text:
    Lorenzo BROOKS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1995
    District Court of Appeal of Florida, First District.
    January 3, 2019
    Lorenzo Brooks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terry Lopez BOLDRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4866
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Bruce Miller, Public Defender, and Justina Clara Jassen Turner, Assistant Public Defender, Crestview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The appeal is dismissed as untimely. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Winokur, and Jay, JJ., concur.


text:
    Carolyn MCCORMICK, Appellant, v. Janis E. BROWN, Former Wife and Terence M. Brown, Former Husband, Appellees.
    No. 1D18-2802
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Carolyn McCormick, pro se, Appellant.
    Cindy Lasky of The Lasky Law Firm, Jacksonville, for Appellee Janis E. Brown; Terrance A. Jones of the Law Office of Terrance A. Jones, Green Cove Springs, for Appellee Terence M. Brown.
   Per Curiam.

Upon consideration of Appellant's response to the order to show cause, the Court has determined that the Order on Former Husband's Amended Motion for Summary Judgment and Former Wife's Renewed Motion for Summary Judgment is not a final order. Because the order contemplates additional proceedings, it does not constitute a conclusion to the court's judicial labor. Accordingly, the appeal is dismissed for lack of jurisdiction.

Roberts, Ray, and Bilbrey, JJ., concur.


author: EVANDER, C.J.

text:
    Carol Ann BOWE, Appellant/Cross-Appellee, v. US BANK NATIONAL ASSOCIATION, as Successor Trustee to Bank of America, National Association, Successor by Merger to LaSalle Bank National Association, as Trustee for Thornburg Mortgage, etc., Appellee/Cross-Appellant.
    Case No. 5D17-2214
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 4, 2019
    J. Russell Collins and Christine C. Leonard, of Rusty Law, LLC, St. Augustine, for Appellant/Cross-Appellee.
    Kimberly S. Mello and Danielle M. Diaz, of Greenberg Traurig, P.A., Tampa, Michele L. Stocker, of Greenberg Traurig, P.A., Ft. Lauderdale, and Michael D. Starks, of Greenberg Traurig, P.A., Orlando, for Appellee/Cross-Appellant.
   EVANDER, C.J.

The mortgagee, US Bank National Association, as Successor Trustee to Bank of America, National Association, Successor by Merger to Lasalle Bank National Association, as Trustee for Thornburg Mortgage, etc., ("the Trustee"), cross-appeals a final judgment that permitted it to foreclose on property owned by the mortgagor, Carol Ann Bowe, but only as to amounts unpaid through October 1, 2013, rather than the full accelerated amount due on the mortgage. The Trustee argues that the trial court erroneously found that it was equitably estopped from exercising its right to accelerate based on its purported failure to verbally provide a mortgage reinstatement figure after Bowe's default. We agree.

This court has observed that prior to a mortgage holder's election of the right to accelerate upon the occurrence of a default, a mortgagor may tender the arrears due and thereby preclude acceleration. Old Republic Ins. Co. v. Lee , 507 So.2d 754 (Fla. 5th DCA 1987). However, once the mortgage holder has exercised its right to accelerate, the mortgagor's right to tender only the arrears is terminated. Id. at 754-55.

In the instant case, the undisputed evidence presented at trial was that Bowe failed to make her October 1, 2009 mortgage payment. On November 15, 2009, Bowe was sent a default letter advising her that her loan was in default and, if not brought current, the Trustee would exercise its right to accelerate payment of the loan balance. On January 20, 2010, the Trustee gave notice that it had exercised its right to accelerate. Notably, Bowe did not make or tender any additional payment prior to the notice of acceleration. Bowe's oral representations of her ability and willingness to bring the mortgage current (made in early January 2010) did not constitute a legal tender of payment. See Jacobs v. Auto. Repair Ctr., Inc. , 137 So.2d 263, 265 (Fla. 1st DCA 1962) ("[T]he proof adduced before the trial court reflects that when plaintiff made demand upon defendant the latter countered with an oral offer to pay the delinquent installment. Such action on the part of defendant does not constitute a legal tender.").

The effect of the final judgment entered below was to deny the Trustee's right to accelerate the mortgage indebtedness as contracted for in the note and mortgage. See Campbell v. Werner , 232 So.2d 252 (Fla. 3d DCA 1970). That denial was improper, particularly given that the record reflects that prior to trial Bowe failed to make or tender any payment subsequent to her October 1, 2009 default. Id. at 256-57.

On remand, the trial court is directed to enter an amended final judgment of foreclosure for the entire accelerated amount of the note.

REVERSED and REMANDED.

WALLIS and HARRIS, JJ., concur.

      Our disposition of the cross-appeal renders moot the issue raised on appeal by Bowe.


text:
    Christopher J. SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3291
    District Court of Appeal of Florida, First District.
    January 3, 2019
    Christopher J. Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Lifton ROBINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2759
    District Court of Appeal of Florida, First District.
    January 3, 2019
    Lifton Robinson, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Fla. R. App. P. 9.315(a).

Wetherell, Osterhaus, and Winsor, JJ., concur.


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

text:
    Ricky SWEET, Appellant, v. Alicia Monique TUCKER, Appellee.
    No. 1D18-356
    District Court of Appeal of Florida, First District.
    January 7, 2019
    Ricky Sweet, pro se, Appellant.
    No appearance for Appellee.
   B.L. Thomas, C.J.

On December 20, 2017, the trial court issued an order of recusal in Appellant's case, and subsequently issued an order denying Appellant's motion to dissolve injunction, without prejudice to refile.

In the order of recusal, the judge indicated that he was aware of the grounds for recusal at the hearing on Appellant's motion, but still issued the order denying Appellant's motion after the hearing. We therefore vacate the order denying Appellant's motion to dissolve injunction and remand to the trial court for a new hearing on the motion. See Lance Block, P.A. v. Searcy, Denney, Scarola, Barnhart and Shipley, P.A. , 85 So.3d 1122, 1124 (Fla. 1st DCA 2012) (vacating order and remanding where trial judge "may well have known of the grounds for the recusal order when he entered the order" at issue) (footnote removed).

Wetherell and Winsor, JJ., concur.


text:
    Cordell SCOTTY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-3387
    District Court of Appeal of Florida, First District.
    January 7, 2019
    Cordell Scotty, pro se, Petitioner.
    Kenneth S. Steely, General Counsel; Beverly Brewster and Eric Salvatore Giunta, Assistant General Counsel, Tallahassee, for Respondent.
   Per Curiam.

