text:
    HEMPSTEAD MARINE, INC., Appellant, v. R AND I SHIPPING LINE, LLC, etc., Appellee.
    Nos. 3D17-1161 & 3D17-1155
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Boldt Law Firm and Mario R. Giommoni, Ryan C. Tyler, Cody L. Frank and Kimberly L. Boldt (Boca Raton); Hoffman & Hoffman and John D. Hoffman, Miami, for appellant.
    Xander Law Group, P.A., and Wayne R. Atkins, Miami, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004) ("Generally, where the parties acknowledge creation of a contract and the disagreement concerns their varying understandings about certain terms, such questions are properly submitted to a jury."); Pan American Bancshares, Inc. v. Trask, 278 So.2d 313, 314 (Fla. 3d DCA 1973) (when parties to an oral contract dispute their "understanding as to certain terms," the question is "properly submitted to the jury.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TRANSPORTATION SERVICES, INC. and Carrier Equipment, Inc., Appellants, v. SEABOARD MARINE LTD., Appellee.
    No. 3D17-1682
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Aponte Law and Darren R. Aponte, for appellants.
    Blanck & Cooper and Jonathan S. Cooper, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   PER CURIAM.

Defendants/counter-plaintiffs/appellants, Transportation Services, Inc., and Carrier Equipment, Inc., have appealed an order in favor of plaintiff/counter-defendant/appellee, Seaboard Marine Ltd., captioned "Final Judgment for Counterdefendant Seaboard Marine." That order granted Seaboard Marine's motion for summary judgment on the appellants' counterclaims, dismissing those counterclaims, and concluding that the appellants "shall take nothing by this suit and [the appellee] shall go hence without day." The order did not address or dispose of the appellee's still-pending claims as plaintiff against the appellants; those claims and the appellants' counterclaims arose from the same transactions and occurrences.

We issued an order to the parties to show cause why the order on appeal should not be reversed to exclude the purported words of finality, "go hence without day," without prejudice to the rights of the parties to appeal when both the claims and counterclaims have been fully adjudicated, citing Haven Center, Inc. v. Meruelo, 22 So.3d 849, 850 (Fla. 3d DCA 2009). No responses were filed.

We reverse the order sought to be appealed, and remand the case for the deletion from the order of the phrase "go hence without day." The reversal does not disturb the trial court's decision to grant the appellee's motion for summary judgment on the counterclaim, and is without prejudice to the rights of the parties to appeal when the claims and counterclaims have been fully adjudicated.

Reversed and remanded for further proceedings.


text:
    Moises HERNANDEZ, Petitioner, v. MIAMI-DADE COUNTY, Respondent.
    No. 3D17-1364
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Law Office of Leslie Holland, and Leslie Holland, for petitioner.
    Abigail Price-Williams, Miami-Dade County Attorney, and William X. Candela, Assistant County Attorney, for respondent.
    Before ROTHENBERG, C.J., and LAGOA, and LINDSEY, JJ.
   PER CURIAM.

Petitioner, Moises Hernandez, brought this case as an appeal from the circuit court appellate division's per curiam affirmance of the Miami-Dade County Mayor's decision dismissing Petitioner from his employment with the County based on the findings and recommendations of a hearing officer following a civil service hearing conducted pursuant to Section 2-47 of the Miami-Dade County Code. We treat the appeal as a petition for second-tier certiorari review. See Fla. R. App. P. 9.030(b)(2)(B).

As such, we are limited to a determination of whether Petitioner has demonstrated a violation of a clearly established legal principle that resulted in a miscarriage of justice. See Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla. 2003). In considering the evidence in the record, we find he has not and, therefore, deny the petition.

PETITION DENIED.


text:
    Anthony ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1299
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SUAREZ, LUCK, and LINDSEY, JJ.
   PER CURIAM.

Anthony Rogers appeals from his conviction and sentence pursuant to a finding of violation of probation. Both parties agree that, because the trial court did not issue a written order of violation of probation stating the evidence and grounds for revocation, the case must be remanded with directions to render a written order of probation.

We therefore remand to the trial court solely to provide a written order of violation of probation that contains the evidence and grounds necessary to support revocation of Rogers' probation.

Remanded with instructions.


text:
    Martha PAREDES and Jose Antonio Paza, Appellants, v. WHOLE FOODS MARKET GROUP, INC., Appellee.
    No. 3D17-1290
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018.
    Philip D. Parrish, P.A., and Philip D. Parrish ; Simon Trial Firm, and Ronald M. Simon, Ronald M. Simon, Miami, for appellants.
    Law Offices of Charles M-P George, and Charles M-P George ; Chartwell Law Offices, and William H. Edwards, Miami, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Appellants, plaintiffs below, Martha Paredes and Jose Antonio Paza, appeal a final summary judgment entered in favor of Whole Foods Market Group, Inc. Because the record reveals the existence of genuine issues of material fact on the issue, we reverse the portion of the summary judgment that found Whole Foods had no constructive knowledge of an alleged transitory substance upon which Ms. Paredes fell while shopping at Whole Foods. We affirm, however, the trial court's denial of appellants' requested negative inference instruction based on appellants' spoliation of evidence claim.

Affirmed in part, reversed in part, remanded for further proceedings.


text:
    Rodney H. HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-240
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Rodney H. Holmes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

On January 24, 2018, this Court issued an opinion affirming the trial court's denial of Appellant Rodney H. Holmes's petition for writ of habeas corpus. Our January 24, 2018 opinion contained an order to show cause why Holmes should not be prohibited from filing with this Court any further pro se appeals, petitions, motions or other pleadings related to his life sentence for attempted first degree murder, attempted robbery, and attempted burglary with an assault (the charges enhanced due to the use of a firearm) in lower tribunal case number 01-18524A. The record indicated that Holmes had filed ten post-conviction motions, petitions or appeals in this Court.

Our order to show cause provided Holmes with a response period of forty-five days. Holmes has not filed a response. Accordingly, we conclude that Holmes has not demonstrated good cause to justify further pro se filings of appeals, petitions, motions or other pleadings with this Court in lower tribunal case number 01-18524A.

After notice in the form of an order to show cause and an opportunity for the incarcerated person to respond, a court may prevent further filings. State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). We recognize that the access to courts provision of the Florida Constitution-Article I, section 21 -provides an avenue for an incarcerated person to challenge the legal basis for his or her incarceration; however, this constitutional right may be forfeited if he or she abuses the judicial process. Jimenez v. State, 196 So.3d 499, 501 (Fla. 3d DCA 2016).

We direct the Clerk of the Third District Court of Appeal to refuse to accept from Holmes any further pro se filings related to circuit court case 01-18524A; provided, however, that the Clerk may accept filings if they have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

Any further and unauthorized pro se filings by Holmes will subject him to sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for consideration by it for disciplinary action, pursuant to section 944.279(1) of the Florida Statutes.

Order issued.

