text:
    Roger DIEUJUSTE, Appellant, v. J. DODD PLUMBING, INC. and Federated Mutual Insurance Company, Appellees.
    No. 1D08-1374.
    District Court of Appeal of Florida, First District.
    March 10, 2009.

      Kimberly A. Hill, Fort Lauderdale, and Jack Dennis Card Jr. of Rosenberg & Rosenberg, Hollywood, for Appellant.
    David W. Evoy of Law Offices of David W. Evoy, Boca Raton, for Appellees.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) order disqualifying him from receiving workers’ compensation benefits based on the JCC’s finding that Claimant made false statements for the purpose of securing workers’ compensation benefits. Claimant argues the JCC’s findings are not supported by competent, substantial evidence. We agree, and reverse.

Background

Claimant suffered a compensable workplace accident which resulted in two knee surgeries and, ultimately, a recommendation for a total knee replacement. Following his surgeries, Claimant was provided crutches and a cane to assist with ambulation. Dr. Chayet, an authorized orthopedist, advised Claimant to “wean off’ the cane, and Claimant obliged but continued to use a crutch or cane on occas ion.

Throughout the course of the proceedings, Claimant was deposed twice, and both times testified he was capable of walking and standing without a cane or crutch, and he did so on a regular basis. Claimant testified he used a cane or crutch when he felt pain, but he could walk up to one-half of a mile without any assistive device. The evidence shows Claimant regularly, but not always, brought a cane or crutch to his medical appointments, even when he was ambulating well.

The E/C hired a private investigator who, on the morning of November 16, 2006, obtained video surveillance of Claimant walking short distances and assisting his wife with laundry without assistive devices. Claimant admitted he was capable of performing these activities. Video surveillance taken later that afternoon showed Claimant grabbing a crutch and putting it in his van to attend an appointment with Dr. Novick. The critical piece of video shows Claimant walking to the entrance of Dr. Novick’s office, at which point he is handed a crutch, which he begins to use. The E/C raised a misrepresentation defense based on Claimant’s selective use of the crutch as seen on the video.

All of the physicians who testified stated there was nothing on the video which was inconsistent with Claimant’s statements or presentation to them, and Claimant’s activities in the video were consistent with his objective, painful knee condition.

Dr. Novick did not testify, but his report from November 16, 2006, reflects Claimant complained of “severe pain” and stiffness in his left knee. In the physical examination portion of the report, the doctor noted: “He is ambulating with ... a crutch on his right side and significant decreased stance phase on the left lower extremity. He is reluctant to weight bear on the left lower extremn.y....”

At the hearing, Claimant testified he told Dr. Novick he was “afraid” to walk on the left knee and was concerned about causing further damage, but that Dr. Chayet had told him to walk on the knee, and he does so. Claimant also testified he has “problems” standing and putting weight on his left leg, but he could do so without assistive devices.

The JCC entered an order denying workers’ compensation benefits, finding Claimant was attempting to portray himself as “much more severely disabled th[a]n the surveillance otherwise shows.”

Analysis

While this court is deferential to the broad fact-finding powers of a JCC, such power is not without constraints. See Fritz v. Courtyard by Marriott, 592 So.2d 1167, 1169 (Fla. 1st DCA 1992). A JCC’s findings must be in accordance with the requirements of chapter 440, and be supported by competent, substantial evidence. See Quiroz v. Health Cent. Hosp., 929 So.2d 563, 565 (Fla. 1st DCA 2006) (reversing a JCC’s finding of disqualifying misrepresentation where statements were false, but not made for purpose of securing compensation).

The workers’ compensation statute provides that it is unlawful for any person to make, or cause to be made, any false, fraudulent, incomplete, or misleading oral or written statement for the purpose of securing workers’ compensation benefits. See §§ 440.09(4), 440.105(4)(b)l-3, Fla. Stat. (2005). A claimant’s misrepresentation as to his or her physical abilities made in order to obtain or enhance workers’ compensation benefits results in forfeiture of those benefits. See Village of N. Palm Beach v. McKale, 911 So.2d 1282, 1284 (Fla. 1st DCA 2005) (Hawkes, J., concurring).

Activities observable on surveillance video can serve as a basis for a finding of misrepresentation. See id. However, only oral or written statements can serve as the predicate for disqualification from benefits. See §§ 440.09(4), 440.105(4)(b)l-3, Fla. Stat.

Here, the E/C asserted Claimant’s nonverbal presentation to his doctors, as evidenced by the surveillance video, served as the basis for its misrepresentation defense. However, because the workers’ compensation statute expressly limits its disqualification provisions to oral or written statements, the surveillance (which comprises only nonverbal conduct) has value only to the extent it contradicts or disproves an oral or written statement made by Claimant.

The JCC based disqualification, in part, on the fact that Claimant brought a cane or crutch to his visits with Dr. Jarolem. Significantly, Dr. Jarolem testified that nothing on the surveillance was inconsistent with what he was told by Claimant. Because the video did not contradict an oral or written statement made by Claimant to Dr. Jarolem, no competent, substantial evidence supports the denial of benefits based on misrepresentations to Dr. Jarolem.

The JCC also based disqualification, in part, on the fact that Claimant told Dr. Novick he had “severe left knee pain.” However, no medical evidence was introduced to suggest Claimant did not have severe left knee pain on November 16, 2006. In fact, the only medical evidence introduced established Claimant’s condition was objectively verified, painful and consistent -with Claimant’s activities on the video surveillance. Absent supporting medical evidence, a JCC lacks the prerogative to deny a claim based on a medical finding premised solely on his observation of the claimant. See Allen v. Protel, Inc., 852 So.2d 916, 920 (Fla. 1st DCA 2003) (holding JCC’s finding that claimant exaggerated complaints of pain must be supported by medical evidence). Because there is no evidence that Claimant’s statement that he had severe left knee pain was false or misleading, this finding cannot support the denial of benefits based on misrepresentation.

Finally, the JCC based disqualification on the fact that Claimant was seen walking without a cane or crutch, but that he told Dr. Novick he had “problems standing or putting weight on his left knee.” Again no statement is ascribed to Claimant wherein he denies the ability to stand or support weight on the knee. Claimant consistently testified he could walk up to one-half of a mile without a cane or crutch, and although he feared harming his knee, he frequently walked without a cane or crutch. The JCC did not articulate the nature and extent of the “problems” declared by Claimant, and the medical evidence supports the existence of significant structural and functional problems with the knee. Consequently, this statement cannot support a denial of benefits based on misrepresentation.

Conclusion

Because there is no competent, substantial evidence upon which to base a finding that Claimant, either orally or in writing, misrepresented his physical condition, the JCC’s order disqualifying Claimant from receiving workers’ compensation benefits is REVERSED.

DAVIS, BENTON, and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James MITCHELL, Appellant, v. XO COMMUNICATIONS and Wausau/Liberty Mutual Insurance Co. and St. Paul/Travelers Insurance Co., Appellees.
    No. 1D08-1153.
    District Court of Appeal of Florida, First District.
    March 10, 2009.

      Laurie T. Miles of Smith, Feddeler, Smith & Miles, Lakeland, and Wendy S. Loquasto and Susan W. Fox of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Tara Sa’id of Law Offices of Amy L. Warpinski, Jacksonville for Appellee Liberty Mutual Ins. Co.; and Jennifer S. Haley-Gleason of Harbsmeier Dezayas, LLP, Tallahassee, for Appellee St. Paul/Travelers Ins. Co.
   PER CURIAM.

James Mitchell, Claimant, appeals an order of the Judge of Compensation Claims (JCC) denying his claims for permanent total and permanent supplemental (PTD) benefits. This is the second time this Claimant has appealed this JCC’s denial of PTD benefits. See Mitchell v. XO Commc’ns, 966 So.2d 489 (Fla. 1st DCA 2007) (Mitchell I). In Mitchell I, we reversed and remanded for additional proceedings because the “JCC’s final order [was] inconsistent in its findings of fact and conclusions of law.... ” Id. at 490. Because the JCC’s order issued after remand contains many of the same internal inconsistencies, we again reverse and remand for further proceedings.

In Mitchell I, we remanded the JCC’s ultimate denial of PTD benefits based on the inconsistent nature of the order. In our opinion, we provided examples of the inconsistencies, as follows:

Here, the JCC made numerous findings of fact from the physicians’ testimony. For instance, the JCC found Dr. Gonzalez testified Claimant had a 14% psychological PIR, all of which was attributable to the workplace accident. The JCC accepted R. Gonzalez’ testimony and PIR. However, in her conclusions of law, she stated that “at least a portion” of Dr. Gonzalez’ rating was attributable to complaints other than Claimant’s workplace accident. Additionally, the JCC found Dr. Fiore opined Claimant had an 8% PIR for his right knee injury attributable to the workplace accident, and Claimant was not capable of doing even sedentary work. The JCC then stated she believed Dr. Fiore’s conclusion was based on the erroneous assumption that Claimant’s unrelated neurological injuries were related to his workplace accident.

Id. (emphasis in original). In remanding the matter for additional proceedings, we instructed the JCC to clarify the inconsistencies between her findings of fact and conclusions of law. On remand, the JCC took no additional evidence and reissued a similar 36-page order denying PTD benefits based on additional and modified findings.