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

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


author: PER CURIAM.

text:
    Jermaine THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1386
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SALTER, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Montero v. State, 996 So.2d 888, 892 (Fla. 4th DCA 2008) ("Appellant ... claimed that his plea was involuntary because he was under the effect of psychotropic medication when he entered into it. Appellant, however, was specifically questioned on the record regarding the medication he had taken.... He testified under oath that these medications were not affecting his ability to understand the proceedings. He answered all questions during the plea hearing appropriately, and independently asked questions of the court that demonstrated his understanding of the proceedings. He cannot go behind his sworn assertions and challenge the voluntariness of his plea.").


text:
    Ana Y. CLAVIJO, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    Case No. 5D18-0246
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 8, 2019
    Ana Y. Clavijo, Orlando, pro se.
    Cristina A. Velez, of the Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

EVANDER, C.J., HARRIS and GROSSHANS, JJ., concur.


text:
    Theodore BEVERLY, Appellant, v. Annie R. GUMREN, Appellee.
    No. 3D18-808
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019.
    Theodore Beverly, in proper person.
    Wedderburn & Jacobs, P.A., and Bruce R. Jacobs (Hollywood), for appellee.
    Before EMAS, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.510(c) (providing in pertinent part: "The judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"); Bende v. Furr & Cohen, P.A., 941 So.2d 425 (Fla. 4th DCA 2006) (affirming summary judgment where appellant failed to file affidavits or other sworn statements in opposition to appellee's motion for summary judgment, and appellee's motion and sworn proof in support thereof conclusively established the nonexistence of any genuine issue of material fact and entitlement to a judgment as a matter of law); Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984) (same).


text:
    Eddie MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2343
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019
    Carlos J. Martinez, Public Defender, Miami, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. State v. Michel, 257 So.3d 3 (Fla. 2018) ; Franklin v. State, 258 So. 3d 1239 (Fla. 2018).


text:
    Ben Lamont DENSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4071
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Ben Lamont Denson, pro se, Appellant.
    Ashley Brooke Moody, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Ben Lamont Denson's motion for postconviction relief was denied as untimely. Denson then sought relief under rule 3.850(b)(3), which excuses late filings if "the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion." The trial court rejected Denson's claim, concluding the rule's exception was inapplicable. Denson now appeals.

The issue below was whether Denson had, in fact, "retained counsel to timely file a 3.850 motion." He had retained Luke Newman as counsel, but there was a factual dispute about the scope of the representation. Denson testified that his counsel agreed to file a 3.850 motion. His counsel testified that he agreed to explore potential 3.850 claims but never agreed to-and was never paid to-actually file the motion. Instead, counsel testified, he notified Denson that he was closing the file with no further action.

Faced with competing versions of events, the trial court found counsel's testimony credible and concluded that counsel was not retained to file a motion. We review that finding only to determine if it was supported by competent, substantial evidence, see Porter v. State , 788 So.2d 917, 923 (Fla. 2001), and it was. Accordingly, rule 3.850(b)(3) does not apply, and Denson's motion was properly denied.

AFFIRMED .

B.L. Thomas, C.J., and Ray and Winsor, JJ., concur.


text:
    Carlton X. MATHEWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3420
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Carlton X. Mathews, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Randy Allen CHESSER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4596
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Randy Allen Chesser, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Timothy Francis MCGARRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3355
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Timothy Francis McGarry, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Grey Lamont GOODMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3203
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Grey Lamont Goodman, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


author: Winsor, J.

text:
    Joseph Anthony GORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5266
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

In 1991, Joseph Gorman was accused of sexually assaulting his six-year-old daughter. The daughter-who was seven by the time of Gorman's trial-told the jury what Gorman had done to her, and the jury convicted. Gorman has been in prison ever since, where he is serving a life sentence. He now appeals the trial court's denial of postconviction relief, and we affirm.

In the years after the trial, the daughter twice recanted her accusation, and Gorman twice responded by seeking a new trial based on newly discovered evidence. The daughter (by then twenty-two) first recanted in 2007, executing an affidavit that said her father never molested her. The affidavit said her mother (formerly Gorman's wife) told the daughter to lie at trial, promising that if she did, Gorman would go "to a better place and it would help him." But after Gorman based a postconviction motion on that affidavit, the daughter recanted her recantation, claiming in a telephonic deposition that she signed the affidavit at her aunt's urging without reading it, all to offer her dying grandmother peace. She denied any recollection of what happened with her father back when she was six or seven. Facing that development, Gorman withdrew his motion. But later, when the daughter was thirty, she recanted again, now maintaining that her mother and another woman had coached her to testify that Gorman had molested her. In this sworn statement, she explained her contrary deposition testimony by saying that she was then living with (and dependent on) her mother, that her mother was sitting with her during the telephonic deposition, and that her mother did not want her to recant her original trial testimony.

Based on the latest recantation, Gorman filed a new motion, and the court held an evidentiary hearing. The daughter (then thirty-two) testified at the hearing, saying she testified falsely at trial and that Gorman never molested her. She again blamed her original testimony on her mother's improper influence, and she repeated her claim that she recanted her 2007 recantation only because she needed her mother's support at the time. Now, she said, she was no longer dependent on her mother and could finally testify truthfully. She acknowledged that her memory was "spotty," that she only remembers "bits and pieces," and that her many medications-including medication for her bipolar disorder-might contribute to her memory problems. But she insisted Gorman was innocent.

The trial court also heard from the daughter's brother-Gorman's son-who testified that his sister had long told him there was no molestation. He testified that "sometimes she seems like her mind's not all there" and that "some of her memories are just back and forth." But his sister had "never said anything bad about [Gorman], not one word," and was the victim of a "manipulative" mother. He believed her. The trial court also heard from the prosecutor who handled the 1992 trial. She testified that she never instructed the daughter to testify to anything but the truth.

The trial court ultimately denied postconviction relief. In a comprehensive written order, the judge detailed the evidence at the 1992 trial and the 2017 evidentiary hearing before concluding that the daughter's recantation was untrue. The court noted the daughter's testimony about her poor memory, her inconsistent statements (including on matters other than whether her father molested her), an expert's trial testimony about sex-abuse victims' efforts to forget, trial testimony that the daughter had told others about the abuse, and the daughter's "educational level and psychological state." All of this together made "it clear to the Court that the recantation [was] unreliable."

To receive a new trial based on newly discovered evidence, a defendant must show that the evidence was actually "newly discovered," meaning it was unknown to the court, parties, or counsel at the time of trial and could not have been discovered through diligence. Mansfield v. State , 204 So.3d 14, 17 (Fla. 2016). The defendant must also show that the evidence is "of such nature that it would probably produce an acquittal on retrial." Jones v. State , 709 So.2d 512, 521 (Fla. 1998). A recantation can satisfy these requirements, but only if the court finds it credible. Therefore, "a trial judge should deny a new trial if it is not satisfied that the new testimony is true." Kormondy v. State , 983 So.2d 418, 438 (Fla. 2007) ; accord Davis v. State , 26 So.3d 519, 526 (Fla. 2009) ("Specifically, recanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true ...."); Armstrong v. State , 642 So.2d 730, 735 (Fla. 1994) ("[R]ecanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury." (quoting Bell v. State , 90 So.2d 704 (Fla. 1956) ).

Here, the trial court found the daughter's recantation not credible. We therefore must affirm unless the court's finding was not supported by competent, substantial evidence. See Archer v. State, 934 So.2d 1187, 1195-96 (Fla. 2006). We conclude the evidence supported the trial court's determination. The trial court cited the daughter's memory problems, inconsistent testimony, and other factors, and-perhaps most important-the court benefitted from seeing the daughter testify in person. See Stephens v. State , 748 So.2d 1028, 1034 (Fla. 1999) (noting "the trial court's superior vantage point in assessing the credibility of witnesses and in making findings of fact" and explaining that "[t]he deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review"). Because evidence supported the trial court's conclusion, we affirm.

