author: CASANUEVA, Judge.

text:
    John KIEFFER, Appellant, v. ATHEISTS OF FLORIDA, INC., and Edward Gollobith, Appellees.
    Case No. 2D17-4233
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa, for Appellant.
    R. Gale Porter, Jr., of Porter Law Group, LLC, Tampa, for Appellees.
   CASANUEVA, Judge.

John Kieffer appeals an order granting summary judgment against him on his claim of defamation filed against Atheists of Florida, Inc. (AOF), of which he used to be president, and Edward Gollobith, a member and director of AOF. Mr. Kieffer alleged that Appellees defamed him by stating that he misappropriated AOF funds. The trial court determined that Mr. Kieffer's defamation claim must fail because the statements regarding misappropriation were substantially true and were protected by qualified privilege. We conclude that Appellees failed to meet their burden for entry of summary judgment, and we therefore reverse and remand for further proceedings.

I. FACTS

AOF filed an action alleging numerous claims, including conversion and FDUTPA violations, against Mr. Kieffer and other former AOF members. In a consolidated action, Mr. Kieffer filed a claim against Appellees alleging defamation based on statements published by Appellees that Mr. Kieffer had misappropriated AOF funds.

The statements alleging misappropriation involved two donations totaling $ 5045, which Mr. Kieffer deposited into a newly created AOF bank account, and a check in the amount of approximately $ 18,000 made out to attorney John McKnight. Mr. Kieffer alleged that he had been given proper authority to transfer the funds to attorney McKnight on behalf of AOF. He also alleged that he was acting with proper authority in depositing the $ 5045 into a new AOF account. Thus, he argued that there was no misappropriation of funds and that Appellees' statements constituted defamation.

Prior to the summary judgment on appeal, AOF filed a motion for partial summary judgment on its conversion and FDUTPA claims. In ruling on that motion for partial summary judgment, the trial court determined that genuine issues of material fact existed as to whether Mr. Kieffer had authorization from AOF to write the check to attorney McKnight; thus, it denied the motion for summary judgment of conversion as to the $ 18,000 check. However, the court did grant summary judgment as to the conversion of $ 5045 in donations and granted summary judgment on a FDUTPA violation for failing to remit the donations.

Appellees filed a subsequent motion for summary judgment seeking to dispose of Mr. Kieffer's defamation claim. Based in part on its earlier partial summary judgment order, the trial court granted Appellees' motion for summary judgment as to the defamation claim, finding that it had already concluded that Mr. Kieffer had misappropriated some amount of funds (the $ 5045 in donations), thus rendering the statement substantially true. The court concluded that the remaining questions of fact involving the $ 18,000 check did not preclude summary judgment as to the defamation claim and granted Appellees' motion for summary judgment. This appeal followed.

Mr. Kieffer argues that conversion and misappropriation are not the same thing and thus the court's finding of conversion does not make the statements regarding misappropriation substantially true. Therefore, he argues, the court erred in entering judgment in favor of Appellees based on the substantial truth doctrine. Further, Mr. Kieffer argues that while he was found to have converted $ 5045, the challenged statements allege that Mr. Kieffer misappropriated not just the $ 5045 in donations but also the check in the amount of approximately $ 18,000. Mr. Kieffer argues that a material dispute of fact remains regarding the $ 18,000 check and that summary judgment was improper for this reason as well.

II. ANALYSIS

We review an order granting final summary judgment de novo. Dahly v. Dep't of Children & Family Servs., 876 So.2d 1245, 1248 (Fla. 2d DCA 2004). In seeking summary judgment, the movant must conclusively demonstrate that there is an absence of genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. If the movant meets this burden, the opposing party

must prove the existence of genuine triable issues. If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party, and summary judgment must be denied.

Id. at 1248-49 (citation omitted); see also Thomas v. Tampa Bay Downs, Inc., 761 So.2d 401, 404 (Fla. 2d DCA 2000) ("[I]f there exists the possibility of any issue or even 'the slightest doubt that an issue may exist,' a motion for summary judgment must be denied." (citation omitted) ). In considering "a motion for summary judgment, the trial court must accept as true every factual allegation and every reasonable inference which can be drawn therefrom which is favorable to the nonmoving party." Pep Boys v. New World Commc'ns of Tampa, Inc., 711 So.2d 1325, 1328 (Fla. 2d DCA 1998).

A claim of defamation requires "the following five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory." Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008). Clearly, a false statement about another is a required element of defamation. Cape Publ'n, Inc. v. Reakes, 840 So.2d 277, 279-80 (Fla. 5th DCA 2003). However, "falsity only exists if the publication is substantially and materially false, not just if it is technically false." Smith v. Cuban Am. Nat'l Found., 731 So.2d 702, 707 (Fla. 3d DCA 1999).

"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true." Id. at 706. "The question of falsity, the [Supreme] Court held, 'overlooks minor inaccuracies and concentrates upon substantial truth.' " Id. at 707 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) ). Furthermore, in determining whether a statement is "substantially true," the statement in question must be read in full context of its publication. Id. at 705-06.

"Where a communication is ambiguous and reasonably susceptible of a defamatory meaning, it is for the trier of fact to decide whether the communication was understood in the defamatory sense."

Perry v. Cosgrove, 464 So.2d 664, 666 (Fla. 2d DCA 1985) ; see also Pep Boys, 711 So.2d at 1328 ("The questions of whether the broadcast contained false statements and/or statements that could be interpreted as false are questions of fact which should be left for a jury to determine where the communication is ambiguous and is reasonably susceptible of a defamatory meaning.").

In this case, the court appears to have relied on both the substantial truth doctrine and qualified privilege in disposing of the defamation claim. First addressing the substantial truth doctrine, the court noted that it had already determined that Mr. Kieffer "misappropriated some of the Organization's funds." It concluded without discussion that the "sting" of the allegedly defamatory statements derived from the statement that Mr. Kieffer misappropriated AOF funds, not from specific amounts allegedly taken. And it noted that under the substantial truth doctrine, "statements are not to be held to the exact facts or to the most minute details of the transactions published."

Next, the court discussed qualified privilege. Despite noting that Appellees chose not to argue qualified privilege as a basis for summary judgment, the court determined that "the allegedly defamatory statements fall under the ambit referred to as a 'qualified business privilege' " and that the Appellees' "actions were taken with good motive."

The trial court's order relies heavily on qualified privilege, a defense that was not asserted or argued as a basis for summary judgment. In fact, counsel for Appellees expressly stated that he was not relying on qualified privilege because that would bring motive into the analysis. Instead, Appellees relied solely on the argument that the statements regarding misappropriation of funds were substantially true.

Qualified privilege is an affirmative defense, and the burden of proving it rests with the defendant. Healy v. Suntrust Serv. Corp., 569 So.2d 458, 460 (Fla. 5th DCA 1990). Because Appellees did not argue qualified privilege as a basis for summary judgment, we will not use it as a basis for affirming summary judgment on appeal. See Am. Ideal Mgmt., Inc. v. Dale Vill., Inc., 567 So.2d 497, 498 (Fla. 4th DCA 1990) (considering only the defenses of qualified privilege and publication where appellees claimed the statements were true but did not ground their motion on that issue and argued only qualified privilege and lack of publication).

Thus, we are left to consider whether the statements were substantially true. In determining that the statements regarding misappropriation of funds were substantially true, the court simply stated that it previously found that "Kieffer misappropriated some of the Organization's funds" and then concluded that the "sting" is the same regardless of how much was misappropriated.

While the court stated that it previously found that Mr. Kieffer had misappropriated funds, in fact, the prior partial summary judgment order found that the tort of conversion occurred when Mr. Kieffer failed to remit the $ 5045 in donations for a number of months. And, based on this same conduct, the court found that a FDUTPA violation had occurred pursuant to section 496.415(15) for failure to provide complete and timely payment of the donations to AOF. Critically, the court made no finding of wrongful intent. In fact, the court expressly noted that conversion does not require wrongful intent, and thus conversion occurred when Mr. Kieffer failed to timely remit the $ 5045 in donations to AOF regardless of whether Mr. Kieffer believed he had authority to hold the funds and deposit them into a new AOF account.