With respect to the findings regarding Claimant’s orthopedic condition relating to the right knee, the JCC followed our instructions to clarify whether she was rejecting or misinterpreting Dr. Fiore’s opinion regarding work capacity. On remand, the JCC expressly accepted Dr. Fiore’s opinion regarding the permanent impairment rating (PIR) attributable to Claimant’s right knee injury (8% PIR) and expressly rejected his opinion as to physical limitations (no work status). Because the JCC’s finding that Claimant’s right knee injury restricts him to a sedentary capacity is supported by competent substantial evidence in the record, we affirm as to Claimant’s physical limitations.

With respect to the findings regarding Claimant’s psychiatric condition, the JCC committed the same essential errors as in Mitchell I. Specifically, in the order now before us, the JCC found as a result of the October 4, 2001 workplace accident that Claimant suffered a compensable aggravation of his preexisting depression and anxiety, that Dr. Gonzalez’ treatment was reasonable and medically necessary, and that the employer/carrier for the October 4, 2001 accident was financially responsible for the aggravation. The JCC also found that Dr. Gonzalez assigned a 14% PIR attributable solely to the aggravation of Claimant’s preexisting psychiatric condition. Although the JCC found that Claimant had a psychiatric impairment caused by the October 4, 2001 workplace accident, much as in the Mitchell I order, the JCC questioned whether Dr. Gonzalez intended the 14% PIR to apply only to the aggravation of the preexisting condition or whether this rating included the underlying chronic depression and anxiety. As a result, the JCC, although finding a permanent psychiatric impairment as a result of the October 4, 2001 workplace accident, failed to assign a numerical value to this impairment due to this alleged lack of clarity as to that portion of the impairment which Dr. Gonzalez had testified applied to the preexisting condition. In effect, the JCC assigned a 0% PIR due to this alleged lack of clarity.

A brief review of the record, however, reflects that Dr. Gonzalez’ testimony is anything but unclear as to whether the 14% PIR was attributable to the workplace accident:

Q. And, Doctor, you’ve mentioned that Mr. Mitchell previously suffered from depression. Is any portion of that fourteen percent impairment rating due to any pre-existing condition?
A: No, no. If you were — if you are going to go that route, then you would have to say that he has twenty percent ... So, the fourteen percent I’m talking about is according to the 10/4/2001 accident.

Further confusing matters, the JCC found that the compensable aggravation of the preexisting psychological conditions was “temporary.” We can find no medical testimony in the record that supports a temporary duration of this aggravation and such a finding is at direct odds with the JCC’s finding that Claimant suffered a permanent psychiatric impairment as a result of the October 4, 2001 workplace accident.

With respect to Claimant’s psychiatric condition, the JCC’s findings in the Mitchell I order and again in the order on remand are so conflicting and inconsistent as to make meaningful appellate review impossible. See Allen v. Protel, Inc., 852 So.2d 916, 919-20 (Fla. 1st DCA 2003). Although it is rare that an appellate court is required to remand the same issue to the same judge for a second time, we decline Claimant’s invitation to make the findings of fact necessary to find that Claimant is PTD. Such findings are clearly the JCC’s role.

On remand, we instruct the JCC to hold those proceedings necessary to clarify whether Clamant suffered a permanent psychiatric impairment as a result of his workplace accidents (in combination or individually). After making this finding, we direct the JCC to hold those proceedings necessary to consider the claim for PTD in light of the sedentary physical restrictions and psychiatric restrictions, if any, attributable to Claimant’s workplace accidents. We direct the JCC to enter a new, internally consistent order containing her ultimate findings of fact and conclusions of law.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.

      . This inquiry is more appropriate for issues of apportionment, upon which Claimant does not carry the burden and which were not before the JCC. See § 440.15(5)(b), Fla. Stat. (2000); see also Holiday Inn v. Sallee, 496 So.2d 111 (Fla. 1st DCA 1986).


author: BENTON, J.

text:
    Daryl EDNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5823.
    District Court of Appeal of Florida, First District.
    March 10, 2009.

      Michael Robert Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Daryl Edney appeals his conviction for sexual battery on a child less than 12 years of age by a defendant 18 years of age or older, and the life sentence without the possibility of parole he received as a result. We affirm the conviction and life sentence. We write only to address imposition of costs pursuant to section 938.15, Florida Statutes (2006), which appellant also challenges.

Below Mr. Edney filed a motion to correct sentencing error pursuant to Rule 3.800(b)(2), Florida Rules of Criminal Procedure (2007), which alleged that the trial court erred by imposing costs pursuant to section 938.15. The trial court declined to rescind the cost awards and denied the motion pro tanto, finding that “the record does not show any costs associated with this particular statute....” On appeal, the State also takes the position that no costs were imposed pursuant to section 938.15.

A review of the record belies the trial court’s conclusion, which the State’s brief echoes. The judgment states that Mr. Ed-ney “is liable for and shall pay the following: ... $2.00 as a court cost pursuant to § 938.15, F.S. (County Criminal Justice Education) ... [and] $2.00 as a court cost pursuant to § 938.15, F.S. (City Criminal Justice Education).” The judgment also states the sum of all costs and fines imposed — $2,535—which includes both $2.00 cost awards at issue here. The record clearly demonstrates that costs were imposed pursuant to section 938.15. Because Mr. Edney preserved the point with his Rule 3.800(b)(2) motion, we now consider his contention that the costs were improperly imposed.

Section 938.15 authorizes both municipalities and counties to assess a cost of $2.00 “for expenditures for criminal justice education degree programs and training courses”:

In addition to the costs provided for in s. 938.01,[:|:] municipalities and counties may assess an additional $2 for expenditures for criminal justice education degree programs and training courses, including basic recruit training, for their respective officers and employing agency support personnel, provided such education degree programs and training courses are approved by the employing agency administrator, on a form provided by the commission, for local funding.

§ 938.15, Fla. Stat. (2006). Where a county or a municipality or both have made assessment(s), it falls to the state court judge actually to impose the cost(s) in a particular case.

In Kimball v. State, 933 So.2d 1285, 1286 (Fla. 2d DCA 2006), the Second District interpreted section 938.15 to apply to all criminal convictions and all violations of county and municipal codes, giving effect to the plain language of the statute:

A plain reading of section 938.15 grants a county or municipality the authority to assess the $2 for state statute violations that occur within its jurisdiction. Section 938.15 provides that “[i]n addition to the costs provided for in s. 938.01, municipalities and counties may assess an additional $2 for expenditures for criminal justice education ... for their respective officers.” (Emphasis added.) The “costs provided for” in section 938.01 are assessed against “every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance.” § 938.01(1). We construe the use of the word “additional” in section 938.15 to mean that where a municipality or county has chosen to make the $2 assessment, it shall be an additional cost in every case where the costs provided for by 938.01 have been authorized, which includes violations of state statutes.

Although “as between District Courts of Appeal, a sister district’s opinion is merely persuasive,” State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976) (citing Spencer Ladd’s, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), modified orí different grounds, 182 So.2d 402 (Fla.1965)), we are persuaded here and adopt this analysis.

The Attorney General has construed the statutory provision differently to apply to violations of county or municipal ordinances alone. See Op. Att’y Gen. Fla. 02-10 (2002) (“[I]t is my opinion that the assessment authorized in section 938.15, Florida Statutes, is payable to the county or municipality by an individual who has been convicted of a violation of the respective county or municipal ordinance .... ”). The Attorney General’s restrictive reading of the statute is based on the following reasoning:

[T]he Legislature has recognized that funds collected pursuant to section 938.15, Florida Statutes, are in addition to those imposed under section 938.01, Florida Statutes, and such funds fall outside the appropriation requirements for funds collected under section 938.01. The plain language of section 938.15 authorizes municipalities and counties to assess the additional costs to be used for criminal justice education degree programs and training courses. Moreover, the recognition in section 938.01(1) that assessments are collected from individuals convicted for violation of municipal or county ordinance would logically suggest that municipalities and counties are authorized to assess the additional cost in section 938.15 only for violations in their respective jurisdictions and for violations of their respective ordinances.
Such a conclusion is consistent with this office’s previous opinions finding that fines and forfeitures received from violations of ordinances or misdemeanors committed in a county, or municipal ordinances committed within a municipality within the jurisdiction of the county court, are paid to the county or municipality respectively. Moreover, the district court in Reyes v. State based its conclusion that the assessment allowed under section 938.15, Florida Statutes, is discretionary on the finding that “the statue [sic] is permissive, does not mandate action by the court, and is dependent upon the locality of the offense [.]” (e.s.) Nothing in section 938.15 evidences an intent that a county and municipalities located therein may each impose an assessment regardless of the location of the offense or the statute or ordinance violated.

Id. (footnotes omitted). Attorney General opinions do not, of course, have binding effect in court. See Abreau v. Cobb, 670 So.2d 1010, 1012 (Fla. 3d DCA 1996); Johnson v. Lincoln Square Props., Inc., 571 So.2d 541, 543 (Fla. 2d DCA 1990); Causeway Lumber Co. v. Lewis, 410 So.2d 511, 515 (Fla. 4th DCA 1981). We do not find the Attorney General’s views on this point persuasive, and point out that nobody contends that the location of the offense is irrelevant.

