 733.901. Van Dusen , 478 So.2d at 91.

The record in this case fails to support any concealment of any estate asset or distribution from the court or from Appellant which prevented Appellant from raising his objection prior to the order of discharge so as to remove Appellant's lawsuit from the application of section 733.901(2). In fact, the record amply demonstrates that Appellant did repeatedly but unavailingly raise his same objections and claims of mismanagement against the PR throughout the probate proceedings.

It is undisputed that Appellant was identified as one of the beneficiaries of the estate in the original petition for administration filed in 2004. His receipt of notice of the PR's petitions for court authorization to sell estate properties and pay the PR, legal counsel, and other expenses is demonstrated by Appellant's active participation in the probate action via pro se filings of requests, motions, and objections at every opportunity.

Appellant's first complaint of "neglect and misrepresentation" by the PR was in response to the PR's petition for court authorization to sell estate property, filed in December 2008. Despite Appellant's objection, the probate court authorized the PR's actions and payment for the PR's and the law firm's services. Over the course of the administration, Appellant continued to file objections to the PR's proposals for sales of real estate and payment of legal fees, and he consistently complained about the delay of disbursements to the beneficiaries. The record shows no concealment of any kind by the PR.

On August 28, 2014, the PR filed the petition for final distribution and discharge. Appellant timely filed his objection to this petition, complaining that two interim accountings covering approximately three months of the ten-year administration were missing from his copies received from the PR. He also challenged payments by the estate to lawyers and accountants and sought a court order for distribution of the remaining estate assets to the beneficiaries instead. After notice and a hearing, the probate court approved the final accounting and, after the PR's report of distribution, entered the order of discharge on February 17, 2015.

Appellant filed his lawsuit against Bernard and the law firm on March 13, 2017. While the amended complaint generally alleged fraud and "embezzlement," the facts asserted by Appellant were that the PR failed to provide him with sufficient accountings to explain all expenditures, leading Appellant to the conclusion that estate funds had been removed without explanation. The missing interim accountings, which Appellant was ultimately provided, simply do not rise to the level of "concealment" by the PR presented in Van Dusen and Karpo .

The probate court's entry of orders approving and authorizing the PR to act despite Appellant's objections constituted denials of the objections. The trial court correctly determined that the lawsuit filed two years after closure of the probate case was barred as res judicata and by section 733.901(2). The summary judgment on appeal is therefore

AFFIRMED .

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

      Not only did Appellant actively participate in the probate proceedings, but we note that he is an active pro se appellant in this Court, as evidenced by his two appeals stemming from the probate case (Sims v. Estate of Steven Henry Sims , Case No. 1D17-5059 & Sims v. Estate of Steven Henry Sims , Case No. 1D18-3396); three appeals from civil case number 2015 CA 000352 (14th Cir., Bay Cnty.) (Sims v. Wells Fargo Bank, N.A. , Case No. 1D16-4898; Sims v. Wells Fargo Bank, N.A ., Case No. 1D17-5055; and Sims v. Wells Fargo Bank, N.A., Case No. 1D18-2197); and petition for writ of prohibition (Sims v. Clerk of Circuit Court, Bay Cnty. , Case No. 1D18-3595). Although untrained in the law, Appellant's filings in this Court and the circuit court are inconsistent with a situation where his ability and willingness to file claims and appeals has been hindered or interfered with by others.


author: Per Curiam.

text:
    Keith Shane BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2476
    District Court of Appeal of Florida, First District.
    November 7, 2018
    Gina M. Girardot of Whittel & Melton, LLC, Saint Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Keith Shane Bush appeals an order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Bush raised multiple claims attacking his judgment and sentence based on ineffective assistance of trial counsel. All of the claims were summarily denied. On appeal, Bush raises two issues, arguing the postconviction court erred in denying two of his claims: (1) counsel was ineffective for failing to move to suppress the results of a legal blood draw, and (2) counsel was ineffective for failing to relay the State's plea offer or adequately advise him regarding the sentencing guidelines and maximum penalties associated with his charges. We affirm the summary denial of the first issue without further comment. But because the records attached to the order do not conclusively refute Bush's allegation that counsel may have misadvised him or that counsel failed to inform him of the statutory maximum sentences, he is entitled to relief on the second issue. See Gray v. State , 220 So.3d 464, 466 (Fla. 5th DCA 2017) ; Roundtree v. State , 884 So.2d 322, 322 (Fla. 2d DCA 2004). We, therefore, reverse the order summarily denying this claim. On remand, the postconviction court is directed to attach portions of the record that conclusively refute it or to hold an evidentiary hearing.

AFFIRMED in part; REVERSED in part.

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


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Carol F. JOHNSON, BY AND THROUGH Keith E. JOHNSON, Attorney-in-Fact, Appellant, v. HEARTLAND OF FORT MYERS FL, LLC; Manor Care, Inc.; HCR III Healthcare, LLC; and HCR Manor Care, Inc. (as to Heartland Health Care Center Fort Myers), Appellees.
    Case No. 2D17-1762
    District Court of Appeal of Florida, Second District.
    Opinion filed November 7, 2018
    Joanna Greber Dettloff and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Lissette Gonzalez and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

Carol Johnson, through Keith Johnson, her son and attorney-in-fact, filed a lawsuit against a nursing home facility and related companies (collectively, the Manor Care Appellees) for injuries that she sustained while briefly a resident at the facility. In this interlocutory appeal, she challenges the trial court's order staying the proceedings and granting the Manor Care Appellees' motion to compel the parties to arbitrate pursuant to an agreement that Keith Johnson executed after Ms. Johnson sustained the injuries giving rise to the suit. For the following reasons, we affirm the order compelling arbitration.

First, we reject Ms. Johnson's argument that the arbitration agreement does not apply because she sustained her injuries before Keith Johnson executed the agreement. The agreement provides, in pertinent part, "the parties agree that they will mutually benefit from the speedy and efficient resolution of any dispute or controversy which may arise between them." Ms. Johnson argues that the term "may arise" indicates that the agreement applies only prospectively, i.e., to a dispute or controversy arising between them after the agreement is executed, and therefore, by its own terms, the agreement does not apply to her suit. The Manor Care Appellees respond that the term "any dispute or controversy" indicates that the agreement applies broadly and without regard to when the dispute or controversy between them arises.

We need not reach that issue. Even if Ms. Johnson is correct that the agreement applies only to a dispute or controversy arising between her and the Manor Care Appellees after the agreement was executed, we conclude that a "dispute or controversy" between the parties is not synonymous with "injury" to the victim. Although Ms. Johnson sustained her injuries (and her cause of action accrued, see, e.g., Dep't of Transp. v. Soldovere, 519 So.2d 616, 617 (Fla. 1988),) before the agreement was executed, the dispute or controversy between her and the Manor Care Appellees did not arise until she filed suit. See KFC Nat'l Mgmt. Co. v. Beauregard, 739 So.2d 630, 631 (Fla. 5th DCA 1999) (holding that arbitration agreement applied to plaintiff's suit against her employer arising out of her co-worker's physical attack on her although the attack occurred before the plaintiff executed the agreement, and explaining that, "Significantly, the term 'claim' was used in the agreements and the facts show that while the alleged attack leading to the claim against KFC preceded the agreements to arbitrate, the claim was made after Beauregard signed the agreements"). Therefore, even if the agreement applies only prospectively, it applies here.

