author: STEVENSON, J.

text:
    Michael A. WOLFE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4555.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

A jury convicted Michael Wolfe of the first-degree murder of David Jackson, and the trial court adjudicated him guilty and sentenced him to life in prison. On appeal, Wolfe argues that the trial court erred in overruling certain defense objections during his trial. We disagree and affirm Wolfe’s judgment of conviction and sentence.

The narrative which follows is recounted from the testimony at trial most in harmony with the jury’s verdict. Sometime around 1983, the victim, nineteen-year-old Jackson, met Barbara Britton. She became pregnant, and the couple married. Barbara continued to live with her parents though, and after she gave birth to their son, Jackson continually had to fight for visitation. Eventually, they divorced. In June 1987, Barbara met and married the defendant, Michael Wolfe, and they moved from Broward County to Arizona with the baby. In November 1987, Jackson and his friend, Alvaro Bracho, visited Barbara and the baby in Arizona.

Subsequently, Jackson was awarded visitation in Florida during the second and third week of July 1988. Jackson told his mother, Judy Carlson, that he wanted to get back together with Barbara. On June 25, 1988, prior to Barbara and the baby’s scheduled arrival in South Florida, Carlson called her son at 8 p.m. His roommate, Bracho, explained that Jackson had received a phone call from a woman, showered, borrowed a couple of dollars, and said he would be back later. Carlson never heard back from her son, and he neither went to work the next day, nor picked his brother up from the airport as planned.

Bracho and Carlson reported Jackson missing. On September 22, 1988, police recovered Jackson’s car at the Fort Laud-erdale airport. It had been there for only thirty-five days, even though Jackson had been missing for eighty-eight. No fingerprints were found in the car, but officers recovered a six-pack of Heineken with one beer missing and a box of bullets. Jackson owned several guns and always kept one in his bedroom and one in his car. The gun he was known to keep under the front seat of his ear has never been recovered.

During the summer of 1989, a construction worker, building a Wal-Mart in Bro-ward County, discovered some bones and notified the police. The medical examiner determined the bones were human, so officers returned to the scene and recovered an additional twenty-one bones. The bones did not show any sign of trauma, and did not have any sufficient identifying factors, especially because a skull was never found.

In 2003, police contacted Carlson regarding Jackson’s cold case. Carlson supplied them with a letter written by Jackson to a friend named Sue five days before he went missing. In Jackson’s letter to Sue, he mentioned Barbara’s impending visit and his hope that they would get back together. Carlson also provided the officers with a DNA sample, which was used to match the bones discovered at the Wal-Mart construction site to her son. There was only a six in 10,000 chance this match was a coincidence.

After identifying the bones, the missing persons unit recommenced investigating the case. Wolfe had adopted Jackson’s son after his disappearance, but in 1993, Wolfe and Barbara divorced. In 2003, Wolfe lived in Ohio. Pembroke Pines officers traveled to his home, and though Wolfe was not there, he voluntarily met the officers at the local police station the next day. While at the station, Wolfe wrote a letter, explaining that three months before Jackson disappeared, Barbara, the baby, and he visited Barbara’s parents in South Florida. Barbara’s parents lived approximately two miles from the Wal-Mart. Wolfe and Barbara’s father, Harry, went for a walk, and Harry expressed concern about allegations that Jackson abused the baby. Harry suggested that Jackson “should be gone.” Wolfe, unsure if Harry was serious, advised that the park they were in would be a good spot to dispose of a body due to salt in the sand. Wolfe suggested using Barbara as bait to lure Jackson to a place where Harry could use a small caliber gun, a .22, to shoot Jackson in the head once or twice. Wolfe explained that he did not know if Harry would listen, and when Barbara and the baby returned to Florida the week of Jackson’s disappearance, there was no mention to Wolfe of any foul play. According to Wolfe, Barbara and the baby had simply gone to South Florida before the scheduled July visitation in order to see Barbara’s parents.

Upon further investigation, police learned Wolfe had been a military police officer in the air force, and twenty-one days before Jackson’s disappearance, he obtained a federal firearms license. His gun sales records reflected he had sold a firearm to Nancy Graham. Graham, who resided in Alabama in 2003, was contacted by police and explained that she had been married to Wolfe from 1993 to 1998. Prior to divorcing, Barbara and Wolfe moved from Arizona back to South Florida. After they split, Wolfe met Graham and began living with her in Fort Lauderdale. One night, while sitting on the patio drinking alcohol, Wolfe mentioned to Graham that his son’s biological father, Jackson, had gone missing. He stated that Barbara and her father had come up with a plan to get rid of Jackson because Jackson had been abusing the baby. Wolfe went along with the plan, and he and Barbara flew from Arizona to Fort Lauderdale under assumed names, using other people’s identification cards. Then, Barbara contacted Jackson and asked him to meet her at a motel, but not tell anyone she was in town. Wolfe was in the motel bathroom, drunk. When Jackson arrived, Wolfe shot him in the head twice. Barbara and Harry cleaned up; then, Wolfe and Harry took Jackson’s car to the airport. Next, Wolfe and Harry took Jackson’s body to a lot and buried him. Subsequently, Harry learned about construction of a Wal-Mart at that site, so Wolfe and Barbara again flew from Arizona to Florida, and Wolfe and Harry dug up the bones and put them in the trashcans outside Harry’s home.

Based on Graham’s statement, an arrest warrant issued for Wolfe. When arrested during a traffic stop in Ohio, Wolfe replied, “I’m f****d.” The story was on the news, and Carol Larson, Wolfe’s wife of twelve years before he met Barbara, learned about Wolfe’s arrest. She contacted officers and explained that several years after Wolfe and Barbara divorced, she was attending nursing school outside of Orlando, and Wolfe contacted her. This was during the time Wolfe lived with Graham. One night, while drinking, Wolfe confessed to killing Barbara’s ex-husband in a motel room by twice shooting him in the head.

Wolfe was indicted for first-degree murder. At trial, he testified that only Barbara and the baby were in Florida on the days surrounding Jackson’s disappearance. He denied confessing to Jackson’s murder to either Graham or Larson, but admitted to alcoholism. The jury found him guilty as charged, and the trial court sentenced him to life in prison.

Wolfe avers that the trial court erred in admitting, over objection, his statements to Graham and Larson because the State failed to establish the corpus delicti of murder. “ ‘To admit a defendant’s confession, the state must prove the corpus delicti either by direct or circumstantial evidence.... [P]roof beyond a reasonable doubt is not mandatory.’ ” Barrow v. State, 27 So.3d 211, 220 (Fla. 4th DCA 2010) (quoting Meyers v. State, 704 So.2d 1368, 1369 (Fla.1997) (citation omitted)). “ ‘In order to prove corpus delicti in a homicide case, the state must establish: (1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person.’ ” Id. (quoting Meyers, 704 So.2d at 1369). Wolfe specifically contests whether there was sufficient evidence proving that the criminal agency of another person caused Jackson’s death. We find Wolfe’s argument unpersuasive.

In order to establish that the criminal agency of another person was the cause of death for purposes of proving the corpus delicti in a homicide case, all that is necessary is that the evidence “ ‘tends’ to show that a homicide was committed or allows a reasonable inference that the alleged victim could be dead due to a criminal agency.” Davis v. State, 582 So.2d 695, 700 (Fla. 1st DCA 1991). It is not necessary that the evidence establish that Wolfe committed the crime. Barrow, 27 So.3d at 220. The circumstantial evidence in the instant case establishes that Jackson was a responsible person, who paid his bills the day before he went missing; he was close to family and friends and spoke with them regularly; he left his home with only a couple of dollars; and later, his car was found at the airport but his dismantled skeletal remains were found in a once-deserted field two miles from his ex-wife’s parents’ home. Based on the record, we hold that the State presented sufficient circumstantial evidence to allow the reasonable inference that Jackson could be dead due to someone’s criminal agency, thereby establishing the corpus delicti of murder.

Next, Wolfe argues that the trial court erred in permitting the State, over objection, to ask Graham and Larson about Wolfe’s possession of other people’s identification cards during their respective relationships with him, as this amounted to evidence of a collateral offense. Graham, Wolfe’s wife after Barbara, testified that, in 1996, she had moved back to Georgia and Wolfe decided he wanted to try to reconcile with her and went there as well. While in Georgia, Graham testified that she had gone through Wolfe’s briefcase “and there was a lot of I.D.’s in there that were not his.” Larson, Wolfe’s wife before Barbara, was asked if Wolfe ever had any fake I.D.’s while they were married. Larson replied:

Yes. When we were first married or getting ready to get married, he had — I don’t know five or six driver’s licenses, social security cards of different people. It was weird. Some were older guys, some were young people. I said what is this? He said, oh, you know, people lose their wallets. I was like you wouldn’t give them back? What are you doing with this stuff? He said well, hold on to them. You never, never know.

“Admissible evidence of uncharged crimes falls into two categories: ‘similar fact’ evidence and ‘dissimilar fact’ evidence.” Victorino v. State, 23 So.3d 87, 98 (Fla.2009) (quoting Zack v. State, 753 So.2d 9, 16 (Fla.2000)). Dissimilar fact evidence is governed by the general rule of relevancy in section 90.402, Florida Statutes, which states that generally all relevant evidence is admissible unless excluded by law. Id. at 98-99. “A trial court’s determination that evidence is relevant and admissible ‘will not be disturbed absent an abuse of discretion.’ ” Id. at 98 (quoting Taylor v. State, 855 So.2d 1, 21 (Fla.2003)). We find no abuse of discretion in the trial court’s admission of the testimony of Larson and Graham concerning Wolfe’s possession of fake I.D. cards.

