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

text:
    Christopher J. MARS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2811
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Andy Thomas, Public Defender, Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was charged with three counts of sexual battery by an adult on a victim more than twelve years of age but less than eighteen years of age, without their consent, and without physical force and violence likely to cause serious personal injury under section 794.011(5)(a), Florida Statutes. Appellant was also convicted of false imprisonment under section 787.02, Florida Statutes. At trial, based on testimony of the victim and other evidence, including DNA evidence corroborating the victim's testimony, Appellant was convicted. At sentencing, after the trial court received a victim-impact statement from the victim and his mother, Appellant was sentenced to concurrent terms of life imprisonment on the sexual battery counts and five years' imprisonment for false imprisonment.

Appellant initially raised four issues on appeal, but withdrew one issue after supplemental records demonstrated the trial court again offered to provide counsel to appellant just before trial, as required under Florida Rule of Criminal Procedure 3.111(d)(5), after the trial court initially determined Appellant knowingly waived his right to counsel and exercised the right of self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; Knight v. State, 770 So.2d 663 (Fla. 2000).

In his remaining issues on appeal, Appellant argues that the trial court reversibly erred in failing to sua sponte conduct a formal competency hearing and in deciding Appellant could waive his right to counsel. In addition, he argues that it can be determined on the face of the record that standby counsel was ineffective by refusing to share information with Appellant.

Facts

Appellant candidly concedes that he was "a difficult defendant to have in court"; that he was "not cooperative" in communicating with mental-health experts directed to interview him; and that he was "not cooperative" with his counsel before discharging his counsel. The record supports Appellant's concessions.

At a pretrial hearing, appointed defense counsel moved for a continuance and asked the court to order a competency evaluation; the court granted the motion and issued an order appointing an expert to evaluate Appellant. At another hearing, defense counsel informed the court that because Appellant refused to talk to the evaluator, there had been no determination of competency, although the evaluator said Appellant "demonstrated some knowledge of the adversarial nature of [the] proceedings." The State argued that since there was no finding of incompetency, Appellant was presumed to be competent and the proceedings could go on; the trial court agreed.

Appellant asked to address the court, and asserted that he preferred to be evaluated by someone who had been in the military, but the court notified him that he could not choose who evaluated him. Appellant then asked if he could have a different public defender, and the court proceeded to conduct a hearing under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

The court notified Appellant that it would not appoint new counsel unless he could demonstrate current counsel was deficient, which Appellant attempted to do: Appellant claimed his appointed counsel had not obtained the telephone record of the victim's mother, but both defense counsel and the State indicated that there was no such record; Appellant claimed that defense counsel failed to get a recording of a phone call between defense counsel and a potential witness, Kermit Wright, but defense counsel indicated that the call was not recorded; and Appellant stated that defense counsel would not give him a copy of his notes from the phone conversation, but counsel said he told Appellant the nature of the conversation.

The court found that counsel was not deficient, and informed Appellant that if he chose to discharge his appointed counsel, he could either hire private counsel or represent himself, which the court strongly advised Appellant not to do. Appellant was insistent, claiming that he planned to retain counsel, and defense counsel stated that this assertion had been pending for "six court dates." The trial court then allowed Appellant additional time to retain counsel.

At the later date, appointed counsel stated he had spent time preparing for trial, but Appellant refused to talk to him after ten minutes. The trial court then stated that Appellant's case had been delayed nine times and trial was going to proceed. When Appellant claimed it was difficult retaining an attorney while incarcerated, the court advised Appellant that it was not going to delay the trial further. The court warned Appellant that if he continued to refuse to speak with counsel, and fired his appointed counsel, it was likely Appellant would be representing himself, unless there was some evidence appointed counsel was providing deficient representation. When Appellant claimed appointed counsel had not taken depositions, defense counsel stated he had in fact taken nine depositions and that Appellant refused to discuss case preparation with him. The court determined that defense counsel was not deficient; rather, Appellant was obstinately refusing to cooperate with appointed counsel.

Appellant then stated he wanted to fire his appointed counsel. He answered questions logically and adequately, and he clearly expressed his intent to discharge counsel. When the trial court began the Faretta inquiry, Appellant refused to answer the relevant questions. The trial court found Appellant's silence to constitute affirmative answers, based on the court's conclusion that Appellant was intentionally refusing to communicate. The trial court again warned Appellant of the consequences and disadvantages of self-representation. The court directed appointed counsel to serve as standby counsel; appointed counsel agreed, and promised to share the deposition transcripts with Appellant.

When trial began, the trial court noted that Appellant was dressed in appropriate attire rather than jail clothing and inquired of the corrections officer who escorted Appellant to court. The officer stated he had spoken to Appellant, who agreed to change clothes, but he did not have a "full out" conversation with Appellant. The officer stated Appellant was coherent and seemed to understand the proceedings.