The same may not be said of misappropriation. "A reasonable person would equate the term 'misappropriation' with theft," which does involve wrongful intent. Healy, 569 So.2d at 459-60. Because misappropriation is reasonably thought to involve wrongful intent, we cannot conclude as a matter of law that conversion is necessarily tantamount to a finding of misappropriation. Cf. id. at 460 ("Clearly, Healy's failure to comply with Suntrust's transfer procedures alone was not a theft or misappropriation.").

"A 'statement is substantially true if its substance or gist conveys essentially the same meaning that the truth would have conveyed,' " Jews For Jesus, 997 So.2d at 1107-08 (quoting Standard Jury Instructions-Civil Cases (No. 00-1), 795 So.2d 51, 57 (Fla. 2001) ), or "if the 'gist' or the 'sting' of the statement is true," Smith, 731 So.2d at 706. Assuming the sting of an allegation of misappropriation stems, at least in part, from the wrongful intent associated with the allegation, we cannot say that conversion or failure to timely remit donations with no wrongful intent conveys the same meaning as misappropriation. The difference is even more striking when the amounts involved are considered, as the trial court's finding of conversion and FDUTPA violation was limited to $ 5045, while the challenged statements allege misappropriation of over $ 23,000.

While Appellees point out that misappropriation may in some circumstances also be considered conversion, this overlap merely highlights the ambiguity of the communication, requiring that it be resolved by a trier of fact and not on summary judgment. See Pep Boys, 711 So.2d at 1328 ; Perry, 464 So.2d at 666. Thus, drawing all reasonable inferences in favor of Mr. Kieffer, as we must on summary judgment review, Appellees have failed to establish that the challenged statements are not reasonably susceptible of a defamatory meaning.

III. CONCLUSION

In short, Appellees have failed to conclusively demonstrate on this record that they are entitled to judgment as a matter of law on Mr. Kieffer's defamation claim. Accordingly, we conclude that it was error for the trial court to grant summary judgment, and we reverse.

Reversed and remanded for further proceedings.

KELLY and ATKINSON, JJ., Concur.

      The order on appeal also addressed a claim of defamation filed by former AOF member Ellen Beth Wachs. Ms. Wachs did not appeal the order.

      Florida Deceptive and Unfair Trade Practices Act, § 496.416, Fla. Stat. (2016).

      Mr. Kieffer also filed a declaratory action against AOF challenging, among other things, his removal as an officer and member of the organization. That matter is no longer pending.

      Even if we were to consider qualified privilege, we note that "[w]hether the privilege exists or has been exceeded in some manner creates a mixed question of law and fact which normally should be determined by the trier of fact . The existence of a qualified privilege vanishes if the statement is made with malice, or to too wide an audience." Healy, 569 So.2d at 460 (emphasis added). Here, the circumstances and motives surrounding the publication of the statements were very much in dispute. Under such circumstances, the presumption of good faith does not attach and would be a disputed fact remaining to be resolved. Cf. Thomas, 761 So.2d at 404 (discussing essential elements of qualified privilege).

      The trial court's partial summary judgment order states, in part:
      "A conversion occurs when a person who has a right to possession of property demands its return and the demand is not or cannot be met." Shelby Mut. Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481 So.2d 501, 503 (Fla. 2d DCA 1985). Importantly, no wrongful intent is necessary to accomplish a conversion .... "The tort [of conversion] may be established upon a showing of the taking by the defendant of personal property belonging to the plaintiff upon a mistaken belief as to the legal right of the defendant to the converted property."Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So.2d 1282, 1283-84 (Fla. 3d DCA 1987).
      Here, regardless of what Kieffer and Wachs believed about the effectiveness of their expulsion, it is undisputed that they received the subject checks made out to AOF at a time when they were officers and member [sic] of AOF and failed to remit the funds to AOF for a number of months.
      (Emphasis added.) Noting again that "intent is not an element of conversion," the court found AOF entitled to summary judgment on the count of conversion totaling $ 5045 and found a FDUPTA violation based on the same facts. The court stated it did not find for AOF as to conversion of the $ 18,000 check because "there are multiple questions of fact as to whether during the time Wachs and Kieffer had possession of those funds and deposited them with John McKnight, they had explicit authorization from AOF to do so."


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul SAVAGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1555
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 30, 2019
    Paul Savage, Milton, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Horvatt v. State, 266 So.3d 1268, 2019 WL 1302551 (Fla. 5th DCA Mar. 22, 2019).

COHEN, HARRIS and GROSSHANS, JJ., concur.


author: Per Curiam.

text:
    Kenneth L. DOWELL, d/b/a Ken's Paint & Body, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 1D17-5193
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Danny L. Kepner and Louis "Trip" Maygarden of Shell, Fleming, Davis & Menge, P.A., Pensacola, for Appellant.
    Jared P. Gann of Kirkland, McGhee & Gann, Pensacola, for Appellee.
   Per Curiam.

Kenneth L. Dowell, d/b/a Ken's Paint & Body ("Dowell"), challenges the trial court's order granting summary judgment to State Farm Mutual Automobile Insurance Company ("State Farm") in an action arising from a vehicle lien claimed by Dowell for towing and service charges. The trial court determined that Dowell's failure to provide timely notice of the lien to the vehicle owner was fatal to each of Dowell's theories of recovery against State Farm. We agree and affirm.

Background

On March 15, 2014, at the request of law enforcement, Dowell towed a disabled 2011 Jeep Compass from a crash scene to his towing business. At the scene of the accident, law enforcement provided Dowell with the vehicle owner's name and address, and the vehicle tag and identification numbers.

After the Jeep went unclaimed for almost two weeks, Dowell sent a "Notice of Lien and Proposed Sale of Vehicle, Mobile Home or Vessel" to the Jeep's owner on March 28, 2014. The notice informed the Jeep owner that Dowell was in possession of the vehicle and claimed a lien against it for the following charges: $ 100 towing fee, $ 35 administrative fee, $ 300 lien filing fee, and $ 288.20 in storage fees, which would continue to accumulate at $ 21.30 per day. Among other disclosures, the notice stated that the lien was subject to enforcement pursuant to section 713.78, Florida Statutes (2013), and that the Jeep would be sold at a public sale on April 21, 2014, at 10:00 a.m. unless it was redeemed from Dowell by payment "as allowed by law." The sale proceeded as planned and Dowell was the sole bidder. Afterward, Dowell obtained a certificate of title to the Jeep issued by the State of Florida.

According to the allegations of the complaint, State Farm, the Jeep's insurer, subsequently applied for and received a "salvage vehicle" title certificate from the State of Georgia, despite knowing about Dowell's possession and ownership of the Jeep. Dowell, having no knowledge of the salvage title, repaired the Jeep for resale. About a year later, Dowell discovered the existence of the salvage title. Dowell sued State Farm, asserting that its intentional and wrongful registration of the Jeep as a salvage vehicle destroyed essentially all its marketable value as a used automobile. He sought damages for conversion and slander of title, and in the alternative, foreclosure of his lien for towing and storage charges.

State Farm moved for summary judgment, arguing that the public sale of the Jeep was not valid because Dowell failed to comply with section 713.78, Florida Statutes, the statute on which Dowell's claim of lien and ownership of the vehicle is based. The trial court agreed, finding that the public sale was null and void because Dowell failed to meet a statutory notice requirement. The trial court granted State Farm's motion for summary judgment because Dowell's claims depended on his ownership of the Jeep and, in the absence of a valid public sale, Dowell could not prevail.

Analysis

Section 713.78 governs liens for recovering, towing, or storing vehicles or vessels. The statute grants a towing-storage operator, such as Dowell, a lien on a vehicle for reasonable towing and storage charges incurred at the request of law enforcement. § 713.78(2)(d), Fla. Stat.