We are persuaded instead by the view espoused by the Second District. See Kimball, 933 So.2d at 1286 (“We disagree with the conclusion reached by the Attorney General’s Opinion.”). Although we do not believe it necessary to consider the point, given the plain language of the statute, we also agree with the Kimball court, when it said:

The declared purpose of authorizing the additional $2 cost is to provide training for local law enforcement. As a practical matter, if the $2 assessment were limited to convictions for violations of municipal or county ordinances, it is doubtful that the assessment would produce enough revenue to fund “criminal justice education degree programs and training courses.” § 938.15.

Id. at 1286-87. Giving effect to the plain language of the statute, as we must, see, e.g., Atlantis at Perdido Ass’n, Inc. v. Warner, 932 So.2d 1206, 1212-13 (Fla. 1st DCA 2006), we agree that “[a] plain reading of section 938.15 grants a county or municipality the authority to assess the $2 [eost(s) ] for state statute violations that occur within its jurisdiction.” Kimball, 933 So.2d at 1286. The plain language of section 938.15 does not limit its reach to violations of county and municipal ordinances.

In denying Mr. Edney’s motion to correct sentencing error on grounds no costs were imposed pursuant to section 938.15, the trial court reached the right result for the wrong reason. Applying the “tipsy coachman” rule, the denial of the relief requested in Mr. Edney’s motion to correct sentencing error should be affirmed. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002).

Affirmed.

DAVIS and PADOVANO, JJ., concur.

       Section 938.01 provides, in pertinent part:
      All courts created by Art. V of the State Constitution shall, in addition to any fine or other penalty, require every person convicted for violation of a state penal or criminal statute or convicted for violation of a municipal or county ordinance to pay $3 as a court cost.
      § 938.01(1), Fla. Stat. (2006).


text:
    Julian GREGORY, Appellant, v. CRUM STAFFING AND BROADSPIRE, Appellees.
    No. 1D08-3389.
    District Court of Appeal of Florida, First District.
    March 10, 2009.

      Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
    Kari L. MacDonald of Dixon & Associates, P.A., Tampa, for Appellees.
   PER CURIAM.

Claimant appeals an order of the Judge of Compensation Claims (JCC) finding his claim barred because he failed to give notice of his injury to the employer/carrier (E/C) within 30 days of the injury as required by section 440.185(1), Florida Statutes (2007). Claimant argues the JCC erred by finding he was not excused from complying with this requirement pursuant to section 440.185(l)(a), Florida Statutes (2007), because the E/C had actual knowledge of his injury. For the reasons explained below, we agree and reverse.

Claimant filed a claim seeking various benefits stemming from a shoulder injury sustained in an accident occurring on February 8, 2007. The JCC found that Claimant’s supervisor witnessed the accident in question, corroborated Claimant’s description of it, and heard Claimant say “something regarding an injury,” although not specifically about a shoulder injury. The JCC also found Claimant’s supervisor saw Claimant’s forearm bleeding, and that Claimant informed him later that month that he had been to a doctor.

The JCC rejected Claimant’s argument that the E/C had actual knowledge of an injury, instead concluding “the statute” requires “actual knowledge of the injury be communicated by the employee to the employer within thirty days or the petition is barred.” (emphasis in original). The JCC cited Manon County v. Futch, 983 So.2d 689 (Fla. 1st DCA 2008), as support for this conclusion.

Section 440.185(1), Florida Statutes, provides that an “employee who suffers an injury arising out of and in the course of employment shall advise [the] employer within 30 days after the date of ... the injury.” If an employee fails to comply with this requirement, his claim is barred. An employee may be excused from this notice requirement if “[t]he employer or the employer’s agent had actual knowledge of the injury.” See § 440.185(l)(a), Fla. Stat.

The JCC’s finding that “the statute” requires “actual knowledge of the injury to be communicated ... to the employer within thirty days” conflates the notice provision of section 440.185(1) with the “actual knowledge” exception found in subsection (l)(a). Section (1) is the rule, and subsection (l)(a) is the exception. There is no “actual knowledge” provision in the rule, only in the exception. On this basis alone, the JCC erred.

To the extent this error was inadvertent, and the JCC was attempting to ai’ticulate that the E/C had to have “actual knowledge” of the injury, this too was error. The JCC’s reliance on Futch for this proposition was misplaced. In Futch, the claimant “neither reported the accident or any injuries” to his supervisors on the scene, nor sought treatment “until well over a month after the accident.” See Futch, 983 So.2d at 690 (emphasis added). It was in that context that we reversed the JCC because he applied a constructive knowledge analysis in finding the employer knew about the claimant’s injury.

Here, however, Claimant’s supervisor witnessed the accident, heard Claimant say something about being hurt, and learned Claimant had been to the doctor less than thirty days after the accident. Thus, there was nothing constructive about the E/C’s knowledge that an accident occurred, nor that Claimant experienced some sort of injury. This was sufficient to satisfy the “actual knowledge” requirement in section 440.185(l)(a), Florida Statutes.

We have held that the notice required to satisfy the knowledge exception to the thirty-day rule need not detail every facet of the injury sustained. Rather, it is sufficient that the employer have notice of an injury. See Alfonso v. Mac Dinton’s Rest., 515 So.2d 243 (Fla. 1st DCA 1987); see also Roseboom v. H.T. Constructors, Inc., 527 So.2d 234 (Fla. 1st DCA 1988); Winter Park Mem’l Hosp. v. Brown, 452 So.2d 116 (Fla. 1st DCA 1984).

Based on the foregoing, the JCC erroneously concluded Claimant failed to satisfy the actual knowledge exception to the thirty-day notice requirement in section 440.185(1), Florida Statutes. The JCC’s order finding Claimant’s claim was barred on this ground is REVERSED, and the cause REMANDED for proceedings consistent with this opinion.

WOLF, BENTON, and BROWNING, JJ., concur.


author: SUAREZ, J.

text:
    Laurancia LAURORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2015.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.

      Laurancia Laurore, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and CORTINAS, JJ.
   ON STATE’S CONFESSION OF ERROR

Laurancia Laurore moves for rehearing, and, on the proper confession of error by the State of Florida, we grant the motion for rehearing, vacate our prior opinion and substitute the following in its place:

SUAREZ, J.

Laurancia Laurore appeals the denial of her motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. She claims ineffective assistance of trial counsel because counsel failed to object and argue that her three separate convictions and sentences violate double jeopardy and that the trial court had imposed an excessive sentence. We affirm in part and reverse in part. We find that Laurore’s trial counsel’s performance was not ineffective because a double jeopardy objection would have been without merit. We agree, however, with the State’s concession that the trial court erroneously imposed a seven-year minimum mandatory sentence.

On April 14, 1996, Laurore arrived at Miami International Airport from Jamaica. She was detained at customs, where agents discovered she was in possession of 0.69 lbs. of cocaine. Laurore was arrested and charged with possession of cocaine, trafficking in cocaine and importation of a controlled substance. She pled guilty, and negotiated and entered into an agreement with the State, in which she accepted separate sentences for each of her pending charges. The plea agreement provided that Laurore was obliged to appear for sentencing, and that failure to appear would result in a thirty-year prison sentence with a minimum mandatory term of fifteen years. Laurore failed to appear for a period of seven years, during which time she lived under an alias.

Section 775.021(4), Florida Statutes (1995), codifies the rules of construction for criminal penalties. It provides that,

[w]hoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

§ 775.021(4)(a) (emphasis added).

The statute identifies exceptions where separate sentencing for each criminal offense arising from the same criminal transaction would not be appropriate, namely, offenses which require identical elements of proof, offenses which are degrees of the same offense as provided by statute, and offenses which are lesser offenses, the statutory elements of which are subsumed by the greater offense. Id. Otherwise, viable double jeopardy objections to separate sentencing for offenses arising from the same criminal transaction are waived if a defendant knowingly enters a plea bargain covering both charges and sentence. Novaton v. State, 634 So.2d 607 (Fla.1994).

Laurore’s possession of cocaine charge was subsumed under the charge of trafficking in cocaine. See Gibbs v. State, 698 So.2d 1206 (Fla.1997). Even so, she waived any double jeopardy claim by entering a guilty plea in a written plea agreement. See Novaton, 634 So.2d at 609. There is no double jeopardy imposed by separate charges for trafficking of cocaine and importation of cocaine, because the two offenses do not require identical elements of proof. Thus, trial counsel’s assistance was not rendered ineffective by failure to raise a double jeopardy objection because the objection would have been unfounded. Therefore, Laurore cannot meet her burden of proof for ineffectiveness of counsel as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Laurore’s remaining claims rest on her argument that she received an excessive sentence, and to the extent that the State has confessed error, we agree. The State concedes that the seven-year minimum mandatory term imposed by the trial court was not authorized by section 893.135(l)(b)l.b., Florida Statutes (1995), as that statute did not include a minimum mandatory term at the time Laurore committed her offense on April 14, 1996. We therefore remand for the limited purpose of correcting Laurore’s final sentence and instruct the trial court to delete the seven-year minimum mandatory portion of the defendant’s sentence. It is not necessary for Laurore to be present at this correction of sentence.