The court addressed standby counsel, who indicated he was prepared to proceed if called upon. The court again advised Appellant that, after the Nelson and Faretta inquiries, he was being permitted to represent himself, but that he could request standby counsel to take over at any time. The court reminded Appellant of the benefits of counsel and the disadvantages of self-representation. Appellant continued to be non-responsive throughout. The court asked standby counsel whether Appellant had been able to communicate with him about the case, and counsel indicated that he had.

During jury selection, Appellant did not ask any questions or exercise any strikes. He would not answer when asked if he had any objections to the State's strikes or to the swearing of the jury panel. He was silent during the State's opening and did not respond when asked if he wanted to make an opening statement.

The sexual-battery charges were based on Appellant's sexual acts with a 17-year-old special-education student. The victim described the acts in detail, and testified that Appellant tried to convince him to take a shower before leaving Appellant's home, but the victim convinced Appellant that he wanted to take a shower at his own home. As soon as he could, the victim informed his mother, who immediately called police, and forensic and medical examinations were arranged with the Child Advocacy Center.

After direct examination, the trial court asked Appellant, representing himself, whether he had any questions for the victim on cross-examination. When stand-by counsel approached the bench, Appellant demanded that stand-by counsel disengage from any activity in the trial, stating, "I'm representing myself. He [counsel] ain't got nothing to do with it now."

Stand-by counsel then informed the court that Appellant had asked for counsel's notes, which he declined to provide to Appellant, but he did offer to provide all the discovery he had received. The trial court declined to order counsel to provide his notes, informing Appellant that the notes were work product. After receiving the discovery, Appellant asked if he could have additional time to listen to tapes. The trial court informed Appellant he could not, as counsel had attempted to meet with Appellant before being discharged, and Appellant refused to cooperate with counsel. The trial court stated that he was not going to allow Appellant to further delay the trial after it had begun when Appellant had refused to speak to his attorney, before his discharge, who had set aside an entire afternoon to meet with Appellant. The trial court allowed Appellant time during a lunch recess to review the discovery, but noted that he had warned Appellant he would not be receiving any "special treatment."

When Appellant asked if he could recall the victim, rather than cross-examine the victim, in order to hear all the other evidence the State would present, the trial court informed Appellant that he could call witnesses in his own case and ask them questions, if the questions were relevant and permissible under the rules of evidence.

Dr. Lynn Keefe with the Child Advocacy Center who examined the victim testified that he had a gene abnormality called "Fragile X Syndrome," which was associated with certain symptoms and could be associated with intellectual disabilities. The doctor took swabs from the victim for DNA analysis which were provided to law enforcement.

Appellant responded "I sure do," when the trial court asked Appellant if he had any questions on cross-examination. Appellant questioned Dr. Keefe regarding why Appellant's DNA might not be found in part of the victim's body or in another manner; Dr. Keefe testified that Appellant's DNA could be found in other bodily fluids and his fingernails. Appellant also attempted to question Dr. Keefe regarding an allegation that the victim had previously been molested by his father, but the trial court sustained this objection. On redirect examination, Dr. Keefe testified that Appellant's DNA could have been present in the victim's saliva. On re-cross examination, Appellant asked if this would include DNA from spitting out his tobacco juice, and Dr. Keefe agreed that any of Appellant's saliva could include his DNA.

Detective Phillip Austin testified that the victim identified Appellant from a photographic lineup. When Detective Austin interviewed Appellant, he confirmed he knew the victim, who had been in Appellant's home. The detective took a buccal swab from Appellant. Appellant cross examined Detective Austin, noting that the victim had stated something occurred during his police interview, which the victim had testified at trial did not occur. Appellant attempted to argue with the detective regarding Appellant's use of crutches, but the trial court informed him that he could testify on his own behalf in this regard.

Kelly Shay, an analyst with the Florida Department of Law Enforcement, testified that she tested the samples from the victim and Appellant and that samples of the victim's bodily fluids contained Appellant's DNA. On cross-examination, Appellant asked Shay one question, whether she was testing specifically for saliva. Shay indicated there was not enough of a sample for her to test each of the swabs for saliva; she was testing for semen and blood.

After the State rested, the trial court discussed with Appellant his right to testify and present a case. Appellant then indicated he would like to have standby counsel represent him. After conferring with counsel, Appellant did not testify and did not present any other evidence. During closing, counsel argued that there was reasonable doubt regarding the DNA evidence, as it could have come from the victim's contact with surfaces in Appellant's home, and there was reasonable doubt about the victim's credibility.

The trial court instructed the jury without objection. The jury found Appellant guilty on all four counts.