Placing Wolfe in Florida at the time of the offense was a critical element of the State’s case. Graham testified that Wolfe told her that he and Barbara had flown from Arizona into Fort Lauderdale under assumed names using someone else’s I.D. cards. A police officer’s testimony that there was no independent evidence to corroborate that a “Michael A. Wolfe” flew into Florida from the Southwest or back around June 25, 1988, suggested that Wolfe’s possession of other people’s identifications could be relevant. Moreover, even if testimony about Wolfe’s possession of the identifications was improper because of the somewhat wide “before and after” time span involved, we find the error was harmless. If the jury found Graham and Larson credible, then the jury would have found Wolfe guilty regardless of their testimony about the identifications, and if the jury did not find them credible, the testimony about the identifications still would not have affected its verdict. See Ventura v. State, 29 So.3d 1086, 1090-91 (Fla.2010) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)) (rejecting overwhelming evidence test as proper analysis of harmless error and noting that proper analysis considers whether there is a reasonable possibility that the error affected the verdict).

Last, Wolfe contends that the trial court erred in permitting the State to admit at trial, over objection, the letter written by Jackson five days before his disappearance because it was hearsay. In the letter, Jackson stated his son and ex-wife were coming to "visit him, and he hoped things would go well and that they would move in with him. “[O]rdinarily, a victim’s state of mind is not a material issue, nor is it probative of a material issue in a murder case. However, there are some exceptions to this general rule.” Brooks v. State, 787 So.2d 765, 771 (Fla.2001) (citation omitted). For example, the “victim’s state of mind may be relevant to an element of the crime.” Id. (citing Stoll v. State, 762 So.2d 870 (Fla.2000)). Here, Jackson’s bones did not show any sign of pre-mortem injury, and as discussed above, the State bore the burden of demonstrating that Jackson’s death was the result of the criminal agency of another. See Barrow, 27 So.3d at 220. Thus, the State, in its case in chief, needed to demonstrate Jackson had been murdered, as opposed to, for example, having run away or committed suicide. The instant letter falls within the state-of-mind hearsay exception, see § 90.803(3)(a)l., Fla. Stat. (2007), because it demonstrates that Jackson wanted to reconcile with Barbara and wanted to be a father to his son. The letter would also explain Jackson’s subsequent conduct in clandestinely meeting Barbara at a motel room, corroborative of the testimony that it was there that he was ambushed by Wolfe.

Accordingly, and based on the foregoing, we find no error in the issues on appeal and affirm.

Affirmed.

GROSS, C.J., and POLEN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Oscar PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-525.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Oscar Parks, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Oscar Parks filed, in the circuit court, a petition for writ of habeas corpus, wherein he alleged ineffective assistance of appellate counsel. He now appeals the trial court’s order refusing to transfer such petition to this court. We redesignate this appeal as a rule 9.141(c) petition and deny the same on the merits.

Denied.

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Gloria BESHARA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3091.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Carla Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber and James Carney, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

In light of the State s concession of error, we remand with directions for the trial court to strike the prohibition against early termination from Gloria Beshara’s order of probation. See Arriaga v. State, 666 So.2d 949 (Fla. 4th DCA 1996).

Remanded.

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Persophone VAN-REENENE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-454.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Jason T. Forman, Fort Lauderdale, for appellee.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Kokal v. State, 901 So.2d 766, 775-76 (Fla.2005).


text:
    H.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3268.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    H.R., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See D.S.H. v. State, 323 So.2d 292 (Fla. 3d DCA 1975).


text:
    Rodolfo GONZALEZ-CHAVEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-953.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Alberto J. Sabates, Certified Legal Intern, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Triana, 979 So.2d 1039 (Fla. 3d DCA 2008); Pritchard v. State, 987 So.2d 204 (Fla. 5th DCA 2008); Jones v. State, 658 So.2d 178 (Fla. 1st DCA 1995); State v. Swank, 399 So.2d 510 (Fla. 4th DCA 1981), pet. den. 408 So.2d 1096 (Fla.1981).


text:
    Urbano MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-248.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Bloodsaw v. State, 994 So.2d 378 (Fla. 3d DCA 2008).


author: WELLS, Judge.

text:
    Phillip Michael CULLEN, III, Appellant, v. Harry H. MARSH, Appellee.
    No. 3D09-2582.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Phillip Michael Cullen, III, Ft. Lauder-dale, in proper person.
    Stephen R. Verbit, Cooper City, for ap-pellee.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Phillip Michael Cullen, III, the attorney for Linda Patchett, the plaintiff/judgment creditor below, appeals from an order awarding section 57.105 fees and costs against him and Patchett as a sanction following dissolution of three separate writs of garnishment. We reverse.

In February 2002, Patchett secured a $776,089.04 money judgment against Harry H. Marsh. Since that time, Patchett’s attempts to collect on the judgment consistently have been frustrated. In November 2006, Marsh sought to discharge this debt in federal bankruptcy court. The following October, discharge was denied because the bankruptcy court found that Marsh had “knowingly and fraudulently ... misl[ed] his creditors and his bankruptcy trustee” by misrepresenting his income. Specifically, the bankruptcy court found that Marsh received substantially more than the $800 a month gross income that he claimed from his employer, BHS Optical, Inc. (“BHS”), an entity owned by his close personal friend and optometrist, Dr. Barry Ginsberg. The additional income from BHS came in the form of direct payments on Marsh’s behalf for rent, credit cards, cable and electricity bills, life insurance premiums, and at least one doctor’s bill:

The debtor’s gross misstatement ... of his Statement of Financial Affairs in listing his 2006 income, alone compels this Court to deny the issuance of a Discharge of Debtor. Defendant presently is employed, at least on a part-time basis, by Dr. Barry Ginsberg as an optician ..., and generally has been engaged in the optical business for many years. Dr. Ginsberg and the debtor apparently have engendered a close personal and business relationship. Based on defendant’s Schedule I contained within his Bankruptcy Schedules ..., the debtor earns gross monthly income of $800.00. Defendant’s Statement of Financial Affairs reflects that for the year 2006, he earned only $8,500 in wages, and from “Support from Dr. Ginsberg, Family and Friends.” The trial record presents a starkly different scenario.
For the calendar year 2006 (through the November 3 petition date), Mr. Marsh actually earned at least an additional $27,642.73 (not including his weekly salary from BHS). This sum represents the aggregate of the payments made by BHS on behalf of, and/or for the benefit of, the defendant during 2006, extracted from BHS’s check stubs.... The $27,624.73 encompasses rental paid on defendant’s residence ($14,020.00); American Express charges ($7,154.87); Florida Power & Light Company utility service for defendant’s residence ($2,783.59); life insurance premiums paid to Prudential Financial ($1,638.59); attorneys’ fees, including the fee paid to his bankruptcy counsel ($1,550.00); Allstate Insurance Company ($88.64); Adelphia Cable ($133.78); and a doctor’s bill paid to a Dr. Gonsky ($255.00).... In light of the defendant’s employment by BHS, which is solely owned by Dr. Ginsberg, and considering the varying nature of the numerous payments made by BHS on behalf of defendant, the Court determines that the afore-referenced $27,624.73 constitutes income to defendant, which should have been included in the defendant’s response, to ... defendant’s Statement of Financial Affairs. Considering the magnitude of the “oversight,” the Court concludes that defendant’s omission was made knowingly and fraudulently to mislead his creditors and his bankruptcy trustee.
Pursuant to Bankruptcy Rule 7054(a), the Court shall enter Judgment denying the issuance of a Discharge to Debtor to Harry Hale Marsh.

(Emphasis added).

Freed of the constraints of Marsh’s bankruptcy proceeding delay, on January 15, 2008, Patchett sought to enforce her judgment by serving a continuing writ of garnishment on BHS, Marsh’s employer. On February 8th, Marsh served a claim of exemption and requested a hearing. That same day, Marsh sought to dissolve the continuing writ, claiming that he had never received a copy of it or the related documents as required by section 77.041(2) of the Florida Statutes. In response to Marsh’s exemption claim, Patchett filed Marsh’s and Ginsberg’s depositions taken during the bankruptcy proceedings.

Marsh subsequently provided an updated fact information sheet and related financial documents to Patchett. Included in these documents was a Bank of America statement for the account into which Marsh’s salary from BHS was being deposited. On April 2nd, on learning of this account, Patchett served a writ of garnishment on the bank (“the first BOA writ”). On April 12, 2008, Marsh served a claim of exemption as to this writ and requested a hearing. Days later, Marsh sought to dissolve it, claiming that he had never received a copy of the writ or the related documents as required by section 77.041(2) of the Florida Statutes. Patchett filed a traverse denying the assertions contained in Marsh’s claim of exemption; she also filed a separate notice adopting Marsh’s and Ginsberg’s depositions as sworn statements contradicting Marsh’s claim of exemption.