Affirmed in part, reversed and remanded in part.


text:
    Julio ACOSTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3338.
    District Court of Appeal of Florida, Third District.
    March 18, 2009.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 90.901, Fla. Stat. (2006); Jackson v. State, 979 So.2d 1153, 1154 (Fla. 5th DCA 2008).


text:
    Carmen PINEDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-5006.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Carmen Pineda, appeals her convictions for both organized scheme to defraud and grand theft. She argues on appeal that because the offenses were based upon common allegations, her conviction for both is a double jeopardy violation.

All the elements of the crime of theft are included within the offense of organized fraud. Louberti v. State, 895 So.2d 479 (Fla. 4th DCA 2005). Therefore, a defendant cannot be convicted of both crimes without a double jeopardy violation.

We find, and the state concedes, that the dual conviction is a double jeopardy violation. We therefore reverse and remand for the trial court to vacate the conviction for the lesser offense of grand theft. See Pizzo v. State, 945 So.2d 1203 (Fla.2006).

Reversed and Remanded.

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Vince EXILUS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capital 1 Inc. Trust 2006-HE7 Mortgage Pass-Through Certificates Series 2006-HE7, Appellee.
    No. 4D08-1129.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Vince Exilus, Cooper City, pro se.
    Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Derrick L. GRACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-414.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2009.
    Derrick L. Grace, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Derrick L. Grace appeals an order of the Broward County circuit court, summarily denying his rule 3.850 motion for postcon-viction relief, seeking to enforce his plea agreement to receive a sentence of seventeen years. He claims that the Department of Corrections is erroneously calculating his time served in such a way as to require him to serve more than the full seventeen years, a period of time which he claims he had finished serving (without even considering gain-time) by May 19, 2008.

Nothing in his motion demonstrates that he has exhausted his administrative remedies with the department. Accordingly, we affirm the summary denial, without prejudice to Appellant’s pursuing his available remedies against the department and then, if necessary, filing a petition for extraordinary relief in circuit court. See generally Thomas v. State, 828 So.2d 1045 (Fla. 4th DCA 2002). If he still claims entitlement to immediate release, then he should file a petition for writ of habeas corpus with the circuit court in the county where he is incarcerated. Bush v. State, 945 So.2d 1207, 1213 n. 1 (Fla.2006).

WARNER, MAY and DAMOORGIAN, JJ., concur.


text:
    Jermaine ATTERBURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4167.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Howard Finkelstein, Public Defender and Joseph R. Chloupek, Assistant Public Defender, Fort Lauderdale, and Jermaine Atterbury, Belle Glade, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion to Enforce Mandate

PER CURIAM.

The appellant has moved to enforce the mandate of this court. In reversing appellant’s habitual felony offender sentence as illegal, we gave the state a choice on remand: “either agree to the correction of the sentence by removing the habitual offender designation on his current sentences, or the state can proceed to trial on all of the charges.” Atterbury v. State, 991 So.2d 980, 982 (Fla. 4th DCA 2008). Because the state failed to bring the appellant to trial within ninety days of the issuance of the mandate in accordance with Florida Rule of Criminal Procedure 3.191(m), we now order the trial court to enter an order striking the habitual offender designation on appellant’s current sentences in case numbers 04-12596 CF10A and 04-14123 CF10A. A copy of the order complying with this opinion shall be filed with this court.

GROSS, C.J., WARNER and FARMER, JJ., concur.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Paula DAVIS v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS.
    No. 2009-CA-0509.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 2009.
    Rehearing Denied Jan. 13, 2010.
    Walter R. Woodruff, Jr., Eric A. Bopp, Edward S. Bopp-A Law Corporation, Mandeville, LA, for Plaintiff/Appellant.
    Francis B. Mulhall, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

[¡/Paula Davis, a licensed practical nurse, appeals a judgment of the trial court affirming the decision and order of the Louisiana State Board of Practical Nurse Examiners. After a hearing was conducted on formal complaint filed by State Board of Practical Nurse Examiners, the Board revoked Ms. Davis’ Louisiana Practical Nurse License, fined her $500.00 for pertinent violation of statutes and regulations, and assessed a hearing fee of $500.00. We find no error in the Board’s decision and trial court affirmation, as the evidence was sufficient to support the hearing officer’s rejection of the credibility of Ms. Davis and the Board’s subsequent license revocation. We find that the board’s decision was supported by the preponderance of the evidence. Further, we do not find the Board’s decision arbitrary, capricious, oí-an abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Paula Davis was a licensed practical nurse (LPN), licensed by the Louisiana State Board of Nursing (hereinafter the “Board”). The Louisiana State Board of Practical Nurse Examiners received complaints concerning the nursing practices of Ms. Davis while she was employed at three (3)facilities: Saint Anna’s Residence; Meadowcrest Living Center; and Marrero Healthcare Center.

lain August 2007, the Board submitted a complaint against Ms. Davis. The Board conducted a hearing based on the complaint against Ms. Davis regarding alleged violations of La. R.S. 37:969 A(4)(e), (d), (f) and (g), and Louisiana Administrative Code, title 46, Part XLVII, Subpart 1, Sections 306 T(3) and (4) and (8)(a), (b), (g), (h), (i), (j), (p) and (r).

After the hearing was conducted, the Board ordered that Ms. Davis’ LPN license be revoked. The Board also ordered Ms. Davis pay a fine of $500.00 and a hearing assessment fee of $500.00. Ms. Davis filed a Petition for Judicial Review of the Board’s order. The trial judge subsequently affirmed the decision and order of the Board. Ms. Davis has filed the instant timely appeal.

STANDARD OF REVIEW

The standard of review of an administrative agency’s decision is more narrow than the standard of review applied to civil and criminal appeals. Reaux v. Louisiana Bd. of Med. Examiners, 2002-0906, p. 3 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726. The exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in Administrative Procedure Act in La. R.S. 49:964(G). Defining the scope and standards for judicial review of administrative agency decisions, La. R.S. 49:964(G) provides that a court can reverse an agency’s decision if the appellant’s substantial rights have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
|4(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964 G.

“[T]he agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.” La. R.S. 49:956(3). Further, jurisprudence has recognized that “in reviewing such [administrative] actions, courts must be cognizant of the strong presumption of validity and propriety in such administrative actions where casting judgment upon the professional behavior of a fellow member of a profession is a matter peculiarly within the expertise of an agency composed of members of that profession.” Armstrong v. Louisiana State Board of Medical Examiners, 03-1241, p. 11 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 838 (citing Montalbano v. Louisiana State Bd. of Med. Examiners, 560 So.2d 1009, 1011 (La.App. 4 Cir.1990)).

THE BOARD’S DECISION

On appeal, Ms. Davis argues that the trial court erred in affirming the Board’s decision. Ms. Davis avers that the Board lacked sufficient evidence to support its decision to levy sanctions against her. The Board counters that the evidence, including the testimony of four witnesses, is sufficient to |,^support its decision. The Board maintains that the trial court’s decision, which affirmed its decision, should be affirmed.

The Board’s complaint against Ms. Davis resulted from the following:

St. Anna’s Residence

In July 2006, St. Anna’s Residence reported to the Board allegations that resulted in Ms. Davis’s termination as follows:

Ms. Davis administered 3 tablets of Tylenol P.M. to a resident without a physician’s order. Pursuant to a request by Ms. Davis, a Certified Nursing Assistant (CNA) purchased this medication at a nearby pharmacy.

Prior to the leaving her shift on July 3, 2006, and July 4, 2006, Ms. Davis failed to count narcotics according to protocol. The Controlled Substance Record reflected that Ms. Davis endorsed the record for Hydrocodone every four (4) hours, however she did not complete the resident’s Medication Administration Record (MAR) to reflect the same.

A resident under Ms. Davis’ care was to receive the medication Ativan daily at 8:00 P.M. An endorsement reflecting receipt of this medication was not made on the Control Substance Record, nor was it made on the resident’s MAR. Inventory of the Controlled Substance Record revealed a difference of three (3) pills in the medication present and medication for which an account was provided in the record. Ms. Davis corrected the Controlled Substance Record, however she did not inform the Director of Nurses (DON) or the pharmacy of the corrections.

| tJMeadowcrest Living Center

In August 2006, Meadowcrest Living Center made a report to the Board that indicated that Ms. Davis was terminated from the facility within her 90-day probation period for the following:

In July 2006, the DON was informed that two weeks of pain medication was missing from three (3) separate blister medication cards of two residents, totaling 42 pills. Other residents were administered pain medication without request or need. On August 3, 2006, at 9:30 a.m., Lortab from two medication cards was removed and replaced with 600-mg Ibuprofen. The MARs and nursing notes did not reflect that complaints of pain were made by the residents nor was it recorded that medications were given. At 5:30 p.m. on August 3, 2006, the DON received a call from an LPN who discovered that two Percocet tablets were removed from a resident’s medication card and replaced with 500-mg Acetaminophen tablets. It was discovered that Ms. Davis was the only nurse with a key to the medication cart where the drugs were stored prior to each discovery.

Marrero Healthcare Center

The Board conducted an investigation and discovered that in February 2005, Ms. Davis gave medication to a resident at an unassigned time and did not sign the narcotic sheet according to protocol. Due to this failure, the medication was readminis-tered.

During one shift, Ms. Davis arrived at work at 6:30 a.m., left at 8:30 a.m., and returned at 1:00 p.m. Again, she left at 2:00 p.m. and returned at | approximately 4:00 p.m. During that time, medications were not administered as ordered and Ms. Davis refused to provide wound care. On July 7, 2005, Ms. Davis was terminated from her employment at Marrero Healthcare Center for failing to sign MARs.