We reject without further comment Ms. Johnson's argument that the agreement was procedurally unconscionable, see, e.g., Fla. Holdings III, LLC v. Duerst ex rel. Duerst, 198 So.3d 834, 839-41 (Fla. 2d DCA 2016), and so we need not reach the issue of whether the confidentiality provision and the attorney's fees provision are substantively unconscionable, Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin ex rel. Hardin, 122 So.3d 916, 920 (Fla. 2d DCA 2013) ("To succeed in claiming that a contractual provision is unconscionable, a party must demonstrate both procedural and substantive unconscionability.... Where the party alleging unconscionability establishes only one of the two prongs, the claim fails." (citation omitted) ). We address, however, whether the attorney's fees provision is unenforceable as a violation of public policy. See Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 257-58 (Fla. 2d DCA 2006) (noting distinction between public policy and unconscionability concerns and stating that notwithstanding the absence of a specific ruling by the trial court as to public policy, "we are, nonetheless, compelled to address an issue that is becoming a recurrent theme in cases brought before the district courts of appeal"), abrogated in part on other grounds by Basulto v. Hialeah Auto., 141 So.3d 1145, 1159-60 (Fla. 2014), and Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 474 (Fla. 2011). That provision states: "Counsel and Attorneys' Fees. Each party may be represented by its own counsel in the arbitration. Each party agrees to bear its own attorneys' fees and costs, unless otherwise specifically awarded by the Arbitrator under state or federal law." (Emphasis added.)

Relying on Hochbaum ex rel. Hochbaum v. Palm Garden of Winter Haven, LLC., 201 So.3d 218, 220-21 (Fla. 2d DCA 2016), Ms. Johnson argues that the provision improperly limits her statutory right to seek a full award of her fees under the prevailing-party provision of section 415.1111, Florida Statutes (2016). The Manor Care Appellees respond that Hochbaum is distinguishable because the provision in this agreement allows the arbitrator to award attorney's fees and costs under state or federal law; thus, it does not preclude Ms. Johnson, if prevailing, from being awarded her attorney's fees and costs under section 415.1111 and does not impinge on her statutory rights.

We agree with the Manor Care Appellees. See Hochbaum, 201 So.3d at 221 ("The arbitration agreements in this case require the parties to equally bear the fees associated with arbitration, in contravention of Hochbaum's statutory right to seek a full award of her fees under the prevailing party attorneys' fees provision of section 415.1111. Thus ... this provision of the arbitration agreements violates public policy." (emphasis added) ). Section 415.1111 does not guarantee a prevailing party an award of attorney's fees and costs but provides that the prevailing party "may be entitled to recover reasonable attorney's fees [and] costs," and the attorney's fees provision in this case allows the arbitrator to award attorney's fees and costs under "state law," which includes section 415.1111. That the agreement vests the authority to award fees in the arbitrator, rather than in the court, does not limit Ms. Johnson's statutory right to an award of prevailing-party fees but simply changes who determines her entitlement to them. Cf. Gessa v. Manor Care of Fla., Inc., 86 So.3d 484, 493 (Fla. 2011) (concluding that limitation of liability provisions that placed a $250,000 cap on noneconomic damages and eliminated punitive damages altogether "directly frustrate[d] the remedies created by the statute ... [and] eviscerate[d] the remedial purpose of the statute" and therefore violated public policy); Shotts, 86 So.3d at 474 ("[W]e conclude that any arbitration agreement that substantially diminishes or circumvents [the remedies set forth in sections 400.022 and 400.023 ] stands in violation of the public policy of the State of Florida and is unenforceable.").

We therefore conclude that the parties entered into a valid arbitration agreement and that the agreement applies in this case. Accordingly, we affirm the trial court's order compelling arbitration.

Affirmed.

SILBERMAN and SLEET, JJ., Concur.

      Count one alleged negligence, in violation of section 400.022, Florida Statutes (2016) ; count two alleged a breach of fiduciary duty; and count three alleged violations of section 415.1111, Florida Statutes (2016).

      That section provides, in pertinent part:
      A vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.... A party who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages.

      The question whether to award fees pursuant to a valid arbitration agreement is different from the threshold question whether the agreement is, in fact, valid; the latter question must be resolved by the courts and may not be left to the arbitrator. See Shotts, 86 So.3d at 465 (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) (explaining that it is for the court, not the arbitrator, to determine whether a valid arbitration agreement exists) ).
      We note that there is no avenue for appealing an arbitrator's failure to award prevailing-party fees if that failure is based on an error of law. See Green Earth Tech. Sol., Inc. v. Geltech Sol., Inc., 150 So.3d 1200, 1202 (Fla. 4th DCA 2014) ("Assuming arguendo that the arbitration panel erroneously concluded that there was no prevailing party, this is not a basis upon which an arbitration award may be vacated or reversed." (citing Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1329-30 (Fla. 1989) ) ). The failure, however, would not be wholly unreviewable. See § 682.13, Fla. Stat. (2016) (setting forth grounds for vacating arbitration award). In any event, absent a legislative guarantee either of a prevailing-party attorney's fees award or of appellate review of such an award, we do not believe that the limitations on review of an arbitrator's attorney's fees determination so undermine the statutory remedies as to render the attorney's fees provision void as against public policy.


text:
    Vincent GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3599
    District Court of Appeal of Florida, First District.
    November 15, 2018
    Vincent Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

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


author: PER CURIAM.

text:
    Tyrone JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2201
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    James S. Purdy, Public Defender, and Shawna R. Moyers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tyrone Jones appeals the judgment and sentence imposed after he admitted to violating community control by failing to remain confined to his residence. We have reviewed the record and find no error. However, the order revoking Jones's community control failed to identify which condition of community control Jones violated. Accordingly, we remand for the trial court to enter a judgment specifying which condition Jones violated. E.g., Roberts v. State, 76 So.3d 1047, 1048 (Fla. 5th DCA 2011).

AFFIRMED and REMANDED for entry of an amended judgment.

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


text:
    Traci Lynne CLARK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3506
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's judgment and sentence but remand for correction of a scrivener's error. Section 3 of the amended order of probation should reflect that following Appellant's period of incarceration, she is to be placed on regular probation, not drug offender probation.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER's ERROR.

TORPY, EVANDER and EISNAUGLE, JJ., concur.


text:
    Romeo WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4086
    District Court of Appeal of Florida, First District.
    November 15, 2018
    Romeo Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Osterhaus, and Bilbrey, JJ., concur.


text:
    Henry Lee BAKER, IV, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D13-1249
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    James S. Purdy, Public Defender, and Lisa Ann Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   PER CURIAM.

Henry Lee Baker, IV, appeals the sentence imposed following his conviction for attempted second-degree murder. Baker, who was sixteen years old at the time of the offense and nineteen years old during sentencing, shot a police officer at an apartment complex. The jury found that the victim was a law enforcement officer engaged in the lawful performance of a legal duty, that Baker possessed and discharged a firearm, and that as a result, he inflicted great bodily harm. Baker is currently serving a fifty-four-year sentence.