The statute also sets forth the procedure by which a towing-storage operator can enforce a lien by public sale. Relevant here, subsection (4) provides that a person "who claims a lien for recovery, towing, or storage services" must give notice to the registered owner of the vehicle, the insurance company insuring the vehicle, and to all persons claiming a lien against the vehicle. § 713.78(4)(a), Fla. Stat. The notice must be sent to these potential stakeholders "within 7 business days after the date of storage of the vehicle [.]" § 713.78(4)(c), Fla. Stat. (emphasis added). In addition, the notice must disclose the following:

the fact of possession of the vehicle or vessel, that a lien as provided in subsection (2) is claimed, that charges have accrued and the amount thereof, that the lien is subject to enforcement pursuant to law, and that the owner or lienholder, if any, has the right to a hearing as set forth in subsection (5), and that any vehicle or vessel which remains unclaimed, or for which the charges for recovery, towing, or storage services remain unpaid, may be sold free of all prior liens after 35 days if the vehicle or vessel is more than 3 years of age or after 50 days if the vehicle or vessel is 3 years of age or less.

Id. (emphasis added). The statute further provides that "[i]f the date of the sale was not included in the notice required in subsection (4)," the towing-storage operator must provide notice of the sale to the registered owner and lienholders by certified mail at least 15 days before the date of the sale. § 713.78(6), Fla. Stat. Public notice of the time and place of sale is also required in a newspaper of general circulation in the county in which the sale is to be held. Id.

In the present case, Dowell concedes that he failed to send the required notice to the vehicle owner within 7 business days after the initial date of storage, contrary to the mandatory language of subsection (4). However, he contends the only sanction or penalty for missing the notice deadline is found in subsection (9) of the statute, which provides as follows:

Failure to make good faith best efforts to comply with the notice requirements of this section shall preclude the imposition of any storage charges against such vehicle or vessel.

§ 713.78(9), Fla. Stat. Dowell contends that, under subsection (9), he admittedly forfeited his right to collect storage fees but argues that nothing in subsection (9) impacts his right to be paid a reasonable towing fee. Thus, according to Dowell, the public sale was valid because the lien as to the towing charge was still enforceable. This court reviews issues of statutory interpretation de novo. Lopez v. Hall , 233 So.3d 451, 453 (Fla. 2018).

We find Dowell's reliance on subsection (9) to be misplaced. Regardless of whether he forfeited the storage charges for the Jeep but still possessed a lien on the vehicle for the $ 100 towing fee, he was not entitled to proceed with enforcement of the lien by public sale when the required notice of the lien and public sale was untimely.

The notice requirements of paragraph (4)(c) are not discretionary; nor are they a technicality. Based on the plain language of the statute, timely notice is mandatory and serves several essential purposes, including making the vehicle owner aware that (1) towing and storage charges have been incurred, (2) a lien exists to secure payment of those charges, and (3) the towing-storage operator can enforce the lien-and in this case, will enforce the lien-by selling the vehicle if the charges remain unpaid after 35 days. § 713.78(4)(c), Fla. Stat. Additionally, because the notice here set the date, time, and location of the sale, this was the only notice of sale required to be sent directly to the vehicle owner. See § 713.78(6), Fla. Stat. For these reasons, time is of the essence. If we took Dowell's argument to the extreme-that the failure to comply with the notice deadline is of no consequence to a foreclosure sale-we would have to uphold a sale even if no notice of the sale was provided to the vehicle owner at all. This would amount to writing the notice provisions out of the statute, which we are not willing to do. See Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ("[C]ourts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit , its express terms or its reasonable and obvious implications .") (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams , 212 So.2d 777, 778 (Fla. 1st DCA 1968) ).

For these reasons, we affirm the trial court's order granting summary judgment for State Farm.

AFFIRMED .

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

      There were no vehicle lienholders in this case.

      Dowell sold the Jeep 37 days after it was towed, consistent with the disclosure in the notice.


text:
    Jerome Paul SHERIDAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2580
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    James S. Purdy, Public Defender, and Danielle Renee Rufai, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the summary denial of Jerome Paul Sheridan's post-sentencing motion to withdraw his plea. See Powell v. State , 929 So.2d 54, 55 (Fla. 5th DCA 2006).

AFFIRMED.

LAMBERT, EDWARDS, and EISNAUGLE, JJ., concur.


text:
    Robert POTCHEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2813
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 3, 2019
    Robert Potchen, Orlando, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This Court previously affirmed the order denying Robert Potchen's motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800 in Orange County Circuit Court Case No. 2014-CF-8159-A-O. Due to Potchen's apparent abuse of the legal process by his repetitive, malicious, or frivolous pro se filings attacking his judgment and sentence in that case, this Court issued an order directing Potchen to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Potchen is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

FURTHER PRO SE FILINGS PROHIBITED.

ORFINGER, EISNAUGLE and GROSSHANS, JJ., concur.


author: LAMBERT, J.

text:
    Ken WILCOX, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1636
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    David A. Taylor, of David A. Taylor, P.A., Jacksonville, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Ken Wilcox appeals his convictions for robbery and battery on a person over sixty-five years old, raising three grounds for reversal. We find no merit to Wilcox's first two arguments that the trial court erred in denying his motion for judgment of acquittal and in declining to use his proposed special jury instruction regarding circumstantial evidence. We do, however, agree with Wilcox that the trial court reversibly erred in failing to allow his private counsel to represent him at trial.

The trial in this case began on February 19, 2018, with Wilcox being represented by court-appointed counsel. The jury was selected and sworn that afternoon, and the trial was recessed until the morning of February 22. On February 21, 2018, private counsel was retained by Wilcox's family and filed a notice of appearance and motion for continuance of the trial. Private counsel appeared with Wilcox at trial the next morning. The court held a hearing on his motion to continue and to allow substitution of private counsel, receiving testimony and engaging in a thorough discussion with Wilcox, his private counsel, his court-appointed counsel, and the prosecutor before denying the continuance and substitution of counsel. Wilcox was represented for the remainder of the trial by his court-appointed counsel and, as indicated, was convicted.

The Sixth Amendment to the United States Constitution and Article I, Section 16(a), of the Florida Constitution provide a defendant with the right to the assistance of counsel in a criminal prosecution. Here, Wilcox was in fact provided with appointed counsel; however, a defendant in a criminal case always retains the right to discharge his or her court-appointed counsel, Foster v. State , 704 So.2d 169, 172 (Fla. 4th DCA 1997), and also has the right to be represented by private counsel. See Fratcher v. State , 842 So.2d 1044, 1046 (Fla. 4th DCA 2003) (citing Foster , 704 So.2d at 174 ). This right to be represented by private counsel, however, is not absolute or unlimited; and it can be denied by the trial court if it is being exercised by a defendant for the purpose of delay or to otherwise subvert judicial proceedings. Id. (citing Foster , 704 So.2d at 173 ); accord Cartwright v. State , 565 So.2d 784, 785 (Fla. 5th DCA 1990) (recognizing that a "defendant's right to obtain private counsel is not a license to delay the proceedings and waste the trial court's time").

The trial court correctly recognized that since the jury had already been sworn, it needed to consider and balance the countervailing interests of the effective administration of the court with Wilcox's right to be represented by private counsel of his choice. See Francois v. State , 137 So.3d 1186, 1189 (Fla. 3d DCA 2014). The court expressed concern that, due to the advanced ages of the victims, granting a continuance so that private counsel could more fully prepare could be very prejudicial to the State. However, private counsel represented to the court that morning at the hearing that although a continuance of the trial had been requested, it was anticipated the continuance would be denied and that counsel had separately prepared to proceed with the trial as scheduled. Wilcox also advised the court that while he was amenable to the requested continuance, he was willing to proceed to trial that day with private counsel if the continuance was not granted.