      Holmes v. State, No. 3D17-240, 245 So.3d 857, 2018 WL 522190 (Fla. 3d DCA Jan. 24, 2018). On February 8, 2018, Holmes filed a motion for rehearing and rehearing en banc , which this Court denied on March 7, 2018.


text:
    T.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1854
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

Affirmed. See § 776.051(1), Fla. Stat. (2017) (providing that a person "is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer"); Polite v. State, 973 So.2d 1107, 1117 (Fla. 2007) (observing that section 776.051(1) abrogates the common law right in Florida to resist an illegal arrest with force, and "forecloses the defense of justifiable use of force by a defendant who resists an arrest by a law enforcement officer") (quoting Tillman v. State, 934 So.2d 1263, 1269 (Fla. 2006) ); M.H. v. State, 936 So.2d 1 (Fla. 3d DCA 2006) (holding criminal mischief is not a specific intent crime, but requires proof of an act that "is willful (intentional) and wrongful (with evil intent that injury or damage will or may be caused)"); Mosher v. State, 750 So.2d 120 (Fla. 3d DCA 2000) (observing: "It is a well-established principle of law that the issue of felonious intent or state of mind of the defendant is generally a jury question that, in most instances, cannot be ascertained by direct proof, but must be inferred from the surrounding circumstances"). See also Crain v. State, 894 So.2d 59, 71 (Fla. 2004) (observing: "[T]he weight of the evidence and the witnesses' credibility are questions solely for the jury. It is not this Court's function to retry a case or reweigh conflicting evidence submitted to the trier of fact").


text:
    Phyllis MURO, etc., Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellees.
    No. 3D17-1765
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Burlington & Rockenbach, P.A., and Bard D. Rockenbach (West Palm Beach); Schlesinger Law Offices, P.A., and Jonathan Gdanski (Fort Lauderdale) and Brittany Chambers (Fort Lauderdale), for appellant.
    King & Spalding LLP, and William L. Durham II (Atlanta, GA), and Val Leppert (Atlanta, GA); Shook, Hardy & Bacon LLP, and Frank Cruz-Alvarez ; Arnold & Porter Kaye Scholer LLP, and Geoffrey J. Michael (Washington, DC), for appellees.
    Before EMAS, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Hall v. R.J. Reynolds Tobacco Co., 118 So.3d 847, 848 (Fla. 3d DCA 2013) (concluding: "In short, this is an Orange County case which belongs in Orange County") (citing Della-Donna v. Gore Newspaper Co., 390 So.2d 87, 87-88 (Fla. 3d DCA 1980) (concluding: " 'In sum, this is a Broward County case, which belongs in Broward County") (additional citations omitted) ).


text:
    Kenia LABRADA, Appellant, v. Humberto QUINTERO, et al., Appellees.
    No. 3D17-859
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Kenia Labrada, in proper person.
    Cristobal D. Padron & Associates, P.A. and Cristobal D. Padron, Hialeah; Pamela Jo Bondi, Attorney General, and Toni C. Bernstein (Tallahassee), Senior Assistant Attorney General, for appellees.
    Before FERNANDEZ, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory.").


text:
    U.S. BANK, N.A., etc., Appellant, v. WESTERN HOMES, LLC, Appellee.
    No. 3D15-2667
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Quarles & Brady LLP, and Benjamin B. Brown, and Joseph T. Kohn (Naples), for appellant.
    Wesoloski Carlson, P.A., and Erik Wesoloski, Miami, for appellee.
    Before ROTHENBERG, C.J., and LUCK, and LINDSEY, JJ.
   PER CURIAM.

In this foreclosure case, U.S. Bank, N.A., Successor Trustee to Bank of America, N.A., Successor in Interest to Lasalle Bank N.A., as Trustee, on behalf of the Holders of the WAMU Mortgage Pass-Through Certificates, Series 2007-OA2 ("U.S. Bank"), appeals the September 28, 2015 final summary judgment entered in favor of Western Homes, LLC, et al. ("Western Homes") and the November 3, 2015 order denying U.S. Bank's motion for rehearing.

The transcripts of the summary judgment hearing demonstrate that the trial court, in agreement with the arguments raised in Western Homes' motion for summary judgment, found that U.S. Bank's foreclosure action was barred by the statute of limitations based on this Court's then-current panel decision in Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014), opinion withdrawn and superseded on reh'g en banc, 188 So. 3d 938 (Fla. 3d DCA 2016).

However, while U.S. Bank's appeal was pending, this Court withdrew the Beauvais panel opinion and substituted an en banc opinion in its place. See Beauvais, 188 So.3d at 955 (Fla. 3d DCA 2016), review denied sub nom. Aqua Master Ass'n, Inc. v. Deutsche Bank Nat'l Tr. Co. Ams., --- So.3d ----, 2018 WL 1136530, at *1 (Fla. Mar. 2, 2018). As in Wilmington Trust, N.A. v. Alvarez, 239 So.3d 1265 (Fla. 3d DCA 2018), we reverse the final summary judgment and remand this cause to the trial court for further consideration in light of our Beauvais en banc opinion.

REVERSED AND REMANDED.


text:
    Paul Emmanuel KNIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1058
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 12, 2018
    Paul Emmanuel Knight, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Perry v. State, 637 So.2d 988 (Fla. 1st DCA 1994).

ORFINGER, BERGER and LAMBERT, JJ., concur.


text:
    Earvin SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1635
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, SCALES, LUCK and LINDSEY, JJ.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   PER CURIAM.

This case returns to us from the Florida Supreme Court, which quashed that portion of our earlier decision reversing Smith's conviction and sentence for armed burglary. See State v. Smith, 241 So.3d 53 (Fla. 2018). In accordance with the Florida Supreme Court's opinion and pursuant to its mandate, we reinstate and affirm Earvin Smith's conviction and sentence for armed burglary.

      Smith v. State, 211 So.3d 176 (Fla. 3d DCA 2016). We stayed the issuance of our mandate pending review by the Florida Supreme Court.


text:
    Andre I. DUNBAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-420
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    Andre I. Dunbar, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Andre Dunbar appeals the summary denial of Ground Five of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Dunbar's claim that counsel was ineffective for failing to call alibi witness, Aubrey Lyman, to testify at trial, we reverse the summary denial of Ground Five and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, BERGER and EDWARDS, JJ., concur.


text:
    Alan Wayne DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3250
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Alan Wayne Davis, Altamonte, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court's order determining that Davis violated his probation. However, we remand for a correction of a scrivener's error so that the costs order, rendered after the probation hearing, properly reflects that the trial court had previously assessed a $100 public defender's fee and $100 for prosecution costs.

AFFIRMED. REMANDED for correction of scrivener's error.

PALMER, EVANDER and EDWARDS, JJ., concur.


text:
    Manolo MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2461
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    Rupak R. Shah, of Escobar & Associates, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Manolo Martinez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two, Three, and Four. However, because the record does not conclusively refute Martinez's claim that counsel was ineffective for failing to file a motion to suppress the wiretap of his phone conversations, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting that claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, BERGER and LAMBERT, JJ., concur.


text:
    Jaquaries JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4338
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    James S. Purdy, Public Defender, and Brittany N. O'Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm. However, we remand for the trial court to enter corrected sentencing documents granting Appellant a twenty-year sentencing review pursuant to section 921.1402(2)(d), Florida Statutes (2016). See Barnes v. State , 175 So.3d 380 (Fla. 5th DCA 2015).

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

TORPY, EDWARDS and EISNAUGLE, JJ., concur.


author: Per Curiam.

text:
    Branden J. BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1466
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Branden J. Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is dismissed for lack of jurisdiction. See Landmark at Crescent Ridge LP v. Everest Fin., Inc., 219 So.3d 218, 219 (Fla. 1st DCA 2017) (explaining that where the threshold requirement of irreparable harm is not established, the petition for writ of certiorari must be dismissed).

Wolf, Jay, and Winsor, JJ., concur.


text:
    Brian Allen CRAIG, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5060
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm the revocation of the Appellant's probation and the resulting sentence, but we remand for correction of a scrivener's error. The trial court orally awarded credit for time served, but the sentencing documents do not reflect that award. The court should correct the written documents to comport with the oral pronouncement. See Powell v. State , 223 So.3d 412, 414 (Fla. 5th DCA 2017) (affirming the defendant's convictions and sentences, but remanding for the correction of a scrivener's error where the written sentence did not comport with the oral pronouncement of sentence).

AFFIRMED and REMANDED for correction of a scrivener's error.

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


text:
    Dale C. DANIELS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1471
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Dale C. Daniels, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied. See Fla. R. App. P. 9.141(c)(5)(A).