Ms. Davis provided the Board with a detailed narrative regarding the allegations at the aforementioned facilities denying the allegations. A formal hearing was conducted in May 2007.

Ms. Davis was found to be in violation of Louisiana Revised Statutes of 1950, Title 37, Chapter 11, Part II, Section 969 A(4), 978; and

(c) Is unfit, or incompetent by reason of negligence, habit, or other causes; and
(f) Is guilty of unprofessional conduct; and
(g) Has violated any provisions of this Part.

Ms. Davis was also found in violation of the following parts of Louisiana Administrative Code, Title 46, Part XLVII, Sub-part 1, Sections 306 T:

3. being unfit, or incompetent by reason of negligence, habit or other causes; and
8. being guilty of unprofessional conduct;
a. failure to practice practical nursing in accordance with the standards normally expected; and
b. failure to utilize appropriate judgment in administering nursing practice; and
g. improper use of drugs, medical supplies, or patients’ records; and i. falsifying records; and
j. intentionally committing any act that adversely affects the physical or psychosocial welfare of the patient; and
p. inappropriate, incomplete or improper documentation.

|sThe issue presented is whether given the jurisprudential presumption of correctness of an agency’s actions, the record contains a preponderance of evidence supporting the hearing officer’s findings and conclusions as adopted by the Board. This presumption must be read against the explicit statutory pronouncement that the reviewing court is to determine upon its independent review of the record as a whole whether the agency proved its case by a preponderance of the evidence. La. R.S. 49:964 G(6). Ms. Davis bears the burden of proving that the record contains no facts that would establish the validity of the charges levied against her. See Armstrong v. Louisiana State Bd. Of Med. Examiners, p. 11, 868 So.2d at 838.

We find that the record contains sufficient testimony and evidence adduced at the Board hearing to support the conclusion that the charges alleged against Ms. Davis were valid. Four (4) witnesses testified at the hearing: Debra Godsey, RN, DON, St. Anna’s Residence; Mario Hills, LPN, St. Anna’s Residence; Rita Anderson., RN, DON, Meadowcrest Living Center; and Ariane Tero, CNA, St. Anna’s Residence.

Ms. Mario Hills, LPN, testified as follows:

“... [S]he was like I’m not putting up with this today, because Ms. DeLange is like a whiner or whatever. And that’s when she put — got her Tylenol P.M., she went — -and I asked her what it was, she went to the nurses’ cart, crushed it up, put the applesauce in there, and went in Ms. DeLange’s room and gave it to her.”

Ms. Debra Godsey, R.N., the Director of Nurses at St. Anna’s Residence testified on the report of Ms. Hills as follows: “[s]he [Mario Hills, LPN] reported |flthat she watched her [Ms. Davis] crush the Tylenol and that she was giving it to her in the evening to keep her quiet.”

Ms. Rita Anderson, R.N., the Director of Nurses at Meadowcrest Living Center, testified that she met with Ms. Davis the Assistant Director of Nurses and questioned Ms. Davis as to why she administered pain medications without supporting documentation. Ms. Anderson further testified as follows:

“... She did not answer. When I asked her about the missing forty-two pills, she replied that she did not notice that they were missing. I pointed out to her the pattern of activities, ... ‘Missing pain medications must stop. If you administer a pain medication, I strongly advise you to follow the documentation protocol ... ’ ”

Ms. Davis testified at the hearing and maintains that many of her co-workers shared her deficiencies and shortcomings. However, we do not find that allegations against co-workers for similar infractions minimize Ms. Davis’ own professional responsibility. Further, among the hearing officer’s factual findings was a specific conclusion that the Board’s witnesses were credible and Ms. Davis was not credible. The applicable statutory provision governing the judicial standard of review mandates that “due regard shall be given to the agency’s determination of credibility issues.” La. R.S. 49:964 G(6). We do not find that the Board’s findings can be characterized as arbitrary, capricious or an abuse of discretion.

Ms. Davis maintains that the Board committed reversible error in notifying her that her license would be suspended and subsequently tendering Ms. Davis a | mcorrected order providing that her license would be revoked. Ms. Davis contends no support exists for the Boards decision to revoke her license and that it should not have been revoked, but merely suspended. Therefore, Ms. Davis avers that the Board’s decision to revoke her license prejudices her substantial rights.

The initial order contained what the Board has characterized as a typographical error. This error, which supplanted an effective suspension in place of revocation, was corrected in an order that was issued three days following the issuance of the initial order. Nevertheless, the findings made by the Board after several substantiated complaints were made by healthcare facilities against Ms. Davis provide support for the Board’s decision. We find that the Board’s decision was supported by a preponderance of the evidence.

Ms. Davis contends that she had no previous disciplinary issues with the board in her four-year career. Ms. Davis thus characterizes the Board’s decision to impose revocation of her license rather than suspension as an extraordinary and extreme decision will permanently deprive her of a nursing license. The Board counters that it did not consider the infractions by Ms. Davis at three separate healthcare facilities to be minor or insignificant, particularly when involving protection of those for whom nurses are sworn to provide care.

The imposition of an administrative sanction is in the nature of a disciplinary measure and in deciding what, if any, discipline to impose, an administrator or administration may, within the range of permissible discretionary limits, be strict, b moderate or lenient and, unless arbitrary, such discretion or a decision must be upheld. Mayeaux’s Food and Sporting Goods, Inc. v. State Dept. of Health and Human Resources, 470 So.2d 469 (La.App. 1st Cir.1985). As this Court has stated, though the Board’s actions may seem harsh in light of what Ms. Davis characterizes as an unblemished work record, “the stringent standard of review and the strong presumption of correctness dictate that the decision of the Board not be disturbed.” Lawhead v. Louisiana State Bd. of Practical Nurse Examiners, 2007-1593, p. 9 (La.App. 4 Cir. 10/28/08), 995 So.2d 664, 669.

After reviewing the record and in light of the strong presumption of correctness, we cannot characterize the administrative decision as arbitrary given the Board’s consideration of the evidence and assessment of weight to the evidence. Further, the Board’s decision is not capricious in that there is a substantial basis for their conclusion, which is substantiated by competent evidence. Therefore, the trial court did not err in affirming the Board’s decision to revoke Ms. Davis’ nursing license.

DECREE

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.

BELSOME, J., Dissents With Reasons.

BELSOME, J.,

Dissenting.

Li cannot agree that the Louisiana State Board of Practical Nurse Examiner’s determination to revoke Appellant’s license was supported by a preponderance of the evidence. Therefore, I dissent.

In this case, the Board revoked Appellant’s license despite the conflicting testimony between Mario Hills and Paula Davis. Although Mario Hills testified that she witnessed Ms. Davis administer the Tylenol P.M. to the patient, Ms. Davis denied ever administering the Tylenol P.M., and plainly testified that the purchase of the Tylenol P.M. was for her personal use only. Mario Hills was the sole person who claimed to have witnessed Ms. Davis administer the Tylenol P.M., and inexplicably waited nearly two weeks to come forward with this information. All other evidence against Ms. Davis was circumstantial.

While the allegations in this case, if true, are serious and should not be minimized, the trial court erred when it affirmed the Board’s decision to strip Ms. Davis of her profession and livelihood based essentially upon suspiciously delayed [ 2testimony from only one alleged eyewitness. Moreover, Ms. Hills, a witness whose objectivity is debatable, was unable to articulate any reasonable explanation for the lengthy delay in reporting the administration of the Tylenol P.M. — an action that the Board argues was potentially fatal. The lack of an explanation for the delay gives this writer great pause, because if a patient’s health were truly in danger, it seems that one should be held accountable for such misconduct immediately.

Considering the evidence in the record, this writer would find that a six month suspension would have been a more than appropriate remedy, rather than the revocation of Appellant’s license, which prejudiced her substantial rights. See La. R.S. 49:964(G). Therefore, I would reverse the trial court’s affirmation of the Board’s determination to revoke Appellant’s nursing license.

      . The Louisiana Stale Board of Practical Nurse Examiners mailed two separate orders to Ms. Davis. The first Order was mailed on August 17, 2007; it ordered that Ms. Davis’ license be suspended. A second order was mailed three days later, on August 20, 2007, and it stated that Ms. Davis' license was revoked.

      . As the majority recognizes, a reviewing court may reverse or modify an agency’s determination if an individual’s substantial rights have been prejudiced because the Board's findings, inferences, conclusions, or decisions are:
      [n]ot supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has had the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.
      La. R.S. 49:964(G)(6)(emphasis added).

      . As the majority noted, although purportedly a clerical error, the initial Order issued by the Board to Ms. Davis fined Ms. Davis $500.00 and suspended her license.

      . A license to practice nursing is a basic property right. See, e.g., Williams v. Louisiana State Bd. Of Nursing, 1999-0932, p. 1 (La.1999), 733 So.2d 1192.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Joseph A. LINDSAY.
    No. 09-KA-397.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Tonia Williams, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The defendant, Joseph A. Lindsay, was charged with one count of aggravated burglary and one count of aggravated battery. The defendant pled guilty to both charges. The trial judge sentenced the defendant to five years at hard labor on each count to run concurrently with credit for time served. Subsequently, the defendant filed a motion for reconsideration of sentence, which was denied. The defendant then filed an appeal of the denial of his motion to reconsider sentence and the excessiveness of his sentences from the 24th Judicial District Court. After review, we affirm the defendant’s convictions and sentences.