In initially affirming Baker's sentence, this Court followed its precedent in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), where we held that an aggregate sentence of ninety years imposed on a juvenile did not violate the Eighth Amendment. Baker v. State, 136 So.3d 1231 (Fla. 5th DCA 2014). However, the Florida Supreme Court overturned our precedent in Henry v. State, 175 So.3d 675 (Fla. 2015), and accordingly quashed our decision in Baker v. State, 43 Fla. L. Weekly S507, 2018 WL 5116551 (Fla. Oct. 19, 2018).

Pursuant to the supreme court's decision in Lee v. State, 234 So.3d 562 (Fla. 2018), Baker is entitled to resentencing under the juvenile sentencing provisions in chapter 2014-220, Laws of Florida, codified in sections 775.082, 921.1401, and 921.1402 of the Florida Statutes, allowing him the opportunity for early release based on a demonstration of maturity and rehabilitation.

REVERSED AND REMANDED FOR RESENTENCING.

COHEN, C.J., BERGER and WALLIS, JJ., concur.


text:
    Ernesto VILLANEDA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2902
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Ernesto Villaneda, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant pursuing relief pursuant to Florida Rule of Criminal Procedure 3.850. See Gethers v. State, 838 So.2d 504, 507-08 (Fla. 2003) ; Johnson v. State, 932 So.2d 300, 301 (Fla. 2d DCA 2006) (citing Jasmin v. State, 799 So.2d 312, 312 n.1 (Fla. 2d DCA 2001) ).

AFFIRMED.

BERGER, WALLIS and LAMBERT, JJ., concur.


author: MORRIS, Judge.

text:
    HOME TITLE COMPANY OF MARYLAND, INC., a Maryland Corporation, Appellant/Cross-Appellee, v. Michael J. LASALLA, Appellee/Cross-Appellant.
    Case No. 2D17-998
    District Court of Appeal of Florida, Second District.
    Opinion filed November 16, 2018
    W. Todd Boyd and Yvette R. Lavelle of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appellant/Cross-Appellee.
    Courtney L. Fernald and Leonard S. Englander of Englander Fischer, St. Petersburg, for Appellee/Cross-Appellant.
   MORRIS, Judge.

Home Title Company of Maryland, Inc. (Home Title), appeals a final judgment entered in favor of Michael J. LaSalla in the amount of $60,382 after a bench trial on LaSalla's complaint against Home Title for breach of fiduciary duty. LaSalla cross appeals. Both parties raise numerous issues on appeal. We find merit in Home Title's challenge to LaSalla's standing as an individual to bring an action based solely on an injury to an LLC of which he is a member. We reverse the judgment on this basis, and because this issue is dispositive of the case, we decline to reach the other issues raised.

I. Background

In 2003, George Mullin asked his friend LaSalla for a loan to purchase four undeveloped tracts of land in Maryland. LaSalla agreed to loan Mullin the money with the condition that they form an LLC for the purpose of purchasing the property. They formed Florida-Maryland Properties, LLC (the LLC), in Florida, with Mullin and LaSalla being the only members. LaSalla loaned $290,000 to the LLC to purchase the land, and the loan was secured by a mortgage.

In 2006, LaSalla and Mullin agreed to sell lot 4 for $315,000 to satisfy LaSalla's loan to the LLC. They also discussed conveying lot 2 to a new LLC created by LaSalla, of which LaSalla was the sole member. The closing occurred in October 2006, and the parties retained Home Title, a Maryland-based company, to serve as escrow agent for the sale of lot 4. Lot 4 was conveyed to the new owners, and LaSalla's loan to the LLC was satisfied. However, Mullin and LaSalla could not agree to other terms, and lot 2 was never conveyed to LaSalla's newly-formed LLC. LaSalla corresponded with Home Title over the course of the next three years, but nothing was resolved as to lot 2.

In 2012, Mullin approached Home Title and asked it to convey lots 1, 2, and 3 to him and his wife. He misrepresented that he and his wife were the only members of the LLC and that they wished to dissolve the LLC. Home Title conveyed lots 1, 2, and 3 to the Mullins.

In 2013, LaSalla filed suit in Florida against Home Title, the Mullins, and the LLC. He also filed suit against the Mullins in Maryland to quiet title to lot 2. In 2015, LaSalla and the Mullins entered into a mediated settlement agreement whereby LaSalla's claims against the Mullins were satisfied in exchange for $100,000. In 2016, LaSalla filed the operative complaint in Florida, alleging a count for breach of fiduciary duty against Home Title based on Home Title's failure to transfer lot 2 to LaSalla or his new LLC in 2006 and Home Title's transfer of lots 1, 2, and 3 to the Mullins in 2012. LaSalla sought special damages from Home Title under the wrongful act doctrine for fees and costs LaSalla incurred in the litigation against the Mullins.

Home Title filed a motion to dismiss LaSalla's complaint for lack of personal jurisdiction, which the trial court denied. Home Title also moved for summary judgment, arguing that any claim based on the 2006 events was barred by the statute of limitations. The trial court agreed, concluding that the 2006 dispute "as to Home Title's alleged failure to transfer [l]ot 2" was "barred by the four[-]year statute of limitations" because the action was not filed until December 6, 2013. Thus, the trial focused only on the 2012 transfer of lots 1, 2, and 3 to the Mullins. After LaSalla presented his case, Home Title moved for an involuntary dismissal arguing that LaSalla's claim was purely derivative of the harm to the LLC and that, therefore, only the LLC could sue for damages. The trial court denied Home Title's motion. Home Title raised the issue again during closing argument, asserting that the claim based on the 2012 transaction was derivative and belonged to the LLC, which owned lots 1, 2, and 3 at the time of the 2012 transaction.

After trial, the trial court entered a final judgment in favor of LaSalla in the amount of $60,382. The trial court found that Home Title owed a fiduciary duty to LaSalla and that Home Title breached the duty by transferring lots 1, 2, and 3 to the Mullins in 2012. The trial court awarded the $60,382 as damages under the wrongful act doctrine, after a reduction for LaSalla's comparative fault. The trial court rejected LaSalla's claim for damages for property asset losses, concluding that there was no evidence to support the amount of loss.

II. Analysis

On appeal, Home Title argues that LaSalla lacks standing to assert a claim against Home Title, and to recover damages from Home Title, based on a direct injury to the LLC. Home Title contends that LaSalla suffered only an indirect injury as a member of the LLC. As part of its argument, Home Title claims that the trial court erred when it ruled that Home Title owed a duty to LaSalla, individually, in 2012. We agree.

We review de novo the trial court's ruling on Home Title's motion for involuntary dismissal on the basis that LaSalla lacked standing. See Purificato v. Nationstar Mortg., LLC, 182 So.3d 821, 823 (Fla. 4th DCA 2016). Generally, a shareholder of a corporation or a member of an LLC may not maintain an action in his or her own right if the cause of action is derived from the right of the corporation or the LLC to bring the action. See Alario v. Miller, 354 So.2d 925, 926 (Fla. 2d DCA 1978) ; Dinuro Invests., LLC v. Camacho, 141 So.3d 731, 738-40 (Fla. 3d DCA 2014). In other words, if "the injury is primarily against the corporation, or the [share]holders generally, then the cause of action is in the corporation and the individual's right to bring it is derived from the corporation." Alario, 354 So.2d at 926 (quoting Citizens Nat'l Bank v. Peters, 175 So.2d 54, 56 (Fla. 2d DCA 1965) ).