Wolf, Jay, and Winsor, JJ., concur.


text:
    Sammie Lee STALLWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1405
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Sammie Lee Stallworth, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as successive.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Kerontae D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2945
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See West v. State , 22 So.3d 797, 798 (Fla. 1st DCA 2009) (holding that motions for out-of-state jail credit must be raised under Fla. R. Crim. P. 3.850 ).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Deandes YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1042
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Deandes Young, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Gary C. QUILLING, Petitioner, v. Julie L. JONES, Secretary, Florida Dept. of Corrections, Respondent.
    No. 1D18-1693
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Gary C. Quilling, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    William D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0581
    District Court of Appeal of Florida, First District.
    June 20, 2018
    William D. Williams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Christ v. Christ , 103 So.3d 1056 (Fla. 1st DCA 2013).

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


text:
    Ira Demetrius MCPHERSON, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-2192
    District Court of Appeal of Florida, First District.
    June 21, 2018
    Ira Demetrius McPherson, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Terrance J. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2371
    District Court of Appeal of Florida, First District.
    June 21, 2018
    Terrance J. Edwards, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Eric BRADHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0503
    District Court of Appeal of Florida, First District.
    June 20, 2018
    Eric Bradham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

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


text:
    Christopher A. MORRISSEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1391
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Christopher Morrissey, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 23, 2017 judgment and sentence rendered in Case No. 2016-CF-007999-A, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and WALLIS, JJ., concur.


text:
    Jennymar PIZARRO-GARCIA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-844
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Jennymar Pizarro-Garcia, Quincy, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 19, 2017 judgments and sentences rendered in Case No. 2016-CF-005744-D-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, WALLIS and EDWARDS, JJ., concur.


text:
    GREEN EMERALD HOMES, LLC., Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CSAB Mortgage-Backed Pass through Certificates, Series 2006-3, Maria A. Adorno, et al., Appellees.
    Case No. 5D18-0299
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Robin I. Frank, of Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, for Appellant.
    Maureen B. Walsh, Sara F. Holladay-Tobias, Emily Y. Rottmann, of McGuirewoods LLP, Jacksonville, for Appellee, U.S. Bank National Association.
    No Appearance for other Appellees.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to Appellee's Confession of Error, we reverse the trial court's January 4, 2018 Order to Make Payments and remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

WALLIS, LAMBERT, AND EDWARDS, JJ., concur.


text:
    Marcus A. UPSHAW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3717
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Marcus A. Upshaw, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Marcus Upshaw appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State properly concedes that one of the issues raised by Upshaw has merit.

In June 2015, Upshaw entered a nolo contendere plea on Count I in case number 2014-CF-002517 to felony petit theft, a third-degree felony. Upshaw was sentenced to six years in prison on that count, the lowest permissible sentence as reflected on his scoresheet. However, as the State acknowledges, the scoresheet was erroneous because it improperly used Upshaw's 2010 aggravated assault with a deadly weapon conviction as the primary offense, rather than as a prior offense. Because a properly calculated scoresheet would yield a lowest permissible sentence on this charge of less than five years, the trial court was precluded from imposing a sentence greater than the five-year statutory maximum. Accordingly, on remand, the trial court is directed to vacate the sentence imposed on Upshaw's felony petit theft conviction in case number 2014-CF-002517 and to resentence him. We find the other issues raised by Upshaw to be without merit.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

COHEN, C.J. and ORFINGER and EVANDER, JJ., concur.


text:
    Jessica Christine RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2941
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm. However, we note that while the trial court announced a sentence on Count V, it failed to enter the corresponding sentencing documents for that count. We therefore remand for entry of sentencing documents on Count V in accordance with the oral pronouncement.

AFFIRMED and REMANDED with instructions.

EVANDER, BERGER and EISNAUGLE, JJ., concur.


text:
    Diana SKORCZ, Appellant, v. WELLS FARGO BANK, N.A., Dustan L. Skorcz, Residences at Lago Buendia Association and Lake Buendia Master Association, Appellees.
    Case No. 5D17-2824
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Tanner Andrews, of Tanner Andrews, P.A., DeLand, for Appellant.
    Sara F. Holladay-Tobias, Emily Y. Rottmann, and C.H. Houston III, of McGuirewoods LLP, Jacksonville, for Appellee, Wells Fargo Bank, N.A.
    No Appearance for other Appellees.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to Wells Fargo Bank, N.A.'s Confession of Error, we reverse the trial court's July 27, 2017 Final Judgment of Foreclosure and remand this matter to the trial court for further proceedings. Appellant's Motion for Attorney's Fees, filed September 19, 2017, is provisionally granted should Appellant ultimately be determined to be the prevailing party below. If so determined, the lower court shall determine and assess reasonable attorney's fees for this appellate court proceeding. See Fla. R. App. P. 9.400(a), (b).

REVERSED and REMANDED.

WALLIS, LAMBERT, and EDWARDS, JJ., concur.


text:
    Jacob HAWKINS, Appellant, v. Jimmy COKER, Appellee.
    No. 1D17-4347
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Jacob Hawkins, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brett Coleman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Mobley v. McNeil , 989 So.2d 1215 (Fla. 1st DCA 2008). In light of the dismissal, Appellant's motion for leave to file an amended brief, filed on May 18, 2018, is denied.

Wolf, Lewis, and Ray, JJ., concur.


text:
    Christan Lamar STARKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5371
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Christan Lamar Starkes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellee's Motion to Dismiss Appeal and Appellant's Response in Opposition, the Court has determined that the appeal must be dismissed because the order on appeal is not among those reviewable by a defendant in a criminal case. Cf. Fla. R. App. P. 9.140(b)(1). Appellee's motion is granted, and the appeal is hereby dismissed.

Wolf, Lewis, and Ray, JJ., concur.


text:
    Dara G. OSTANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3087
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Dara G. Ostane, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, for Appellee.
    ON MOTION FOR REHEARING
   PER CURIAM.

In consideration of Dara Ostane's March 12, 2018 motion for rehearing, we grant the requested relief, withdraw our prior opinion, and substitute this opinion in its stead.

Dara Ostane appeals the trial court's order granting in part and denying in part his "Motion for Resentencing in Compliance with chapter 2014-220, Laws of Florida," filed pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Ostane argues that the trial court erred when it modified his sentence without holding a resentencing hearing. We agree and remand for resentencing.

In 2001, Ostane pled guilty to manslaughter and was sentenced to thirty years in prison, which we affirmed on appeal. See Ostane v. State, 819 So.2d 793 (Fla. 5th DCA 2002). Ostane was seventeen years old at the time of the offense. Based on recent decisions, Ostane is entitled to receive "an opportunity for early release that is meaningful, based on a demonstration of maturity and rehabilitation, and during his or her natural life." Johnson v. State, 215 So.3d 1237 (Fla. 2017) ; see also Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; Morris v. State, 43 Fla. L. Weekly S223 (Fla. May 10, 2018) ; Kelsey v. State, 206 So.3d 5 (Fla. 2016) ; Katwaroo v. State, 237 So.3d 446 (Fla. 5th DCA 2018) ; Montgomery v. State, 230 So.3d 1256 (Fla. 5th DCA 2017) ; Davis v. State, 230 So.3d 487 (Fla. 5th DCA 2017) ; Burrows v. State, 219 So.3d 910 (Fla. 5th DCA 2017) ; Tyson v. State, 199 So.3d 1087 (Fla. 5th DCA 2016).

The trial court correctly held that Ostane was entitled to judicial review. However, the trial court erred when it held that Ostane was not entitled to resentencing. We have stated, "[I]t [is] error for the trial court to amend the sentence to provide for a review hearing without first conducting a resentencing hearing." Katwaroo, 237 So.3d at 447 (citing Davis, 230 So.3d at 487) ; see also Morris, Fla. L. Weekly S223 ; Kelsey, 206 So.3d at 11. Accordingly, we affirm in part, reverse in part, and remand for the trial court to hold a resentencing hearing.