STATEMENT OF THE CASE

On July 24, 2006, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant in count one with aggravated burglary, a violation of LSA-R.S. 14:60, and in count two with aggravated battery, a violation of LSA-R.S. 14:34. At his arraignment, the defendant pled not guilty. The defendant subsequently withdrew his not guilty plea and pled guilty to both | ¡.charges. The trial judge set a sentencing cap of five years as part of the plea agreement and ordered a pre-sentence investigation. After accepting the pleas and stating that he had considered the basis for the sentence in compliance with LSA-C.Cr.P. art 894.1, the trial judge sentenced the defendant to five years at hard labor on each count with credit for time served. The trial judge ordered the sentences to run concurrently.

The defendant, subsequently, filed a pro se motion for reconsideration of sentence, which the trial court denied after finding that the defendant was sentenced according to the plea agreement. Afterward, the defendant filed a pro se application for post-conviction relief, which the trial court denied. The defendant filed a motion for an out-of-time appeal, which the trial court also denied. Subsequently, the defendant filed an “Application for Post-Conviction Relief and Out-of-Time Appeal,” which was granted by the trial court. This Court is now reviewing defendant’s out-of-time appeal.

FACTS

The defendant pled guilty to the charged offenses. The bill of information indicates that the defendant committed an aggravated burglary of an inhabited dwelling belonging to Julia Torrella and/or William Petrolli; and, during the aggravated burglary, the defendant committed an aggravated battery upon Petrolli with a knife. At the defendant’s sentencing hearing, the State informed the court that the defendant entered the victims’ home at three o'clock in the morning armed with two large knives. The defendant stabbed Pe-trolli, and then engaged in a physical fight in which Petrolli was further injured.

Before sentencing the defendant, the trial judge noted that the probation officer who conducted the pre-sentence investigation recommended the maximum |4allowabIe sentence under the law. The trial judge also took into account the defendant’s criminal history detailed in the pre-sentence investigation report. The trial judge noted that the defendant was charged with disturbing the peace in 1988. There was no disposition found. In 1990, the defendant was charged with an “uttering offense” for which he received a suspended sentence of three years. The defendant was then placed on active probation for three years. In 1991, the defendant was charged with disturbing the peace and resisting a police officer in New Orleans. There was no disposition found. In 1993, the defendant was arrested for DWI. There was no record of the disposition found. In 1998, the defendant was charged with attempted first degree murder and simple battery. The charges were refused after the victim refused to testify for the prosecution. In 2002, the defendant was charged with simple battery. The defendant pled guilty. In 2004, the defendant again was charged with simple battery. The defendant pled guilty to the amended charge of disturbing the peace. In October of 2005, the defendant was charged with domestic abuse and simple battery, as well as unauthorized entry of an inhabited dwelling. The charges were refused after the victim refused to testify for the prosecution. In April of 2006, the defendant was charged with two counts of violating a protective order. The defendant pled guilty and was sentenced to 90 days in parish prison with credit for time served.

|sThe trial judge took note of the defendant’s alcohol problem and recently discovered bipolar diagnosis, as well as sentencing factors pursuant to LSA-C.Cr.P. art. 894.1. The trial judge asserted that because of his age the defendant previously should have found out about his bipolar disease and tried to correct the problem prior to the hearing. In addition, the trial court asserted that the defendant should have previously found a correlation between his many arrests and his use of alcohol. The trial judge stated that he did not think the influence of alcohol on the defendant could be used to mitigate his sentence. The trial judge also asserted that placing the defendant on probation would present a serious risk. The trial court noted that he found it particularly disturbing that the victims were in “their home at night and [were] awakened by [the defendant] climbing through the window armed with two knives.” The defendant was sentenced to five years imprisonment at hard labor and was given credit for time served.

ASSIGNMENT OF ERROR NUMBER ONE

Respectfully, the district court erred in the denial of the motion to reconsider sentence.

ASSIGNMENT OF ERROR NUMBER TWO

Respectfully, the five-year sentence imposed in this matter were [sic] unduly harsh given the extensive prior medical and psychological history of the defendant.

DISCUSSION

“[A] defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” LSA-C.Cr.P. art. 881.2(A)(2). This subsection of the statute applies to plea agreements involving specific sentences, as well as, to plea agreements involving sentencing caps. State v. Jackson, 07-975, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 250-251. A defendant is not entitled to appellate review of his | f,sentences that are imposed in conformity with his plea agreement. State v. Jackson, 07-975 at 8, 985 So.2d at 251.

On appeal, the defendant claims that the trial judge and his trial counsel were unaware of his approximately 15-year medical history with bipolar disease. The defendant contends that this relevant psychological history was not contained in the pre-sentence investigation. The defendant argues that without this information the trial judge could not have considered any possible mitigation and, therefore, he received the maximum possible sentence pursuant to the plea agreement. According to the defendant, he is requesting consideration and a full sentence review on his pro se motion to reconsider sentence. The defendant specifically states that he is not claiming ineffective assistance of counsel on appeal.

The State claims that the defendant cannot seek appellate review of his sentence because the trial judge imposed his sentence within the sentencing cap that was part of his plea agreement. The State also claims that the trial court was aware of the cumulative information introduced by the defendant regarding his prior medical and psychological history in the pre-sentence investigation report.

At the defendant’s sentencing hearing, Julia Torrella, one of the victims, testified that she and the defendant previously were in a relationship. According to Tor-rella, alcohol affects the defendant’s behavior. Torrella testified that the defendant had previously threatened her after she moved out and before the incident by informing her that he knew of her new residence.

The defense attorney claimed that the defendant’s problem was alcohol related. The defense attorney also informed the court that subsequent to the defendant’s plea and the trial court placing a sentencing cap of five years, he learned about the defendant’s history of bipolar disease. According to the defense |7attorney, the defendant had tried to get the medication that he needs for his bipolar disease. However, it was unavailable. The defense attorney argued that the defendant’s inability to take the bipolar medication and his alcohol problem caused the defendant’s bizarre behavior. Defense counsel suggested that the trial court give the defendant the five-year sentence, and then suspend it and give the defendant some time on probation utilizing an ankle bracelet that detects alcohol usage. The State argued that the defendant pled guilty to aggravated battery, which is a crime of violence and, therefore, his sentence should not be suspended.

In his pro se motion for reconsideration, the defendant alleged that the District Attorney and the Pre-sentence Investigator had employed unspecified tactics. The defendant also claimed that his trial counsel was ineffective and that his trial counsel failed to make the trial court aware of the “mitigating circumstances surrounding [his] case even though he understood them.”

In the present case, the defendant claims that his sentences are “unduly harsh.” The defendant appears to argue that the trial court erred in imposing the maximum sentence agreed upon under the sentencing cap because the trial judge was not aware of previous medical information, which could have mitigated the imposed sentences.

The record reveals that the defendant received a sentence of five years at hard labor on each count, which was within the agreed upon sentencing cap. In its order of September 5, 2007, in which the trial judge denied the defendant’s pro se motion for reconsideration of his sentence, the trial judge stated that the defendant received the “bargained-for sentence.” The trial judge also stated that the imposed sentences were well below the maximum allowed by law. The trial judge noted lathat aggravated battery is punishable by no more than ten years and aggravated burglary is punishable by between one and thirty years at hard labor.

The guilty plea waiver form signed by the defendant states that his sentencing cap is five years at hard labor. Since the defendant was sentenced within the sentencing cap that was part of his plea agreement, he is not entitled to appellate review of his sentences that were imposed in conformity with his plea agreement. State v. Jackson, 07-975 at 8, 985 So.2d at 251.

These assignments of error merit little consideration. Therefore, this Court will not disturb the trial court’s ruling. We affirm the defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

WICKER, J., concurs without reasons.

      . Because the defendant pled guilty, the facts are gleaned from the bill of information, the sentencing hearing, and the pre-sentence investigation.

      . According to the pre-sentence investigation report, the utter charge involved the passing of a forged check.

      . According to the pre-sentence investigation report, the defendant was charged with battery on June 20, 1992. No record of the disposition was found.

      . According to the pre-sentence investigation report, an attachment for the defendant was issued for failure to pay a fine.

      . In the "Victim/Complainant’s Statement” included in the pre-sentence investigation report, Torrella informed the investigator that ''[a]fler moving to another state, [the defendant] called her on July 26th, 2006 and told her that he had done a background search on the Internet on her and he told her the address where she and her daughter were living.” According to the report, Torrella told the investigator, “she was terrified that [the defendant] would come after her in Tennessee after he called her....”

      . According to the pre-sentence investigation report, the defendant was charged again with violating a protective order on March 17, 2007. The Commissioner’s hearing on the charge was scheduled on the same date the pre-sentence investigation report was due.

      . Defense witness Christian Helmke, an owner and co-manager of E.T.O.H. Monitoring, testified that his company uses an ankle bracelet similar to a home incarceration bracelet that monitors for the presence of alcohol in insensible perspiration from the skin by sending it to a fuel cell inside the bracelet.