Two different transactions formed the basis of LaSalla's claim, one that occurred (or, more accurately, failed to occur) in 2006 and a second that occurred in 2012. LaSalla first claimed that Home Title breached its duty by failing to convey lot 2 from the LLC to him or his newly-formed LLC in 2006. However, the trial court correctly ruled that that portion of LaSalla's claim was barred by the statute of limitations because the complaint was not filed until December 2013. See § 95.11(3)(o), Fla. Stat. (2006) ; Goodwin v. Sphatt, 114 So.3d 1092, 1094 (Fla. 2d DCA 2013) ("[A] claim for breach of fiduciary duty is subject to the four-year statute of limitations for intentional torts." (first citing § 95.11(3)(o) ; and then citing Halkey-Roberts Corp. v. Mackal, 641 So.2d 445, 447 (Fla. 2d DCA 1994) ) ). Thus, the only transaction that remained at issue was the 2012 transaction in which lots 1, 2, and 3 were conveyed from the LLC to the Mullins. There was no dispute that the three lots belonged to the LLC. See § 608.425(1), Fla. Stat. (2012) ("All property originally contributed to the limited liability company or subsequently acquired by a limited liability company by purchase or otherwise is limited liability company."). Therefore, the LLC suffered the injury as a result of the 2012 transfer of the property from the LLC to the Mullins, and any claim based on this event should have been brought by the LLC or as a derivative claim on behalf of the LLC.

At the time LaSalla's initial complaint was filed, section 608.601, titled "Member's derivative actions," allowed a member of an LLC to "commence a proceeding in the right" of the LLC after a demand was filed with the managers or managing members. § 608.601, Fla. Stat. (2013). This section was repealed and replaced by the Florida Revised Limited Liability Company Act. Ch. 2013-180, § 5, & ch. 2015-148, § 11, Laws of Fla.; §§ 605.0101 - 605.1108, Fla. Stat. (2014). The Act includes two separate statutes addressing derivative actions by members of LLCs and the proper plaintiffs in such actions. §§ 605.0802, 605.0803. Even assuming that LaSalla was permitted under the applicable statutes to file a derivative action on behalf of the LLC against Home Title, LaSalla did not file such an action. He did not state that he was filing a claim on behalf of the LLC, and he asserted an injury on his own behalf, not on behalf of the LLC.

LaSalla claims that he was entitled to bring a suit in his individual capacity because his injury was distinct from Mullin, the only other member of the LLC. He relies on Dinuro Investments, 141 So.3d at 735, in which the court recognized that it can be difficult to draw a distinction between a derivative claim and an individual claim, especially in the context of "closely held corporations and LLCs, which typically have fewer individuals that possess an ownership interest." In such cases, "claims of mismanagement or self-dealing become a zero-sum game in which one party profits from the company's loss, while the other is harmed due to the company's reduced value." Id. The Dinuro Investments court considered Florida precedent, as well as the various tests used by other jurisdictions, and held the following:

[A]n action may be brought directly only if (1) there is a direct harm to the shareholder or member such that the alleged injury does not flow subsequently from an initial harm to the company and (2) there is a special injury to the shareholder or member that is separate and distinct from those sustained by the other shareholders or members.

Id. at 739-40 (citations omitted) (holding that action was derivative and could not be brought individually by a member of the LLC because the harm to the member was indirect); see also Strazzulla v. Riverside Banking Co., 175 So.3d 879 (Fla. 4th DCA 2015) (adopting the two-prong test in Dinuro Investments as being consistent with Fourth District precedent). The court went on to recognize an exception to this rule:

A shareholder or member need not satisfy this two-prong test when there is a separate duty owed by the defendant(s) to the individual plaintiff under contractual or statutory mandates. Thus, if the plaintiff has not satisfied the two-prong test (direct harm and special injury) or demonstrated a contractual or statutory exception, the action must be maintained derivatively on behalf of the corporation or company.

Dinuro Investments, 141 So.3d at 740 (citation omitted).

Here, LaSalla does not meet the test set forth in Dinuro Investments because the harm to LaSalla flowed from the harm to the LLC. The property belonged to the LLC, and thus, the LLC suffered the direct harm when Home Title transferred the property to the Mullins in 2012. Even though LaSalla is the only other member of the LLC who suffered as a result of the transfer, the harm to him individually was indirect and the result of the harm to the LLC.

LaSalla further contends that even if he did not satisfy the two-prong test, this case falls within the Dinuro Investments exception because Home Title owed a separate contractual duty to LaSalla individually based on the escrow agreement regarding lot 2 in 2006. But as discussed above, the statute of limitations barred LaSalla's claim that Home Title had a duty to him regarding lot 2 in 2006. There was no evidence that Home Title had a statutory or contractual duty to LaSalla individually regarding the transfer of lots 1, 2, and 3 in 2012; Home Title's duty, if any, was to the LLC, of which LaSalla is a member.

In conclusion, the trial court erred in entering judgment in favor of LaSalla because he did not bring a derivative action against Home Title on behalf of the LLC for breach of fiduciary duty based on the 2012 transaction. We reverse and remand with directions for the trial court to enter an involuntary dismissal.

KELLY and ATKINSON, JJ., Concur.

      The trial court found that LaSalla's claim that was based on Home Title's failure to convey lot 2 accrued at the latest in September 2009, when LaSalla sent Home Title a letter demanding that Home Title convey lot 2 or face litigation.

      Section 608.425 was repealed and replaced with section 605.0110 of the Florida Revised Limited Liability Company Act, which became effective in 2014. Ch. 2013-180, §§ 2, 5 & ch. 2015-148, § 11, Laws of Fla. Section 605.0110 provides that "[a]ll property originally contributed to the limited liability company or subsequently acquired by a limited liability company by purchase or other method is limited liability property" and that "[a] member of a limited liability company has no interest in any specific limited liability company property." § 605.0110(1), (4), Fla. Stat. (2014).

      Further, we note that LaSalla testified that Home Title was supposed to transfer lot 2 to his newly-formed LLC in 2006. Thus, even if the statute of limitations did not bar the 2006 claim, it appears that LaSalla had only a derivative claim, on behalf of his newly-formed LLC, against Home Title for its failure to convey lot 2 to his newly-formed LLC in 2006. See Lincoln Oldsmobile, Inc. v. Branch, 574 So.2d 1111, 1114 (Fla. 2d DCA 1990) (holding that where the injury is to the corporation, a stockholder must bring the action in the name of the corporation, "even where the individual is the sole stockholder of the corporation" (citing Schaffer v. Universal Rundle Corp., 397 F.2d 893 (5th Cir. 1968) ) ).


text:
    Allen COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1622
    District Court of Appeal of Florida, First District.
    November 20, 2018
    Candice Brower, Criminal Conflict and Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Allen Cooper walked into a Tallahassee bank, threatened the teller with a gun, and left with $3,200 in cash. At Cooper's trial for robbery with a firearm, his counsel conceded in opening statements that Cooper robbed the bank. Cooper himself testified and likewise admitted to the robbery. The only real dispute at trial was whether Cooper used a gun. He said he did not; the teller said he did. The jury concluded he did, and the trial court sentenced Cooper to a ten-year mandatory-minimum term.