AFFIRMED in Part; REVERSED in Part; and REMANDED.

TORPY, WALLIS and EDWARDS, JJ., concur.


text:
    Franklin Lee JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1688
    District Court of Appeal of Florida, First District.
    June 25, 2018
    Franklin Lee Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

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


text:
    Rosa CARDONA, etc., Appellant, v. CITY OF MIAMI, etc., et al., Appellees.
    No. 3D17-1581
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    The Law Offices of Patrick L. Goss; Russo Appellate Firm, P.A., and Elizabeth Russo and Paulo R. Lima, for appellant.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Christopher A. Green, Assistant City Attorney, for appellee City of Miami.
    Abigail Price-Williams, Miami-Dade County Attorney, and Richard Schevis, Assistant County Attorney, for appellee Miami-Dade County.
    Before LAGOA, FERNANDEZ, and LUCK, JJ.
   PER CURIAM.

Affirmed. See Payne v. Broward County, 461 So.2d 63 (Fla. 1984) ; Dep't of Transp. v. Neilson, 419 So.2d 1071 (Fla. 1982).


author: ROTHENBERG, C.J.

text:
    MYRET, LLC, Appellant, v. GROUP LX, INC., et al., Appellees.
    No. 3D17-768
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    Marva L. Wiley, P.A., and Marva L. Wiley, Hialeah, for appellant.
    Alvarez Barbara, LLP, and Richard L. Barbara and Jose L. Torres, Miami, for appellee Group LX, Inc.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   ROTHENBERG, C.J.

Myret, LLC ("Myret") appeals a final judgment and the trial court's prior orders determining that Group LX, Inc. ("Group LX") is entitled to its attorney's fees and setting the amount of fees. In its appeal, Myret disputes the amount of the fees awarded. However, where, as here, no transcript of the hearing where the amount of the fees was addressed has been provided, and the judgment is not fundamentally erroneous on its face, we must affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) :

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence.
Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

See also Smith v. Orhama Inc., 907 So.2d 594, 596 (Fla. 3d DCA 2005) (holding that without the ability to see what the trial court actually found in reference to the evidence presented below, it is not possible to reverse unless there is fundamental error on the face of the trial court's order); Ahmed v. Travelers Indem. Co., 516 So.2d 40, 40 (Fla. 3d DCA 1987) ("Where there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)(3), a judgment which is not fundamentally erroneous on its face must be affirmed.").

Affirmed.


text:
    Eduardo HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5952
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Charles R. McCoy, Senior Assistant Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

This court previously affirmed Eduardo Hernandez's convictions and sentences for use of a computer online service to solicit a person believed to be a child to engage in unlawful sexual conduct in violation of section 847.0135(3)(a), Florida Statutes (2011), and for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child in violation of section 847.0135(4)(a), Florida Statutes (2011). See Hernandez v. State , 135 So.3d 352 (Fla. 1st DCA 2013). After issuance of that opinion, the Florida Supreme Court ruled that double jeopardy principles prohibit separate convictions for solicitation and traveling based on the same conduct. State v. Shelley , 176 So.3d 914, 919 (Fla. 2015).

In light of Shelley , the Florida Supreme Court quashed our opinion in Hernandez . See Hernandez v. State , No. SC14-2008, 2016 WL 3185141 (Fla. June 8, 2016). Therefore, in accordance with the mandate from the supreme court, this cause is remanded to the trial court with instructions to vacate Hernandez's conviction and sentence for the lesser-included offense of solicitation as prohibited by section 847.0135(3)(a).

REMANDED with instructions.

Lewis, Osterhaus, and Jay, JJ., concur.


text:
    Ramon CASTELLANOS, Francisco Fernandez, Ivan Gonzalez, Elaine Prats, Ana Satt, and Sunny Isles Resort Developers, LLLP, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Nos. 3D17-1585 3D17-1566
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    Marko & Magolnick, P.A., Joel S. Magolnick, Veronica M. Rabinowitz and Omar Ali-Shamaa, Miami; Ross & Girten, Lauri Waldman Ross and Theresa L. Girten, Miami; St. Denis & Davey, P.A. and Michael Schiffrin, Miami, for appellants.
    Carlton Fields Jorden Burt, P.A., Farrokh Jhabvala, Thomas J. Meeks and Michael N. Wolgin, Miami, for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Having carefully considered the issues raised by the appellants in these consolidated appeals, as well as the responses advanced by the appellee, together with the record, we affirm without discussion. We write only to recognize and commend the trial court for its excellent, well-reasoned order thoroughly analyzing the relevant issues and correctly disposing of the case below.

Affirmed.


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

text:
    Lois J. TATE v. TOURO INFIRMARY, et al
    No. 2018-C-0558
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

I would grant this writ application to reverse the trial court's grant of summary judgment in favor of defendants in accordance with this Court's holding in Gilliam v. Lumbermens Mut. Cas. Co. , 240 La. 697, 124 So.2d 913 (1960). In my view, plaintiff has raised genuine issues of material fact as to whether the defendant lessor knew or should have known of the conditions of the leased premises that allegedly led to the plaintiff's injuries.


author: PER CURIAM

text:
    IN RE: Arthur L. HARRIS, Sr.
    NO. 2018-B-0847
    Supreme Court of Louisiana.
    June 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The instant disciplinary proceeding arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel ("ODC") against respondent, Arthur L. Harris, Sr., for his violation of additional Rules of Professional Conduct while on court-ordered probation imposed in In re: Harris , 13-2368 (La. 12/6/13), 129 So.3d 526 (" Harris I "), as well as for his failure to comply with the conditions of probation imposed in that matter.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Harris I demonstrated that respondent neglected two legal matters, failed to communicate with his clients, failed to promptly refund unearned fees, and failed to cooperate with the ODC in its investigation. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with specified conditions. On December 6, 2013, this court accepted the petition for consent discipline in Harris I . The court's order stated in pertinent part as follows:

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Arthur L. Harris, Sr., Louisiana Bar Roll number 6608, be suspended from the practice of law for a period of one year and one day. It is further ordered that 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 terms and 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. [Emphasis added.]

On October 20, 2016, respondent executed a formal probation agreement with the ODC. Among other conditions, respondent agreed to the following:

At the intervals set out in this plan and at any other time requested by the Probation Monitor, Respondent shall provide the Probation Monitor and the Office of Disciplinary Counsel with written reports of Respondent's activities which fall within the ambit of his probation. Any failure to furnish such written reports shall constitute a basis for revocation of probation.

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On April 18, 2018, the ODC filed the instant motion and rule to revoke respondent's probation, alleging that he had failed to comply with the conditions of his probation in Harris I . Essentially, the ODC alleged that respondent failed to provide his probation monitor, Harold M. Wheelahan, III, with written reports of his activities, as required by his probation plan.

In addition, during respondent's probationary period, three disciplinary complaints were filed against him. One client complained that respondent had failed to refund an unearned fee. Two other complaints involved allegations that respondent had not returned client files. Respondent also failed to reply to the complaints;

failed to appear for a sworn statement, despite being served with a subpoena; and failed to update his registration addresses.

Accordingly, the ODC prayed for revocation of respondent's probation and the imposition of the previously deferred one year and one day suspension.

Respondent was served with the motion and rule to revoke probation but did not file an answer thereto. However, the day before the hearing in the matter, respondent's counsel filed a motion for continuance. The disciplinary board denied the motion.

Hearing on Revocation of Probation

This matter proceeded to a hearing before an adjudicative panel of the disciplinary board on May 14, 2018. Respondent did not appear at the hearing, despite being subpoenaed to appear; however, his counsel, Ernest Jones, appeared. Mr. Jones stated that although he was enrolled as respondent's counsel, he was not prepared to participate in the hearing and that he would simply observe. He further informed the board panel that respondent was "not here at my direction." Mr. Jones indicated that respondent was not able to appear due to some "physical" and "mental" reasons, but Mr. Jones said he was not prepared to present any evidence on those issues.