Notably, the trial court expressly declined to make a finding of bad faith on the part of either Wilcox or his private counsel in seeking the substitution of counsel. "In the absence of a showing of bad faith on the part of the defendant in seeking to discharge his court-appointed counsel, it was improper to deny the defendant his Sixth Amendment right to retain the private counsel of his choice." Brantley v. State , 773 So.2d 1199, 1200 (Fla. 3d DCA 2000) (citing Foster , 704 So.2d at 174 ); cf. Hurtado v. State , 760 So.2d 279, 280 (Fla. 4th DCA 2000) (affirming the trial court's denial of the defendant's request on the eve of trial to substitute private counsel when trial court found that the request was made in bad faith and for the sake of arbitrary delay). Without a finding of bad faith and with Wilcox and his private counsel willing to proceed with the scheduled trial that day so as not to cause any delay to the State or the victims, the failure to permit Wilcox to be represented at trial by private counsel of his own choosing is a structural error, to which a harmless error analysis by our court would not apply. See United States v. Gonzalez-Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (holding that a violation of the Sixth Amendment Counsel Clause is a structural error in the trial); Foster , 704 So.2d at 174 (explaining that an error in denying the defendant the right to be represented by private counsel of his choice is prejudicial per se since the defendant's desired attorney is precluded from taking any action in the case). Under these circumstances, reversal is required because the "[d]eprivation of the [Sixth Amendment] right [to counsel] is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." See Madison v. State , 132 So.3d 237, 246 (Fla. 1st DCA 2013) (quoting Gonzalez-Lopez , 548 U.S. at 148, 126 S.Ct. 2557 ).

Accordingly, we reverse Wilcox's convictions and sentences and remand this case for a new trial.

REVERSED and REMANDED for a new trial.

COHEN and HARRIS, JJ., concur.

      Wilcox has not challenged the denial of his motion for continuance in this appeal.

      See Traylor v. State , 596 So.2d 957, 968 n.23 (Fla. 1992) (interpreting Article I, Section 16, of the Florida Constitution to provide a defendant in a criminal prosecution with the corresponding rights to conduct one's own defense and the right to the assistance of counsel).

      The victims were each over eighty years old.

      We also note that the case went to trial less than ten months from the date that the State alleged in the information that the crimes were committed.


text:
    Julio MALAVE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3225
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Julio Malave, appeals the judgment and sentence imposed after a jury found him guilty of two counts of sexual battery upon a mentally defective adult, one count of lewd or lascivious battery upon a disabled person, two counts of lewd or lascivious molestation of a disabled adult, one count of committing an unnatural or lascivious act, and one count of incest. We agree with Appellant that the trial court erred in admitting the victim's statement to the Child Protection Team investigator. However, we conclude that the erroneous admission of the statement constituted harmful error only as to Appellant's convictions on counts V and VI, in which the jury found him guilty of lewd or lascivious molestation of a disabled adult and the lesser included offense of committing an unnatural or lascivious act, respectively. We remand for a new trial on those counts. In all other respects, we affirm.

The State charged Appellant with several counts arising out of allegations that he had sexual relations with his twenty-seven-year-old, mentally disabled granddaughter, after the victim's mother reported one incident to the police. The State filed its notice of intent to introduce the statement the victim made to the Child Protection Team ("CPT statement"). The State sought to introduce the statement under section 90.803(24), Florida Statutes (2017), which provides a hearsay exception for out-of-court statements of a disabled adult under certain circumstances. Appellant argued that pursuant to Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the CPT statement should be excluded because its admission would violate his Sixth Amendment right to confront the witnesses against him.

The trial court ultimately permitted admission of the CPT statement, relying on State v. Townsend , 635 So.2d 949 (Fla. 1994), and an analysis of the section 90.803 criteria. This was error. Where the admissibility of testimonial evidence is at issue, the Confrontation Clause forbids its admission unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the declarant. Crawford , 541 U.S. at 54, 124 S.Ct. 1354.

Here, the circumstances surrounding the CPT statement are indistinguishable from those in which courts have deemed a statement testimonial for Confrontation Clause purposes. See, e.g. , State v. Contreras , 979 So.2d 896, 905 (Fla. 2008) (holding videotaped interview with Child Protection Team coordinator at domestic violence victim's shelter when detective was in adjoining room and able to electronically suggest questions to interviewer was testimonial); Hernandez v. State , 946 So.2d 1270, 1282 (Fla. 2d DCA 2007) (holding statements of child abuse victim and parents to nurse who was member of Child Protection Team were testimonial). Further, while it is undisputed that the victim here was deemed unavailable to testify, it is also the case that Appellant had no prior opportunity to depose her. As a result, admission of the CPT statement was error.

Because we find error, we next consider whether this error was harmless. "Violations of the Confrontation Clause, where preserved, are subject to harmless error analysis." Corona v. State , 64 So.3d 1232, 1241 (Fla. 2011) (citing Contreras , 979 So.2d at 911 ). A harmless error analysis requires this Court to "determine whether 'there is a reasonable possibility that the error affected the verdict.' " Id. at 1243 (quoting State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986) ).

Considering the additional evidence presented at trial, including Appellant's confession, we conclude that there is no reasonable possibility that the error in admitting the CPT statement affected the verdict as to counts I-IV and VII; thus, the error is harmless beyond a reasonable doubt as to those counts. See Blanton v. State , 978 So.2d 149 (Fla. 2008) (concluding that admission of child sexual battery victim's testimonial hearsay statement to police violated defendant's constitutional right of confrontation, but error was harmless where victim's accusations were proven through other evidence, thus, statement was merely cumulative). However, as to counts V and VI, we determine that the CPT statement was not cumulative as to specific touching alleged on the specific date charged in those counts. As a result, there is a reasonable possibility that the error affected those verdicts. We affirm the convictions as to counts I-IV and VII and reverse and remand for a new trial on counts V and VI.

AFFIRMED in part, REVERSED in part, and REMANDED.

COHEN, LAMBERT, and SASSO, JJ., concur.

      This issue was properly preserved for appellate review. See, e.g. , Corona v. State , 64 So.3d 1232, 1242 (Fla. 2011) (noting Crawford issue is preserved where it is timely raised and ruled on and apprises court of relief sought and basis for relief).

      We disagree with Appellant's argument that the trial court erred in admitting his confession. There is sufficient corroborating evidence in the record to support the trial court's finding of trustworthiness. The trial court provided a detailed analysis of why it found the victim's statements sufficiently trustworthy and reiterated it was relying on this in finding Appellant's confession admissible. In addition, the trial court noted it considered the victim's mother's statement and the nature of Appellant's confession.


text:
    Nadine DAVIS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-755
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 3, 2019
    Nadine Davis, Quincy, pro se.
    Ashley Moody, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 21, 2018 judgment and sentence rendered in Case No. 05-2015-CF-050148, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

BERGER, WALLIS and SASSO, JJ., concur.


text:
    Steven Mark RILEY Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4687
    District Court of Appeal of Florida, First District.
    May 3, 2019
    Steven Mark Riley Sr., pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


author: KELLY, Judge.

text:
    Peter M. BLAKELEY and Amy Blakeley, Appellants, v. Michael T. LIVORSI, individually and as Trustee of the Michael T. Livorsi and Nelda J. Livorsi Revocable Living Trust Dated 05/24/99; Michael Livorsi, individually and as Trustee of the Michael Livorsi Revocable Living Trust Dated 04/22/03; Jim Agles; and Realty Team of Lee County, Inc., a Florida corporation d/b/a RE/MAX Realty Team, Appellees.
    Case No. 2D17-3782 2D17-4165
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019
    P. Brandon Perkins of Rogers Towers, P.A., Ft. Lauderdale, for Appellants.
    Theodore L. Tripp, Jr., and Joel W. Hyatt of Hahn Loeser & Parks LLP, Fort Myers, for Appellee Jim Agles.
    No appearance for remaining Appellees.
   KELLY, Judge.

Peter and Amy Blakeley challenge the final summary judgment entered in favor of Jim Agles, the real estate agent and property manager who represented the seller in a real estate transaction with the Blakeleys. Because genuine issues of material fact remain in dispute with regard to whether Mr. Agles had knowledge of material defects in the home at the time of the sale and breached his duty to disclose them to the Blakeleys, we reverse and remand for further proceedings.