      . It is noted that the pre-sentence investigation report states that the defendant was diagnosed with bipolar disease in October of 2005. Therefore, the trial court was aware of this date upon reviewing the report at the sentencing hearing. While on appeal the defendant maintains that at the time of his sentencing he had a 15-year history of suffering with bipolar disease, nothing in the record indicates that this is the case.


author: MARION F. EDWARDS, Judge.

text:
    SUCCESSION OF Kenneth Eugene CARROLL.
    No. 09-CA-219.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Evangeline M. Vavrick, Evangeline A. Vavrick, New Orleans, LA, for Plaintiffs/Appellees/Second Appellants.
    Raymond P. Ladouceur, Jane C. Alvarez, Ladouceur and Ladouceur, L.L.C., Abita Spring, LA, for Defendant/Appellant.
    Jack M. Alltmont, Max Nathan, Jr., Danielle M. Ross, Sessions, Fishman, Nathan & Israel, L.L.P. New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

laThis issue presented to us in this succession proceeding is whether a handwritten document signed and dated by the decedent is a valid olographic codicil to the decedent’s will. This matter has been before this Court in a prior appeal (Carroll I). In Can-oil I, this Court examined a different writing by the decedent and agreed with the trial court that the document did not constitute a valid olographic testament. We find now, as we did in Carroll I, that the document at issue herein is not a valid olographic testament.

FACTS

Kenneth Eugene Carroll (“Mr. Carroll” or “the decedent”) was married to Leslie Carroll (“Leslie”) for over thirty years. Four children were born of the marriage. When Leslie died in 1999, Mr. Carroll sought advice from Leslie’s sister, Isabel Wingerter (“Ms. Wingerter”), an attorney, to assist in preparing a |3will. Mr. Carroll executed a statutory will on February 14, 1999, which established two testamentary trusts. One trust, known as the Carroll Trust, was for the benefit of the four children of his marriage to Leslie and the other was for the benefit of his granddaughter, Brittany Carroll. The will provided that everything of which he died possessed, other than the particular legacy for the Brittany Carroll Trust, would go into the Carroll Trust in which his four children (the Carroll children) were the beneficiaries. The Carroll Trust was also the beneficiary of several life insurance policies on Mr. Carroll’s life. The will named Ms. Wingerter executrix of the estate and trustee of the testamentary trusts.

In October 2003, the decedent traveled to Hawaii where he married Susan G. Carroll (“Susan”). Before leaving for this trip on October 9, 2003, decedent hand wrote a letter addressed to Ms. Wingerter in which he instructed certain assets be provided to Susan if he died “before I am able to see you personally.” The letter provided that certain assets were to be provided in the event Mr. Carroll died before the marriage and gave instructions on what debts of Susan’s should be paid.

In December of 2003, decedent gave Ms. Wingerter another handwritten document, which is at issue in this appeal. This writing indicates that Susan should receive $100,000 in the event Mr. Carroll dies a natural death, $200,000 in the event he dies an accidental death, and that Susan receive a share in the trust “equal to the kids.” Mr. Carroll neither signed nor dated this first document.

Mr. Carroll died on May 15, 2007. Ms. Wingerter filed for and obtained an order of probate of the original will and the olographic codicil dated October 9, 2003. In accordance with the testament, Ms. Wingerter was named the duly appointed testamentary executrix of the Succession. Subsequently, Ms. Wingerter 14filed an ex parte motion to present a document, found in Mr. Carroll’s safety deposit box, which appears to be a copy of the December 2003 document with a few penciled in changes. However, this document differs from the one originally given to Ms. Wingerter as it is signed by Mr. Carroll and dated December 8, 2003. Also found with that document was an undated, but signed note, to Ms. Wingerter that stated the following:

Izzy,
This is to be used only if legally necessary. It is just a guideline if not necessary. Take care of Suzie & her daughter. You’re in charge honey.
P.S.
If the trust goes up in value raise her share at your discression [sic].

Ms. Wingerter requested a declaration by the court on the legal significance of the December 8, 2003 document.

On November 16, 2007, the trial court rendered a judgment annulling the probating of the October 9, 2003 letter and ordering the executrix to carry out her duties pursuant to the February 14, 1999 will. This judgment was certified by the trial court as a final appealable judgment, and the matter was appealed to this Court.

In the course of those proceedings in the trial court, Susan attempted to introduce the December 8, 2003 document at issue in this second appeal as extrinsic evidence of testamentary intent. However, the trial court did not allow the introduction of the document. Although Susan raised that ruling as error in the former appeal, because of the procedural posture of the case, that issue was not addressed. Thus, the only document before this Court in the prior appeal was the October 9, 2003 letter.

|fiThis Court affirmed the trial court’s decision, validating the 1999 testament and finding that the October 9, 2003 letter lacked the requirements for a valid olo-graphic codicil. In Carroll I we held:

In the case at bar, the proposed olo-graphic codicil contains the phrases “in the event of my death before I am able to see you personally please make arrangements to ...” and “if after the marriage and before I can meet with you, I die and she survives”. We find this language indicates a conditional testamentary intent for a limited period of time. This letter contains clear instructions to decedent’s attorney of how to proceed if something happens to him during his trip and before he returned and could meet with her. Ms. Wingerter testified that she saw decedent numerous times between October 2003 and the date of his death, some three and a half years later, and decedent never requested that she prepare a new will or make a formal modification to the 1999 will to include provisions for Mrs. Carroll. The evidence also indicates that decedent and Mrs. Carroll met with another attorney to execute a pre-nuptial agreement and that decedent employed other attorneys throughout his career as an insurance agent. Additionally, the decedent was diagnosed with a terminal illness some seven months before his death. Thus, the evidence presented indicates that decedent took no steps to formalize or make unconditional the instructions in the October 2003 letter. We reject Mrs. Carroll’s position that it was not necessary for decedent to take any further steps to provide for Mrs. Carroll’s well being after his death. The requisite testamentary intent contained in the October 9, 2003 was conditioned upon decedent not returning from Hawaii and having an opportunity to meet with Ms. Wingerter. As the evidence shows, decedent returned from Hawaii and saw Ms. Wingerter on numerous occasions, thus, the testament terminated by its own conditions. Additionally, the language in the October 9, 2003 letter is clear in its meaning and extrinsic evidence is not needed to interpret this language. Accordingly, the trial court correctly annulled the prior order admitting the October 9, 2003 letter to probate. This finding pretermits a discussion of the remainder of appellant’s assignments of error.

Susan filed a petition to annul the original judgment of probate due to fraud, and to probate the December 8, 2003 handwritten document as a valid codicil to the 1999 testament. The December 8, 2003 document reads as follows:

Jjj.12/8/03
500[,]000 Guardian } Life
325[,]000 S.F. } ins
20[,]000 S.F. } on
325[,]000 A/D S.F. } me
To Suzie:
100,000 Natural Death
200,000 Accidental
A share equal to the kids in the trust All other cite ins to trust

Other assets

House } Cheek w/ Greg Towle for value Rental } at time of Leslie[’Js death
Stocks — Ck w/ S.F.
*C.D. 37k Purchased after L.D.
Cash values on about 10 life ins policies on kids and me. Let the trust keep them. Guns, boats, and fishing equipment divided between Jason & Kenny. Get approximate value and give Steven $ Leslie’s jewelry is in safety deposit box # 33 Gulf Coast Bank Vets Blvd[.]
All for Kelly if she straightens out
Car goes to Suzie
P.U. truck to Steven
Office equipment <& government policies to Jason if he’s still in insurance business. You can approve early withdrawal of his portion of trust to start up a new business but only start up funds. Others have same option
Termination pay from S.F. should be about 450 to 500k and should all go to trust
If I hit the mother load in California all to the trust. But I guess because litiga-tions started in 1998 kids share it, as well as value of agency at Leslie[’]s death
|7I pay for life ins for:
Kenny 50k } Term let trust pay them
Kelly 100k } w/ trust as beneficiary
Jason 100k }
Karen 100k }
Britney 50k } Cash
Katheryn 50k } value
Let L. D’Angelo buy my share of 2 oat burners
All household furnishings go to Suzie
The Book is the only material thing I ever cared about and as no kid of mine has shown any great interest it will stay in the trust until someone in the future proves worthy. Tell them it’s “my fortune”
Note: A[t] the time Leslie died we owed approximately 125k interest & penalty & state taxes to IRS & this should be calculated in value of estate at time of Leslie[’]s death. Terry Alareo can get the correct # ⅛
In matters concerning S.F. I would check w/ Jerry King if you have any problems

After a hearing on the matter, the trial court rendered judgment denying the petition to probate the December 8, 2003 document and further partitioning certain moveables “in accordance with this Court’s oral reasons for judgment which are incorporated herein by reference.” Both Susan and the Carroll children have appealed this judgment.

The transcript contained in this designated record shows that the parties entered into a stipulation that the document presented for probate is in the decedent’s handwriting and that it is signed and dated by the decedent. The parties also stipulated that there are two documents that are essentially the same. The first |Ris a three-page, handwritten note, which was either sent or given to Ms. Wingerter by the decedent. It is not signed by Mr. Carroll. The second document appears to be a copy of the first to which the decedent made some additions and changes. This document was found in decedent’s safety deposit box by Ms. Wingerter after his death. It is also signed and dated and is the document at issue herein. Ms. Win-gerter did not realize at first that the second document was signed and dated. She originally thought it was simply a copy of the unsigned copy that was already in her possession. It was also stipulated that there was no discussion between Ms. Win-gerter and Mr. Carroll about drafting another document after Mr. Carroll gave her any of the documents.