Following the presentation of the ODC's evidence, the board panel allowed Mr. Jones until 5:00 p.m. on Wednesday, May 16, 2018 to file a post-hearing memorandum. On May 16, 2018, Mr. Jones, on behalf of respondent, filed the following "Posthearing Statement":

Although complete medical records of Respondent were requested in early May, it is administratively impossible to obtain same in time to meet the 5 pm deadline imposed by the Board. Respondent is unable to present his argument in avoidance or mitigation at this time.

Disciplinary Board Recommendation

On May 23, 2018, the disciplinary board filed its report with this court, recommending that the ODC's motion to revoke probation be granted in light of the evidence in the record. The board also recommended that the deferred one year and one day suspension imposed in Harris I be made executory.

1. VIOLATION OF TERMS OF PROBATION

Under respondent's probation plan (the "plan"), he was required to respond to all reasonable requests of his probation monitor and to make himself reasonably available for conferences with the probation monitor. The plan also included a requirement that respondent submit written reports to his probation monitor and the ODC at the intervals set out in the plan and provided that any failure to furnish such written reports "shall constitute a basis for revocation of probation." The plan further required that the probation monitor ascertain whether respondent was in compliance with the probation conditions and provided that any reports or evidence of violation of the conditions of probation brought to the attention of the ODC "may result in a rule for summary revocation of probation and/or imposition of additional discipline."

The plan included a detailed schedule for review of respondent's cases by the probation monitor and for reporting by respondent and the probation monitor. The plan required that respondent provide a list of active client files to the probation monitor on November 1, 2016, and that quarterly thereafter for a two-year period, he provide an updated client file list and a written report of his professional activities to the probation monitor.

Mr. Wheelahan reported to the ODC that respondent "offered total cooperation" at their initial meeting on October 20, 2016, at which time the plan was executed.

However, this cooperation quickly waned. On January 20, 2017, Mr. Wheelahan wrote to respondent that he was having trouble making contact with him-his e-mails were returned as undeliverable, a letter from the prior month had not been responded to, and his voicemail box was full. Mr. Wheelahan requested an update on respondent's cases and requested that he call "upon receipt of this letter."

This correspondence apparently prompted respondent to update his client file list and send it to Mr. Wheelahan. Mr. Wheelahan, in turn, forwarded the list to the ODC on February 11, 2017. However, on August 31, 2017, Mr. Wheelahan wrote to the ODC to advise that he had had "little recent success in dealing with" respondent. According to Mr. Wheelahan, he had spoken with respondent in July, after several attempts to track him down, and that respondent had suggested he had been "unwell and out of the office." Respondent was unable to explain to Mr. Wheelahan why his mail had been returned as undeliverable/no longer at this address, but promised to send an updated client file list. Mr. Wheelahan did not hear from respondent thereafter, despite his efforts to reach him. He concluded that respondent "just has not been very cooperative in his probation."

The board noted that the record contains no evidence of any other communication relating to respondent's probation between Mr. Wheelahan and respondent or between Mr. Wheelahan and the ODC subsequent to the August 31, 2017 letter. Further, the record contains no evidence indicating respondent ever submitted any of the written reports of his professional activities required under the plan either before or after Mr. Wheelahan died in February 2018. Accordingly, the board found the ODC presented sufficient evidence to demonstrate that respondent failed to comply with the terms and conditions of his probation.

2. ADDITIONAL MISCONDUCT DURING PROBATION

A. The Purvis Matter

In March 2016, respondent was retained to represent Jon Phillip Purvis in a criminal case. Respondent was paid a total of $7,500 for the representation. In June 2016, Mr. Purvis terminated respondent's services and sent him a letter requesting a full refund of the fee he paid. When he did not hear from respondent, Mr. Purvis sent respondent three more letters, again requesting a refund. Respondent did not reply to this correspondence. Mr. Purvis testified at the hearing that he was aware of no action that respondent had taken in his defense, and specifically noted that respondent had failed to attend court in his criminal case on one occasion. Based on these findings, the board concluded that the ODC presented sufficient evidence demonstrating respondent failed to refund an unearned fee, in violation of Rules 1.5(f)(5) (failure to refund an unearned fee) and 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

B. The Barker Matter

The ODC received a complaint in January 2018 from New Orleans attorney Paul J. Barker in connection with respondent's representation of Wilford Vangure in a criminal matter. Mr. Barker is currently representing Mr. Vangure in connection with a post-conviction relief application. In his testimony at the hearing, Mr. Barker explained that respondent represented Mr. Vangure in the original criminal proceeding in which Mr. Vangure was convicted of murder. After the 2012 conviction, another attorney, Edward Marquet, represented Mr. Vangure in his post-conviction relief efforts. In April 2016, Mr. Marquet obtained a subpoena duces tecum compelling respondent to produce his file and records related to his representation of Mr. Vangure. Respondent filed a motion to quash the subpoena, which was denied, and he was ordered to produce the subpoenaed materials within five days from June 22, 2016, the date of the order denying the motion to quash. Mr. Marquet withdrew from the representation of Mr. Vangure shortly thereafter.

Mr. Barker was retained by Mr. Vangure in approximately June 2017. Upon being hired, Mr. Barker determined that respondent had never complied with the order to produce his file. Mr. Barker was not successful in his first attempts to contact respondent by phone, but he ultimately spoke with him on January 10, 2018. Respondent told Mr. Barker that he still had Mr. Vangure's file and that he would bring the file to Mr. Barker's office within two weeks. Mr. Barker requested respondent's e-mail address in order to confirm the conversation, but respondent said that his e-mail was "not working." Therefore, Mr. Barker confirmed the conversation and agreement to produce the file in a text message.

When respondent did not produce the file as promised, Mr. Barker searched the Louisiana State Bar Association ("LSBA") Membership Directory for respondent's e-mail address and sent respondent an e-mail with a "final demand for a copy of Mr. Vangure's file" on January 24, 2018. Respondent called Mr. Barker the next day and said that he was still getting the file together and needed more time. However, Mr. Barker felt that he could not wait any longer given the nature of the post-conviction proceeding. On January 26, 2018, he sent his complaint to the ODC, and on February 14, 2018, he filed a motion for contempt of court against respondent. The hearing on the motion for contempt has never occurred because the sheriff has not been able to obtain service on respondent at his primary registration address. The motion has been rescheduled for hearing and Mr. Vangure's family-who are of limited means-has had to pay $260 in costs to hire a special process server to serve respondent with the motion for contempt.

The board observed that Mr. Barker gave moving testimony about his beliefs that Mr. Vangure was wrongfully convicted of murder in a quick trial which essentially lasted one day and that strong grounds, including ineffective assistance of counsel and a good Brady claim, exist for obtaining post-conviction relief for Mr. Vangure. He explained that the file in respondent's possession is evidence which is essential for making the case for relief in which Mr. Vangure bears the burden of proof. Furthermore, while the judge in the criminal matter has been very understanding of the predicament caused by respondent, Mr. Barker is concerned as to how long the judge will be willing to delay the matter.

Based on these findings, the board concluded that the ODC presented sufficient evidence demonstrating respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.16(d) and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The board pointed out that respondent's conduct prejudicial to the administration of justice is particularly egregious under the circumstances here, where he is withholding evidence which is crucial to his former client's application for relief from a murder conviction that occurred six years ago.

C. The Pollard Matter

The ODC received a complaint in January 2018 from Bernell Pollard, whom respondent had represented in his trial on a charge of second degree murder. On November 9, 2017, and again on December 13, 2017, Mr. Pollard sent respondent a written request for a copy of his file and received no response from respondent. Mr. Pollard testified at the hearing via telephone from the Louisiana State Penitentiary. He confirmed the information contained in his written complaint and stated that respondent has never responded to his written requests for his file.