To address the technical deficiencies raised by Marsh regarding the first BOA writ, on May 23, 2008, Patchett served a second writ of garnishment on the bank (“the second BOA writ”). Marsh filed a claim of exemption as to this writ and requested a hearing and then moved to dissolve the second BOA writ claiming, in part, that the money in the account was exempt from garnishment under sections 222.11(2)(c) and 222.11(3) of the Florida Statutes (2008). Patchett filed a response denying the assertions contained in Marsh’s claim of exemption and again adopting Marsh’s and Ginsberg’s depositions as sworn statements contradicting Marsh’s claim of exemption.

The continuing writ of garnishment and the first BOA -writ were dissolved by the court below on May 6 and June 3, 2008 on technical grounds for failure to comply with section 77.041(2). Summary judgment was subsequently granted on the second BOA writ on September 16, 2008, on a finding that the funds in that account were exempt from garnishment.

While the three writs of garnishment were pending below, Marsh filed three motions for section 57.105 sanctions against Patchett. After the continuing writ and the first BOA writ were dissolved and summary judgment on the second BOA writ was granted, the court below granted these motions sanctioning both Patchett and her attorney, Phillip Michael Cullen, III. As to the continuing writ and the first BOA writ, the court below found that because Patchett had not served Marsh as required by section 77.041(2), either Patch-ett or attorney Cullen “knew or should have known ... that [the writs were] not supported by the material facts necessary to establish the claim[s] or would not be supported by the application of the then-existing law to the material facts.” As to the second BOA writ, the court found that based upon the bank statements Marsh had provided to Patchett, along with the updated fact information sheet, Patchett or attorney Cullen knew or should have known that the funds in this account were exempt. Fees in the amount of $8,235 and costs in the amount of $1,250 were imposed against Patchett and her attorney. We reverse both awards.

Section 57.105 of the Florida Statutes provides for an award of attorney’s fees as a sanction for maintaining a frivolous claim or defense when the court finds that: the losing party or the losing party’s

attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) [w]as not supported by the material facts necessary to establish the claim or defense; or (b) [w]ould not be supported by the application of then-existing law to those material facts.

§ 57.105(1), Fla. Stat. (2008).

As to the continuing writ of garnishment and the first BOA writ, the sanction order identifies no specific claim or defense that is unsupported by either material facts or by application of the law to those facts. See, e.g., United Auto. Ins. Co. v. Miami Med. Group, Inc., 935 So.2d 41, 43 (Fla. 3d DCA 2006) (confirming that orders awarding section 57.105 sanctions must contain “specific findings” that a claim or defense was not supported by the facts or the law). Rather, the order merely makes a blanket statement that because Patchett and Cullen failed to comply with the service requirements of section 77.041(2) (i.e., mail copies of the motion for writ of garnishment and the writ, itself, to Marsh’s last known address), they either knew or should have known after this defect was raised that the writs were “not supported by the material facts necessary to establish the claim or would not be supported by the application of the then-existing law to the material facts.” This is baseless. As we explain below, the failure to serve these writs and related documents on Marsh does nothing to undermine the factual or legal basis on which these writs rest.

1. The continuing writ

The motion filed by Patchett in support of the continuing writ states only that: (1) on February 2, 2002, Patchett recovered a judgment in the amount of $776,089.04 plus interest against Marsh; (2) Patchett does not believe Marsh has any visible property on which she might levy to satisfy that judgment; and (3) Marsh is employed by BHS, which holds money or property belonging to Marsh. Failure to serve Marsh with the writ and related documents did not, in any manner, undermine any of these representations or “claims.” To the contrary, as the bankruptcy court had only recently confirmed, each and every one of these allegations is true.

The continuing writ, itself, which is signed by a circuit court judge and issued by the lower court to the State’s Sheriffs, is addressed to BHS, Marsh’s acknowledged employer, and makes no factual or legal claims whatsoever, stating only that: (1) BHS must serve an answer to the writ on attorney Cullen within twenty days and state whether it is Marsh’s employer and indebted to Marsh for salary or wages; (2) under federal law, only a limited amount of Marsh’s earnings may be subjected to garnishment; and (3) any amounts over and above those amounts exempted by federal law, are to be held pending further court order. Failure to serve a copy of the continuing writ on Marsh did nothing to undermine anything stated in this writ.

The failure to serve Marsh in accordance with section 77.041(2) did not therefore support a finding that “the Continuing Writ was not supported by the material facts necessary to establish the claim or would not be supported by the application of the then-existing law to the material facts.” Hence, the sanction order relating to this writ must be reversed.

2. The first BOA writ

The same holds true for the first BOA writ. The motion in support of that writ, like the continuing writ to Marsh’s employer, states only that: (1) on February 2, 2002, Patchett recovered a judgment in the amount of $776,089.04 plus interest against Marsh; (2) Patchett does not believe Marsh has any visible property on which she might levy to satisfy that judgment; and (3) BOA holds money or property belonging to Marsh. The writ, itself, similarly states only that BOA has twenty days in which to advise Patchett’s attorney whether BOA is or was indebted to Marsh; whether BOA possessed any tangible or intangible personal property belonging to Marsh; and whether it knew of anyone else indebted 'to or holding property belong to Marsh. Again, the failure to comply with section 77.041(2) by serving of copy of this motion and writ on Marsh did not establish that any of these representations or “claims” were untrue or unsupported. The sanction order relating to this writ, likewise, must be reversed.

3. Failure to timely serve Marsh with copies of the continuing writ and the first BOA writ.

We also discern no basis for imposing section 57.105 sanctions on Patchett and her attorney for failing to serve Marsh with the continuing writ by January 21, 2008, and with the first BOA writ by April 7, 2008 as the court below, without explication, concluded. The continuing writ was issued on January 3, 2008, and served on the garnishee on January 15th. On February 8th, Marsh sought to dissolve this writ, claiming that Patchett had failed to serve him with a copy of this writ and its supporting documents by January 21st. The first BOA writ was issued on March 27, 2008, and served on the garnishee on April 2nd. On April 18, 2008, Marsh sought to dissolve this writ, claiming that Patchett had failed to serve him with a copy of this writ and its supporting documents by April 7, 2008.

While neither of these writs was properly served on Marsh, he received notice of them and was able to timely claim exemptions. In both cases, he did this either before or at the same time he moved to dissolve for insufficiency of service. Most significantly here, each writ was dissolved without any effort to delay on Patchett’s part following a hearing. See § 57.105(3), Fla. Stat. (2008) (providing for sanctions where the “moving party proves by a preponderance of the evidence that any action taken by the opposing party ... was taken primarily for the purpose of unreasonable delay”); Cheetham v. Brickman, 861 So.2d 82 (Fla. 3d DCA 2003) (reversing a section 57.105 fee award, in part, because there was “no evidence that Cheetham took any action ‘primarily for the purpose of unreasonable delay’ within the meaning of section 57.105(3) of the Florida Statutes”). Under the circumstances, Marsh got precisely what he was entitled to: an expeditious hearing on his motions and orders dissolving these writs. On the record before us, no sanctions were warranted.

4. The second BOA writ

We also reverse the sanction award relating to the second BOA writ. That sanction was imposed because the trial court found that when Patchett applied for the second writ, she had already been advised by Marsh that the funds held in his BOA account were exempt, making her claim unsupported by the facts and law. For a number of reasons, we find that the trial court erred in imposing a sanction on this basis.

First, Patchett’s “claim” is encompassed in her motion for writ of garnishment which states only that: (1) Patchett holds a $776,089.04 plus interest judgment against Marsh; (2) Patchett does not believe Marsh has any visible property on which she might levy; and (3) BOA “holds money or other property owed or belonging to Defendant, Harry H. Marsh.” (Emphasis added). Marsh’s claim that the funds in this account are exempt from execution, do not contradict these facts.

Second, the second BOA writ states only that BOA has twenty days in which to advise Patchett’s attorney whether BOA is or was indebted to Marsh; whether BOA possessed any tangible or intangible personal property belonging to Marsh; and whether it knew of anyone else indebted to, or holding property belonging to, Marsh. Like the first BOA writ, the second BOA writ makes no factual or legal claims whatsoever. Thus, Marsh’s claim that the funds in this account are exempt from execution does not contradict any “claim” stated in this writ.

Third, Marsh’s claim that the funds held by BOA are exempt from execution under sections 222.11(2)(c) and 222.11(3) of the Florida Statutes does not contradict Patch-ett’s “claim” that she holds an unsatisfied judgment against Marsh and that BOA is holding funds in an account for him. To the contrary, Marsh’s exemption claim is no more than an attempt to avoid use of the funds on deposit at BOA to satisfy Patchett’s concededly valid claim.

Given that Marsh had just gone to great lengths to hide his true income from BHS and had even gone so far as filing a fraudulent financial statement with a federal bankruptcy court in an attempt to discharge this debt, Patchett and her attorney were prudent in not accepting Marsh’s representations that the funds in the BOA account were exempt. Patchett and her attorney were, in fact, under no obligation to accept Marsh’s exemption claim, but were entitled instead to contest it and to have a hearing “as soon as [was] practicable to determine the validity of the claimed exemptions,” at which Marsh, not Patchett, bore the burden of proving entitlement to a section 222.11 exemption. § 77.041(3), Fla. Stat. (2008); see Brock v. Westport Recovery Corp., 832 So.2d 209, 211 (Fla. 4th DCA 2002) (finding that the judgment debtor bore the burden of proving his entitlement to the section 222.11 exemption at a hearing held on a motion to dissolve a writ of garnishment); Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279 (Fla. 4th DCA 2000) (“The burden of proving the entitlement to [a section 222.11] exemption is on the debtor.”). That is precisely what happened here.