After hearing the arguments of counsel and considering the document in question, the trial judge found the December 8, 2003 handwritten document was not a codicil or a will.

At the same hearing, the trial court considered certain other discovery motions including one for an accounting from Susan on the use of certain property alleged to belong to the estate. In considering those issues, the trial court heard the testimony of Susan. Susan testified that, after she married Mr. Carroll, he told his children to come into his home and take anything they wished to keep. Susan stated that she did not move into Mr. Carroll’s home until five months later. She and Mr. Carroll redecorated the home and purchased new furnishings. Susan stated that there are some items remaining that belong to Mr. Carroll’s children that are in a storage unit in Belle Chasse. She gave the court the exact address of that unit.

Susan was unprepared at the time of the hearing to give a full accounting of rents received and costs paid in the management of various rental properties owned by Mr. Carroll, but she was willing to comply with that request as soon as possible. |n Susan acknowledged that the car and certain books, including a first edition of The Rubaiyat of Omar Khayyam, belonged to the estate. She stated that these books were left in the house and are not in her possession at this time.

As to a painting of the Absinthe House created by Mr. Carroll’s daughter Kelly Carroll Urrate (“Kelly”), Susan stated that Kelly had given that to her as a gift. Susan denied any knowledge of the whereabouts of Mr. Carroll’s wedding ring and class ring. Susan also asserted that two of the five televisions sets claimed by the estate were hers before the marriage.

Susan testified that Mr. Carroll told her that all of the new household furnishings were hers to keep.

Kelly, one of Mr. Carroll’s four children also testified at the hearing. She verified that she gave Susan the painting she did of the Absinthe House. However, she also stated that she now wanted it back. Kelly also stated that she and all of her siblings had access to her father’s home before and after he married Susan and were encouraged to take anything they wanted. Kelly corroborated Susan’s testimony that the decedent and Susan redecorated the entire home to start off a new life. Kelly could not dispute that her father gave all of the new furnishings to Susan.

Carolyn Hicks, who helped Mr. Carroll and Susan redecorate the home after the marriage, testified that she personally helped buy sofas, chairs, lamps, paintings, rugs, tables, and bookcases. She stated that the decedent made it clear that he wanted the home to be decorated the way Susan wanted it and that the furnishings belonged to her.

It appears from argument of counsel that Mr. Carroll and Susan entered into a pre-nuptial agreement in Hawaii. However, that agreement is not in the record before us and there appears to be some question as to it’s validity in Louisiana.

| UILAW AND DISCUSSION

On appeal, Susan asserts the trial judge erred in considering Mr. Carroll’s “sophistication” in finding the December 8, 2003 document does not have the required testamentary intent. Susan argues that the 1999 testament and the December 8, 2003 document together express Mr. Carroll’s intent. She argues that the statements, “to Suzie $100,000.00” and “all household furnishings go to Suzie” make testamentary intent obvious.

Susan also argues that, as a legatee, she is entitled to conduct discovery.

In response, the Carroll children contend that the document is merely an asset inventory prepared for Mr. Carroll’s attorney and executrix with suggestions as to how to distribute and equalize the movable assets to his four children that were not divisible in kind. The Carroll children further assert that the December 8, 2003 writing is neither a will nor a codicil and that the language of the document confirms that it was Mr. Carroll’s intent to dispose of his assets as set forth in his statutory will of February 14, 1999, establishing two testamentary trusts.

The Carroll children assert that the trial court was correct in finding no testamentary intent in the December document and in dismissing Susan’s discovery motions as moot.

In their appeal, the Carroll children argue that the trial court erred in rendering a judgment granting Susan the furniture and personal possessions in the Carroll home on the evidence adduced at the hearing. They argue that these possessions are part of Mr. Carroll’s estate.

In our first opinion in this matter, we declared the 1999 testament to be valid. None of the parties now argue that the 1999 testament setting up the two trusts is invalid. Thus, the issue before this Court is whether the December 8, 2003 handwritten document is a valid codicil to the 1999 testament.

To be valid, an olographic testament must be entirely written, dated, and signed in the handwriting of the testator. The only other requirement is that the document itself evidence testamentary intent. In the absence of testamentary intent there is no will. Extrinsic or parole evidence cannot be used to establish testamentary intent.

Letters or written instructions to a decedent’s attorney intended to be used by the decedent’s attorney in drafting a new will do not in themselves evidence testamentary intent. A valid olographic testament must do more than express or explain the wishes or desires of a decedent, the document must show intent to convey decedent’s property by the instrument itself.

In Carroll I we discussed and analyzed the applicable case law, including Succession of White, on which Susan relies in her argument to this Court. We find now that the circumstances of White are distinguishable from the facts of the matter before us. In White, although the decedent did not use the terms of art such as “bequest” or “bequeath,” it was clear on the face of the olographic document that it was meant to dispose of decedent’s assets. There was nothing to suggest that the writing in White was an inventory of assets or a list of wishes outlined and given to an attorney as a guide for the drafting of a new will.

In the matter before us, we find that the proposed olographic codicil contains instructions to Ms. Wingerter as attorney/executrix/trustee on how to distribute Mr. Carroll’s assets. These wishes, although written down and given to decedent’s attorney, were never put into legal form. Ms. Wingerter was obviously a close 112member of the family and saw Mr. Carroll frequently after receiving the instructions. However, she testified that there were never any discussions in the four years between the writing and Mr. Carroll’s death regarding the drafting of a new will or making formal changes to the statutory will to include Susan. Accordingly, we find the trial court was correct in finding the December 8, 2003 document is not a valid testament.

Because of that ruling, we also find the discovery issues raised by Susan on appeal to be moot.

The remaining issue is the argument by the Carroll children that trial court erred in granting Susan the furniture and possessions in the Carroll home. The Carroll children argue that Susan and Mr. Carroll were separate in property and all of the furniture belonged to Mr. Carroll. They further argue that Susan’s relief must come from a timely legal claim against the executrix of the succession. In support of this argument, the Carroll children cite La. R.S. 13:3721, more commonly called the “Dead Man’s Statute.” We do not find that statute controlling in the instant case. This is not a claim against the estate made by Susan. This ruling came as a result of a motion for accounting filed by the Carroll children for certain rents due and movables asserted to be part of the estate. In connection with | isthat motion, the Carroll children prepared a list of items in the home owned by Mr. Carroll and shared with Susan. Susan argued that several items on the list were hers and not owned by the estate. At the hearing, both parties agreed to offer testimony to decide the issue.

As previously stated, Kelly confirmed Susan’s testimony that the Absinthe House painting belongs to Susan. All of the testimony supports the trial court’s finding that all of the Carroll children had full access to the house and all of the furnishings for at least five months and were not only allowed, but encouraged, to take what they wanted from the home. Further, Susan’s testimony that the new furnishings are hers is supported by the testimony of Carolyn Hicks.

The decision by the trial court to grant Susan the furniture and other possessions in the Carroll home is based on findings of fact by the trial court. A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Under that standard, the inquiry is whether a reasonable trier of fact could have made the findings at issue in light of the entire record, and where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Using that standard, we find no error in the trial court’s ruling. Accordingly, we find no merit in this argument.

Susan has filed a motion to strike certain statements of fact from the brief of the Carroll children. In consideration of the issues on appeal before us, this Court has only considered the facts presented before the trial court. Accordingly, this motion is denied as moot.

| uFor the foregoing reasons, the judgment of the trial court is affirmed. Each party to this appeal is to bear its own costs.

AFFIRMED.

        .Succession of Carroll, 08-09 (La.App. 5 Cir. 6/19/08), 988 So.2d 778, writ denied, 08-1631 (La. 10/24/08), 992 So.2d 1034.

      . Id.

      . Id.

      . At the time of the hearing, the only document presented to the trial judge was an unsigned copy of the December 8, 2003 document. The signed document found subsequently has been presented to the court by Ms. Wingerter.

      . Succession of Caroll, 988 So.2d at 782 (emphasis as found in original).

      . The trial court judgment also rules that certain outstanding discovery matters requested by Susan are moot and orders Susan to return a car to the succession.

      . La. C.C. art. 1575.

      . Succession of Carroll, 988 So.2d at 781-83.

      . Id.

      . Id.

      . See, Hendry v. Succession of Helms, 557 So.2d 427 (La.App. 3 Cir.1990), writ denied, 560 So.2d 8 (La.1990); Succession of Rhodes,
        39,364 (La.App. 2 Cir. 3/23/05), 899 So.2d 658, writ denied, 05-0936 (La.6/3/05), 903 So.2d 459, and 05-1044 (La.6/3/05), 903 So.2d 460.

      . Succession of Rhodes, supra.

      . 06-1002 (La.App. 1 Cir. 5/4/07), 961 So.2d 439.

      . Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      (1)A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      (2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      (3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      (4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.

      . Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993).

      . Griffin v. Hampton, 08-1206 (La.App. 5 Cir. 3/24/09), 10 So.3d 800, 801-02.