Analysis

Competency to Proceed

Appellant first asserts that the trial court erred when it declined to conduct a competency proceeding based on Appellant's behavior when he refused to cooperate with a mental-health evaluation and refused to answer some questions during the Faretta hearing. The State asserts that the trial court did conduct a competency hearing, received the expert's report, and found that Appellant could proceed and was only trying to obstruct the trial. The State relies on the trial court's questioning during the Faretta hearing and on Appellant's eventual self-representation, during which he displayed competence and intelligently questioned witnesses and communicated with the court.

A trial court's decisions regarding a defendant's competency, including the question of whether a formal competency hearing should have been held, are reviewed for abuse of discretion. See Peede v. State , 955 So.2d 480 (Fla. 2007) (applying abuse of discretion standard to a competency determination); Laster v. State , 212 So.3d 392 (Fla. 4th DCA 2017) (finding that court's failure to sua sponte conduct a competency hearing was not an abuse of discretion). "[A] trial court's determination of competency supported by competent, substantial evidence will not be disturbed on appeal." Gore v. State , 24 So.3d 1, 10 (Fla. 2009).

Florida Rule of Criminal Procedure 3.210(b) provides in relevant part that a trial court has a duty to conduct a competency proceeding when it has "reasonable ground[s] to believe that the defendant is not mentally competent to proceed[.]" Competency to stand trial means the defendant " 'has sufficient present ability to consult with counsel with a reasonable degree of rational understanding' " and " 'has a rational as well as a factual understanding of the pending ... proceedings.' " Gore, 24 So.3d at 9 (quoting Alston v. State, 894 So.2d 46, 54 (Fla. 2004) ).

Here, the trial court did not abuse its discretion. Defense counsel informed the court that, while the expert was unable to conduct a complete examination, it appeared that Appellant had an ability to understand the adversarial nature of the proceedings. The evaluator further noted that Appellant did not have a mental health history and that Appellant might be refusing to be evaluated to "postpone going to trial and avoid the potential consequences of his alleged behavior." As to Appellant's silence during the Faretta inquiry and the first part of the trial, the court found that this behavior reflected Appellant's obstinacy, rather than an inability to understand the proceedings. We note furthermore that Appellant only became silent after the court ruled that there were no grounds to discharge Appellant's counsel. Later, Appellant meaningfully and intelligently participated in his defense.

The trial court also communicated with Appellant the day of the trial, and questioned the deputy who escorted Appellant. The deputy stated that Appellant seemed to be coherent and understand events, although he did not have an extensive conversation with Appellant. In addition, Appellant's standby counsel confirmed that Appellant could communicate adequately with counsel during trial. Thus, we do not find the trial court committed reversible error by not conducting a competency hearing.

Self-Representation

Appellant argues that the trial court erred in allowing Appellant to represent himself. He acknowledges that the trial court conducted a thorough Faretta hearing, but asserts that when he refused to answer questions, the trial court was obligated to require counsel to continue representing Appellant, conduct a competency hearing, and delay proceedings until the court could ensure Appellant was knowingly and intelligently waiving his right to appointed counsel.

The State asserts the following competent, substantial evidence to support the finding that Appellant knowingly and intelligently waived his right to counsel: 1) Appellant's comment "I'll represent myself then" directly preceding his silence; 2) his repeated attempts to hire a lawyer other than the assistant public defender; 3) his claims of dissatisfaction with counsel; 4) his refusal to be evaluated; and 5) the trial court's direct observations of Appellant's behavior. The State also relies on the fact that Appellant changed his clothes before trial, and the testimony of Deputy McCormick and standby counsel further support the court's determination.

We apply a deferential standard of review when a party challenges a trial court's ruling that the party waived his or her right to appointed counsel and properly exercised their right of self-representation in a criminal case. "When reviewing a trial court's handling of a request for self-representation, the standard of review is abuse of discretion." Aguirre-Jarquin v. State , 9 So.3d 593, 602 (Fla. 2009). This is both appropriate and logical, as "the court's ruling [regarding a defendant's waiver of counsel] turns primarily on an assessment of demeanor and credibility, [and therefore] its decision is entitled to great weight and will be affirmed on review if supported by competent substantial evidence in the record." Potts v. State , 718 So.2d 757, 759 (Fla. 1998).

Trial courts face a challenging task when attempting to communicate with criminal defendants who express their refusal to accept appointed counsel, yet refuse to properly answer questions to allow the court to appropriately evaluate the context of the defendant's demands to represent himself or herself. The United States Court of Appeals for the Eleventh Circuit has observed that "an unwilling defendant can foil a [trial] court's best efforts to engage in dialogue, thereby preventing the court from eliciting clear information regarding the defendant's understanding of the dangers of proceeding pro se." United States v. Garey , 540 F.3d 1253, 1267 (11th Cir. 2008). Nonetheless, the trial court is permitted, in its discretion, to interpret the defendant's behavior as a knowing and voluntary waiver of counsel, even where the defendant does not affirmatively request self-representation. Id.