Fourth, while Marsh ultimately established entitlement to an exemption so as to have this writ dissolved, the fact that he prevailed on the merits entitles him to no sanction award. As this and many other courts have repeatedly confirmed, merely losing a case on the merits is not a basis for a section 57.105 fee award. See Carnival Leisure Indus. Ltd. v. Arviv, 655 So.2d 177, 181 (Fla. 3d DCA 1995) (‘“Merely losing, either on the pleadings or by summary judgment, is not enough to invoke the operation of [section 57.105].’ ” (quoting Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 506 (Fla.1982), receded from in pait on other grounds, Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985))); see also Bowen v. Brewer, 936 So.2d 757, 762 (Fla. 2d DCA 2006) (“Winning a motion for summary judgment does not conclusively prove a section 57.105 claim. If that were the standard, then every award of summary judgment would be followed by a section 57.105 motion.”) (citation omitted); Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003) (“An award of fees is not always appropriate under section 57.105,even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action.”): Mullins v. Kennelly, 847 So.2d 1151, 1155 (Fla. 5th DCA 2003) (“Although the revised statute has expanded the number of circumstances in which attorney’s fee may be awarded, an award of fees is not always appropriate under section 57.105,even though the party seeking fees was successful in obtaining the dismissal of the action.”); Read v. Taylor, 832 So.2d 219, 222 (Fla. 4th DCA 2002) (stating that “courts have made clear that an award of fees may not be appropriate under section 57.105,even though the party seeking fees was successful in obtaining the dismissal of the action”). Simply put, Marsh did not establish that Patchett’s “claim[s]” had no merit; rather, he proved that in this instance that he was entitled to avoid them. And the record reflects no delay or other improper behavior on either Patchett’s or her attorney’s part. We therefore find that on the record before us there was no basis for imposing sanctions on either Patchett or her attorney for either seeking or prosecuting the second BOA writ of garnishment. The sanction imposed as to this writ is, therefore, also reversed.

Because no basis appears in the instant record to support imposition of sanctions under section 57.105 or otherwise, the order on appeal is, in its entirety, reversed.

      . The B in BHS stands for "Barry” as in Dr. Barry Ginsberg, and the H stands for “Harry” as in Harry Marsh.

      . Section 222.1 l(2)(c)-(3) of the Florida Statutes (2008) provides:
      [ (2) ](c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.
      (3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.

      . Section 77.041(2) of the Florida Statutes (2008) provides:
      The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion for writ of garnishment, and, if the defendant is an individual, the "Notice to Defendant” to the defendant’s last known address within 5 business days after the writ is issued or 3 business days after the writ is served on the garnishee, whichever is later. However, if such documents are returned as undeliverable by the post office, or if the last known address is not discoverable after diligent search, the plaintiff must mail, by first class, the documents to the defendant at the defendant's place of employment. The plaintiff shall file in the proceeding a certificate of such service.

      . The writ in pertinent part provides:
      To All and Singular the Sheriffs of the State:
      YOU ARE COMMANDED to summon Garnishee, BHS OPTICAL, INC. ... who is required to serve an answer to the Writ on Philip Michael Cullen, III, Chartered, attorney for Plaintiff ... within twenty (20) days after the service on the Garnishee, exclusive of the day of service, and to file the original with the Clerk of this Court either before service on the attorney or immediately thereafter. The answer shall state whether the Garnishee is tire employer of the Defendant, Harry H. Marsh, and whether the Garnishee is indebted to the defendant by reason of salary or wages. The Garnishee's answer shall specify the periods of payment (for example, weekly, biweekly, or monthly) and amount of salary or wages and be based on the Defendant’s earnings for the pay period during which this writ is served on the Garnishee.
      During each pay period, a portion of the Defendant's salary or wages as it becomes due shall be held and not disposed of or transferred until further order of this Court. The amount of salary or wages to be withheld for each pay period shall be made in accordance with the following paragraph. This writ shall continue until the Plaintiff's judgment is paid in full or until otherwise provided by court order.
      Federal law (15 U.S.C. §§ 1671-1763) limits the amount to be withheld from salary or wages to no more than 25% of any individual defendant’s disposable earnings (the part of earnings remaining after the deduction of any amounts required by law to be deducted) for an pay period or to no more than the amount by which the individual's disposable earnings for the pay period exceed 30 times the federal minimum hourly wage, whichever is less.
      For administrative costs, the garnishee may collect $5.00 against the salary of the defendant for the first deduction and $2.00 for each deduction thereafter.
      The total amount of the final judgment as set out in the Plaintiff's Motion is $776,089.04.
      FAILURE TO FILE AN ANSWER WITHIN THE TIME REQUIRED MAY RESULT IN THE ENTRY OF JUDGMENT AGAINST THE GARNISHEE FOR THE ABOVE TOTAL AMOUNT.

      . The motion to dissolve the first BOA writ was heard on May 6, 2008, and an order dissolving that writ was entered the same day. The motion to dissolve the continuing writ was heard on June 3, 2008, and an order dissolving that writ was entered that day.


text:
    C.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2552.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    C.G., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See § 810.08(1), Fla. Stat. (2009); Rozier v. State, 402 So.2d 539, 542-43 (Fla. 5th DCA 1981).


text:
    Jorge L. MARTI, Jr., Appellant, v. DEPARTMENT OF REVENUE o/b/o Gloria C. LANDA, Appellee.
    No. 3D09-2829.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Jorge L. Marti, Jr., in proper person.
    Bill McCollum, Attorney General and Toni C. Bernstein, Tallahassee, Senior Assistant Attorney General, for appellee, Department of Revenue.
    Before GERSTEN, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the Department of Revenue’s confession of error, we reverse and remand this matter to the lower tribunal for a new administrative hearing before the Division of Administrative Hearings.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    Nelia PURRINOS, Appellant, v. Sergio PURRINOS, Appellee.
    No. 3D09-1085.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Juan Gabriel Miguel and William A. Daniel, for appellant.
    Mary E. Pena, for appellee.
    Before WELLS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The judgment below dissolved a near-sixteen year marriage, which produced three now-school-age children. The Purri-noses’ only substantial asset was the family home, which was severely under water, and was granted by agreement to the wife. Both parties worked during the marriage, with the husband typically earning substantially more than the wife. At the time of the final hearing however, he was involuntarily, temporarily unemployed but had the expectation of securing a position shortly thereafter.

Under these circumstances, we agree with the appellant wife’s sole contention on appeal: that the trial court erred and abused its discretion by failing to award her alimony in any form. In recognition of the desirability of providing for the real likelihood that such an award, although not now appropriate because of the husband’s inability to pay, may become so in the future, we remand the case with directions to award her permanent periodic alimony in a nominal amount. See Gulbrandsen v. Gulbrandsen, 22 So.3d 640, 645 n. 8. (Fla. 3d DCA 2009) (cases collected); Squindo v. Osuna-Squindo, 943 So.2d 232, 237 (Fla. 3d DCA 2006). See also Greene v. Greene, 256 So.2d 258 (Fla. 3d DCA 1972) (ordering reservation of jurisdiction for subsequent award of alimony).

The judgment below is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Jose Luis GAMEZ, Jr., Appellee.
    No. 2D09-2496.
    District Court of Appeal of Florida, Second District.
    May 14, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

Jose Luis Gamez, Jr., was charged with trafficking in methamphetamine and possession of paraphernalia. The trial court granted his motion to suppress based on its finding that Gamez did not consent to a search of his person and that, even if he had consented, such consent was a concession to police authority. We reverse because the evidence presented at the hearing on the motion to suppress does not support the trial court’s findings.

At the hearing, Detective David Ogg testified that he stopped Gamez’s car after it failed to stop at two stop signs. When Detective Ogg spoke with Gamez, he appeared very nervous and was physically shaking. Detective Ogg asked Gamez if he could talk to him by the detective’s car, away from the passengers in Gamez’s vehicle.

When they walked back to his car, Detective Ogg first asked Gamez if he had any objection to the detective searching his car and Gamez said he did not. He then asked Gamez if he had anything illegal on him. Gamez said no and Detective Ogg asked if he could double check. Detective Ogg testified that Gamez then raised his hands above his head and spread out his feet, indicating that he was giving consent to search his person.

Detective Ogg patted down Gamez and Gamez did not pull away or otherwise indicate that he did not want to be searched. Detective Ogg felt a “squishy” material wrapped in plastic on Gamez’s waistline. Based on his training and experience, Detective Ogg believed that the plastic contained methamphetamine, marijuana or cocaine.

Detective Ogg asked Gamez to empty his pockets and Gamez took out a couple of cell phones and a roll of money. Detective Ogg asked Gamez if he could double check his pockets and Gamez again raised his hands. Detective Ogg found another roll of money and methamphetamine in a plastic bag.

After the hearing on the motion to suppress, the trial court specifically stated that it was going to suppress the evidence found in Gamez’s pants, because there was not clear and convincing evidence that Gamez gave Detective Ogg consent to search his person when he lifted his hands and spread his feet. But the written order granting the motion to suppress, which was prepared by Gamez’s attorney, differs from the trial court’s oral findings because it also states that the consent was a concession to Detective egg’s authority. We will address both issues.