Cooper now raises two issues on appeal. He first argues that the trial court failed to conduct a timely and adequate Richardson inquiry after an alleged discovery violation was raised mid-trial. See Richardson v. State , 246 So.2d 771 (Fla. 1971). When Cooper's girlfriend was testifying, the prosecutor sought to have her identify Cooper's Facebook page. The night before trial, Cooper posted a statement saying, "Tomorrow I will be taking a very long, forced hiatus. To be specific, very likely ten years." Defense counsel objected that the statement had not been disclosed, but the court ultimately allowed the girlfriend to identify the Facebook page and for the post to come in during Cooper's testimony.

When on notice of a potential discovery violation, "1) the court must determine whether a discovery rule has been violated; and 2) if the court finds a violation, it must assess whether the violation was inadvertent or willful, trivial or substantial, and whether it has prejudiced the opposing party's ability to prepare for trial." Parker v. State , 225 So.3d 1008, 1010 (Fla. 1st DCA 2017) (citations omitted). But a court's failure to conduct a proper Richardson inquiry is subject to a harmless error analysis. See State v. Schopp , 653 So.2d 1016, 1021 (Fla. 1995). We conclude that the error in the court's Richardson inquiry-if there was any error-was harmless.

Cooper next argues that the trial court erred in striking a portion of his testimony. During cross-examination, the prosecutor asked why Cooper had made the statement on Facebook. Cooper responded:

Because I was telling my friends and family who have stuck by me through this, thank you for supporting me because I have a big support group who knows me and knows this and knows that I'm manning up right here, right now, and I'm not trying to get out of anything other than what you're trying to charge me with what I didn't have. You wouldn't even come off a plea bargain; so, of course, I'm walking in here talking about I'll likely get ten years.

The prosecutor objected and the trial court struck Cooper's answer because it referenced plea discussions.

On appeal, Cooper claims the trial court's action denied him the ability to explain the Facebook post and therefore an opportunity to present a full and fair defense. The portion of Cooper's response talking about the prosecutor's plea offer was inadmissible. See § 90.410, Fla. Stat. (2016). But even if the court erred in striking the rest of Cooper's response, the error was undoubtedly harmless. See State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986). Cooper's Facebook post suggested he was going to prison for ten years. It did not suggest Cooper used a gun during the robbery, which was the only issue at trial. Given that defense counsel and Cooper admitted he was at least guilty of robbery, Cooper's inability to explain the Facebook post could not have contributed to the verdict.

AFFIRMED .

Makar, Winokur, and Winsor, JJ., concur.


text:
    Andrew L. HARDEN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-4700
    District Court of Appeal of Florida, First District.
    November 19, 2018
    Andrew L. Harden, pro se, Petitioner.
    Rana Wallace, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    SHANDS JACKSONVILLE MEDICAL CENTER, INC., d/b/a UF Health Jacksonville, Appellant, v. State of Florida, DEPARTMENT OF HEALTH; and Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center, Appellees.
    No. 1D17-2215
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Seann M. Frazier and Marc Ito of Parker Hudson Rainer & Dobbs, LLP, Tallahassee, for Appellant.
    William Dean Hall, III, Marc W. Dunbar, and Daniel R. Russell of Jones Walker LLP, Tallahassee, for Appellee Department of Health.
    Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren of Rutledge Ecenia, P.A., Tallahassee, for Appellee Orange Park Medical Center.
   Per Curiam.

Shands Jacksonville Medical Center, Inc., appeals from the order approving the provisional trauma center application of Orange Park Medical Center, Inc., asserting three issues: (a) that the need for the new trauma center may not be deferred until the final selection phase of the process; (b) that the Department of Health was operating pursuant to an unadopted rule; and (c) that the Department erred in allowing the new trauma center to begin its operations prior to the completion of Shands' administrative challenge. As to issue (a), we affirm based on State, Dep't of Health v. Bayfront HMA Med. Ctr., LLC , 236 So.3d 466 (Fla. 1st DCA 2018). As to issue (b), we affirm based on State, Dep't of Health v. Shands Jacksonville Medical Center , No. 1D17-1713, --- So.3d ----, 2018 WL 5915402 (Fla. 1st DCA Nov. 13, 2018). As to issue (c), we conclude that the matter is moot.

AFFIRMED in part; DISMISSED in part.

Wetherell, Makar, and Winsor, JJ., concur.


text:
    Racquel PETERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2121
    District Court of Appeal of Florida, First District.
    November 21, 2018
    Racquel Peterson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Lewis, Wetherell, and Makar, JJ., concur.


author: B.L. Thomas, C.J.,

text:
    Anderson Lee Nieves NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2450
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.,

Appellant challenges the final judgment of his convictions and sentences, arguing that: 1) the jury rendered inconsistent verdicts; 2) improper comments by the prosecutor denied Appellant a fair trial; and 3) the trial court illegally imposed consecutive minimum mandatory sentences. We reject Appellant's arguments on the first two issues.

As to Appellant's claim that the trial court could not impose consecutive minimum mandatory sentences, we reverse and remand with instructions for the trial court to enter an amended order providing that Appellant's sentences are to be served concurrently, consistent with the supreme court's recent decision in Miller v. State , --- So.3d ----, ----, 43 Fla. L. Weekly S426, 2018 WL 4784069 at *1 (Fla. Oct. 4, 2018) ("our caselaw reflects that the crimes stemming from a single criminal episode involving a single victim or a single injury may not be sentenced consecutively").

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

Winsor, J., concurs; Makar, J., concurs with opinion.

I concur fully, noting that the issue of whether the many improper prosecutorial comments cumulatively denied Nieves a fair trial would be a close one had contemporaneous objections been made; affirmance is required, however, under the fundamental error rule. Spencer v. State , 842 So.2d 52, 74 (Fla. 2003).


author: B.L. Thomas, C.J.

text:
    Bobby Allen BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4184
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, Joanna A. Mauer and Kathleen Pafford, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his judgment and sentence, arguing, inter alia , that the trial court erred in giving a jury instruction on principals in connection with a conspiracy charge, and that the trial court improperly imposed consecutive sentences while also designating Appellant as an habitual felony offender.

Appellant was charged with burglary of an unoccupied structure, conspiracy to commit burglary of an unoccupied structure, grand theft, and criminal mischief. The charges stemmed from an incident in which Appellant and another person broke into a convenience store, stole beer and cigarettes, and fled.

The jury instructions included the following standard instruction on principals:

3.5(a). PRINCIPALS
If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime.

During the charge conference, the trial court noted that the instruction on principals appeared to be the standard jury instruction, and Appellant's counsel did not object, stating that he had reviewed the instructions earlier and did not see any problem with them. Appellant did not request an instruction to inform the jury that the principals instruction only applied to certain counts.

The jury found Appellant guilty of all four counts. The trial court declared Appellant an habitual felony offender ("HFO") and sentenced him to five years in prison for burglary, five years in prison for conspiracy to commit burglary, and five years in prison for grand theft, with each sentence to run consecutively, and 60 days in prison for the criminal mischief count.

During pendency of this appeal, Appellant filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court could not sentence him to consecutive sentences enhanced by the HFO statute where the offenses arose out of a single criminal episode. The trial court denied Appellant's motion.

Appellant argues that the trial court committed fundamental error by giving "the principals instruction without the additional instruction limiting it to substantive charges." However, Appellant did not request a limiting instruction at the charge conference, and his counsel in fact stated that he saw no problem with the standard principal instruction. "Without requesting a limiting instruction, the defendant invited the error."