The Florida Supreme Court has also recognized that a trial court has the authority and discretion to conclude a defendant has waived his right to counsel, where the defendant is uncooperative, in a capital case:

Muehleman refused to answer many of the questions posed by the court, but it was apparent on the record, from his pro se verbal and written appearances before the court, that he was articulate, understood the charges and possible penalty, knew various aspects of the law pertaining to the penalty phase, and knew that he had both a right to appointed counsel and a right to represent himself. Muehleman was also advised that a lawyer would possess experience and knowledge necessary in the case and that Muehleman would be at a great disadvantage if he represented himself.

Muehleman v. State , 3 So.3d 1149, 1158 (Fla. 2009). Here, as in Muehleman and Garey , the trial court properly concluded from Appellant's demeanor and behavior that he understood the rights he was relinquishing by proceeding pro se and that " 'his choice is made with eyes open.' " Faretta , 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ). We thus find no abuse of discretion in the trial court's decision on this issue.

Appellant engaged with the court and discussed issues relating to the quality of his representation and the evidence in the case just before the Faretta inquiry. The competency expert indicated that Appellant generally understood the proceedings, and appointed counsel stated that Appellant could communicate with counsel about the case. We further recognize that Appellant's reticence to speak began when the court ruled against his request for new counsel. Therefore, we hold that competent and substantial evidence supports the trial court's ruling to allow Appellant to proceed pro se with standby counsel. See Potts , 718 So.2d at 759.

Ineffective Assistance Claim

Appellant asserts that counsel provided ineffective assistance, apparent on the face of the record, by counsel's failure to disclose discovery, after Appellant dismissed counsel. Appellant argued that had counsel timely provided him with the materials, Appellant could have better prepared for cross-examination and may have decided to request the reappointment of counsel at an earlier stage. He asserts that counsel's deficient performance and the prejudice to Appellant are apparent on the face of the record.

The State asserts that this argument fails, because Appellant waived any argument regarding the effectiveness of counsel by originally proceeding pro se and, further, he invited error by not raising any issue regarding being unprepared until after trial began. Moreover, the State notes, counsel provided Appellant with some but not all of the materials before trial. Additionally, after the State rested, Appellant chose to have standby counsel take over his case, and counsel made a strategic choice not to further question witnesses or present additional evidence after review of the discovery material. Finally, the State argues that because it is unclear how the requested discovery material, including physical evidence, would have undermined the State's case, Appellant cannot establish how he was prejudiced on the face of the record.

Claims of ineffective assistance of trial counsel generally cannot be reviewed on direct appeal, as "[t]he trial court is the more appropriate forum to present such claims where evidence might be necessary to explain why certain actions were taken or omitted by counsel." McKinney v. State , 579 So.2d 80, 82 (Fla. 1991). As the Second District noted in Corzo v. State :

The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal. On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.

806 So.2d 642, 645 (Fla. 2d DCA 2002) (citation omitted).

We decline to hold that any prejudice to Appellant is indisputable. In fact, we would be hard pressed to find prejudice here, even were we to find counsel's conduct deficient, given the DNA evidence and other overwhelming evidence of guilt. There must be a reasonable probability that, had counsel provided appropriate representation, the outcome would have been different. Hills v. State , 78 So.3d 648, 654 (Fla. 4th DCA 2012) (holding defense counsel provided ineffective assistance of trial counsel on the face of the record, where counsel failed to move to sever counts alleging additional sexual assaults until after jury selection and failed to properly contest similar-fact evidence, and prejudice found where evidence not conclusive). As to Appellant's claim that he was prevented from preparing for cross-examination, it is notable that Appellant did conduct cross-examination of all witnesses other than the victim after having an opportunity (albeit only during lunch) to review the discovery materials. During his cross-examination of witnesses, Appellant was able to question whether his DNA could have been present on the victim's body for reasons other than sexual contact, and was able to point out that the victim's testimony about the sexual contact did not precisely mirror what was described in the police report. Appellant does not specify what other attacks he could have made on these witnesses' testimony if more adequately prepared.

As to the victim, it is true that Appellant did not have access to the discovery materials at the time he opted to forego cross-examination and instead planned to call the victim in his own case after hearing all of the State's testimony. However, he points to nothing in the discovery materials that he could have used to undermine the victim's credibility, especially considering the DNA evidence corroborating the victim's account.

It is thus not apparent from the record that the outcome would have been different if Appellant had timely access to the discovery materials to prepare for cross-examination.

As to Appellant's second point, that he may have decided to request the reappointment of counsel at an earlier stage if he had had access to the discovery materials, his allegation is far too speculative to warrant relief on direct appeal. Even if he had requested the reappointment of counsel at an earlier stage, there is no indication that counsel would have been able to achieve a different result.