Initially, Mr. Pollard's complaint was handled as an administrative matter, and an ODC investigator, Christopher Gwynn, was assigned to facilitate the return of Mr. Pollard's file to him. On January 18, 2018, Mr. Gwynn sent an e-mail to respondent at his registered address advising of Mr. Pollard's request for his file, and asking that respondent provide documentation when the file had been sent to Mr. Pollard. Respondent did not respond to the e-mail.

On January 22, 2018, Mr. Gwynn telephoned respondent at his primary registered telephone number. He spoke with respondent, who stated that he had not received the January 18th e-mail. Respondent confirmed the accuracy of the e-mail address and said that he would pick up the e-mail correspondence from the ODC. To expedite the process, Mr. Gwynn suggested that he would fax the e-mail to respondent, but respondent said that he would have to make arrangements to receive the fax.

Having heard nothing further, Mr. Gwynn called respondent again on January 24, 2018. Respondent said that it would not be an issue to return Mr. Pollard's file. He also indicated that he had no working fax or e-mail, but that Mr. Gwynn could fax the January 18th e-mail to a local Office Depot. However, respondent said that he did not have the fax number for Office Depot and would have to call Mr. Gwynn back with the number.

Respondent did not call Mr. Gwynn back, and therefore Mr. Gwynn began calling respondent. Mr. Gwynn spoke with respondent by phone again on January 29, 2018. On that date, Mr. Gwynn was able to fax the January 18th e-mail to respondent at a Fed Ex number. Respondent confirmed receipt of the fax.

Mr. Gwynn called respondent on February 8, 2018 to follow up regarding the return of the file to Mr. Pollard. Respondent told Mr. Gwynn that he had the file in his possession and would ship the file to Mr. Pollard by February 13, 2018. Mr. Gwynn reminded respondent to send the ODC a receipt of shipment to prove he had returned the file to his client. Mr. Gwynn never received a copy of Mr. Pollard's file or confirmation from respondent that the file had been sent to Mr. Pollard. Mr. Gwynn closed his administrative file and the matter was referred to the ODC's screening counsel. Mr. Gwynn testified at the hearing that had respondent simply returned the file to Mr. Pollard, the ODC would have closed the complaint.

Based on these findings, the board concluded that the ODC presented sufficient evidence demonstrating respondent violated Rule 1.16(d) of the Rules of Professional Conduct.

3. FAILURE TO COOPERATE WITH THE ODC/FAILURE TO COMPLY WITH ADMINISTRATIVE REQUIREMENTS

On October 24, 2016, the ODC sent a letter to respondent enclosing a copy of the Purvis complaint and advising respondent that he was required to provide a response within fifteen days of receipt. The letter was sent by certified mail to respondent's primary registration address (One Lakeway Center, 3900 North Causeway Boulevard, Suite 1200, Metairie, LA

70002) and was delivered on October 26, 2016. Respondent did not respond to the complaint. The ODC then sent a second letter via regular mail to respondent's primary and secondary (1502 South Vintage Lane, Lake Charles, LA 70605) registration addresses. This letter also requested that respondent verify that his information registered with the LSBA was current. The mailing to the secondary address was returned as undeliverable. The mailing to the primary address was not returned.

Also in connection with the Purvis matter, respondent was served on January 3, 2018 with a subpoena to testify on February 7, 2018 and to bring a copy of his file related to his representation of Mr. Purvis. Respondent did not appear on February 7th. The ODC contacted respondent by phone and he stated that he was experiencing some health issues that day and had forgotten to contact the ODC to advise that he would not be appearing for the statement. In that conversation, respondent further advised that he had recently relocated to Lake Charles.

On February 8, 2018, the ODC sent a letter to respondent enclosing a copy of Mr. Barker's complaint and advising respondent that he was required to provide a response within fifteen days of receipt. The letter was sent by certified mail to respondent's primary registration address. The mailing was later returned as undeliverable.

On March 2, 2018, after having no success with the request to have respondent return Mr. Pollard's file to him as previously discussed, the ODC sent a letter enclosing a copy of Mr. Pollard's complaint and advising respondent that he was required to provide a response within fifteen days of receipt. The letter was sent by certified and regular mail to respondent's primary registration address, and by regular mail to a third unregistered address (2509 Oak Cliff Street, Lake Charles, LA 70607) which at some point had been provided by the Post Office as a forwarding address for respondent's secondary registration address. Both mailings to the primary registration address were later returned as undeliverable. The regular mailing to the third address was not returned.

Also on March 2, 2018, the ODC sent a letter to respondent which referenced all three complaint numbers and requested that he contact the ODC within five days to reschedule his sworn statement. The letter also requested that respondent update his LSBA registration information. This letter was sent by regular mail to respondent's primary registration address and to the third unregistered address received from the Post Office. The letter sent to the primary registration address was returned as undeliverable. The letter to the unregistered address was not returned.

In sum, respondent has never provided a response to the Purvis, Barker, or Pollard complaints. Further, despite the evidence showing that respondent's primary and secondary registration addresses are not valid and despite the ODC's requests that he update his registration information, respondent has failed to do so. Based on these findings, the board concluded that the ODC presented sufficient evidence demonstrating respondent violated Rules 1.1(c) (failure to comply with the Supreme Court's rules regarding annual registration, including timely notification of changes of address), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

4. Conclusion

The board concluded that the ODC has presented sufficient evidence to demonstrate that respondent has violated certain conditions of his probation and has committed further violations of the Rules of Professional Conduct, both of which are grounds for the revocation of his probation. Accordingly, the board recommended that respondent's probation be revoked and that the deferred one year and one day suspension imposed in Harris I be made executory. The board also recommended that respondent be ordered to produce immediately to Mr. Vangure (via his attorney, Mr. Barker) and to Mr. Pollard their respective files. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings.

DISCUSSION

A review of the record reveals that respondent has not complied with the requirement of his October 20, 2016 probation agreement that he cooperate with his probation monitor. In addition, respondent has had three disciplinary complaints filed against him since the court's decision in Harris I . As set forth in the board's very detailed report, two of the complaints involve respondent's refusal to return his client's files, which has caused great harm to his former clients. Respondent also failed to cooperate with the ODC in its investigation of the complaints, including failing to appear for a sworn statement. Notably, the ODC has had difficulty communicating with respondent in these matters due to his failure to keep his address current with the LSBA, as required by Supreme Court Rule XIX. To protect the public, we find it is necessary to revoke respondent's probation and impose the previously-deferred suspension.

Accordingly, we will accept the disciplinary board's recommendation and grant the motion to revoke respondent's probation, making the previously-deferred one year and one day suspension imposed in Harris I immediately executory. We will also order respondent to immediately return Mr. Vangure's and Mr. Pollard's files.

DECREE

For the reasons assigned, respondent's probation is revoked and the previously-deferred one year and one day suspension imposed in In re: Harris , 13-2368 (La. 12/6/13), 129 So.3d 526 (" Harris I "), is hereby made immediately executory. It is further ordered that respondent return the files of Wilford Vangure and Bernell Pollard. All costs and expenses in the matter are assessed against respondent, Arthur L. Harris, Sr., Louisiana Bar Roll number 6608, 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.

      There is no explanation in the record for the delay in executing the probation agreement.

      Mr. Wheelahan died on February 3, 2018.