We review an order granting final summary judgment de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). If the evidence raises the slightest doubt on any issue of material fact, if it is conflicting, or if it will permit different reasonable inferences, summary judgment is improper. Grimes v. Lottes, 241 So. 3d 892, 896 (Fla. 2d DCA 2018). Summary judgment should only be granted "where the facts are 'so crystalized' that nothing remains but questions of law." Ventana Condo. Ass'n, Inc. v. Chancey Design P'ship, Inc., 203 So. 3d 175, 183 (Fla. 2d DCA 2016) (quoting McCabe v. Fla. Power & Light Co., 68 So. 3d 995, 997 (Fla. 4th DCA 2011) ). Because the facts of this case are not "so crystallized" such that nothing remains but questions of law, we reverse and remand for further proceedings.

Reversed and remanded.

LaROSE, C.J. and BLACK, JJ., Concur.

      Case number 2D17-4165 is an appeal from the final summary judgment granted as to count V of the Blakeleys' second-amended complaint and from the order denying the Blakeleys' motion for rehearing. Case number 2D17-3782 is a separately-filed appeal from the Blakeleys' Amended Motion to Vacate Order on Motion for Summary Judgment. We consolidate these appeals for purposes of this opinion.


text:
    STATE of Florida, Appellant, v. William Francis BELLAMY, Appellee.
    Case No. 2D17-806
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019
    Ashley Moody, Attorney General, Tallahassee, and Katie Lynn Salemi, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals the imposition of William Francis Bellamy's downward departure sentence. Mr. Bellamy entered a plea to the charge of aggravated battery and was sentenced to a downward departure sentence of eight years of probation. The trial court departed downward from the sentencing guidelines based on its findings that Mr. Bellamy required specialized treatment for a mental disorder that is unrelated to substance abuse or addiction and for a physical disability, and Mr. Bellamy is amenable to treatment. We conclude that these findings were not supported by competent, substantial evidence and reverse.

The decision of a trial court to depart from the sentencing guidelines is a two-part process: 1) the court must decide whether there is a legal and factual basis for that ground; and 2) the court must decide whether it should depart from the guidelines. Banks v. State, 732 So. 2d 1065, 1067-68 (Fla. 1999). The issue on appeal in the present case involves the first prong, and this court's review of the trial court's determination that there was a valid ground for a downward departure sentence "is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling." State v. Hudson, 153 So. 3d 375, 377 (Fla. 2d DCA 2014) (quoting State v. Subido, 925 So. 2d 1052, 1057 (Fla. 5th DCA 2006) ).

Here, the trial court found that Mr. Bellamy qualified for a downward departure sentence based on section 921.0026(2)(d), Florida Statutes (2015), which provides that a trial court may depart from the lowest permissible sentence if a "defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." See State v. Chubbuck, 141 So. 3d 1163, 1171 (Fla. 2014). The trial court specifically found that there was sufficient evidence that Mr. Bellamy suffered from a mental disorder. The court also found that there was sufficient evidence that Mr. Bellamy had been diagnosed with mesothelioma, that he has a cataract, and that he suffers from "the other physical ailments that [his daughter] talked about." The trial court also noted that no physician had testified regarding Mr. Bellamy's physical disabilities.

Regarding the trial court's finding that Mr. Bellamy suffered from a mental disorder, we have reviewed the transcript and can find no testimony supporting this finding. Further, Mr. Bellamy's attorney admitted in his argument for a downward departure that Mr. Bellamy has never been diagnosed with any mental health issues. We also note that at the change of plea hearing, Mr. Bellamy testified that he has never been treated for a mental illness. Therefore, the trial court abused its discretion in ruling that Mr. Bellamy required specialized treatment for a mental disorder that is unrelated to substance abuse or addiction.

We next examine the trial court's second ground for a downward departure sentence, Mr. Bellamy's need for specialized treatment for a physical disability. At the sentencing hearing, Mr. Bellamy's daughter, Kim Bellamy, testified that Mr. Bellamy had been diagnosed with mesothelioma, but her information was based on what her father had told her. When Mr. Bellamy was asked if he had been treated for asbestos exposure while he was in jail, he testified, "when I did get in jail, then they said I had it. ... All I know is one doctor told me that I had that disease, and that's all I heard."

Both Mr. Bellamy and his daughter testified that he has vision problems. He was taken to an eye doctor while in jail, but he did not get the full results of his examination. He also testified that he has gout, arthritis, a difficult time hearing, and problems with his skin. No medical records or expert testimony was presented at the sentencing hearing to substantiate Mr. Bellamy's claims. We are therefore required to reverse.

In State v. McElroy, 145 So. 3d 866, 869 (Fla. 2d DCA 2014), this court held that the trial court's downward departure sentence pursuant to section 921.0026(1)(d) was not supported by competent, substantial evidence where there was no evidence of an official diagnosis, no evidence regarding whether the appellee required specialized treatment, and no evidence regarding whether the appellee would be amenable to treatment. In that case, the appellee testified that a counselor had told him that the counselor believed that he had manic depressive disorder with severe dependency issues, but the appellee "offered no proof of a formal diagnosis made by a physician." Id.; see State v. Paulk, 813 So. 2d 152, 154 (Fla. 3d DCA 2002) (holding that there was insufficient evidence to support the trial court's finding that appellee suffered from health problems where no medical evidence of his condition was offered).

"The defendant bears the burden of presenting competent, substantial evidence supporting the reason for the downward departure sentence." State v. Naylor, 976 So. 2d 1193, 1196 (Fla. 2d DCA 2008). As in McElroy, 145 So. 3d at 869, Mr. Bellamy "offered no proof of a formal diagnosis made by a physician." The only evidence that Mr. Bellamy suffered from a physical disability came from his own testimony that a physician at the jail told him that he had mesothelioma.

We are mindful of the fact that when Mr. Bellamy appeared at sentencing, he was seventy-two years old. He is now seventy-four years old, and he was given eight years of probation. Further, defense counsel asserted that the victim had indicated a few times that he did not want to prosecute, and the State noted that the victim "was not very cooperative with law enforcement as far as wanting charges filed." Nonetheless, we are required to reverse because there was a lack of competent, substantial evidence presented at the sentencing hearing to support the trial court's findings. Accordingly, we reverse the downward departure sentence and remand this case for the trial court to conduct a de novo resentencing hearing. See McElroy, 145 So. 3d at 870.

Reversed and remanded for resentencing.

LaROSE, C.J., and MORRIS, J., Concur.


author: LaROSE, Chief Judge.

text:
    Yvonne Elizabeth FORBES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-952
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019
    Yvonne Elizabeth Forbes, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Yvonne Elizabeth Forbes appeals the denial of her motion for postconviction relief following an evidentiary hearing. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.141(b)(3) ; Fla. R. Crim. P. 3.850(k). We affirm. See City of Clearwater v. Sch. Bd. of Pinellas Cty., 905 So. 2d 1051, 1057 (Fla. 2d DCA 2005) ("[T]he 'tipsy coachman' doctrine ... allows an appellate court to affirm a trial court decision that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) )).

Background

In April 2010, a jury convicted Ms. Forbes of a scheme to defraud and the use of a public record to commit a felony. The trial court imposed a lengthy prison sentence. We affirmed her direct appeal without opinion; the mandate issued in December 2011. See Forbes v. State, 75 So. 3d 278 (Fla. 2d DCA 2011) (table decision).

Thereafter, in April 2012, Ms. Forbes filed a rule 3.850 motion for postconviction relief. After summarily denying several claims, the postconviction court conducted a November 2014 evidentiary hearing on the remaining claims. Following the hearing, the postconviction court denied the remaining claims. We affirmed the nonsummary rule 3.850 order on appeal. See Forbes v. State, 193 So. 3d 893 (Fla. 2d DCA 2016) (table decision).