Thus, we decline to hold that Appellant received ineffective assistance of trial counsel on the face of this record. As we have rejected Appellant's other arguments on appeal, we affirm his conviction and sentence.

AFFIRMED .

Wetherell and Winsor, JJ., concur.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MJR MINTON, LLC and Cre Fund, LLC, Appellants, v. LONG DOGGERS EATERIES, INC., Appellee.
    Case No. 5D17-1832
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Katherine E. Giddings and Diane G. DeWolf, of Ackerman LLP, Tallahassee, for Appellants.
    David A. Monaco, John N. Bogdanoff and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, and Allan P. Whitehead, Gary B. Frese and Erika McBryde, of Frese, Whitehead, Anderson, Anderson & Heuston, P.A., Melbourne, for Appellee.
   PER CURIAM.

We affirm the Amended Final Judgment without prejudice to the parties seeking modification of the previously-issued permanent injunction in light of the potential for changed circumstances resulting from the final judgment. See Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143, 146 (1942) ("Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction because no such vested right exists."); Miranda v. Pacheco Entm't Prod. Enter., 220 So.3d 523, 527 (Fla. 3d DCA 2017) ("[A] trial court necessarily retains jurisdiction to modify a permanent injunction when changed circumstances make it equitable to do so." (citing Hale v. Miracle Enter., 517 So.2d 102, 103 (Fla. 3d DCA 1987) ) ).

AFFIRMED.

PALMER, ORFINGER, JJ., and MUNYON, L., Associate Judge, concur.


author: Per Curiam.

text:
    Maurice CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4626
    District Court of Appeal of Florida, First District.
    August 15, 2018
    Maurice Campbell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant 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:
    Daontae Terrell SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0412
    District Court of Appeal of Florida, First District.
    August 15, 2018
    Daontae Terrell Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant 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 Makar and Winsor, JJ., concur.


text:
    Gernard CHESTNUT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0971
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Gernard Chestnut, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    Cedric BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4879
    District Court of Appeal of Florida, First District.
    August 21, 2018
    Cedric Butler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Jonathan ARCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2223
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 21, 2018
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Copeland v. State, 240 So.3d 58, 59-60 (Fla. 1st DCA 2018) ; Beckman v. State, 230 So.3d 77, 95-97 (Fla. 3d DCA 2017).

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    S.B., the Natural Mother of J.K.B., G.K.R.B., K.M.B., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-1648
    District Court of Appeal of Florida, First District.
    August 20, 2018
    David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for Appellant, and S.B., pro se, Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
   Per Curiam.

DISMISSED . See J.B. v. Fla. Dep't of Children & Families , 170 So.3d 780 (Fla. 2015) (holding that a motion alleging ineffective assistance of counsel in a termination of parental rights proceeding is deemed denied twenty-five days after the motion is filed).

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


text:
    Susan FLEISCHER, Appellant, v. NORTHEAST FLORIDA STATE HOSPITAL, Appellee.
    No. 1D18-3022
    District Court of Appeal of Florida, First District.
    August 22, 2018
    Stacy A. Scott, Public Defender, and George H. Nelson, Assistant Public Defender, Macclenny, for Appellant.
    No appearance for Appellee.
   Per Curiam.

DISMISSED. Archer v. Adm'r, Fla. State Hosp. , 622 So.2d 107 (Fla. 1st DCA 1993).

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


text:
    James M. CORRIGAN, Appellant, v. SERVISFIRST BANK, INC., Appellee.
    No. 1D17-4133
    District Court of Appeal of Florida, First District.
    August 22, 2018
    James M. Corrigan, pro se, Appellant.
    Sarah S. Walton and Philip A. Bates of Philip A. Bates, P.A., Pensacola, for Appellee.
   Per Curiam.

AFFIRMED . Equity Title, Inc. v. First Nat. Bank & Tr. , 564 So.2d 1182 (Fla. 1st DCA 1990).

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


author: EDWARDS, J.

text:
    Zachary LINVILLE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1975
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Zachary Linville, Wewahitchka, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   EDWARDS, J.

The petition for belated appeal is denied. The record before this Court shows that Petitioner, Zachary Linville, failed to comply with Florida Rule of Appellate Procedure 9.110(b). That rule requires the notice of appeal to be filed with the clerk of the court whose order or judgment is being appealed within thirty days of rendition. If a pro se inmate relies upon the institution in which the inmate is incarcerated to mail the inmate's notice of appeal, the inmate must clearly state in writing that the original notice of appeal is to be mailed to and filed with the clerk of the court whose order or judgment is being appealed, and should include the name and address of that clerk of the court on the certificate of service.