Consent to search may be in the form of conduct, gestures, or words. United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976); Ingram v. State, 928 So.2d 423, 430 (Fla. 1st DCA 2006). In Griffin, 530 F.2d at 743, the court held that the appellee gave his voluntary consent to enter his apartment where officers asked him if they could enter and the appellee stepped back, left the door open, and led the officers into the apartment. The court noted that the appellee’s behavior after the officers entered the apartment also supported this holding where the appellee never objected in any way to the officers’ presence inside the apartment. Id. at 743 n. 3.

Similarly, in Watson v. State, 979 So.2d 1148, 1151 (Fla. 1st DCA 2008), a law enforcement sergeant asked the appellant if he could search his person and the appellant raised his arms in the air, turned so that he could see the sergeant, and told the sergeant that he could check him. The First District held that the appellant’s consent to search his person was freely and voluntarily given and was evidenced by his oral replies and his body language. Id. at 1152. Cf. Wynn v. State, 14 So.3d 1094, 1096 (Fla. 2d DCA 2009) (holding that appellant did not unequivocally consent to a search when deputy asked him if he would mind if the contents of his pockets were removed, and appellant did not respond).

In the present case, the facts were not in dispute at the hearing on the motion to suppress. When Detective Ogg asked Gamez if he could check to see if he had anything illegal on him, Gamez raised his hands above his head and spread out his feet. Further, when Detective Ogg asked to search him a second time, Gamez responded the same way by raising his hands. We conclude that these actions conveyed Gamez’s consent to search his person. As in Griffin, Gamez’s behavior after Detective Ogg began to search him also supports the conclusion that Gamez consented to a search of his person, because Gamez never pulled away or otherwise indicated that he did not want to be searched.

We also conclude that Gamez’s consent to search was voluntary. ‘Where the police have not engaged in illegal conduct, the State bears the burden of showing the voluntariness of a consent to search by a preponderance of the evidence.” Luna-Martinez v. State, 984 So.2d 592, 598 (Fla. 2d DCA 2008), review denied, 11 So.3d 942 (Fla.2009). “To con-elude that a search is involuntary, the court must find that the defendant’s ‘will [was] overborne and his capacity for self-determination critically impaired.’” Cox v. State, 975 So.2d 1163, 1168 (Fla. 1st DCA 2008) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

Gamez contends that his consent was a concession to Detective Ogg’s authority, and therefore, it was not voluntary. However, the only fact he points to in support of his argument is that he was subjected to an investigatory stop at the time he gave his consent. We conclude that this was insufficient to support the finding that his consent was involuntary.

In I.R.C. v. State, 968 So.2d 583, 585 (Fla. 2d DCA 2007), a deputy sheriff took the appellant out of his classroom at a public high school and explained to him that he had heard that the appellant had marijuana. Id. at 586. The deputy asked the appellant if he could search his bag and his person for illegal drugs, and the appellant handed the bag to the deputy, said “go ahead,” and he put out his arms “as if to search his person.” Id. However, at the motion to suppress hearing, the appellant testified that his consent was involuntary because he felt that he did not have a choice to consent. Id.

In I.R.C., 968 So.2d at 587, this court held that the appellant’s consent was voluntary and that, although knowledge that the person has a right to refuse the search is a relevant factor in determining whether the consent is voluntary, there is no presumption that a search is involuntary when he or she is not told that they may refuse the search. This court further held that when the individual has been detained or arrested, this circumstance does not mandate that the consent is involuntary. Id. at 586. Instead, courts must look at the totality of the circumstances surrounding the consent in determining whether it is voluntary. Id,, at 587.

In I.R.C., this court concluded that the record did not support the appellant’s argument that his consent was a “mere acquiescence to police authority.” Id. The appellant’s testimony that he felt he had no choice regarding whether to consent did not support his argument, because there was no evidence he suffered from a vulnerable, suggestive state and there was no evidence of coercive circumstances or coercive conduct by the deputy. Id.

In Ingram, the passenger in a truck that was legally stopped was asked for his identification. The passenger, who was acting very nervous, asked if he could step outside the vehicle. 928 So.2d at 426. He then got out of the truck and patted himself down, searching unsuccessfully for identification. Id. The trooper noticed and asked about a small, round bulge in the passenger’s pants pocket and the passenger reached into the pocket, removed a lip balm jar, and held it out in his open palm as if meaning to present it to the trooper. Id. When the trooper asked to look inside the jar, the passenger held out the jar even closer to the trooper. Id. The trooper thereafter found methamphetamine in the jar. Id. The First District held that the passenger freely and voluntarily gave his consent to search the jar through his gesture or conduct and such consent was not in acquiescence to the trooper’s authority. Id at 430.

Here, there is no evidence supporting Gamez’s argument that his consent was a mere acquiescence to police authority. Gamez never testified that he felt his consent was not voluntary or that he felt he did not have a choice. Further, there was no evidence that Gamez suffered from a vulnerable, subjective state, caused by a mental condition, age, intelligence, or education. See I.R.C., 968 So.2d at 587. We also note that there was no evidence of a coercive circumstance or any coercive conduct by Detective Ogg, such as a show of force, threatening conduct, a prolonged detention, or deception. Id. The fact that Gamez was subject to a traffic stop and was asked to talk to the detective by his car was insufficient to support a finding that his consent was involuntary.

Accordingly, we reverse the trial court order granting Gamez’s motion to suppress and remand this case for further proceedings.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.

      . We review the trial court’s factual findings in a manner most favorable to sustaining the trial court's findings, but we conduct a de novo review of the application of those facts to the law. Luna-Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008), review denied, 11 So.3d 942 (Fla.2009). The determination regarding whether consent to search is voluntary is a legal issue that is determined under the de novo standard of review. Id.


text:
    Herbert Tyrone JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5630.
    District Court of Appeal of Florida, Second District.
    May 14, 2010.
    James Marion Moorman, Public Defender, and Richard Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Herbert Johnson appeals his judgment and sentence for second-degree murder with a firearm, arguing that the trial court committed fundamental error when it gave the standard jury instruction on the necessarily lesser-included offense of manslaughter by act. We are required to reverse based on the Florida Supreme Court’s recent decision in State v. Montgomery, — So.3d —, —, 35 Fla. L. Weekly S204, S204 (Fla. Apr. 8, 2010), in which the court held that the use of the standard jury instruction on manslaughter constituted fundamental error. The Montgomery court reasoned that the crime of manslaughter by act requires the State to prove that the defendant intended to commit an act which causes death, but the standard jury instruction on manslaughter by act incorrectly requires the State to prove that the defendant intended to kill the victim. Id. at —. Because the erroneous instruction was given at Johnson’s trial, he is entitled to a new trial.

Johnson also argues that the trial court was required to give a jury instruction on manslaughter by culpable negligence. Because he will have an opportunity at his retrial to request such an instruction if he wishes, we need not determine at this time whether the failure to give the instruction absent a request or objection at his first trial was fundamental error.

Accordingly, we reverse Johnson’s judgment and sentence and remand this case for a new trial.

NORTHCUTT and KELLY, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Henry WEISS, Appellant, v. Portia WEISS, Appellee.
    No. 2D09-2094.
    District Court of Appeal of Florida, Second District.
    May 14, 2010.
    Terryn H. Bennett of Terryn H. Bennett, P.A., Tampa, for Appellant.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Henry Weiss appeals a final judgment of injunction for protection against domestic violence that his former wife, Portia Weiss, obtained for their minor daughter. The order was entered on two unusual theories — that Mr. Weiss was using bad Yiddish words around a child who did not completely understand the words and that he was stalking his daughter during time-sharing. While the petition was pending and shortly before the final hearing on the petition, the couple obtained a final judgment of dissolution based on a marital settlement agreement. The final judgment of injunction for protection against domestic violence contained provisions altering the visitation rights under the final judgment of dissolution for a period that expired on April 28, 2010.

Mr. Weiss challenges the order on several grounds. His former wife concedes error. We accept the former wife’s concession of error and decline to address the merits of the issues on appeal. On remand, the trial court shall vacate the final judgment of injunction against domestic violence.

Reversed and remanded.

SILBERMAN and VILLANTI, JJ, Concur.


text:
    Tatiana CHAVEZ, Appellant, v. DEPARTMENT OF REVENUE and Nathan M. Shenk, Appellees.
    No. 3D10-648.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Tatiana Chavez, in proper person.
    Bill McCollum, Attorney General; Toni C. Bernstein, Tallahassee, Assistant Attorney General, for appellee, Department of Revenue.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the Department of Revenue’s confession of error, we reverse and remand this matter to the lower tribunal for further proceedings consistent with sections 409.256 and 409.2563, Florida Statutes (2009).

Reversed and remanded.


text:
    Richard Che Chang ZANG, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 4D09-303.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    June Zhou of Law Offices of June Zhou, P.L.L.C., Boca Raton, for appellant.
    Brittany Adams Long, Assistant General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Kwastel v. Fla. Dep’t of Bus. & Prof'l Regulation, 736 So.2d 762 (Fla. 5th DCA 1999).

FARMER, HAZOURI and MAY, JJ„ concur.


text:
    Gregory FARNWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1602.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Gregory Farnworth appeals the trial court’s order that summarily denied his rule 3.850 motion. Three of the points were denied “without prejudice.” Spera v. State, 971 So.2d 754 (Fla.2007). However, the order provided that Farnworth had thirty days to file an appeal. No provision was made to permit an amended filing.