The subject matter of the claims and the postconviction court's disposition of Ms. Forbes' April 2012 rule 3.850 motion are not pertinent to this appeal. What is relevant is her assertion that, at the November 2014 evidentiary hearing, she learned for the first time that her trial counsel failed to convey a purported probationary sentence offered by the State. Based upon her filing of another rule 3.850 motion in August 2015, the postconviction court granted Ms. Forbes a January 2017 evidentiary hearing on this newly discovered evidence claim. The postconviction court later denied relief.

Analysis

Ms. Forbes argues that the postconviction court erroneously denied her motion.

She maintains that "trial counsel never conveyed a plea offer of probation ... the only plea conveyed ... [wa]s a plea offer of 20 year[s'] prison." She contends that the records attached to the order before us "do not refute [her] claim that the plea offer of probation was not conveyed to her by her trial counsel."

Ms. Forbes' newly discovered evidence claim was filed timely based upon her professed November 2014 discovery of the uncommunicated probationary plea offer. See Fla. R. Crim. P. 3.850(b)(1) ; see, e.g., Blake v. State, 152 So. 3d 66, 68 (Fla. 2d DCA 2014) (declaring that "[a] claim of newly discovered evidence can be an exception to the two-year time limitation in rule 3.850(b)"); Clark v. State, 236 So. 3d 481, 482 (Fla. 4th DCA 2018) (holding that defense counsel's knowledge of a proposed plea deal could not be imputed to defendant for purposes of the newly discovered fact exception to the two-year limit, and that therefore plea offer could constitute newly discovered evidence allowing defendant to proceed on rule 3.850 motion alleging counsel had provided ineffective assistance in not conveying the plea offer to defendant). Further, a newly discovered evidence claim may be an exception to the general prohibition on successive rule 3.850 motions. See White v. State, 664 So. 2d 242, 244 (Fla. 1995) (holding that a defendant may file successive postconviction relief motions based on newly discovered evidence). No procedural hurdles prevented the postconviction court from considering the merits of Ms. Forbes' newly discovered evidence claim.

Following an evidentiary hearing, we review the denial of a motion for postconviction relief to determine whether competent, substantial evidence supports the postconviction court's findings of fact. Mosley v. State, 209 So. 3d 1248, 1262 (Fla. 2016). "Competent, substantial evidence is tantamount to legally sufficient evidence." R.F. v. Fla. Dep't of Children & Families, 770 So. 2d 1189, 1192 (Fla. 2000) ; see also Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (noting that "competent" refers to admissibility, while "substantial" requires that there be some material or relevant evidence having definite probative value (citing Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)). We defer to the postconviction court's factual findings. See Stephens v. State, 748 So. 2d 1028, 1033-34 (Fla. 1999).

As long as the trial court's findings are supported by competent substantial evidence, "this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court."

Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984) ). However, we review conclusions of law de novo. See Schofield v. State, 67 So. 3d 1066, 1072 (Fla. 2d DCA 2011) ("[T]his court reviews the postconviction court's application of the facts to the law de novo.").

To analyze the postconviction court's order, we identify the elements undergirding Ms. Forbes' claim. In doing so, we will show that the postconviction court properly denied relief, but unnecessarily concluded that the State made a plea offer.

"A trial counsel's failure to convey a plea offer can constitute ineffective assistance of counsel." Gallant v. State, 898 So. 2d 1156, 1157 (Fla. 2d DCA 2005) (citing Whitten v. State, 841 So. 2d 578, 579 (Fla. 2d DCA 2003) ); see also Taylor v. State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018) ("The failure to convey a favorable plea offer to a defendant in a criminal case can constitute ineffective assistance of counsel." (citing Clark, 236 So. 3d at 483 ) ). To succeed, the postconviction movant must establish that: (1) she would have accepted the offer had counsel advised her correctly; (2) the prosecutor would not have withdrawn the offer; (3) the trial court would have accepted the offer; and (4) the conviction or sentence or both would have been less severe than the judgment and sentence that were imposed. Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013).

The Alcorn elements are conjunctive; the movant must prove each to be entitled to postconviction relief. The Alcorn elements also unfold chronologically, meaning that the elements develop temporally with the requisite first development being either that a favorable plea offer was extended to a criminal defendant but the acceptance was not communicated to the State before it expired; or, that the State's plea offer was simply never communicated by trial counsel to the postconviction movant before the State withdrew the offer. This second scenario, seemingly, is what Ms. Forbes alleged happened to her.

Critically, what remains implicit but unsaid in Alcorn is that the favorable plea offer must actually exist. A postconviction court cannot analyze such a claim under Alcorn without first finding that the State extended an offer. Cf. Timothee v. State, 721 So. 2d 776, 777 (Fla. 4th DCA 1998) ("[A] plea agreement is a contract requiring a meeting of the minds. When it appears any party is mistaken, confused, or misunderstands essential terms of the agreement, there can be no meeting of the minds." (citation omitted)).

The postconviction court avoided the issue, finding that "[t]he record is clear that, if there was a [probationary] offer it was revoked at trial call." But the postconviction court need not have determined whether a probationary plea offer was revoked if there was never an offer on the table.

The evidence adduced at the January 2017 evidentiary hearing established that the State extended no probationary offer to Ms. Forbes. Consequently, the record does not support the postconviction court's finding that an offer may have been made.

Trial counsel testified at the evidentiary hearing that he discussed a potential probationary plea offer with the assigned assistant state attorney (ASA). Unfortunately, the State never offered such a deal because the parties could not agree on the amount of restitution, a critical demand from the State.

In fact, trial counsel's testimony reveals that he spoke with Ms. Forbes on several occasions about an offer, including making an extended probationary term with agreed-upon restitution. Trial counsel even enlisted Ms. Forbes's sister to speak with her about the benefits of such an offer. However, the discussions between trial counsel and Ms. Forbes never progressed beyond general talk that she should make such an offer because Ms. Forbes "never agreed to a restitution amount" and she "did not want to be adjudicated because she did not want to lose her real estate license." Trial counsel's testimony was consistent with that of the two ASA's who handled the case; one testified that they did not recall extending a probationary offer, and the other affirming that his recollection "was that the Defendant was not willing to accept any plea offer."

Ms. Forbes and her sister both testified that trial counsel never advised of a probationary plea offer. This is not necessarily inconsistent with trial counsel's testimony. Nonetheless, the postconviction court chose, as it may, to credit trial counsel's and the ASAs' testimony over that of Ms. Forbes and her sister. See Green v. State, 975 So. 2d 1090, 1101 (Fla. 2008) ("We generally defer to the trial judge regarding these [witness] credibility determinations."); Shere v. State, 742 So. 2d 215, 218 n.8 (Fla. 1999) (stating that the role of the trial judge in a postconviction motion evidentiary hearing is to make credibility determinations and findings of fact).

Conclusion

The record reflects that the State never extended a probationary plea offer to Ms. Forbes. Cf. Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002) ("The key to the application of [the tipsy coachman] doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court."). Consequently, it goes without saying, counsel cannot be deficient for failing to communicate a nonexistent offer.

Affirmed.

MORRIS, J., Concurs.

ROTHSTEIN-YOUAKIM, J., Concurs in result only.

      In her brief, Ms. Forbes ventures a variety of new and ancillary arguments and factual assertions that were neither contained within her rule 3.850 motion nor were they developed or supported at the evidentiary hearing. We decline to consider them. See Smith v. State, 213 So. 3d 722, 740 (Fla. 2017) (citing Doyle v. State, 526 So. 2d 909, 911 (Fla. 1988), for the finding that a claim was "procedurally barred because it was not presented to the trial court in the defendant's rule 3.850 motion and could not be raised for the first time on appeal"); Fotopoulos v. State, 608 So. 2d 784, 788 (Fla. 1992) ("[The] claim that this reason is not supported by the record was not raised below and therefore has been waived.").


author: BADALAMENTI, Judge.

text:
    Rondre THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-417
    District Court of Appeal of Florida, Second District.
    Opinion filed May 10, 2019
    Robert P. Harris of Robert Harris Law Firm, Fort Myers, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Rondre Thomas appeals his jury convictions and sentences for two counts of possession of a controlled substance (heroin and cocaine) with intent to sell or deliver and one count of possession of drug paraphernalia. Because the evidence was legally insufficient to establish that Thomas constructively possessed the illegal drugs and drug paraphernalia, we reverse the convictions and direct the trial court to vacate the convictions and sentences.