Florida Rule of Appellate Procedure 9.420(a)(2) governs the procedure for a notice of appeal that is addressed to the clerk of the lower court and placed in the hands of the inmate's institution for mailing. However, filing of the notice of appeal does not occur when an inmate, as Petitioner did here, places in the hands of the institution a notice of appeal with a certificate of service that lists the State Attorney and/or the Attorney General, but which does not affirmatively direct mailing of the original notice of appeal to the clerk of the lower court.

In this case, the time for filing the original notice of appeal with the clerk of the lower court has expired; therefore, this Court has no jurisdiction to entertain Petitioner's appeal, and there is no legal basis for granting Petitioner's request for a belated appeal.

PETITION DENIED.

SAWAYA and TORPY, JJ., concur.

      The Appellate Rules Committee should consider whether it would be desirable to amend rule 9.420(d)(1) and/or Form 9.900(a) by including language in a model pro se inmate certificate of service for notices of appeal, to the effect that "the original notice of appeal is to be mailed to and filed with the Clerk of the Circuit/County Court for ____ County" to clarify the requirement that the inmate affirmatively direct that the original notice of appeal is to be mailed to the clerk of the lower tribunal for filing.


text:
    Alonzo M. HEARD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1845
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Alonzo M. Heard, Defuniak Springs, 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 December 11, 2017 order denying Petitioner's pro se motion for correction of illegal sentence, filed in Case No. 2009-CF-014068 in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Charl SHORTER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1288
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Charl Shorter, Bushnell, 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 12, 2017 judgment and sentence rendered in Case No. 2015-CF-2674-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and WALLIS, JJ., concur.


text:
    Brosnan Pearson HART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3542
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Brosnan Pearson Hart appeals the trial court's order denying his motion to withdraw his guilty pleas following sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(l ). Hart argues that the lower court erred by ruling on his pro se motion, rather than the subsequent motion prepared by his appointed counsel. We agree, but affirm because the error was harmless. The pro se motion and the motion prepared by counsel were substantially the same. Hence, Hart was not prejudiced by the trial court's ruling on the pro se motion.

AFFIRMED.

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


text:
    Wilfred EXALISSE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1647
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Wilfred Exalisse, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Wilfred Exalisse appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, except as to the denial of Exalisse's second claim. The records attached to the trial court's order do not conclusively refute Exalisse's claim that his trial counsel had affirmatively mispresented the sentence that Exalisse would receive if he entered an open plea to the court. See, e.g. , Collazo v. State , 8 So.3d 1273, 1274 (Fla. 5th DCA 2009) (holding the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence).

On remand, the trial court shall either attach additional records conclusively refuting this claim or hold an evidentiary hearing.

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

TORPY, EVANDER and BERGER, JJ., concur.


text:
    Dale B. GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1611
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Dale B. Green, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the postconviction court's denial of Appellant's rule 3.850 motion as it was both untimely and improperly successive. We dismiss Appellant's untimely effort to seek review of the denial of his rule 3.800(c) motion, as no appeal is available from an order denying that motion which sought purely discretionary relief from the court below.

AFFIRMED.

COHEN, C.J., LAMBERT and EDWARDS, JJ., concur.


text:
    Tracey MACKEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1324
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Tracey Mackey, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This is Tracey Mackey's third postconviction relief appeal to this court. In Mackey v. State , 219 So.3d 1009 (Fla. 5th DCA 2017), this court reversed the summary denial of Mackey's postconviction motion and instructed the lower court to afford Mackey the opportunity to amend. In Mackey v. State , 236 So.3d 504 (Fla. 5th DCA 2018), this court affirmed the denial, after amendment, of Mackey's motion on all grounds except Ground Two, which alleged that Mackey's trial counsel was ineffective for failing to call a particular witness who would have afforded testimony supporting his defense at trial. This court ruled that Ground Two was "facially sufficient" and instructed the lower court to either hold an evidentiary hearing on that claim or attach records conclusively refuting it. Id. at 505.

On remand, the lower court denied Ground Two, finding that the record conclusively showed that: (1) Mackey and his counsel noted on the record at trial that the witness had proved difficult to find because she changed her phone number and refused to testify; and (2) Mackey could not show prejudice even if his allegations were true because there was "overwhelming evidence" of Mackey's guilt. We respectfully disagree with the trial court. First, the records attached to the trial court's order do not refute Mackey's claim that counsel misrepresented to him the availability of the witness. Second, the alleged anticipated testimony of the uncalled witness, if found credible, would undermine the identification testimony of the two alleged victims, as well as provide a non-incriminating reason why a scrap of cloth with Mackey's DNA was found at the scene of the alleged crime.

The trial court is directed, on remand, to attach additional records conclusively refuting Mackey's claim or to hold an evidentiary hearing.