Rondon v. State , 157 So.3d 360, 362 (Fla. 4th DCA 2015). If an error is invited, "the appellate court will not consider the error a basis for reversal." Goodwin v. State , 751 So.2d 537, 544 (Fla. 1999). Appellant therefore waived any argument of fundamental error in the jury instructions.

Appellant also argues that the trial court improperly sentenced him to consecutive sentences while also designating him as an habitual felony offender. Appellate courts review de novo a trial court's denial of a motion to correct sentencing error. Willard v. State , 22 So.3d 864 (Fla. 4th DCA 2009). The State agrees that Appellant's offenses were committed during one criminal episode, but argues that Appellant did not receive enhanced sentences, thus, the consecutive sentences were allowed.

Appellant cites Hale v. State, 630 So.2d 521, 524 (Fla. 1993), for the proposition that

nothing in the language of the habitual offender statute ... suggests that the legislature ... intended that, once the sentences from multiple crimes committed during a single criminal episode have been enhanced through the habitual offender statutes, the total penalty should then be further increased by ordering that the sentences run consecutively.

In Cotto v. State , the supreme court clarified that

Hale stands for the proposition that once multiple sentences from a single criminal episode are enhanced through the habitual offender statute, the total penalty cannot be further increased by consecutive sentencing absent specific legislative authorization....
... [A] PRR sentence is not an enhanced sentence within the meaning of Hale .... We are unwilling to extend Hale to apply to unenhanced sentences.

139 So.3d 283, 289 (Fla. 2014) (emphasis removed).

The State argues that Hale does not apply, because, although the court designated Appellant as an habitual felony offender, his sentence was not enhanced by the HFO statute: Appellant was sentenced to five years for each felony count, in accordance with the non-HFO statutory maximum for third-degree felonies. The State argues that because Appellant's sentence does not exceed the statutory maximum, it has not been "enhanced" by the HFO statute, and is not illegal under Hale .

Appellant argues that it is unclear whether an "enhanced" sentence means only one with an increased total penalty. He asserts that the "detriments accompanying the status of being designated an HFO" constitute enhancement, even if the total incarceration time was not increased above the statutory maximum.

This court's decision in Braswell v. State , could be read to suggest that consecutive HFO sentences for offenses committed in a single criminal episode are per se impermissible, regardless of whether the sentences exceed the non-HFO statutory maximum. 171 So. 3d 199, 199 (Fla. 1st DCA 2015) ("The trial court is prohibited from imposing consecutive HFO sentences for offenses that were committed during a single criminal episode."). Although the supreme court stated in Hale that "enhanced" sentences arising from the same episode could not run consecutively, 630 So.2d at 525, in Cotto it clarified that an "enhanced" sentence is one in which the period of incarceration has been extended beyond the statutory maximum. Cotto , 139 So.3d at 289. Because "[a] PRR sentence is not enhanced beyond the statutory maximum," it constitutes an "unenhanced" sentence to which Hale does not apply. Id. (quoting Reeves v. State , 920 So.2d 724, 726 (Fla. 5th DCA 2006), app'd 957 So.2d 625 (Fla. 2007) ).

Thus, under Florida Supreme Court precedent, an "enhanced" sentence is one in which the period of incarceration has been increased beyond the normal statutory maximum. 139 So.3d at 289. Here, Appellant was designated as an HFO, but was given the non-HFO statutory maximum, i.e. five years for each offense. These sentences were thus not "enhanced," and therefore may be imposed consecutively.

We reject without comment all other issues raised by Appellant.

AFFIRMED .

Osterhaus and Bilbrey, JJ., concur.


text:
    Samuel C. GOLDEN, Appellant, v. ESTATE OF Hans G. TANZLER, Jr., Appellee.
    No. 1D16-4960
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Samuel C. Golden, pro se, Appellant.
    Hans G. Tanzler, III, as Personal Representative of the Estate of Hans G. Tanzler, Jr., pro se, Appellee.
   Per Curiam.

In Burdoo v. Plympton , this court held that "[a] court reversibly errs when a prisoner requests to appear telephonically[ ] and the court fails to issue an order directed to the Department of Corrections requiring the prisoner to appear telephonically." 219 So.3d 170, 171 (Fla. 1st DCA 2017) ; accord Havenner v. Hutchinson , 162 So.3d 1113, 1114 (Fla. 1st DCA 2015). In this case, that is what happened.

REVERSED .

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


text:
    THREE JOSEPHS, LLC, and Joe Joseph, Appellants, v. LEASE INVESTORS, LLC ; The Pantry, Inc.; Chaffee Food Store, Inc., a Florida Corporation; Claude Moulton; Mike Williams in His Official Capacity as the Sheriff of Duval County, Florida; Tommy E. Hopson; and Durga Shakti, LLC, Appellees.
    No. 1D17-1792
    District Court of Appeal of Florida, First District.
    November 30, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellants.
    Claude R. Moulton of Moulton Bosshardt, LLC, Jacksonville, for Appellee Lease Investors, LLC; Mark S. Mitchell and Timothy D. Hedrick of Rogers Towers, P.A., Jacksonville, for Appellee Durga Shakti, LLC.
   Per Curiam.

Appellant Three Josephs, LLC, challenges the trial court's amended order denying its motion to set aside a foreclosure sale. We affirm the trial court's order.

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

      We do not address appellant's ability to seek monetary damages arising out of the foreclosure sale as this issue was not addressed by the trial court.


author: PER CURIAM

text:
    IN RE: George Allen R. WALSH
    NO. 2018-B-1232
    Supreme Court of Louisiana.
    December 3, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

In this matter, the Office of Disciplinary Counsel ("ODC") seeks to appeal a ruling of the Louisiana Attorney Disciplinary Board ordering that respondent, George Allen R. Walsh, be publicly reprimanded.

UNDERLYING FACTS

The records of the Louisiana State Bar Association ("LSBA") reflect that between May 31, 2014 and August 5, 2016, respondent was ineligible to practice law for failing to comply with the mandatory continuing legal education requirements. Likewise, the LSBA's records reflect that from September 9, 2014 to February 4, 2015, and again from September 9, 2015 to July 5, 2016, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. Respondent was ineligible from September 9, 2015 to June 9, 2016 for failure to file a trust account registration statement.

On June 13, 2016, the ODC received a complaint from Judge Adam J. Haney of the East Baton Rouge Parish Juvenile Court. In the complaint, Judge Haney informed the ODC that on June 8, 2016, respondent had appeared before him as counsel of record in a juvenile detention hearing. The judge's staff later searched the LSBA's attorney roster database in an effort to update respondent's contact information. At that time, the staff discovered that respondent was ineligible to practice law. The LSBA subsequently confirmed directly to Judge Haney that respondent was ineligible to practice for failure to comply with his professional obligations.

Judge Haney instructed his law clerk to contact respondent to inform him that he was listed as ineligible to practice law by the LSBA. Respondent told the law clerk that he would investigate the matter and report back to the court, but when Judge Haney had not heard from respondent, he filed a complaint with the ODC.

On two occasions, the ODC forwarded a copy of the complaint to respondent and requested a response. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Respondent appeared for the statement but refused to answer any questions, stating that he would be hiring an attorney to represent him and that he would not participate in the sworn statement at that time. Two weeks later, respondent reappeared at the ODC's offices, accompanied by his attorney, and gave a sworn statement, during which he admitted that he had engaged in the active and continuous practice of law from September 9, 2015 to June 8, 2016, a significant portion of the time that he was ineligible to practice.