AFFIRMED .

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

      Gorman also filed another postconviction motion on unrelated grounds. The trial court denied that motion, and this court affirmed. Gorman v. State , 738 So.2d 966 (Fla. 1st DCA 1999).

      Given our conclusion about the trial court's credibility determination, we need not consider whether the more recent recantation was truly "newly discovered evidence." Cf. Archer , 934 So.2d at 1194 ("A recantation will not be considered newly discovered evidence where the recantation offers nothing new or where the recantation is offered by an untrustworthy individual who gave inconsistent statements all along.").


text:
    Christopher Charles MCINTOSH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3653
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Christopher Charles McIntosh, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Alva W. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3493
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General; Tabitha Rae Herrera and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

While this appeal was pending, the Florida Supreme Court clarified the current state of the law with regards to consecutive sentencing under section 775.087(2)(d), Florida Statutes. The Florida Supreme Court ruled that consecutive sentencing under section 775.087(2)(d) is not available for a crime act that occurred during a single criminal episode involving a single victim or a single injury. Miller v. State , 43 Fla. L. Weekly S426, --- So.3d ----, 2018 WL 4784069 (Fla. Oct 4, 2018). Because the appellant's single episode involved a single victim who incurred a single injury, we are compelled to reverse the consecutive mandatory minimum sentence for count II and require the trial court to impose this sentence concurrently to the sentence for count I.

REVERSED and REMANDED for resentencing.

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


text:
    Altaony Lemor CASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4376
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Andy Thomas, Public Defender, and Robin B. Rogers, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Altaony Cason argues that his two convictions for resisting an officer without violence violate the prohibition against double jeopardy because both convictions were based on one continuous criminal episode, albeit involving two officers. The State concedes error, and we agree. E.g. , R.J.R. v. State , 88 So.3d 264, 266-68 (Fla. 1st DCA 2012) ; D.A.R. v. State , 22 So.3d 850, 851 (Fla. 4th DCA 2009) ; Fogle v. State , 754 So.2d 878, 879 (Fla. 1st DCA 2000). We reverse and remand for the trial court to vacate one of the convictions. See Johnson v. State , 246 So.3d 1277 (Fla. 1st DCA 2018).

Rowe, Osterhaus, and Kelsey, JJ., concur.


text:
    Geraldine BLAKELY and Christopher Blakely, Appellants, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a Frontline Insurance, Appellee.
    No. 3D18-1511
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Kramer Green Zuckerman Greene & Buchsbaum, P.A., and Robert I. Buchsbaum (Hollywood), for appellants.
    Jay M. Levy, P.A. and Jay M. Levy, Miami, for appellee.
    Before SCALES, LINDSEY, and MILLER, JJ.
    ON PARTIAL CONFESSION OF ERROR
   PER CURIAM.

Geraldine and Christopher Blakely (the "Blakelys") appeal a non-final order compelling them to participate in appraisal in their first-party property insurance dispute with First Protective Insurance Company ("FPIC"). Pursuant to FPIC's commendable partial confession of error, we hereby reverse the trial court's order compelling appraisal before conducting an evidentiary hearing. See Universal Prop. & Cas. Ins. Co. v. Abbott, 63 So.3d 924 (Fla. 3d DCA 2011), citing Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010) ; Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass'n, Inc., 48 So.3d 188, 191 (Fla. 3d DCA 2010). We therefore remand this cause for further proceedings, including a properly noticed evidentiary hearing.

Reversed and remanded with instructions.

      We dismiss the remaining assignments of error, without prejudice for the Blakelys to file a petition for writ of mandamus in the event they fail to obtain rulings on the pending discovery motions prior to the evidentiary hearing on remand. See Lakeshore Townhomes Condo. Ass'n v. Bush, 664 So.2d 1170 (Fla. 4th DCA 1995) ("While mandamus is not available to compel a judge to rule a particular way, it is appropriate to compel some ruling.").


text:
    Armando RIVAS, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, et al., Appellee.
    No. 1D18-4777
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Armando Rivas, pro se, Appellant.
    Roy A. Diaz and Adam A Diaz of SHD Legal Group P.A., Fort Lauderdale, for Appellee.
   Per Curiam.

Upon consideration of Appellee's motion to dismiss, filed on November 27, 2018, and the response thereto, the Court has determined that the order on appeal is not final. Accordingly, the motion is granted and the appeal is dismissed.

Makar, Winokur, and Jay, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Chasity ANDREWS
    NO. 2019-KK-0068
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM

Stay lifted; writ granted.

Louisiana C.Cr.P. art. 729.5 confers on the trial court the authority to sanction a discovery violation, providing the court with an array of options. The court may order the offending party "to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate." La. C.Cr.P. art. 729.5(A). Although a mistrial is among the sanctions available to a trial court, it is a drastic remedy, and except in circumstances in which the mistrial is mandatory, "is warranted only when a trial court error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial." State v. Harris , 00-3459, p. 8-9 (La. 2/26/02), 812 So.2d 612, 617.

Under the particular facts of this case, the trial court abused its vast discretion in granting the motion for mistrial. The State has represented in the trial court and in pleadings before this court that it will recall its witnesses for cross-examination in light of the newly produced discovery. As a consequence of the mistrial, the defense has had several days in which to review the newly produced material and prepare its case, alleviating the element of surprise. Under these circumstances, it does not appear that any alleged prejudice suffered by defendant by the late disclosure of allegedly prior inconsistent statements of the victim has substantially compromised defendant's right to a fair trial because the alleged inconsistencies may still be explored.

Accordingly, the writ is granted and the judgment of the trial court is reversed. This matter is remanded to the trial court for further proceedings.

JOHNSON, C.J., would deny.

HUGHES, J., would deny.

GENOVESE, J., would deny.


text:
    IN RE: Greta L. WILSON
    NO. 2018-B-1800
    Supreme Court of Louisiana.
    January 14, 2019
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Greta L. Wilson, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1989. In 2017, the court disbarred respondent, who, without having the authority or consent to do so, filed suit and enrolled as counsel in another suit for the purpose of obtaining funds, and then converted those funds to her own use. In re: Wilson , 17-0622 (La. 6/5/17), 221 So.3d 40 (" Wilson I ").

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

FORMAL CHARGES

By way of background, Kim Richardson retained respondent to represent him in a contract dispute with the State of Louisiana Hazard Mitigation Grant Program ("HMGP") and a grant recipient homeowner. Essentially, respondent was to help Mr. Richardson collect funds due to him for construction work that he had completed on a recipient's home. On June 21, 2012, Mr. Richardson paid respondent a $5,000 deposit and signed an attorney-client contract calling for the deposit to be drawn upon at the rate of $150 per hour.

Thereafter, Mr. Richardson attempted to contact respondent, to no avail. Mr. Richardson was eventually able to reach respondent's assistant, who provided him with a copy of his file. The file included a copy of the attorney-client contract, a copy of a letter purportedly sent by respondent to the HMGP requesting a copy of records, two internal memorandums from respondent's assistant, and one purported billing statement for 2.58 hours of work. Respondent failed to perform any substantial work in the matter and failed to refund any of the $5,000 payment.