REVERSED and REMANDED, with instructions.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    Travis Ray STUCKY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-580
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 24, 2018
    Travis Ray Stucky, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The trial court denied Appellant's Florida Rule of Criminal Procedure 3.853 motion for DNA testing because it was facially insufficient. See Fla. R. Crim. P. 3.853(c)(2). We agree and affirm without prejudice. Appellant may refile a facially sufficient motion if he can do so in good faith. See Rosa v. State , 147 So.3d 583, 584 (Fla. 4th DCA 2014) ; Luckner v. State , 979 So.2d 1121, 1121-22 (Fla. 3d DCA 2008).

AFFIRMED.

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.


text:
    Natalie WILLIAMSON, Appellant, v. Franklin WILLIAMSON, Appellee.
    Case No. 2D17-487
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018
    Natalie Williamson, pro se.
    No appearance for Appellee.
   PER CURIAM.

Dismissed as moot.

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


text:
    Jose GOMEZ-CORTES, M.D., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D17-4280
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Sean M. Ellsworth of Ellsworth Law Firm, P.A., Miami Beach, for Appellant.
    Nicholas A. Merlin, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Appellee.
   Per Curiam.

Appellant contends that the Agency for Health Care Administration erred when it denied his motion to vacate without affording him an evidentiary hearing to resolve the factual question of whether he received sufficient notice of AHCA's final orders. We agree. See Reich v. Dep't of Health , 868 So.2d 1275, 1276 (Fla. 1st DCA 2004).

REVERSED and REMANDED .

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


text:
    James PACE IV, individually, Appellant, v. Dyren GRENON, and Carma Grenon, Guardian Home Inspections & Repairs, Inc., 1st Choice Pest Services, LLC, Appellees.
    No. 1D18-2463
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Robert Woolfork, Tallahassee, for Appellant.
    Matthew M. Whiddon and Trevor G. Hawes of Cole, Scott & Kissane, P.A., Jacksonville, for Appellee 1st Choice Pest Services; Halley M. Stephens and Clifton S. Renn of Stephens Law, LLC, Tallahassee, for Appellees Dyren Grenon and Carma Grenon.
    No appearance for Appellee Guardian Home Inspections & Repairs.
   Per Curiam.

DISMISSED. See Fisher v. Int'l Longshoremen's Ass'n , 827 So.2d 1096 (Fla. 1st DCA 2002) ; Warren v. Southeastern Leisure Sys., Inc. , 522 So.2d 979 (Fla. 1st DCA 1988).

Wolf, Winokur, and Jay, JJ., concur.


text:
    Terry G. TRUSSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-667
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Inger Garcia, Fort Lauderdale, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Osterhaus, Jay, and M.K. Thomas, JJ., concur.


author: KELLY, Judge.

text:
    Denise LEAVITT, Appellant/Cross-Appellee, v. Mallory MOLTER, as personal representative of the Estate of Danny E. Molter, deceased, Appellee/Cross-Appellant.
    Case No. 2D17-2174
    District Court of Appeal of Florida, Second District.
    Opinion filed August 29, 2018
    Richard Barton Ray of Paster & Ray, P.A., Bradenton, for Appellant/Cross-Appellee.
    Andrea M. Johnson of Law Office of Andrea M. Johnson, P.A., Bradenton, for Appellee/Cross-Appellant.
   KELLY, Judge.

Denise Leavitt appeals from the probate court's order overruling her objections to the final accounting and inventory filed by Mallory Molter as personal representative of the estate of Danny E. Molter and the order striking what she characterized as a petition for declaratory judgment, to quiet title, to construe the will, and to remove and surcharge the personal representative. Ms. Molter, as personal representative, cross-appeals from the portion of the order approving the accounting and inventory but requiring her to file a supplement. We affirm without comment the issues raised in Ms. Leavitt's appeal. As to the cross-appeal, we reverse the portion of the probate court's order requiring the personal representative to file a supplement to the inventory and accounting.

In the cross-appeal, Ms. Molter argues that the probate court erred when it required the estate to file a supplement to its final accounting and inventory to include the decedent's collection of firearms as estate assets. We agree with Ms. Molter that Ms. Leavitt waived this issue because she did not timely object to the omission of the firearms. Florida Probate Rule 5.401(a) states that "[a]n interested person may object to the petition for discharge or final accounting within 30 days after the service of the later of the petition or final accounting on that interested person." Because an objection was not timely filed it was waived. Accordingly, it was error for the probate court to order the supplement. On remand, the probate court should strike that provision of its order. In all other respects the order is affirmed.

Affirmed in part and reversed in part.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Bryant WOELK, Appellant, v. Vickie WOELK, Appellee.
    Case No. 5D17-1717
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Lauren M. Ilvento, of Ilvento Law, P.A., Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, for Appellee.
   PER CURIAM.