DISCIPLINARY PROCEEDINGS

In March 2017, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(c) (a lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein) and 5.5(a) (engaging in the unauthorized practice of law). Respondent, through counsel, answered the formal charges and stated that his failure to timely comply with his professional obligations was unintentional and did not cause harm.

Formal Hearing

Following remand, this matter proceeded to a formal hearing. The ODC introduced documentary evidence, including a letter from Loretta Larsen, the Executive Director of the Louisiana State Bar Association, certifying that respondent was deemed ineligible for failing to comply with his MCLE requirements for the period of May 31, 2014 through August 5, 2016. The ODC also called Judge Haney and Michelle LaRose, the LSBA's Director of Finance and Membership, to testify in person before the hearing committee.

Respondent testified on his own behalf and on cross-examination by the ODC. Respondent also introduced a transcript from the Louisiana Supreme Court website indicating that he completed his MCLE requirements in 2014, 2015, and 2016.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Based upon documentary evidence submitted by respondent and the testimony of respondent, the committee found that respondent completed his MCLE requirements for the period of 2014 through 2016. Respondent presented a transcript from the Louisiana Supreme Court website properly identifying him and indicating that all MCLE requirements were completed for the years in question. This information was supported by respondent's testimony. The ODC did not provide evidence to the contrary, and Ms. LaRose was unable to testify about MCLE requirements or the adequacy of the reporting of such information to her office.

Based upon the testimony of Ms. LaRose, the testimony of respondent, and documentary evidence, the committee found that respondent failed to pay his bar dues and the disciplinary assessment for the period of September 9, 2015 to July 5, 2016. Ms. LaRose testified that her office was responsible for collecting and reporting bar dues and disciplinary assessments, and her records revealed that respondent had not paid his dues during the period in question. Respondent also admitted that he failed to pay his dues and the disciplinary assessment.

Based upon the testimony of respondent and documentary evidence, the committee found that respondent failed to report his trust account for the period of September 9, 2015 to July 5, 2016. Ms. LaRose was unable to testify about the trust account and the adequacy of the reporting of such information to her office, but respondent admitted his trust account reporting failure, which was supported by documentary evidence.

Based upon the testimony of Judge Haney and respondent, the committee found that respondent practiced law while he was ineligible to do so. Judge Haney confirmed that his first encounter with respondent occurred while respondent was representing a client before him in Juvenile Court. Respondent admitted to this encounter and to others that occurred during his period of ineligibility.

Based upon the testimony of Judge Haney and respondent, the committee found that there is no evidence that any client complaints were filed against respondent or that any actual harm was experienced by any of his clients during the period of his ineligibility. Judge Haney testified that he did not receive any reports or witness any issues while respondent was before him. Respondent testified that he has not received any complaints from clients, requests for reimbursement of funds, or notices of malpractice.

Based upon the testimony of respondent and documentary evidence, the committee found that respondent changed office locations and personnel multiple times during the period in question. However, documentary evidence introduced by the ODC includes a notice of delinquency and certificate of ineligibility which was sent to two of respondent's addresses. The committee found that respondent received adequate notice of the delinquency and ineligibility. Nevertheless, this is a mitigating factor in light of the possibility of crossed, misplaced, or mishandled mail. The committee also noted that respondent shares a name and, at times, an office with his father, which may have added to the confusion. Respondent apologized and tried to avoid excuse throughout the hearing.

Based on these factual findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent negligently violated duties owed to the legal profession. His conduct caused the potential for harm, although no actual harm occurred. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction ranges from reprimand to suspension.

The committee found the following aggravating factors are present: a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 2005). The committee added that respondent also had an additional period of ineligibility (September 9, 2014 through February 4, 2015), which was not included in the formal charges.

The committee found the following mitigating factors are present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, "multiple changes in office location," "multiple changes in office personnel," and remorse.

Turning to the issue of an appropriate sanction, the committee found guidance from the cases of In re: Oldenburg , 09-0991 (La. 10/16/09), 19 So.3d 455, and Inre: McCarthy , 07-1272 (La. 1/25/08), 972 So.2d 1143. In Oldenburg , an attorney made a court appearance on behalf of a client during a period in which he was not eligible to practice law. Due to his lengthy history of ineligibility, the court suspended the attorney from the practice of law for six months, with all but thirty days deferred, followed by a two-year period of probation with conditions. In McCarthy , an attorney filed pleadings on behalf of his client, appeared in open court, and contacted and negotiated with third parties on his client's behalf in three separate legal matters while he was ineligible to practice law. For this misconduct, the court suspended the attorney for six months, followed by one year of unsupervised probation with conditions.

Considering the foregoing, the committee recommended respondent be suspended from the practice of law for six months, with all but thirty days deferred, followed by one year of unsupervised probation.

Respondent objected to the hearing committee's report, arguing that the recommended sanction was too harsh.

ORDER OF THE DISCIPLINARY BOARD

After review, the disciplinary board found that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. Respondent was ineligible to practice law for ten months for failing to pay his bar dues and the disciplinary assessment and for failing to comply with the trust accounting requirement. Respondent admitted that he continued to practice law (making two court appearances, communicating with clients, accepting fees, and taking on new clients) during this time period, although he was not actually aware that he was ineligible to do so. For the reasons outlined in the committee's report, the ODC did not meet its burden of proving by clear and convincing evidence that respondent did not satisfy his MCLE requirements or any rule violation based on that allegation. The board concluded that respondent violated Rules 1.1(c) and 5.5(a) of the Rules of Professional Conduct.

The board determined that respondent negligently violated duties owed to the legal system and the legal profession. He was aware of his professional obligations with respect to payment of dues and assessments and annual reporting, but simply overlooked fulfilling the requirements. While the obligations were ultimately his responsibility, these administrative tasks had generally been handled by others in his office. There is no evidence to show that any actual harm was caused by his misconduct, although there was the potential for harm to clients and the legal system during the ten-month period that respondent was ineligible to practice law. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is reprimand.

The board found that the only aggravating factor is "one past instance of ineligibility to practice for a period of five months" (September 9, 2014 through February 4, 2015) for failure to pay bar dues and the disciplinary assessment. Respondent was not charged with a disciplinary violation for this period of ineligibility. He also testified that he was not aware of his ineligibility during the 2014-2015 period.

The board found the following mitigating factors are present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct "once he realized that he was ineligible," full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Turning to the issue of an appropriate sanction, the board noted that not all instances of practicing law while ineligible have resulted in suspension, and, in at least one instance, charges were dismissed for a "minor," negligent violation of Rule 5.5(a) which caused no harm. The board further noted that the cases of Oldenburg and McCarthy , which were relied upon by the committee, are distinguishable from the instant matter. Most significantly, the misconduct of the attorneys in Oldenburg and McCarthy was determined to be knowing, not negligent.

Considering the ABA Standards and a review of the applicable jurisprudence based on the totality of the evidence presented, the board concluded that a public reprimand is appropriate discipline in this case. Accordingly, the board ordered that respondent be publicly reprimanded. The board further ordered that respondent be assessed with all costs and expenses of these proceedings.