In April 2015, the ODC received a complaint filed by Mr. Richardson against respondent. A copy of the complaint was forwarded to respondent via certified mail and delivered to her primary address, but she failed to respond to the complaint.

DISCIPLINARY PROCEEDINGS

In August 2017, the ODC filed formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16 (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

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)(3). No formal hearing 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 submission on sanctions, the hearing committee acknowledged that the factual allegations in the formal charges were deemed admitted. The committee found that those deemed admitted facts, as supplemented and supported by the ODC's documentary submissions, demonstrate clear and convincing evidence of respondent's violation of the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent violated duties owed to her client and the legal profession. Her conduct was negligent, knowing, and intentional, and caused actual harm to the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is suspension. The committee did not discuss aggravating factors and found that there are no mitigating factors present.

Turning to the issue of an appropriate sanction, the committee determined that respondent's substantive misconduct, which occurred during the same time period as the misconduct subject of Wilson I , is subject to the approach of Louisiana State Bar Ass'n v. Chatelain , 573 So.2d 470 (La. 1991). For this substantive misconduct, the committee recommended that respondent be adjudged guilty of additional rule violations to be considered when and if she seeks readmission to the practice of law. The committee determined that for the failure to cooperate, which occurred outside the timeframe of the misconduct considered in Wilson I , the Chatelain approach does not apply. For this misconduct, the committee recommended that the minimum period of time in which respondent can apply for readmission be extended by two years.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. The board also determined that the legal conclusions of the committee are supported by the factual allegations asserted in the formal charges and the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent violated duties owed to her client and the legal profession. Her conduct was knowing, if not intentional, and resulted in actual harm. By her knowing failure to communicate, failure to diligently fulfill the services she agreed to perform, and failure to return unearned fees, respondent caused actual damage to her client. Her misconduct caused a delay in the pursuit of her client's claims and a loss of the $5,000 fee paid by the client. By her inaction, respondent caused potential harm to her client, who may have lost valid claims or defenses. Respondent caused damage to the legal profession by failing to respond to the complaint against her. Such conduct causes an unnecessary expenditure of the limited resources of the disciplinary agency and a delay in the resolution of complaints, which damages the reputation of the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the applicable baseline sanction is suspension.

The board found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1989). The board did not find any mitigating factors present.

The board agreed that the Chatelain approach is applicable for the substantive misconduct in this case, which should be considered in the event respondent applies for readmission from her disbarment. The board also agreed that additional discipline is warranted for the failure to cooperate violation and likewise recommended that the minimum period of time in which respondent can apply for readmission be extended by two years. The board also recommended that respondent be ordered to pay restitution to Mr. Richardson in the amount of $5,000, and that she be assessed with the costs and expenses of this proceeding.

Neither 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.

The evidence in the record of this deemed admitted matter supports a finding that respondent neglected a legal matter, failed to communicate with a client, and failed to refund an unearned fee. She also failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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

Respondent knowingly, if not intentionally, violated duties owed to her client and the legal profession, causing actual harm. The aggravating factors found by the disciplinary board are supported by the record. No mitigating factors are supported by the record. Based on the ABA's Standards for Imposing Lawyer Sanctions , the applicable baseline sanction in this matter is suspension.

In Louisiana State Bar Ass'n v. Chatelain , 573 So.2d 470 (La. 1991), we held that when a second attorney disciplinary proceeding involves conduct that 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. Respondent's substantive misconduct commenced in June 2012 and continued through April 2015, the same general time period in which the misconduct in Wilson I occurred (May 2013 through January 2014). Based on the approach established in Chatelain , we agree that the substantive misconduct in this case should be considered along with the misconduct in Wilson I , if and when respondent applies for readmission from her disbarment. No additional discipline is necessary for this substantive misconduct.

The Chatelain approach, however, is inapplicable to respondent's failure to cooperate with the ODC in its investigation. This misconduct, which commenced in September 2015, is outside of the Wilson I time frame, and thus will be considered independently. For this additional misconduct, the case of In re: Barrios , 10-2582 (La. 2/4/11), 54 So.3d 649 (" Barrios II ") is instructive. In Barrios II , we considered a proceeding in which a disbarred attorney had engaged in misconduct during the same general time frame as his previously-sanctioned misconduct. See In re: Barrios , 08-1679 (La. 11/10/08), 993 So.2d 1200 (" Barrios I "). We applied a Chatelain analysis to the substantive misconduct, which would be considered in the event he sought readmission from his disbarment in Barrios I . For his failure to cooperate, however, which occurred after the misconduct in Barrios I , we imposed a two-year extension of the minimum period of time in which he could seek readmission.

Considering the facts of this case and our decisions in Chatelain and Barrios II , the board's recommended sanction is appropriate.

Accordingly, we will accept the board's recommendation. For her substantive misconduct, we will adjudge respondent guilty of additional violations warranting discipline, to be considered in the event she seeks readmission to the practice of law. For her failure to cooperate, we will extend the minimum time period in which respondent may seek readmission by two years. We will also require respondent to make full restitution with interest to Mr. Richardson.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Greta L. Wilson, Louisiana Bar Roll number 19834, be and she hereby is adjudged guilty of additional violations warranting discipline, which shall be considered in the event she seeks readmission after becoming eligible to do so. It is further ordered that for the misconduct which occurred outside of the time frame of In re: Wilson , 17-0622 (La. 6/5/17), 221 So.3d 40, the minimum period for seeking readmission from respondent's disbarment shall be extended for a period of two years. It is further ordered that respondent pay full restitution, with legal interest, to Kim Richardson. 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.

      In Chatelain , this court observed that when a second attorney disciplinary proceeding involves conduct that 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.


text:
    HUNTSMAN INTERNATIONAL, LLC and Rubicon, LLC v. PRAXAIR, INC.
    NO. 2018-CC-1532
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT, PARISH OF ORLEANS
    Writ denied.
    WEIMER, J., would grant rehearing and docket.
    CRICHTON, J., would grant rehearing and assigns reasons.
    Crichton, J., would grant and assigns reasons.
   I would grant and docket this application to examine whether Code of Judicial Conduct Canon 3(C) provides an additional ground for recusal independent from the grounds enumerated in La. Code Civ. P. art. 151. In my view, the original per curiam, which recused a respected member of the judiciary, will lead to confusion in the trial courts as to the proper standard for judicial recusal in Louisiana.


text:
    IN RE: Kirby Dale KELLY
    NO. 2018-B-2113
    Supreme Court of Louisiana.
    January 14, 2019
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Kirby Dale Kelly, Louisiana Bar Roll number 22479, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent's clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.


author: PER CURIAM:

text:
    STATE EX REL. Tyrone D. JOHNSON v. STATE of Louisiana
    No. 2017-KH-2105
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND
   PER CURIAM:

Writ granted; case remanded to the district court. The district court is ordered to grant relator an out-of-time appeal and appoint counsel to prosecute it. State v. Counterman , 475 So.2d 336, 340 (La. 1985).


text:
    STATE of Louisiana v. Ronald Earl WILLIAMS
    No. 2017-KP-2022
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Granted in part. The court of appeal's ruling is vacated to the extent that it remanded for an evidentiary hearing. The matter is remanded to the district court, where the state will be afforded an opportunity to respond on the merits.