      The special process server came to the hearing on the ODC's rule to revoke probation in an attempt to make service on respondent when he arrived for the hearing; however, respondent could not be served because he did not appear at the hearing.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Anthony MITCHELL
    NO. 2018-KK-0499
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant and assigns reasons:

In this misdemeanor case, after conducting a bench trial, the trial judge found the defendant guilty. Defendant then filed a motion for new trial and a "Motion to Reconsider Verdict and Enter Judgment of Acquittal." Upon reconsideration, the trial judge stated, "I find that the State failed to meet the burden that the defendant was guilty beyond a reasonable doubt, and I set aside my ruling and find the defendant not guilty...." The state applied for writs and the court of appeal, in a split decision, granted the state's writ, ruling that "the motion to reconsider verdict and enter a verdict of not guilty was procedurally improper."

I disagree with the majority's denial of this writ and find the court of appeal's reversal of the trial court in this case an erroneous interpretation of law.

The trial judge's reversal of her own decision prior to sentencing was procedurally proper. The trial judge's ruling was tantamount to a judgment of acquittal, and a judgment of acquittal is recognized not once, but twice, in the Code of Criminal Procedure. La.Code Crim.P. art. 778 and 821.

Because this was a bench trial, the proper procedural vehicle for a judge to change his/her ruling prior to sentencing would be the granting of a motion for acquittal pursuant to La.Code Crim.P. art. 778, which the judge can do, even on its own motion. The trial judge, under those circumstances, could even employ La.Code Crim.P. art. 821, and grant a "post verdict judgment of acquittal," provided a motion for same is made. Though there was no "verdict" in this bench trial, and though La.Code Crim.P. art. 821 is listed in "Chapter 3. TRIAL BY JURY," article 820 in that chapter makes the provisions of the chapter applicable to cases tried without a jury.

The court of appeal erred in ruling that the trial judge's action was procedurally improper. The trial judge was well within her legal authority to change her mind before sentencing and grant, on her own motion, what is tantamount to a motion of acquittal specifically pursuant to La.Code Crim.P. art. 778.

Thus, I would grant the defendant's writ, reverse the court of appeal, and reinstate the trial court's acquittal.


text:
    STATE of Louisiana v. Kelly B. COCKERHAM
    No. 2017-KO-1802
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF WEST BATON ROUGE
    Writ denied.
    CRICHTON, J., would grant in part and assigns reasons.
   GENOVESE, J., would grant for the reasons assigned by Judge Holdridge.

CRICHTON, J., would grant in part and assigns reasons:

As Judge Holdridge notes in his dissent below, without an amendment to the habitual offender bill of information by the district attorney, the district court was limited to sentencing the defendant as a third-felony offender. I agree and would therefore reverse the fourth-felony adjudication and remand to the district court for further proceedings.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Martin G. LEMOINE
    No. 2017-K-1984
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF POINTE COUPEE
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
   GENOVESE, J., would grant.

CRICHTON, J., would grant and assign reasons:

While it appears defendant committed the crime of theft, as I noted previously in my dissent to State v. Lemoine , 15-1120 (La. 5/3/17), 222 So.3d 688, even the precise amount of that theft cannot be ascertained beyond a reasonable doubt based upon the evidence presented by the State. Therefore, I would grant the defendant's application and enter an order of acquittal.


author: PER CURIAM:

text:
    STATE of Louisiana v. Warren HARRIS
    No. 2018-KP-0686
    Supreme Court of Louisiana.
    June 15, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted; stay denied. Respondent filed a motion for state funding of expert witness services and further requested that the district court make that funding determination after conducting a hearing ex parte. Respondent, citing State v. Touchet , 93-2839 (La. 9/6/94), 642 So.2d 1213, contends his request for funds must be shielded from the State to ensure he has a fair opportunity to show that his crime did not reflect irreparable corruption in accordance with Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016).

As this court noted in State v. Touchet , ex parte hearings are generally disfavored with a few exceptions, and that "in order to deviate from the general rule of open and contradictory hearings, there must be a showing of good cause." Id. , 93-2839, p. 11, 642 So.2d at 1220. Nonetheless, in Touchet , this court found that "an indigent defendant may file a motion for expert funding ex parte." Id. , 93-2839, p. 14, 642 So.2d at 1221. The court based that determination on the Fourteenth Amendment right to due process, citing Ake v. Oklahoma , 470 U.S. 68, 76, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985) ("This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."). The court also noted the potential unfairness in requiring an indigent defendant to prematurely disclose its defense to the State when a moneyed defendant would not be compelled to do the same. See, e.g., Touchet , 93-2839, p. 10, 642 So.2d at 1219.

The court, however, declined to hold in Touchet "that revelations of the reasons for needing experts are per se prejudicial." Id. , 93-2839, pp. 11-12, 642 So.2d at 1220. Instead, recognizing that not all disclosures pertaining to the defense will result in unfairness, the court found that the district court should exercise its discretion to determine whether opening the hearing to the State would prejudice defendant in a substantial manner. Id. , 93-2839, p. 12, 642 So.2d at 1220 (citing State v. Phillips , 343 So.2d 1047 (La.1977) ). See generally Williams v. Florida , 399 U.S. 78, 81, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970) (upholding a Florida notice-of-alibi rule and stating "[w]e need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of 'due process' or a 'fair trial.' ").

The district court here abused its discretion in conducting the proceedings ex parte. Respondent failed to show that the hearing to determine whether he should be eligible for parole pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), will be unfair or that he will be prejudiced in a substantial manner if his request for state funding for expert services is litigated contradictorily in open court. Therefore, we vacate the district court's ruling authorizing funds, and we remand for an open and contradictory hearing on respondent's request for state funding of expert witness services.

VACATED AND REMANDED

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J., additionally concurs

As I have noted previously, adversarial proceedings are the norm in our system of criminal justice, while ex parte proceedings are the disfavored exception that may be invoked in good faith only in very limited circumstances. See State v. Brown , 16-0274 (La. 4/22/16), 192 So.3d 720 (Crichton, J., concurring). In the present case, the defendant sought and obtained substantial public funding in an ex parte proceeding that defendant contends he needs to show he should be eligible for parole pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016). While this court in State v. Touchet , 93-2839 (La. 9/6/94), 642 So.2d 1213, answered the very narrow question of whether and to what extent indigent defendants are entitled to ex parte hearings on their motions for state funding of expert witness services-and notably did not purport to create a general procedure by which indigent defendants can hide all of their filings from the public eye-this court has never expressed whether Touchet applies in the context of a Miller hearing that is conducted long after conviction (and in accordance with Montgomery ).

The present matter presents two separate questions: whether the request for such a significant public expenditure should have been litigated ex parte and out of the public eye, and whether defendant is entitled to the funds at all. The latter question cannot be answered because the proceedings were conducted ex parte and not transcribed. Furthermore, they were not filed under seal so that they could be subjected to appellate scrutiny. Even assuming Touchet applies here, it is self-evident that ex parte proceedings must be conducted in the presence of a court reporter and the proceedings transcribed and filed under seal so that they can be reviewed. Cf. Touchet , 93-2839, p. 12, 642 So.2d at 1220 ("During the review of this interlocutory ruling, the application for funding and the trial court reasons for its denial or granting of an ex parte hearing shall both remain under seal so as to protect the defendant's case in the event of a favorable ruling.). Thus, the lack of a transcript of the ex parte hearing in this case is problematic.

In contrast, the former question is readily answered from the information available. Again, looking to Touchet for guidance while leaving the question open whether it applies in this context, defendant failed to show good cause, in the form of "some particularized prejudice to him by state participation in the hearing," to deviate from the norm of open and contradictory hearings. See Touchet , 93-2839, p. 11, 642 So.2d at 1220. Defendant's motion to conduct the proceedings ex parte contained only the most generic allegations of prejudice. Defendant's bare assertion that it would be unfair to compel him to reveal his "mitigation strategy" to the state does not suffice. Although no specific allegations of brain dysfunction or childhood trauma are presently before the court, I note that those sorts of factors would be encompassed within La.C.Cr.P. art. 878.1(C), be "well-known to the state", see Touchet , 93-2839, pp. 11-12, 642 So.2d at 1220, and the revelation of those reasons for needing experts would not be prejudicial per se to defendant. Accordingly, I see no justification for proceeding with such a substantial request for public funds for expert assistance in a Miller hearing out of the public eye and without participation by the State.