As previously noted, the ODC has appealed the board's ruling to this court. On August 23, 2018, we ordered the parties to submit briefs addressing the issue of whether the record supports the disciplinary board's report. Both the ODC and respondent filed briefs in response to our order.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

In this matter, respondent engaged in the practice of law during a period in which he was ineligible to do so for failure to comply with his professional obligations. Respondent has admitted that he engaged in the practice of law between September 9, 2015 and June 8, 2016, a time period in which he was deemed ineligible to practice due to his failure to pay his bar dues and the disciplinary assessment as well as his failure to file his trust account disclosure statement. The primary dispute concerns whether respondent engaged in the practice of law between May 2014 and June 2016, a time period in which he was allegedly ineligible to practice due to his failure to complete his MCLE requirements.

LSBA records submitted into evidence by the ODC reflect that respondent was MCLE ineligible from May 31, 2014 through August 5, 2016. However, transcripts submitted into evidence by respondent reflect that he completed his MCLE requirements for 2014, 2015, and 2016. The hearing committee and the disciplinary board relied upon the latter evidence to determine that respondent was compliant with his MCLE obligations for those years. While we cannot say this finding rises to the level of clearly wrong, it does not change the fact that respondent practiced law for a significant period of time while he was ineligible to do so.

Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances.

Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

The record supports a finding that respondent violated duties owed to the legal profession, which created the potential for harm. Given respondent's lengthy history of failing to fulfill his professional obligations, his misconduct was grossly negligent, if not knowing. Under the ABA's Standards for Imposing Lawyer Sanctions , the baseline sanction for this type of misconduct is suspension.

The following aggravating factors are supported by the record: a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 2005).

The following mitigating factors are supported by the record: absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Turning to the issue of an appropriate sanction, we find guidance from each of the cases cited by the ODC and the hearing committee. Of these cases, the most applicable in terms of similarity of facts is the Oldenburg matter. In Oldenburg , an attorney who had been declared ineligible to practice law on nine occasions since his admission to the bar in 1985 was declared ineligible for failing to comply with the CLE requirements. During this time, he made one court appearance on behalf of a client. Finding his conduct to be negligent, the disciplinary board recommended the attorney be publicly reprimanded. The ODC sought review of that ruling in this court. We increased the sanction to an actual period of suspension, stating:

Considering respondent's repeated past failures to comply with his professional obligations, we cannot excuse his misconduct in this matter as a simple oversight. Accordingly, we find that an actual period of suspension is warranted. We will impose a six-month period of suspension, deferring all but thirty days of the suspension on the condition that respondent successfully complete a two-year period of probation. During the probationary period, respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association's Practice Assistance and Improvement Committee. He shall also timely pay his bar dues and the disciplinary assessment and comply with all continuing legal education requirements. Any failure of respondent to comply with the conditions of probation may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. [Emphasis added.]

The same reasoning can be applied to the instant case. Respondent (who has been ineligible for seven of thirteen years since his admission to the bar in 2005) was declared ineligible in 2014 for failing to comply with his professional obligations. During this time, he made at least one court appearance on behalf of a client. Considering respondent's "repeated past failures to comply with his professional obligations," his conduct cannot be excused as "a simple oversight." Therefore, as we found in Oldenburg , it is clear that "an actual period of suspension is warranted."

By contrast, the cases cited by the disciplinary board do not reflect respondent's lengthy history of failing to fulfill his professional obligations and practicing law while ineligible. As noted in the hearing committee's report, respondent had an additional period of ineligibility (September 9, 2014 through February 4, 2015) not included in the formal charges. The several mitigating factors present in this case are simply not enough to overcome this history.

Considering the jurisprudence, we find that an appropriate sanction in this matter is a six-month suspension, with all but thirty days deferred, followed by a one-year period of unsupervised probation. We will also order respondent to attend Ethics School.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that George Allen R. Walsh, Louisiana Bar Roll number 29696, be and he hereby is suspended from the practice of law for six months. It is further ordered that all but thirty days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for one year. As a condition of probation, respondent is ordered to attend and successfully complete the Louisiana State Bar Association's Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. 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. 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.

Hughes, J., dissents in part and assigns reasons.

      The board noted that respondent does not have a trust account. Respondent works for his father, also an attorney, who maintains the trust account for the firm. However, respondent failed to fulfill the requirement that he declare annually that he does not have or manage a trust account.

      In In re: Phillips , 11-DB-073 (6/06/01), the board publicly reprimanded an attorney for practicing law during a three-month period in which she was ineligible to do so based on her failure to pay bar dues and the disciplinary assessment and her failure to register her trust account. Her actions caused no actual harm and were largely negligent. In In re: Denny , 07-DB-073 (1/09/09), the board dismissed charges against an attorney despite a finding that he practiced law while he was ineligible to do so based on his failure to comply with MCLE requirements. The board found that he had acquired sufficient CLE hours to fulfill his MCLE requirement, but they were not properly reported due to a miscommunication with his secretary. His conduct caused no actual harm and he immediately corrected the problem.


text:
    IN RE: Rebecca Lynn VISHNEFSKI
    NO. 2018-OB-1801
    Supreme Court of Louisiana.
    December 3, 2018
    ORDER
   Considering the Petition for Transfer to Active Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Rebecca Lynn Vishnefski, Louisiana Bar Roll number 26965, be and she hereby is reinstated to active status pursuant to Supreme Court Rule XIX, § 22(G). This order shall be effective immediately.


text:
    IN RE: Kristy E. GRIFFIN
    NO. 2018-OB-1699
    Supreme Court of Louisiana.
    December 3, 2018
    ORDER
   The Office of Disciplinary Counsel ("ODC") filed formal charges against respondent, alleging that she violated Rules 1.1, 1.3, 1.4, 1.5(f)(5), 3.2, and 8.1(c) of the Rules of Professional Conduct. In addition, the ODC is conducting an investigation into three new complaints against respondent which allege similar misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent's petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Kristy E. Griffin, Louisiana Bar Roll number 28348, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Kristy E. Griffin for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Kristy E. Griffin shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which she is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which she is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    Jody GASPARD, et al. v. Marvin HUTSON, Brian Dauzat Trucking, LLC, QBE Specialty Insurance, Helena Chemical Company and ABC Insurance Company
    No. 2018-CC-1424
    Supreme Court of Louisiana.
    December 3, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF POINTE COUPEE
   PER CURIAM

Granted. The district court did not err in finding there were genuine issues of material fact in this case. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court denying the motion for summary judgment is reinstated. The case is remanded to the district court for further proceedings.

Weimer, J., would deny.

Guidry, J., would deny.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-908399
    NO. 2018-BA-0689
    Supreme Court of Louisiana.
    December 3, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

Petitioner passed the Louisiana Bar Examination. Thereafter, petitioner and the Committee on Bar Admissions ("Committee") filed a joint petition seeking petitioner's conditional admission to the practice of law. We denied the petition on the showing made, remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation, and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner's recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the monitoring agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on July 13, 2016.

2. Petitioner shall amend his JLAP agreement to incorporate a requirement that he participate in two years of mental health treatment with a competent medical professional approved by JLAP. Petitioner shall execute a written release with his healthcare provider to allow the submission of quarterly written progress reports to JLAP.

3. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

4. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

5. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

6. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

7. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.