Thereafter, the district court shall determine whether to rule on the application summarily, under La.C.Cr.P. art. 929, or whether an evidentiary hearing is warranted under La.C.Cr.P. art. 930. The writ is otherwise denied.

CRICHTON, J., recused.


text:
    STATE EX REL. Dwayne DIAZ v. STATE of Louisiana
    No. 2017-KH-1892
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Honore ESTES
    No. 2017-KP-1654
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    IN RE: Kevin Michael STEEL
    NO. 2018-B-1945
    Supreme Court of Louisiana.
    January 14, 2019
    ORDER
   Considering the "Motion to Stay" and "Motion to Remand" filed by the Office of Disciplinary Counsel,

IT IS ORDERED that this matter be remanded to the disciplinary board for consolidation with the proceedings numbered 18-DB-056. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing all disciplinary matters involving respondent.

IT IS FURTHER ORDERED that the motion to stay be denied as moot.


text:
    IN RE: Brian P. QUIRK
    NO. 2018-B-1857
    Supreme Court of Louisiana.
    January 14, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent submitted phantom billing entries to his law firm for work not performed but not billed to clients. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent acknowledges that his conduct constitutes a violation of Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Brian P. Quirk, Louisiana Bar Roll number 19748, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

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


text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2018-B-1802
    Supreme Court of Louisiana.
    January 14, 2019
    ORDER
   Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.


text:
    STATE of Louisiana v. Rory DIMES
    No. 2018-KH-1404
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Reconsideration granted; writ granted. The application is transferred to the court of appeal to consider as a timely filed application for supervisory writs concerning the district court's April 15, 2018 denial of his application for post-conviction relief. See State ex rel. Johnson v. Maggio , 440 So.2d 1336, 1337 (La. 1983).


text:
    STATE EX REL. Terry MCELVEEN v. STATE of Louisiana
    No. 2017-KH-1067
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In addition, some portions of the application are repetitive. La.C.Cr.P. art. 930.4. As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    IN RE: Michael A. BETTS
    NO. 2018-B-1870
    Supreme Court of Louisiana.
    January 14, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent mishandled his client trust account. Respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael A. Betts, Louisiana Bar Roll number 19485, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


text:
    STATE of Louisiana v. David KLEIN
    No. 2018-KK-1611
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. Code of Criminal Procedure art. 729.7(A), pertaining to protection of witness identity, provides that "[t]he court shall maintain the deletion or excision if, at an ex parte proceeding which shall be recorded and maintained under seal, the party excising or deleting such information makes a prima facie showing that the witness's safety may be compromised by the disclosure." Defendant here contended the district court erred in making that determination. Although the court of appeal declined to exercise its supervisory jurisdiction, State v. Klein , 18-0722 (La. App. 8/31/18) (unpub'd), it appears that the court made that decision without reviewing the transcript of the ex parte proceeding conducted in the district court, which is required by Article 729.7 to be maintained under seal and to which defendant lacks access. Accordingly, we grant defendant's application to remand to the court of appeal with instructions to reconsider defendant's application after it orders the district court to furnish it with the transcript to be filed under seal. In addition, on remand the court of appeal should also afford the State the opportunity to respond.

REMANDED

GUIDRY, J., would deny.

CLARK, J., would deny.


text:
    STATE of Louisiana v. Chasity ANDREWS
    NO. 2019-KK-0069
    Supreme Court of Louisiana.
    January 13, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Randy COTTON
    NO. 2019-KK-0066
    Supreme Court of Louisiana.
    January 12, 2019
    Denied.
    CLARK, J., would grant the writ, reverse the trial court and deny the motion to sever.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Scottie Dwayne BOWIE
    NO. 2018-K-1099
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   WEIMER, J., recused.


author: GENOVESE, J., would grant.

text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Billy GUIDROZ, Jr., et al.
    NO. 2018-CC-1576
    Supreme Court of Louisiana.
    January 8, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-115
    NO. 2018-OB-1285
    Supreme Court of Louisiana.
    January 14, 2019
    Reconsideration denied.


text:
    STATE EX REL. Joseph LAMBERT v. STATE of Louisiana
    NO. 2017-KH-1941
    Supreme Court of Louisiana.
    January 14, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Javonte T. MORGAN
    NO. 2018-KO-0465
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: CRICHTON, J., would grant rehearing.

text:
    Frank RABORN v. Jeffrey R. ALBEA, M.D., Shawn G. Dunn, M.D., The Neuromedical Center (a Professional Medical Corporation) Ebi, LP and Synthes USA Sales, Limited Liability Company
    NO. 2018-CC-1132
    Supreme Court of Louisiana.
    January 14, 2019
    Rehearing denied.
    WEIMER, J., would grant rehearing and docket.
   CRICHTON, J., would grant rehearing.


text:
    Justo E. ROQUE, Jr. v. Douglas CROSS, D.D.S.
    NO. 2018-C-1254
    Supreme Court of Louisiana.
    January 14, 2019
    Not considered. See La.S.Ct.R. IX § 6.


text:
    STATE EX REL. Wesley Shane AUSTIN v. STATE of Louisiana
    NO. 2017-KH-1235
    Supreme Court of Louisiana.
    January 14, 2019
    Reconsideration denied.


text:
    STATE EX REL. Torrell BROWN v. STATE of Louisiana
    NO. 2017-KH-2104
    Supreme Court of Louisiana.
    January 14, 2019
    Denied. See State ex rel. Brown v. State, 17-2112 (La. 1/14/19), --- So.3d ----.
   WEIMER, J., recused.


text:
    Derrick PIERRE v. EAST BATON ROUGE PARISH CLERK OF COURT
    NO. 2018-KH-0078
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   WEIMER, J., recused.


text:
    Bobby TERRICK v. STATE of Louisiana
    NO. 2018-KO-0532
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: CLARK, J., would grant.

text:
    Gustave J. LABARRE, Jr., Ramona H. Talbot, Howard J. Dupre, III, Gail D. Boudreaux, Floyd A. Labarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes, Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. Leblanc, Jr., Pierre F. V. Delabarre, Iv, Mary G. Delabarre, Katherine D. Labarre, Andre P.V. Delabarre, Gilbert J. Dupre, Jr., Grant J. Dupre, Grantlyn D. Wheeler, Elena R. Leblanc, Helen H. Shaw, Anita H. Williams, Gertrude L. Landry, Lydia L. Shavers, Merrill L. Cornay, Harry J. Simoneaux, Sr., Harry J. Simoneaux, Jr., Amy Simoneaux, Lyle T. Simoneaux, Joie A. Simoneaux, Simone S. Lawson, Christopher A. Simoneaux, Gregory J. Dupre, Augusta L. Riffert, Albert H. Leblanc, Jr., Maria Carmen Delabarre, Lizaeraga Enterprises, LLC v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2018-CC-1617
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   CLARK, J., would grant.

HUGHES, J., would grant.