      While the funding question cannot be answered without a transcript, in my view, there are strong indications before this court that the substantial funding requests were not well justified. Defendant provided examples of hourly billing rates and other funds (in excess of $20,000) that would be charged by various experts and investigators without ever alleging those specific experts were needed in his case. Regardless, without the transcript, it is not even apparent to this court what amount and for what purposes the district court authorized substantial public funds be expended.


text:
    IN RE: Robert A. LENTER
    NO. 2018-OB-0841
    Supreme Court of Louisiana.
    June 15, 2018
    ORDER
   The Office of Disciplinary Counsel ("ODC") is conducting an investigation into allegations that respondent mishandled his clients' settlement funds, among other professional misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent's petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Robert A. Lenter, Louisiana Bar Roll number 19952, and the concurrence thereto filed by the ODC,

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

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

NEW ORLEANS, LOUISIANA, this 15th day of June, 2018.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-7969
    NO. 2018-BA-0885
    Supreme Court of Louisiana.
    June 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    IN RE: Sean C. BRAZIL
    NO. 2018-B-0932
    Supreme Court of Louisiana.
    June 15, 2018
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Sean C. Brazil, and the Office of Disciplinary Counsel,

IT IS ORDERED that Sean C. Brazil, Louisiana Bar Roll number 36810, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    IN RE: Dianne J. MARSHALL
    NO. 2018-B-0918
    Supreme Court of Louisiana.
    June 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that she negligently 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), and 8.4(a) (violation of the Rules of Professional Conduct). Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Dianne J. Marshall, Louisiana Bar Roll number 8441, be and she hereby is publicly reprimanded.

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: Timothy John HENRY, Jr.
    NO. 2018-B-0875
    Supreme Court of Louisiana.
    June 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent pleaded guilty to first offense DWI. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Timothy John Henry, Jr., Louisiana Bar Roll number 35490, be suspended from the practice of law for a period of one year. It is further ordered that the entirety of the suspension shall be deferred, subject to a one-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

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


text:
    IN RE: Robert O'Neal CHADWICK, Jr.
    NO. 2018-B-0691
    Supreme Court of Louisiana.
    June 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent was arrested for driving under the influence of alcohol. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Robert O'Neal Chadwick, Jr., Louisiana Bar Roll number 19517, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred, subject to a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

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


text:
    STATE of Louisiana v. Damion WILLIAMS
    No. 2017-K-1753
    Supreme Court of Louisiana.
    June 15, 2018
    ON WRIT OF CERTIORARI TO THE FIRST CIRCUIT COURT OF APPEAL, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Granted in part. Defendant was found guilty as charged of armed robbery with a firearm, La. R.S. 14:64 and 14:64.3, second degree kidnapping, La. R.S. 14:44.1, and attempted second degree murder, La. R.S. 14:27 and 14:30.1. He was adjudicated as a third-felony offender, and his armed robbery sentence was enhanced under the Habitual Offender law. La. R.S. 15:529.1. Defendant's appeal was pending when the Legislature amended the Habitual Offender law with 2017 La. Acts 282. The amendment substantially reduced the sentencing range for a third-felony offender like defendant and further provided, "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." Defendant seeks to be resentenced under the amendment, and the State concedes defendant is entitled to be resentenced in accordance with it because his conviction will become final after November 1, 2017. Accordingly, we grant defendant's application in part to vacate his enhanced recidivist sentence for armed robbery, and we remand for resentencing for this offense in accordance with 2017 La. Acts 282. The application is otherwise denied.


text:
    STATE of Louisiana v. Derrick FRANCOIS
    No. 2017-KP-0700
    Supreme Court of Louisiana.
    June 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   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 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:
    Richard SANDERSON v. TULANE UNIVERSITY HOSPITAL AND CLINIC, et al.
    NO. 2018-CC-0588
    Supreme Court of Louisiana.
    June 15, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM

In the absence of any allegations that the medical review panel superceded its statutory authority, the panel's opinion is subject to mandatory admission. La. R.S. 40:1231.8(H) ; McGlothlin v. Christus St. Patrick Hospital , 10-2775 (La. 7/1/11), 65 So.3d 1218. The mere fact that a member of the panel may not have disclosed a potential conflict of interest is not a ground for automatic exclusion of the panel's opinion. See Elledge v. Williamson , 48, 644 (La. App. 2 Cir. 1/15/14), 132 So.3d 432 ; see also Derouen v. Kolb , 397 So.2d 791 (La.1981). Plaintiff will have an adequate opportunity to explore any potential bias on the part of the panel member through cross examination, and the trier of fact may assign any appropriate weight to the opinion in light of such testimony. See Whitt v. McBride , 94-896 (La. App. 3rd Cir. 3/01/95), 651 So.2d 427, writ denied , 95-0357 (La. 3/30/95), 651 So.2d 851. Accordingly, the writ is granted. The judgment of the district court striking the panel opinion is reversed. The case is remanded to the district court for further proceedings.

JOHNSON, C.J., would deny.

HUGHES, J., recused.

GENOVESE, J., would deny.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-286025
    NO. 2018-BA-0921
    Supreme Court of Louisiana.
    June 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the monitoring agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on July 31, 2017.

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

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

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

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

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

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

CONDITIONAL ADMISSION GRANTED.

JOHNSON, C.J., would reject conditional admission.

CLARK, J., would deny conditional admission.

GENOVESE, J., would reject conditional admission.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-845260
    NO. 2018-BA-0729
    Supreme Court of Louisiana.
    June 15, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

GUIDRY, J., would remand to the Panel on Character and Fitness to conduct an investigation and appoint a commissioner.

GENOVESE, J., would remand to the Panel on Character and Fitness to conduct an investigation and appoint a commissioner.


text:
    IN RE: Marcus Paul LACOMBE
    NO. 2018-B-0716
    Supreme Court of Louisiana.
    June 15, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent pleaded no contest to a felony charge of domestic abuse aggravated assault and a misdemeanor charge of domestic abuse battery. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Marcus Paul LaCombe, Louisiana Bar Roll number 28647, be and he hereby is suspended from the practice of law for a period of two years, retroactive to July 6, 2017, the date of his interim suspension.

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.

JOHNSON, C.J., would reject the petition for consent discipline.

CLARK, J., would reject the petition for consent discipline.

CRICHTON, J., would reject the petition for consent discipline and assigns reasons.

CRICHTON, J., would reject the Joint Petition for Consent Discipline and assigns reasons:

In light of Respondent's conviction of a serious felony crime of violence, I would reject the Joint Petition for Consent Discipline as too lenient.


text:
    STATE of Louisiana IN the INTEREST OF T.M.
    NO. 2017-CK-1109
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    STATE of Louisiana v. Jamal FLETCHER
    NO. 2017-K-1939
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    Joseph Harvey GAUTREAUX, et al. v. LOUISIANA FARM BUREAU CASUALTY INS. CO.
    NO. 2018-CC-0575
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN468020
    NO. 2017-BA-0876
    Supreme Court of Louisiana.
    June 1, 2018
    Rehearing denied.
    CLARK, J., would grant rehearing for briefing and oral argument.
    CRICHTON, J., would grant rehearing for briefing and oral argument.


text:
    STATE of Louisiana v. Sherrod BRUMFIELD
    NO. 2016-KP-2116
    Supreme Court of Louisiana.
    June 1, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


text:
    STATES of Louisiana v. Toby CHAUVIN
    NO. 2017-K-1120
    Supreme Court of Louisiana.
    June 1, 2018
    Denied.
   GENOVESE, J., would grant.