We reverse the order on appeal and remand for the entry of a non-final order that gives Mr. Farnworth reasonable time to attempt to amend those points. See Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008). Should Farnworth fail to amend, the trial court may enter a final order disposing of all claims.

Reversed and remanded.

POLEN, DAMOORGIAN and LEVINE, JJ., concur.


author: FARMER, J.

text:
    C.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, State of Florida, Appellee.
    No. 4D08-3394.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Phillip Massa, Director, J. Patrick Reynolds, and Debbie Maken, Legal Intern, of the Office of Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellee.
   Opinion After Relinquishment

FARMER, J.

We call attention to our earlier opinion in this case. C.A. v. Dep’t of Children & Families, 16 So.3d 888 (Fla. 4th DCA 2009). Both sides have filed reports on the trial court’s supplemental order and findings during relinquishment. The trial court found that there was no viable wrongful death action possible under the circumstances of the death of the child’s father, that there was little likelihood of any recovery. Both sides have accepted the trial court’s decision as supported by the evidence. Accordingly we vacate our abatement of the appeal and proceed to a final decision.

We conclude there is substantial competent evidence supporting the trial court’s termination of the father’s parental rights of his daughter on multiple grounds. The record also demonstrates that it was in her best interest to terminate their relationship. The record also supports the court’s different result as to the son. The evidence supports the factual finding that there was no likelihood that the minor son would be adopted, or of any appropriate and willing person with whom he could be placed.

Affirmed.

HAZOURI and CIKLIN, JJ., concur.


text:
    Robert CLARK, Laura Clark and Robert Malone, Appellants, v. ODV HOLDING CO. f/k/a Robico Shutters, Inc., a Florida corporation, and Shelby Holmes of Heron Bay Seven, Inc., a Florida corporation, Appellees.
    No. 4D08-3643.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.

      Jonathan Streisfeld of The Kopelowitz Ostrow Firm, P.A., Fort Lauderdale, for appellants.
    Daniella Friedman, Barry L. Davis and Michelle S. Cañero of Thornton, Davis & Fein, P.A., Miami, for Appellee-ODV Holding Co. f/k/a Robico Shutters, Inc. and Ryan Burns and R. David Ravine of Marshall, Dennehey, Warner, Coleman & Gog-gin, Fort Lauderdale, for Appellee-Shelby Homes at Heron Bay Seven, Inc.
   PER CURIAM.

Plaintiffs, Robert Clark, Laura Clark, and Robert Malone, appeal a final summary judgment entered against them on their personal injury claims against the defendants, ODV Holding Co., f/k/a Robico Shutters, Inc. and Shelby Homes at Heron Bay Seven, Inc., for negligent design of hurricane shutters and their storage system, negligent installation of the storage system, and failure to warn regarding the use of the storage system. Because disputed issues of fact existed as to whether the hurricane shutter storage system was negligently designed and installed, we reverse the trial court’s summary judgment on these claims and denial of the plaintiffs’ motion to amend their complaint.

We affirm, however, the trial court’s summary judgment on plaintiffs’ negligence claims that were based on negligent design of the shutters and negligent failure to provide adequate warnings on the storage system. The trial court correctly concluded that the danger presented by the sharp-edged shutters was open and obvious. The court also properly entered summary judgment for Robico Shutters as to plaintiffs’ negligent warning claims, because the undisputed facts show that plaintiffs did not read the safety warning provided and, as such, cannot establish that the alleged failure to warn proximately caused their injuries. See Lopez v. S. Coatings, Inc., 580 So.2d 864, 865 (Fla. 3d DCA 1991); Ashby Div. of Consol. Aluminum Corp. v. Dobkin, 458 So.2d 335, 337 (Fla. 3d DCA 1984).

Affirmed in part; Reversed in part and Remanded for further proceedings.

TAYLOR, GERBER and LEVINE, JJ., concur.


text:
    In re Michael L. HYMAN.
    No. 2009-B-2652.
    Supreme Court of Louisiana.
    May 7, 2010.
   1 ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael L. Hyman, an attorney licensed to practice law in Louisiana.

In June 2007, this court considered a disciplinary proceeding involving respondent’s failure to return three client files upon termination of the representations and failure to cooperate with the ODC in two investigations. For this misconduct, which occurred between June 1999 and December 2004, we suspended respondent from the practice of law for nine months, with all but ninety days deferred, followed by two years of supervised probation with conditions. In re: Hyman, 07-0636 (La.6/1/07), 958 So.2d 646 (hereinafter referred to as “Hyman I”). Respondent has not sought reinstatement from this suspension. Accordingly, he remains suspended from the practice of law.

FORMAL CHARGES

Count I — The Weiss Matter

In late 2001, Susette Weiss hired respondent to assist her in enforcing a judgment she received in a prior workers’ corn-pensation matter. In March 2002, ^respondent filed a disputed claim for compensation on Ms. Weiss’ behalf with the Louisiana Office of Workers’ Compensation.

Between May 2002 and November 2004, the defendant made numerous attempts to compel respondent to respond to discovery requests. However, respondent continually failed to comply. Accordingly, in April 2006, the defendant filed a motion to dismiss for failure to respond to discovery requests. However, the defendant was unable to serve respondent with proper notice of the related hearing date because respondent relocated without notifying the defendant or the court.

In July 2006, Ms. Weiss informed the court that she had not communicated with respondent for more than eighteen months. Respondent failed to respond to Ms. Weiss’ multiple attempts at communication via telephone, mail, and e-mail. Accordingly, Ms. Weiss wished to terminate respondent’s services. On July 28, 2006, the court approved her motion to substitute and enroll her new counsel, Gregory Hubachek.

In July 2006, Mr. Hubachek was able to retrieve portions of Ms. Weiss’ file from respondent’s office. However, he was unable to retrieve the entire file.

In August 2006, Ms. Weiss filed a disciplinary complaint against respondent. Respondent failed to submit a written response, necessitating the issuance of a subpoena to obtain his sworn statement.

At his November 2, 2006 sworn statement, respondent indicated he had forwarded portions of Ms. Weiss’ file to her in late July or early August 2006 and had sent her the remaining file materials in October 2006. However, Ms. Weiss never received the file materials.

During the sworn statement, respondent also agreed to provide the ODC with a written response to Ms. Weiss’ complaint, as well as additional documentation. | .¡Respondent further agreed to contact either Ms. Weiss or Mr. Hubachek to confirm that they had received the remainder of the file materials he purportedly sent. Respondent failed to comply with either of these requests.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II — The Mitchell Matter

In 2001, Jeanette Mitchell hired respondent to handle a medical malpractice claim. In June 2002, respondent filed a lawsuit on Ms. Mitchell’s behalf in Civil District Court for the Parish of Orleans. Thereafter, one of the defendants filed a dilatory exception of prematurity because a medical review panel had not been convened prior to the filing of the lawsuit. In December 2002, the trial court sustained the exception and dismissed the defendant from the lawsuit after respondent failed to appear at the related hearing.

Respondent subsequently filed a petition to empanel a medical review panel with the Louisiana Patient’s Compensation Fund. The defendants experienced difficulty communicating with respondent during the discovery process and regarding the selection of an attorney chairman for the panel. Respondent also failed to appear |4at several scheduled hearings and failed to fully comply with court orders to submit discovery responses. As a result, Ms. Mitchell’s claims against one defendant were dismissed and she was ordered to pay $750 in sanctions to another defendant. The medical review panel finally convened on November 28, 2005 and rendered an expert opinion adverse to Ms. Mitchell’s claim on December 6, 2005.

In February 2006, respondent filed a second lawsuit on Ms. Mitchell’s behalf in Civil District Court for the Parish of Orleans. Respondent requested service of the lawsuit be withheld. Thereafter, he neglected the matter. Ms. Mitchell has been unable to contact respondent since November 2005.

In September 2007, Ms. Mitchell filed a disciplinary complaint against respondent. Respondent failed to submit a written response, necessitating the issuance of a subpoena to obtain his sworn statement.

During his January 22, 2008 sworn statement, respondent asserted that he submitted a written response to the complaint in November 2007 and agreed to provide the ODC with a copy. Thereafter, respondent failed to provide a copy of his written response, despite the ODC’s numerous subsequent requests for him to do so. He has also failed to further communicate with the ODC since September 2008.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 3.2, 8.1(a), 8.1(b), 8.1(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

In January 2009, the ODC filed two counts of formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(8). No formal | shearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations in the formal charges are deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the Weiss matter. In the Mitchell matter, the committee determined respondent violated Rules 1.3, 1.4, 1.16(d), 3.2, 8.1(a), and 8.1(c). However, the committee determined respondent did not violate Rule 8.4(d) in the Mitchell matter, as he did bring his client’s malpractice complaint to a conclusion in the medical review panel and then timely file suit on her behalf in the district court. The committee did not address whether respondent violated Rule 8.1(b).

The committee found respondent failed to diligently pursue his clients’ legal matters, unnecessarily delaying the matters. Respondent’s actions also caused actual harm to the legal system, and his failure to cooperate with the ODC required it to unnecessarily expend additional resources to resolve the investigations.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension. However, the committee noted that some of the misconduct in the instant matter occurred during the same time period as respondent’s misconduct in Hyman I while some of it occurred after the misconduct in Hyman I. Under these circumstances, the committee declined to apply 1 «the approach established in Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), wherein the court held that “[w]hen a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.” Instead, the committee applied ABA Standard 8.1(b), which states that disbarment is appropriate when a lawyer has been suspended for the same or similar misconduct and intentionally and knowingly engages in further misconduct.