CRICHTON, J., would grant.


text:
    George M. GILMER, Jr. v. PRINCIPLE ENERGY, L.L.C., F/K/A Regal Energy, L.L.C., and Classic Production Services; Inc.
    NO. 2018-01775
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


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

text:
    Mae Lee RUCKER, Benny S. M. Rucker, Marcus I. L. Rucker, Latrice Rucker Young, Kimberlyn Rucker Belone, and Albert T.K. Rucker v. PARISH OF ASCENSION
    NO. 2018-C-1704
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   JOHNSON, C.J., would grant.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Frank J. DANIELS, Charles Larvinette and Frank Morrison
    NO. 2018-KD-1779
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   HUGHES, J., would grant.


text:
    HANOVER INS. CO., et al. v. RICELAND AVIATION, INC., et al.
    United States Aircraft Ins. Group, et al. v. Global Tower, LLC, et al.
    NO. 2018-CC-1847
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Jacob JOHNSON v. Daryl PURPERA, Individually and in His Official Capacity as Louisiana Legislative Auditor, State of Louisiana, Through Louisiana Legislative Auditor
    WO. 2018-CC-1845
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    Towanda M. SAVOY v. The STANDARD FIRE INS. CO., et al.
    NO. 2018-CC-1816
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Larry LEWIS, Jr., Appellant
    No. 52,367-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT, By: Sherry Watters, Counsel for Appellant
    JOHN F. K. BELTON, District Attorney, TRACY WAYNE HOUCK, WILLIAM KYLE GREEN, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   GARRETT, J.

The defendant, Larry Lewis, Jr., was convicted of four counts of molestation of a juvenile and was sentenced to serve 20 years at hard labor on each count, to be served concurrently. He appealed his convictions and sentences. For the following reasons, we affirm.

FACTS

The victim in this matter is AA. AA's mother is legally blind and managed a trailer park. She employed Lewis to work at her business, to help with matters around the house, and to drive for her and AA. Lewis and AA's mother had a sporadic intimate relationship. The victim's mother invited Lewis to live in her home in order to make it easier for him to drive her and AA to work and school.

Lewis began molesting AA on November 22, 2012, and continued until December 10, 2012. Lewis and AA would watch television in the living room, in the dark, under a blanket. On November 22, 2012, while watching a scary movie, Lewis began touching AA, and then engaged in sexual intercourse with her. Over the next couple of weeks, three more instances of molestation occurred, all on the couch in the dark living room. AA's date of birth is December 3, 1998. She was 13 years old during the first two offenses and 14 during the second two offenses. Lewis's date of birth is February 11, 1977. He was 35 years old when the offenses were committed.

In December 2012, a school friend, Morgan Thompson, noticed a hickey on AA's neck. AA told Thompson that Lewis had given her the hickey. Thompson reported this information to school authorities. Law enforcement officials were contacted and an investigation was commenced. AA told investigators with the Union Parish Sheriff's office that she had sexual contact with Lewis on four occasions. Lewis was arrested, and on August 15, 2014, he was charged by bill of information with four counts of molestation of a juvenile, violations of La. R.S. 14:81.2. He was tried by a jury in February 2018, and was found guilty as charged on all four counts. On May 15, 2018, the trial court sentenced Lewis to serve 20 years at hard labor on each count, with the sentences to be served concurrently. In open court, Lewis signed an acknowledgment of receipt of the sex offender registration and notification requirements. No motion to reconsider the sentence was filed. Lewis appealed his convictions and sentences.

JURY INSTRUCTION

Lewis argues that the trial court erred in failing to define for the jury the element in the molestation statute of "a position of control or supervision over the juvenile." This argument is without merit.

Legal Principles

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La. C. Cr. P. art. 801(C). See State v. Washington , 51,818 (La. App. 2 Cir. 4/11/18), 245 So.3d 1234 ; State v. Barron , 51,491 (La. App. 2 Cir. 8/9/17), 243 So.3d 1178, writ denied , 17-1529 (La. 6/1/18), 243 So.3d 1063.

The rule requiring contemporaneous objection serves two purposes: it prevents a defendant from withholding objections to errors which might have been corrected at trial, with the intention of resorting to such errors on appeal; and it promotes judicial efficiency. State v. Matthews , 50,838 (La. App. 2 Cir. 8/10/16), 200 So.3d 895, writ denied , 16-1678 (La. 6/5/17), 220 So.3d 752.

Discussion

Lewis argues that the jury was not properly instructed as to the meaning of the element in the offense of molestation of a juvenile requiring proof that the offense was committed by the use of influence by virtue of a position of control or supervision over the juvenile. The charge read to the jury included the definition and elements of molestation of a juvenile and indecent behavior with a juvenile. The jury verdict form listed the possible verdicts as: (1) guilty of molestation of a juvenile with control or supervision; (2) guilty of molestation of a juvenile without control or supervision; (3) guilty of attempted molestation of a juvenile; (4) guilty of indecent behavior with a juvenile; (5) guilty of attempted indecent behavior with a juvenile; (6) not guilty. During the course of the deliberations, the jury requested that the court explain the difference between molestation of a juvenile with control and supervision and indecent behavior with a juvenile. The trial court again read the definition of "molestation of a juvenile with control or supervision." The jury was asked if that answered the question. The jury foreman said, "Yes." The trial court then read the definition of indecent behavior with a juvenile. The jury was again asked if that answered the question. The foreman replied that it did. The jury then returned to its deliberations.

No objection was made to the instructions read to the jury before deliberations or in response to the jury's question. There was no indication that the jury was confused by the instructions. Due to the failure to make a contemporaneous objection to the instructions given, Lewis is not entitled to raise this issue on appeal. However, the record shows that the jury instructions given were sufficient and correct.

SUFFICIENCY OF THE EVIDENCE

Lewis asserts that the state failed to prove beyond a reasonable doubt that he exercised supervision or control over AA, and therefore, he should only have been convicted of a lesser grade of molestation or of indecent behavior with a juvenile. This argument is without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 16-1479 (La. 5/19/17), 221 So.3d 78 ; State v. Minor , 52,091 (La. App. 2 Cir. 9/26/18), 254 So.3d 1278, 2018 WL 4610809.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robinson , supra ; State v. Minor , supra . The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , supra ; State v. Moss , 48,289 (La. App. 2 Cir. 11/20/13), 127 So.3d 979, writ denied , 13-2975 (La. 8/25/14), 147 So.3d 697 ; State v. Minor , supra .

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by defendant. State v. Terry , 47,425 (La. App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied , 12-2759 (La. 6/28/13), 118 So.3d 1096.

The pertinent portions of La. R.S. 14:81.2, defining the offense of molestation of a juvenile applicable to this case, are set forth above. The essential elements of the crime of molestation of a juvenile, each of which the prosecution must prove beyond a reasonable doubt, are: (1) the accused was over the age of 17; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of 17; (3) the accused was more than two years older than the victim; (4) the accused had the specific intent to arouse or gratify either the child's sexual desires or his or her own sexual desires; and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile. La. R.S. 14:81.2 ; State v. LeBlanc, 506 So.2d 1197 (La. 1987) ; State v. Wilson , 50,418 (La. App. 2 Cir. 4/6/16), 189 So.3d 513, writ denied , 16-0793 (La. 4/13/17), 218 So.3d 629 ; State v. Terry , supra .