The evidence presented at trial, viewed in the light most favorable to the State, established the following facts: The Cape Coral Police Department received an anonymous tip that drugs were being sold at a house. Officers surveilled that house and determined that at least three individuals resided there: Thomas, Jennifer Repress (Thomas's mother), and Miguel Repress. They gathered information to obtain a warrant to search the residence. The officers executed the warrant after observing Thomas leave the house and drive away. They detained Thomas while he was driving down the street and brought him back to the residence. He was present for the entirety of the search of the residence. Miguel Repress arrived while they were executing the search warrant. Other than Thomas and Repress, the house was empty at the time of the search.

The house contained four bedrooms. The illegal drugs and drug paraphernalia leading to the drug convictions on appeal were discovered in one of the four bedrooms. Specifically, the officers discovered drug contraband inside of a dresser drawer and also inside a black case laying on top of that dresser. The State sought to establish Thomas's constructive possession of the drug contraband.

The State presented evidence of additional items found in the bedroom containing the illegal drugs. First, a prescription pill bottle with Thomas's name displayed on it was discovered on top of the dresser where the police found the drug contraband. Next, the search of the bedroom yielded several empty shoe boxes for size 8.5 men's shoes, which matched the shoe size Thomas was wearing at the time of his arrest. The officers also found a box of shrink-wrapped CDs that depicted Thomas on the cover. Similarly, they found a shirt with a picture of Thomas on the front. A picture collage in the room contained many photos of Thomas and a woman. Finally, officers found a document for a future court date that was addressed to Thomas. However, the police also observed "some articles of women['s] clothing, possibly a pair of women's shoes" in the room.

At the close of the State's case, Thomas moved for a judgment of acquittal for each count, arguing that the State failed to establish that he constructively possessed the controlled substances and paraphernalia found in the bedroom. The State responded that "[e]verything contained within that room that's identifiable, identifies back to Rondre Thomas." The State argued that the evidence established a prima facie case "that links [Thomas] not only to the house but also particularly, to that bedroom [where the drugs were recovered]." The court denied the motion, explaining that "in the light most favorable [to the State] the State did meet their burden" because "[t]here were enough things in the room that they could come to the conclusion that that was [Thomas's] room, it's in the hands of the jury."

Thomas then presented his case-in-chief. Thomas's mother testified that she lived in the house with her six children, all of whom had access to the house and to each bedroom in the house. She also testified that all of her sons' girlfriends and her nieces had access to the house. After the defense rested, Thomas renewed his motion for judgments of acquittal on the same grounds as his prior motion made at the close of the State's case-in-chief. The court again denied the motion, and the jury subsequently returned guilty verdicts.

On appeal, Thomas asserts that the trial court erred in denying his motion for judgments of acquittal. He contends that the State neglected to present any independent proof that he constructively possessed the drug contraband found in the bedroom. Without that independent proof to establish that he constructively possessed the drug contraband, Thomas maintains, the State presented insufficient evidence to sustain his convictions. "We review the denial of a motion for judgment of acquittal under a de novo standard." Bennett v. State, 46 So. 3d 1181, 1183 (Fla. 2d DCA 2010).

It is undisputed that Thomas was not found in actual possession of illegal drugs or drug paraphernalia. To convict him, the State therefore had to prove that he constructively possessed the illegal drugs. To convict on a theory of constructive possession, the State was required to prove beyond a reasonable doubt (1) that Thomas had knowledge of the contraband and (2) that he had the ability to exercise dominion and control over it. See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016) ; Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). In the milieu of constructive possession, knowledge of and the ability to exercise dominion and control over illegal contraband may not be inferred from the defendant's proximity to it and must be shown by independent proof. Tucker v. State, 198 So. 3d 1011, 1014 (Fla. 2d DCA 2016). "Such proof may be offered through a defendant's own statements, witness testimony, scientific evidence, or incriminating circumstances other than mere proximity to the contraband." Id. (citing Santiago, 991 So. 2d at 441 ).

Here, the undisputed evidence demonstrates illegal drugs were discovered in a location that was accessible to many individuals who either resided in the home or who had access to the home. Thomas's mother testified that she resided in the house with her six children, all of whom had access to the house and each of the four bedrooms within the house. She further testified that her nieces and her sons' girlfriends also had access to the house. While the State offered evidence that Thomas occupied the bedroom containing the illegal drugs, the evidence also established that women's clothing and "possibly" shoes were discovered in the bedroom. Under such circumstances, it is settled that we may not infer Thomas's knowledge of the contraband's presence and ability to exercise dominion and control over it. See Santiago, 991 So. 2d at 441. Instead, the elements must be established by independent proof. See id. at 441-42. "Generally, independent proof can be established by the admission into evidence of a pretrial statement made by an accused, by witness testimony, or by scientific evidence." Id. at 442. The State presented no evidence to establish the independent proof required here.

In Santiago, under similar facts, this court held that the State's evidence failed to prove that the defendant constructively possessed illegal drugs. 991 So. 2d at 441. There, the police searched a house that was occupied by the defendant and five other people. The defendant was present in the bedroom containing illegal drugs when the officers executed the search warrant. The drugs were found "in the pocket of what was described as likely men's jean shorts," in an opaque pink tube underneath the bed, and in football shoulder pads located in the open bedroom closet. Id. In the same room, the police also found an identification card bearing the defendant's name and a retail store receipt issued to the defendant and bearing the same address as the residence where the search warrant was executed. Id. The defendant's name was etched on a mirror in the room. However, the police also found a motor vehicle title registered to another individual and an identification card under the name of a third individual. In reversing the defendant's conviction for trafficking in heroin, the Santiago court explained that the evidence "demonstrates only that [the defendant] was one of three people who may have occupied the bedroom where drugs were concealed." Id. at 443.

Here, like Santiago, the police searched a house that was occupied by the defendant and at least two other people. Also like Santiago, many items in the room supported the State's theory that Thomas constructively possessed the drugs found in the dresser drawer: namely, the prescription pill bottle with his name on it, a court document relating to him, CDs with his picture on it, empty shoe boxes displaying the same shoe size he was wearing when arrested, and a picture collage displaying photographs of him and a woman. However, critically, like Santiago, the evidence-women's clothing and "possibly" shoes-tied at least one other person to the room. The testimony of Thomas's mother also tied several individuals to the house and the bedroom containing the drug contraband.

This evidence was critical because it refutes the State's contention on appeal that Thomas was the sole occupant of the room. Indeed, the State's argument against the granting of the motion for judgments of acquittal and the trial court's response agreeing with the State underscore the insufficiency of the State's evidence. The State was not wrong in asserting that "[e]verything contained within that room that's identifiable, identifies back to Rondre Thomas." Its argument that such evidence, though, established anything more than a strong suspicion of Thomas's guilt was incorrect. See Tucker, 198 So. 3d at 1016 (reversing the trial court's denial of the defendant's motion for judgment of acquittal for constructive possession of methamphetamine found in the pocket of a jacket stored in a room shared by the defendant and another person because the State neglected to provide independent proof and explaining that "[a]lthough the circumstances were indeed suspicious, suspicion is not enough to support a conviction"). Such suspicion is insufficient to sustain Thomas's drug convictions. Similarly, the trial court's conclusion that "[t]here were enough things in the room that they could come to the conclusion that that was [Thomas's] room" ignores the State's obligation to offer independent proof to establish constructive possession.

Quite simply, the State was required to introduce independent proof to establish Thomas's knowledge of and dominion and control over the illegal drugs. Such evidence was wholly absent. Thomas did not make a statement linking him to the contraband or the room in which it was discovered. The State did not offer testimony from the other residents of the house or individuals that had access to the house. Finally, the State did not offer any scientific or forensic evidence to connect Thomas to the illegal drugs. At bottom, like Santiago, the State's evidence proved only that Thomas was one of multiple individuals who had access to a room containing drug contraband.