Based on this reasoning, the committee recommended respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted case are supported by the factual allegations asserted by the ODC and/or by the evidence submitted in support of the allegations. The board also determined that the committee correctly applied the Rules of Professional Conduct, except that the committee erred in failing to find violations of Rules 8.1(b) and 8.4(d) in the Mitchell matter. The board found respondent violated these rules by failing to provide a written response to the complaint, despite numerous request from the ODC, and by failing to comply with discovery requests, which delayed Ms. Mitchell’s legal matter for more than two years and prejudiced the defendants and Ms. Mitchell.

The board further determined respondent knowingly, if not intentionally, violated duties owed to his clients, the legal system, and the legal profession. He |7caused significant harm to his clients by creating considerable and unnecessary delays in their legal matters. He also harmed the defendants and adjudicative bodies in his clients’ cases. Additionally, respondent caused significant harm to Ms. Weiss by failing to return her file upon termination of the representation. Finally, respondent caused the ODC to expend additional resources to resolve the investigations. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and substantial experience in the practice of law (admitted 1989). The board determined no mitigating factors are present.

In determining an appropriate sanction, the board, like the committee, declined to apply the Chatelain approach because the instant misconduct extends beyond the misconduct in Hyman I. Instead, the board determined a lengthy suspension is appropriate for the instant misconduct, based on In re: Powers, 99-2069 (La.9/24/99), 744 So.2d 1275, wherein this court imposed a three-year suspension upon an attorney who neglected three legal matters, failed to communicate with three clients, failed to account for or refund unearned fees, and failed to cooperate with the ODC in its investigations. The attorney in Powers had recent prior discipline for similar misconduct.

Under these circumstances, the board recommended respondent be suspended from the practice of law for three years.

IsNeither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted.- Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

We find respondent neglected two legal matters by continually failing to respond to the opposing parties’ discovery requests, failed to communicate with two clients, failed to return one client’s file upon termination of the representation, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

IpHaving found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly, if not intentionally, violated duties owed to his clients, the legal system, and the legal profession. He harmed his clients, the legal system, and the disciplinary system. The ABA Standards establish suspension as the baseline sanction in this matter.

The record supports the aggravating factors found by the disciplinary board. We agree with the board that no mitigating factors are present.

Turning to the issue of an appropriate sanction, we note that respondent’s misconduct in Hyman I occurred from 1999 through 2004, while the misconduct at issue here occurred from 2002 through 2008. Therefore, because the instant misconduct extends well beyond that at issue in Hy-man I, the hearing committee and the board properly declined to apply the Chatelain approach. See, e.g., In re: Thornton, 07-0204 (La.6/15/07), 958 So.2d 656. We further agree with the board that respondent’s conduct here warrants a lengthy suspension, and that there is support in our jurisprudence for the recommendation of a three-year suspension from the practice of law.

| Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for a period of three years.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael L. Hy-man, Louisiana Bar Roll number 19347, be and he hereby is suspended from the practice of law for a period of three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . As previously noted, though he was eligible in 2007 to seek reinstatement from his suspension in Hyman I, respondent did not do so, and thus he remains suspended from the practice of law. The three-year suspension we impose this date takes effect upon finality of our judgment.


text:
    STATE of Louisiana v. Gregory CARMEN.
    No. 2009-K-1213.
    Supreme Court of Louisiana.
    May 7, 2010.
   PER CURIAM.

Granted. The decision of the court of appeal is reversed and the order signed by Judge Fields setting defendant’s conviction aside and expunging his record is vacated. Judge Fields lacked the authority to grant the motion for expungement because it appears that defendant had a pending charge of felony theft, both at the time his probation was terminated successfully and at the time of resentencing. See State v. Carmen, 08-0478 (La.App. 5 Cir. 1/27/09), 3 So.3d 587 (affirming defendant’s conviction and sentence for felony theft committed in 2004 following jury trial conducted on September 26 and 27, 2007). Thus, at the time of resentencing on September 20, 2007, defendant was not eligible under La. Code Crim. Proc. art. 894(B)(1) to have his conviction set aside.

JOHNSON, J., would grant and docket.


text:
    STATE ex rel. Henry HICKSON v. STATE of Louisiana.
    No. 2003-KH-1646.
    Supreme Court of Louisiana.
    May 7, 2004.
   In re Hickson, Henry;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 16689-95; to the Court of Appeal, Third Circuit, No. KH 02-01057.

Application dismissed at relator’s request.


text:
    HAI NAM CHINESE RESTAURANT PARTNERSHIP v. B & B CONSTRUCTION OF NEW IBERIA, et al.
    No. 2006-C-2751.
    Supreme Court of Louisiana.
    Jan. 26, 2007.
   In re Third Generation Properties, L.L.C.;—Other; Applying for Writ of Certiorari and/or Review, Parish of Vermilion, City Court of Abbeville, No. 13234; to the Court of Appeal, Third Circuit, No. 06-729.

Denied.

CALOGERO, C.J., would grant.


text:
    Maya BALAKRISHNAN v. LOUISIANA STATE UNIVERSITY SCHOOL OF MEDICINE IN NEW ORLEANS, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College The State of Louisiana, et al. v. Maya Balakrishnan.
    No. 2006-C-2756.
    Supreme Court of Louisiana.
    Jan. 26, 2007.
   In re Board of Supervisors LSU;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, Nos. 2005-960, 2005-8766; to the Court of Appeal, Fourth Circuit, No(s). 2005-CA-1266, 2005-C-1503.

Denied.


text:
    STATE of Louisiana v. Jamaal TUCKER.
    No. 2010-KD-0875.
    Supreme Court of Louisiana.
    April 19, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 482-303.

Denied; moot.


text:
    STATE of Louisiana v. Allen COLEMAN.
    No. 2010-KK-0895.
    Supreme Court of Louisiana.
    April 21, 2010.
   In re Coleman, Allen;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 1, No. 493-607; to the Court of Appeal, Fourth Circuit, No. 2010-K-0515.

Granted. Case is remanded to Court of Appeal to exercise its error correcting function.


text:
    STATE of Louisiana v. Jamaal TUCKER.
    No. 2010-KD-0909.
    Supreme Court of Louisiana.
    April 22, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 482-303.

Writ granted. The prior sworn statements of the witness regarding his knowledge of the homicide subject of these proceedings are not hearsay and, as such, are admissible as substantive evidence under La. C.E. art. 801.


text:
    STATE ex rel. Ray RATTLER a/k/a Don Williams v. STATE of Louisiana.
    No. 2009-KH-1518.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Rattler a/k/a, Ray; Williams, Don;—Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 249-352.

Granted for the sole purpose of transferring the application to the Court of Appeal, Fourth Circuit, for its consideration.


text:
    Lee Barry WHITEHEAD v. STATE FARM INSURANCE COMPANY and Jonathan L. Mason.
    No. 2010-CC-0386.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Ellender, Robert; GEICO General Ins. Co.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 543-054; to the Court of Appeal, First Circuit, No. 2009 CW 2167.

Granted. The judgment of the district court excluding the testimony of Dr. Alfred Bowes is vacated. The case is remanded to the district court, which is instructed to render specific findings of fact, conclusion of law, and reasons for judgment as required by La.Code Civ. P. art. 1425(F).

JOHNSON and KNOLL, JJ„ would deny.


text:
    FIRST BAPTIST CHURCH OF WESTLAKE, Louisiana v. Julia Elise Curry LEPPO, et al.
    No. 2010-C-0424.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re First Baptist Church of Westlake Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2008-1216; to the Court of Appeal, Third Circuit, No. 09-695.

Denied.

VICTORY, J., would grant.


text:
    James BLALOCK and Carly Hitzman on Behalf of their Minor Child, Kalyn Blalock v. Clive P. BRIDGES, III, et al. Rochelle M. Carona v. State of Louisiana, Through the Department of Transportation and Development Clive P. Bridges, III v. Louisiana Department of Transportation and Development.
    No. 2010-CC-0401.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Boone Services Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, Nos. 88,836, 89,263, 89,292; to the Court of Appeal, First Circuit, No. 2009 CW 2160.

Denied.

CLARK, J., would grant.


text:
    SOUTH PETERS HOTEL INVESTORS, L.P. v. ROY ANDERSON CORP., et al.
    No. 2010-CC-0395.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re MCC Services L.L.C.; Mechanical Construction Co. L.L.C.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2005-6170; to the Court of Appeal, Fourth Circuit, No. 2009-C-1730.

Denied.

WEIMER, J., would grant.


text:
    James David FOREMAN, Jr., Individually and as Court Appointed Tutor of Brantley Barnes and Seth David Foreman v. Stephen H. McMILLAN, Progressive Security Insurance Company and Jennifer Dees, D.J.S. Casino, LLC and Carley Kennison.
    No. 2010-CC-0392.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Barnes, Brantley; Foreman Jr., James David et ah; Foreman, Seth David; Pike, Craig;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Helena, 21st Judicial District Court Div. A, No. 19,773; to the Court of Appeal, First Circuit, No. 2009 CW 2108.