The harsher penalty provision for molestation of a juvenile where the offender has control or supervision over a juvenile exists because an offender who has control or supervision over a juvenile is in a position of trust. State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 15-2291 (La. 4/4/16), 190 So.3d 1203. The meaning of the phrase, "influence by virtue of a position of control or supervision," in La. R.S. 14:81.2 is "not restricted in its application to persons to whom the parent entrusts the child for care, usually for a fee, such as babysitters, child care workers or teachers." State v. Shelton , 545 So.2d 1285 (La. App. 2 Cir. 1989), writ denied , 552 So.2d 377 (La. 1989) ; State v. Onstead, 03-1413 (La. App. 5 Cir. 5/26/04), 875 So.2d 908 ; State v. Dale , supra . Rather, the statute permits finding evidence of supervision or control by noncustodial parents, relatives, friends and neighbors of young victims. State v. Dale , supra . Living in the home with the victim, acting as a father-figure to the victim, and exercising emotional control over the victim have been found to be sufficient to support a finding of supervision or control. See State v. Roy , 2015-515 (La. App. 3 Cir. 11/4/15), 177 So.3d 1103.

Louisiana courts consider the following factors when making a determination as to whether a defendant used influence by virtue of his position of supervision or control over the victim: (1) the amount of time the defendant spent alone with the victim; (2) the nature of the relationship between the victim and the defendant; (3) the defendant's age; and (4) the defendant's authority to discipline. State v. Dale , supra , citing Burton v. Cain , No. CIV.A. 11-1781, 2012 WL 5966532 (E.D. La. Aug. 21, 2012), report and recommendation approved , No. CIV.A. 11-1781, 2012 WL 5960197 (E.D. La. Nov. 28, 2012) ; State v. Pittman , 51,602 (La. App. 2 Cir. 4/11/18), 244 So.3d 830.

Discussion

The victim's mother testified that she has had vision problems since 2000, and stopped driving that year. She moved into the dwelling where these offenses occurred in 2007. Lewis was a friend who drove for her and worked for her. They had sexual relations on several occasions, but were not involved in a relationship. Lewis moved into the residence in July or August 2012, because it was easier for him to drive AA and her mother to school and work if he was already at the house in the mornings. Lewis drove the victim's mother to work and dropped AA off at school. He picked AA up at school in the afternoons and would either take her to her mother's work or would take her home and stay with her until the victim's mother was driven home by her father, AA's grandfather.

According to the victim's mother, Lewis disciplined AA, would get onto her about her clothing, once told AA that her pants were too tight, and told AA where she could and could not go. Lewis directed AA to do her chores and woke the child up in the morning most of the time.

The victim's mother said that she has no vision at night and Lewis moved the only DVD player in the house from the den into the living room. The living room had no lights and had a smaller television. According to the witness, this made it easier for Lewis to lure AA into the living room without attracting attention. Further, the victim's mother would not be able to see what was happening in the room.

The victim's mother testified that AA formed an emotional attachment to Lewis and stole prescription drugs from her grandfather at Lewis's behest. The victim's mother said she heard AA and Lewis planning a hunting trip so they could be alone together.

AA testified that her mother has no night vision, only limited central vision, and is color blind. When these offenses occurred in 2012, AA was in the seventh grade. AA said that Lewis was hired to drive for her and her mother. Lewis picked AA up from school and either drove her home or to her mother's work. Lewis eventually moved in with them. AA said that Lewis disciplined her. Lewis made sure that AA did her chores and told her what she could wear and where she could go. AA said she did not feel like she could disobey Lewis. According to AA, Lewis took on some of the parental responsibilities for her.

Around the start of the school year, AA said Lewis pulled her aside and told her that, if she was going to have a relationship with any boys at school, she should come to him for advice and protection. AA thought this was unusual.

AA said that the living room was more secluded than the den and she thought it was unusual when Lewis moved the DVD player to the living room. On the evening of the first offense, AA and Lewis were watching a scary movie. AA testified that Lewis told her to come lie on the couch with him so he could "comfort" her. It was around midnight and her mother was asleep in her room. Both AA and Lewis were wearing pajamas. AA said that Lewis put his hand under her shirt and then took her pants off. He took his pants off also, and, according to AA, "He had sex with me." Forensic questioning of AA showed that this was, in fact, vaginal intercourse. AA said that Lewis's head was facing toward her mother's room so he could hear if she got up. AA was 13 when this offense occurred.

The second time Lewis had intercourse with AA, she was still 13 and he followed the same procedure. The third offense occurred after AA turned 14. Lewis and AA performed oral sex on each other. The fourth offense involved sexual intercourse. In connection with all four offenses, Lewis gave AA beer to drink. There were also indications that AA was given Lortab, which Lewis had directed her to steal from her grandfather. AA said that the offenses occurred in the living room between midnight and four in the morning.

On one occasion, a neighbor and family friend, Raymond Johnson, came to the house and walked in the back door unannounced, as was his custom. AA and Lewis were on the couch covered up with a blanket. AA said they were not having sex at that time. Lewis became angry at Johnson for entering the house without knocking. Johnson told the victim's mother about the incident the next day.

At some point, AA told Lewis that she was going to tell a friend about what had been happening and he became angry. AA did tell friends at school about her activities with Lewis. Another friend, Morgan Thompson, inquired about a hickey on AA's neck and she told Thompson that Lewis had given her the hickey. When sheriff's deputies came to the house to investigate, Lewis became angry and told AA not to talk to them. The deputies eventually asked Lewis to leave the house. When the investigation began, AA had been suspended from school when she was discovered to be in possession of the drugs stolen from her grandfather.

Thompson testified that, in 2012, she attended school with AA. One day, AA took a scarf off her neck in the bathroom, revealing a hickey. Thompson asked where it came from and AA told her that Lewis did it. Thompson knew that Lewis was a caretaker for AA and her mother. Thompson went to the school counselor with the information and the counselor alerted the principal.

Darien Brown, a deputy with the Union Parish Sheriff's office, investigated these offenses. On the evening of December 12, 2012, they received information about the offenses and went to the home of AA's mother. AA, her mother and Lewis were at the house. The deputy photographed the hickey on AA's neck. Lewis was belligerent and was asked to go to another room in the house. He would not stay in the room and was asked to leave the residence.

The next day, AA was taken to Pine Hills Advocacy Center in Ruston for a forensic interview. The interview was conducted by Joanie Huffman, a Lincoln Parish Sheriff's deputy trained in forensic interviews of children. A video of the interview was played for the jury. The information given by AA during the interview was consistent with her testimony given in court. AA said she told two friends about her activities with Lewis.

A recording of an interview with Thompson made at the time of the investigation was also played for the jury. Thompson said that friends told her that AA had been having sex with Lewis, and Thompson asked AA about the hickey she observed on AA's neck. Thompson said she understood that Lewis was the caretaker and driver for AA and her mother due to the mother's limited vision.

Lewis cites several cases to argue that there was insufficient evidence of supervision or control in this case to support his conviction of molestation of a juvenile. The cases cited by Lewis are distinguishable from the facts presented here and do not support his argument.