Accordingly, we reverse Thomas's convictions for possession of a controlled substance with intent to sell or deliver and possession of drug paraphernalia. We remand with instructions that the trial court vacate the judgments and sentences and order Thomas's immediate release. See Tucker, 198 So. 3d at 1016.

Reversed and remanded.

KHOUZAM and SALARIO, JJ., Concur.

      Thomas is an aspiring recording artist.


text:
    Robert BILUS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4429
    District Court of Appeal of Florida, First District.
    May 10, 2019
    Robert Bilus, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Keith Patrick HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0347
    District Court of Appeal of Florida, First District.
    May 10, 2019
    Keith Patrick Henry, pro se, Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So. 2d 733 (Fla. 1st DCA 2002).

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


text:
    Raymond Howard DOUGLAS Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0811
    District Court of Appeal of Florida, First District.
    May 10, 2019
    Raymond Howard Douglas Jr, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is DENIED on the merits.

Makar, Osterhaus, and Bilbrey, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Taylor James WILLIAMS
    No. 2019-KP-0224
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Applicant fails to show he received ineffective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, applicant's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172. As to his remaining claim, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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

WEIMER, J., recused.


text:
    STATE of Louisiana v. Lavar NELSON
    No. 2018-KH-1166
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Applicant's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE of Louisiana v. Rickey BARNES
    No. 2018-KH-1120
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Frankie BASKIN
    No. 2018-KH-0867
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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

GUIDRY, J., recused.


author: PER CURIAM

text:
    IN RE: John M. MONSOUR
    NO. 2019-B-0469
    Supreme Court of Louisiana.
    May 6, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent practiced law while ineligible to do so. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 5.5(a) and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John M. Monsour, Louisiana Bar Roll number 28159, be suspended from the practice of law for a period of one year and one day. It is further ordered that six months of this suspension shall be deferred. Following completion of the active portion of the suspension, respondent shall successfully complete a two-year period of unsupervised probation governed by the conditions set forth in the petition for consent discipline. 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.

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

Clark, J., would reject consent discipline.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Kendrick KIRK
    No. 2019-KK-497
    Supreme Court of Louisiana.
    May 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
    JOHNSON, C.J., would grant for the reasons assigned by Justice Hughes.
    HUGHES, J., would grant and assigns reasons.
   GENOVESE, J., would grant.

Hughes, J., dissents and would grant the writ.

While the police officers had reasonable suspicion to approach defendant after he was identified by his cousin as likely possessing drugs, the state fails in its burden to show defendant was properly Mirandized.

After defendant was separated from other bus customers and handcuffed, the police specifically asked defendant if he had any drugs on him, to which defendant responded affirmatively. These were not preliminary questions, but were inculpatory, as defendant had already specifically been pointed out as likely to have drugs on him.

When asked if defendant was Mirandized before or after the inculpatory question was asked, the officer who gave the warning replied, "I'm not sure." As noted by the trial court, "That's kind of a biggy."

Because the state has failed to carry its burden under Miranda, the trial court's ruling suppressing defendant's statement and evidence derived therefrom should be reinstated.


text:
    Judy CLARK v. CIRCLE K STORES, INC.
    No. 2019-C-0425
    Supreme Court of Louisiana.
    May 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
    Crichton, J., would grant and assigns reasons.
   In this slip and fall case, I would grant the writ application of Circle K Stores, Inc., reverse the court of appeal ruling, and reinstate the trial court ruling, thereby dismissing this case. In my view, the trial court correctly concluded that the plaintiff failed to prove the elements of her claim under R.S. 9:2800.6, particularly insofar as the evidence established that only 11 seconds elapsed between the beverage spill and the plaintiff's fall. See White v. Wal-Mart Stores, Inc. , 97-0393 (La. 9/9/97), 699 So.2d 1081 (failure to prove any element of R.S. 2800.6 is "fatal to the claimant's cause of action").


author: GENOVESE, J., recused.

text:
    Steve CROOKS and Era Lea Crooks v. State of Louisiana, DEPARTMENT OF NATURAL RESOURCES
    NO. 2019-C-0160
    Supreme Court of Louisiana.
    May 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES
    ORDER
   Considering the petition of the applicants in the above entitled and numbered matter,

IT IS ORDERED that a writ of review issue and that briefing and argument are limited to Assignment of Error No. 3 : "The lower courts erred in failing to find that the Plaintiffs' inverse condemnation claims have prescribed under either or both La. R.S. 13:5111 or 28 U.S.C. § 2501."

WEIMER, J., would order a full grant and docket.

GENOVESE, J., recused.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Kentreal Jarbar HOWARD
    2018-KO-1650
    Supreme Court of Louisiana.
    May 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TERREBONNE
    Writ denied.
   WEIMER, J., recused.

CRICHTON, J., would grant and docket and assigns reasons.

Crichton, J., would grant in part and docket.

I would grant in part and docket to examine the defendant's claim of insufficiency of evidence for the fourth felony offender adjudication and his resulting 30 year hard labor sentence.


text:
    STATE of Louisiana v. Uralle PRICE
    No. 2018-KP-1731
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD
   PER CURIAM:

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

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

JOHNSON, C.J., would grant and remand for an evidentiary hearing.


text:
    STATE of Louisiana v. Ashton DAVIS
    No. 2018-KH-1447
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. Applicant fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE of Louisiana v. Karl DAVIS
    No. 2018-KH-1154
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied; moot. The district court has acted. See Dist. Ct. Ruling, 9/28/18 (Landrum-Johnson, J.).

Though this court originally had exclusive appellate jurisdiction over defendant's pre-1982 felony conviction and sentence, see La. Const. art. V, § 5 (E), following his resentencing in 2016, pursuant to La.C.Cr.P. art. 878.1 and State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, appellate jurisdiction is now vested in the intermediate court of appeal. See La. Const. art. V, § 10 (A) (eff. July 1, 1982, "[A] court of appeal has appellate jurisdiction of ... all criminal cases triable by a jury," except when a law has been declared unconstitutional or when the death penalty has been imposed).

Thus, to the extent that defendant desires to seek review of his new judgment of sentence, the law envisions him pursuing an appeal (or an out-of-time appeal) before filing in this court. See La.C.Cr.P. art. 912(C)(1) ; cf. State v. Counterman , 475 So.2d 336, 339 (La. 1985) (acknowledging "constitutional right to appeal (or to other review on the record) in criminal cases in Louisiana when the defendant is to be subjected to imprisonment or fine" under La. Const. art. I, § 19 ).


text:
    STATE of Louisiana v. Lorenzo JEFFERSON
    No. 2018-KH-1458
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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

CRICHTON, J., recused.


text:
    Ervin D. CARTER v. Darrel VANNOY, Warden
    No. 2018-KH-1163
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. O.B. DAVIS, Jr.
    No. 2018-KH-1156
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS
   PER CURIAM:

Denied. Applicant fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the court of appeal's denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

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


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

text:
    Kenneth Wayne WHITMORE v. STATE of Louisiana
    No. 2018-KP-1093
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF E. BATON ROUGE
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
   WEIMER, J., would grant.

HUGHES, J., would grant.

JOHNSON, C.J., dissenting.

I would grant to remand to the district court with instructions to consider the merits of the application. Because the preceding post-conviction application was withdrawn and dismissed without prejudice , the district court erred in finding the present application is procedurally barred as impermissibly successive. The application was also timely filed pursuant to the exception set out in La.C.Cr.P. art. 930.8(A)(1). Accordingly, the claim that the State withheld an unredacted police report, which shows that a witness initially described a suspect markedly different in appearance than the defendant, in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), should not have been denied on procedural grounds.


text:
    Mark MILLER v. Seth SMITH, et al.
    No. 2018-KH-1053
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES
   PER CURIAM:

Denied. Applicant shows no lower court error.

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


text:
    STATE of Louisiana v. Richard LAGARRIGUE
    No. 18-KH-0920
    Supreme Court of Louisiana.
    May 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

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

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