Denied.


text:
    Cheryl Griffin ROARK, et al. v. LIBERTY HEALTHCARE SYSTEMS, LLC, et al.
    No. 2010-C-0390.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Roark, Cheryl Griffin;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 42595; to the Court of Appeal, Second Circuit, No. 44,913-CA.

Denied.


text:
    FIA CARD SERVICES, N.A. v. Ricky D. SMITH.
    No. 2010-C-0385.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Smith, Ricky D.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. H, No. 07-348; to the Court of Appeal, Second Circuit, No. 44,-923-CA.

Denied.


text:
    Jose A. BERMUDEZ, M.D. v. Richard A. COULON, M.D.
    No. 2010-CC-0379.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Coulon M.D., Richard A.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2008-1752; to the Court of Appeal, Fourth Circuit, No. 2009-C-1373.

Denied.


text:
    JEFFERSON MARINE TOWING, INC. v. KOSTMAYER CONSTRUCTION, LLC.
    No. 2010-C-0378.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Jefferson Marine Towing Inc.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 652-511; to the Court of Appeal, Fifth Circuit, No. 09-CA-310.

Denied.

WEIMER, J., would grant.

GUIDRY, J., recused.


text:
    Daniel E. KNOWLES and Bonnie Knowles v. D.A. EXTERMINATING COMPANY, INC.
    No. 2010-CC-0376.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Knowles, Bonnie; Knowles, Daniel E.;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 671-944; to the Court of Appeal, Fifth Circuit, No. 09-C-1123.

Denied.


text:
    Paula DAVIS v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS.
    No. 2010-C-0375.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Davis, Paula;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 08-1336; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0509.

Denied.


text:
    Linda Jones BEVIL, Individually and on Behalf of the Estate of Barry Bevil v. HOSPITAL SERVICE DISTRICT NO. 1 OF TANGIPAHOA Parish d/b/a North Oaks Medical Center.
    No. 2010-CC-0374.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Hospital Service District No. 1 of Tangipahoa Parish d/b/a; North Oaks Medical Center;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2006-003932; to the Court of Appeal, First Circuit, No. 2009 CW 1993.

Denied.


text:
    Kenneth John LeCOMPTE and Joanne Mathas LeCompte v. AFC ENTERPRISES, INC., et al.
    No. 2010-CC-0372.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re LeCompte, Joanne Mathas; LeCompte, Kenneth John;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Coui't Div. E, No. 72391-E; to the Court of Appeal, Third Circuit, No. CW 08-00999.

Denied.

WEIMER, J., would grant.


text:
    The PARISH OF JEFFERSON v. Craig BOES.
    No. 2010-CC-0367.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Boes, Craig;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 663-379; to the Court of Appeal, Fifth Circuit, No. 09-C-842.

Denied.

VICTORY, J., would grant.


text:
    Andrea HUGHES v. T.G. MERCER CONSULTING SERVICES.
    No. 2010-C-0361.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Hughes, Andrea;—Plaintiff; Applying For Writ of Certiorari and/or Review Office of the Workers’ Compensation District 1E, No. 08-02701; to the Court of Appeal, Second Circuit, No. 44,908-WCA.

Denied.


text:
    Jesse HARVEY, Jr., Succession of Jessie May Perkins, Eva Mae Burnett, Charles Ray Harvey, Preston Harvey, Minnie H. Johnson, Individually and on Behalf of their Deceased Father, Jessie Harvey, Sr. v. Patricia DARLING, N.P. and Donnie Batie, M.D.
    No. 2010-CC-0360.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Acadian Rehabilitation and Nursing Home; B.B.R.C. Investments L.L.C. d/b/a;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 538268; to the Court of Appeal, First Circuit, No. 2009 CW 1929.

Denied.


text:
    Susan B. QUINN and William R. Quinn v. STATE of Louisiana, State of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and State Farm Mutual Automobile Insurance Company.
    No. 2010-C-0358.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Quinn, Susan B.; Quinn, William R.;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 96,356; to the Court of Appeal, First Circuit, No. 2009 CA 0085.

Denied.

JOHNSON and KNOLL, JJ., would grant.


text:
    Tobe ALEXANDER, et al. v. MONSANTO COMPANY.
    No. 2010-CC-0256.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Monsanto Company;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 67,393; to the Court of Appeal, Fifth Circuit, No. 08-C-1221.

Denied.

VICTORY, J., would grant.


text:
    URBAN HOUSING OF AMERICA, INC., et al. v. CITY OF SHREVEPORT, et al.
    No. 2010-C-0026.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Shreveport, City of et al.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 519,448; to the Court of Appeal, Second Circuit, No. 44,874-CA.

Denied.


text:
    STATE of Louisiana v. Eric BRIDGES.
    No. 2009-KO-2490.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Bridges, Eric;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 440412; to the Court of Appeal, First Circuit, No. 2009 KA 0886.

Denied.


text:
    STATE of Louisiana v. Stanley M. HENRY, III.
    No. 2009-K-2485.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Henry, Stanley III;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 07-05203; to the Court of Appeal, Fifth Circuit, No. 08-KA-658.

^ . . Denied.


text:
    Glenda PEARSON v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, American Healthcare Indemnity, Continental Casualty Company, Emcare Physician Services, Inc., David Kaplan, M.D., Robert Weissmann, M.D., Rebecca Gorton, M.D., Robert V. Shafor, M.D., Drake Bellanger, M.D., and Thomas H. Hall, M.D.
    No. 2009-CC-2448.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Hall M.D., Thomas H.; Louisiana Medical Mutual Ins. Co. et ah; Shafor M.D., Robert V.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 542138; to the Court of Appeal, First Circuit, No. 2009 CW 1404.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Wilbert MATTHEWS.
    No. 2009-K-2365.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Matthews, Wilbert;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 07-1569; to the Court of Appeal, Fifth Circuit, No. 09-KA-180.

Denied.


text:
    STATE of Louisiana v. Lewis WRIGHT.
    No. 2009-KO-2331.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Wright, Lewis;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 246,415; to the Court of Appeal, Second Circuit, No. 44,700-KA.

Denied.


text:
    STATE of Louisiana v. Mark Anthony WIGGINS.
    No. 2009-K-2329.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Wiggins, Mark Anthony;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 272,454; to the Court of Appeal, Second Circuit, No. 44,616-KA.

Denied.


text:
    STATE of Louisiana v. Anthony ASHLEY.
    No. 2009-KO-2305.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Ashley, Anthony;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 258,204; to the Court of Appeal, Second Circuit, No. 44,-655-KA.

Denied.


text:
    STATE of Louisiana v. Tarome Antonio HARRIS.
    No. 2009-KO-2303.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Harris, Tarome Antonio;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. A, No. 74452; to the Court of Appeal, Second Circuit, No. 44,402-KA.

Denied.


text:
    STATE of Louisiana v. Davon JACKSON.
    No. 2009-KO-2262.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Jackson, Davon;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 435-878; to the Court of Appeal, Fourth Circuit, No. 2008-KA-1292.

Denied.

KNOLL and WEIMER, JJ., would grant.


text:
    STATE of Louisiana v. Davon JACKSON.
    No. 2009-K-2196.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Jackson, Davon;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 435-878; to the Court of Appeal, Fourth Circuit, No. 2008-KA-1292.

Denied.

KNOLL and WEIMER, JJ., would grant.


text:
    STATE of Louisiana v. Barron S. AVIST.
    No. 2009-K-1924.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 07-1487; to the Court of Appeal, Fifth Circuit, No. 09-KA-101.

Denied.


text:
    STATE of Louisiana v. Thornton GROSS.
    No. 2009-KO-1801.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Gross, Thornton;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 114793; to the Court of Appeal, Third Circuit, No. 09-6.

Denied.


text:
    STATE ex rel. Jimmy Ray SMITH v. STATE of Louisiana.
    No. 2009-KH-1534.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Smith, Jimmy Ray;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 06-06-0050; to the Court of Appeal, First Circuit, No. 2008 KA 2484.

Denied.


text:
    STATE of Louisiana v. Johnathan L. PROSEN.
    No. 2009-K-2453.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Prosen, Johnathan L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. 1094-2007; to the Court of Appeal, Third Circuit, No. 09-98.

Not considered; untimely. See Supreme Court Rule X, Section 5(a).


text:
    STATE of Louisiana v. Rejena S. PROSEN.
    No. 2009-K-2452.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Prosen, Rejena S.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. B, No. 1094-2007; to the Court of Appeal, Third Circuit, No. 09-97.

Not considered. Untimely. See S.Ct. Rule X, Section 5(a).


text:
    STATE of Louisiana v. PROPERTY SEIZED FROM DAVEDE DAVILLIER $660.00 IN U.S. CURRENCY.
    No. 2009-CC-1553.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Davillier, Davede;—Defendant; Applying for Reconsideration of this Courts action dated March 12, 2010; Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2007-13010; to the Court of Appeal, First Circuit, No. 2008 CA 1329.

Denied.


text:
    In re Kent Anthony SMITH.
    No. 2009-B-2447.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Smith, Kent Anthony;—Plaintiff; Applying for Rehearing of this Court’s action dated March 5, 2010; Office of the Disciplinary Board, No. 08-DB-086.

Rehearing denied.


text:
    STATE ex rel. Jessie MARTIN v. STATE of Louisiana.
    No. 2009-KH-1569.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Martin, Jessie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 03-472-F; to the Court of Appeal, Second Circuit, No. 44,756-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.