In State v. Graham , 2014-1801 (La. 10/14/15), 180 So.3d 271, the defendant was charged with aggravated incest. The victim was thought to be the defendant's step-sibling. During the trial, it became apparent that the defendant and the victim were not step-siblings at the time of the alleged offense because their parents were not yet married. The trial court erroneously permitted the state to add molestation of a juvenile as a responsive verdict and the jury convicted the defendant of that offense. The Louisiana Supreme Court found that molestation of a juvenile was not a responsive verdict to incest, and there was no evidence that the defendant ever exercised supervision or control of the victim. Therefore, the elements of molestation of a juvenile were not proved. The conviction was reversed.

In State v. Forbes , 97-1839 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, the defendant was a visitor in the home of the victim's grandmother. He was convicted of attempted molestation of a juvenile with control or supervision of the juvenile. However, there was no showing that the defendant ever exercised any control or supervision over the juvenile. On appeal, the conviction was modified to attempted indecent behavior with a juvenile.

In State v. Ragas , 607 So.2d 967 (La. App. 4 Cir. 1992), writ denied , 612 So.2d 97 (La. 1993), the defendant was convicted of two counts of attempted molestation of a juvenile. The first conviction was reversed because there was no showing of a lewd or lascivious act. The second count was modified to attempted indecent behavior with a juvenile because there was no showing that the defendant exercised supervision or control over the victim. The defendant was the victim's uncle, the victim did not live in his house, the defendant was not keeping the victim on the day of the offense, the victim was not subject to the uncle's supervision and was not under any constraints to stay at his house.

In this case, the record is replete with evidence that Lewis exercised supervision and control over AA. Both AA and her mother testified to the actions taken by Lewis which showed that he did exercise supervision and control over AA. He woke AA up most mornings, instructed her to do her chores, told her what to wear, and told her where she could and could not go. Lewis drove AA home from school many evenings and stayed there with her until the victim's mother arrived. The victim's mother testified that Lewis disciplined AA. Further, Lewis instructed AA to steal drugs from her grandfather and she complied. We also note that the offenses began when Lewis instructed AA to lie on the couch with him so he could comfort her during a scary movie and the child complied with his instructions. These factors show that Lewis was a father-figure to AA. Due to the amount of time Lewis spent alone with the victim, Lewis's relationship with AA of being a father-figure, Lewis's age of 35, making him old enough to be the victim's father, and his authority to discipline AA, the state provided ample evidence of Lewis's supervision and control over AA.

EXCESSIVE SENTENCE

Lewis argues that his maximum sentences of 20 years at hard labor are excessive for a 41-year-old first felony offender. This argument is without merit.

Legal Principles

In this matter, no motion to reconsider the sentences was filed. Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court's compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. However, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims , 619 So.2d 1059 (La. 1993) ; State v. Bailey , 50,097 (La. App. 2 Cir. 9/30/15), 180 So.3d 442 ; State v. Osborne , 48,662 (La. App. 2 Cir. 1/15/14), 130 So.3d 1012. See also La. C. Cr. P. art. 881.1(E), which precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. State v. Pittman , 52,027 (La. App. 2 Cir. 4/11/18), 248 So.3d 573.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Davis , 50,149 (La. App. 2 Cir. 11/18/15), 181 So.3d 200 ; State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 17-0353 (La. 11/13/17), 229 So.3d 478 ; State v. Pittman , supra .

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Little , 50,776 (La. App. 2 Cir. 8/10/16), 200 So.3d 400, writ denied , 16-1664 (La. 6/16/17), 219 So.3d 341 ; State v. Minor , supra .

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cotten , 50,747 (La. App. 2 Cir. 8/10/16), 201 So.3d 299. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Duncan , 47,697 (La. App. 2 Cir. 1/16/13), 109 So.3d 921, writ denied , 13-0324 (La. 9/13/13), 120 So.3d 280. The trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ; State v. Bailey , supra . On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , supra ; State v. Minor , supra .

The applicable penalty provision for La. R.S. 14:81.2 reads as follows:

B. (2) Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile , shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both. The defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893. [Emphasis supplied.]

Discussion

Prior to sentencing, the trial court ordered a presentence investigation which was reviewed prior to imposing sentence. The court noted that Lewis was a first felony offender, but he had been arrested for possession of methamphetamine, possession of Lortab, and possession of drug paraphernalia. The charges were dismissed in 2004, after the defendant completed a pretrial diversion program. The court observed that, in the present offense, Lewis "introduced drugs into the equation" during his illicit activities with the victim.

The trial court was aware that, in cases involving first offenders, concurrent sentences should be imposed particularly where the convictions arise out of the same course of conduct. The court observed that Lewis was placed in a position of trust and authority over the victim by a visually impaired mother and he used that position to prey upon the young victim who was under his supervision and control. The court stated that Lewis violated his sacred obligation to protect and guide the victim appropriately. According to the trial court, Lewis violated and betrayed the mother's faith and trust and exploited the weak and vulnerable for his own personal gratification.

The trial court read from a letter submitted by AA outlining the devastating impact these offenses had on her life. She stated that she was bullied at school by Lewis's daughter, who was several years older than her. The daughter sent boys to AA who offered to pay her for sex. Lewis's molestation of AA damaged the child's relationship with her mother. AA cut herself with a box cutter, was reluctant to attend school, and started taking Lortab, which Lewis had introduced her to. AA continued to steal this medication from her grandfather. At one point she described overdosing on the drugs and stated she had developed bulimia.

The trial court noted that Lewis has shown no remorse for these offenses, even though he was convicted by a unanimous jury. The court found that Lewis was in need of a custodial environment and any lesser sentence than that imposed would deprecate the seriousness of the offense. The court ordered that Lewis serve 20 years at hard labor on each offense, with the sentences to be served concurrently.

Lewis argues that, although he is a first felony offender, he received the maximum sentences for the offenses. He contends that maximum sentences are reserved for the worst offenders and the worst offenses. He maintains that neither of these factors are present here.

We find that the trial court appropriately considered Lewis's lack of remorse, his prior arrests involving drugs, the use of drugs in the commission of these offenses, and the devastating impact the offenses had on the victim and her relationship with her mother.

Given the level of the breach of trust involved in taking advantage of the blindness of the victim's mother and the profound negative impact of these offenses on the victim, we do not find that the trial court abused its discretion in the sentences imposed. The sentences do not shock the sense of justice.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Larry Lewis, Jr.

AFFIRMED.

      To protect the privacy of the victim, she will be referred to by her initials, pursuant to La. R.S. 46:1844(W).

      The pertinent portion of La. R.S. 14:81.2, defining the offense of molestation of a juvenile, provides as follows:
      A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile . Lack of knowledge of the juvenile's age shall not be a defense. [Emphasis supplied.]

      Lewis points out that his appeal was technically premature because the order of appeal was entered before sentencing. However, he contends that the appeal should not be dismissed for this reason. We agree. See State v. Goodley , 2016-512 (La. App. 3 Cir. 12/7/16), 209 So.3d 130, writ denied , 17-0147 (La. 9/22/17), 227 So.3d 822 ; State v. Brown , 16-301 (La. App. 5 Cir. 12/7/16), 205 So.3d 1032, writ denied , 17-0163 (La. 9/29/17), 227 So.3d 283.