Bryant Woelk (Husband) appeals the final judgment dissolving his moderate-term marriage to Vickie Woelk (Wife). Husband takes issue with the trial court's rulings on alimony, child support and equitable distribution. Both parties agree that the final judgment should be remanded to allow the trial court to equitably divide the debts listed in paragraph 11C of the joint stipulation, Wife's student loan debt, the Nemours debt, and the 2014 IRS debt. While we affirm the trial court's award of durational alimony for the length of the marriage, we are unable to review the amount awarded because it is unclear from the record and the final judgment which expenses were included or excluded in the trial court's finding that Wife's needs were approximately $1500 per month. See Dorworth v. Dorworth, 176 So.3d 336, 339 (Fla. 5th DCA 2015) (reversing for further findings where trial court listed specific items of expense in final judgment when it determined wife's monthly needs to be "at least" $5758.30 in order to maintain her then-current standard of living, but it was not clear whether or why certain expenses were included or excluded in performing these calculations). This is especially true because the amounts listed in her financial affidavit conflict with some of her trial testimony. Accordingly, we remand for further findings of Wife's actual need. As a result, the trial court must also reassess the child support amount in the event there are any changes to the amount of alimony awarded. We affirm in all other respects.

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

BERGER, EDWARDS and EISNAUGLE, JJ., concur.

      Although Husband disputes the trial court's findings that Wife has the need for Husband to pay a portion of her attorney's fees and that he has the ability to do so, this issue is not ripe for appeal. See Brunsman v. Brunsman, 232 So.3d 1175, 1178 (Fla. 5th DCA 2017) (declining to address entitlement to attorney's fees where there was no actual award or determination of amount of fees (citing Holmes v. Holmes, 100 So.3d 745, 745-46 (Fla. 2d DCA 2012) ) ).


text:
    Linda M. SANDS, Appellant, v. DEUTSCHE BANK, NATIONAL TRUST COMPANY, Appellee.
    Case No. 5D17-1213
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Patrick J. Deese, of Patrick J. Deese, P.A., Melbourne, for Appellant.
    David Rosenberg, Cynthia L. Comras, and Jarrett Cooper, of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellee.
   PER CURIAM.

Appellant, Linda Sands, appeals the Final Judgment of Foreclosure entered in favor of Appellee, Deutsche Bank National Trust Company. Appellant alleges that Appellee lacked standing to foreclose and failed to present competent, substantial evidence to support the amount awarded in the Final Judgment. Appellee acknowledges that reversal in part is required because the amount awarded for attorney's fees was not supported by testimony from an attorney regarding the work done in this case. Therefore, we reverse the amount awarded in attorney's fees and remand with instructions to the trial court to conduct an evidentiary hearing to determine the reasonableness of the rate and time claimed. See Petrovsky v. HSBC Bank, USA, 185 So.3d 700, 701 (Fla. 4th DCA 2016) (reversing portion of final judgment awarding attorney's fees where attorney's fees affidavit filed before trial was insufficient to support fee award and trial court failed to hold evidentiary hearing); Newman v. Newman, 121 So.3d 661, 662 (Fla. 1st DCA 2013) (reversing award of attorney's fees where court failed to hold hearing and allow appellant opportunity to dispute reasonableness of rate and time claimed). We affirm without discussion the remaining issues on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

SAWAYA, ORFINGER, and WALLIS, JJ., concur.


text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Andrew Joseph GREENWELL a/k/a Andrew J. Greenwell, Appellee.
    Case No. 5D17-2340
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Melisa Manganelli, of the Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for Appellant.
    Richard J. Mockler, of Stay In My Home, P.A., St. Petersburg, and Latasha C. Scott, of Lord Scott, PLLC, Tampa, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

Pursuant to Appellee's Concession of Error, we reverse the summary final judgment and remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

PALMER, ORFINGER, and WALLIS, JJ., concur.


text:
    Cynthia TORRES, Petitioner, v. Juan O. GOMEZ, Respondent.
    Case No. 5D18-2501
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Stephen Brown, of Brown & Rice, P. A., Orlando, for Petitioner.
    Natalie D. Hall, Orlando for Respondent.
   PER CURIAM.

Cynthia Torres petitions this court for a writ of prohibition to review the denial of her motion to disqualify the Honorable Diana Michelle Tennis from presiding over her domestic relations matter. We grant the petition and quash the order because the disqualification motion was legally sufficient since the facts alleged, which must be presumed true, would reasonably cause Torres to have a well-founded fear that she would not receive a fair hearing before Judge Tennis. See Minaya v. State, 118 So.3d 926 (Fla. 5th DCA 2013) ; Ennis v. Ennis, 855 So.2d 229 (Fla. 5th DCA 2003). Accordingly, we grant the petition, quash the order denying the disqualification motion, and remand for assignment to a different judge.

PETITION GRANTED; ORDER QUASHED; CAUSE REMANDED.

PALMER, EVANDER, and LAMBERT, JJ., concur.


author: PER CURIAM

text:
    Brandon FORVENDEL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    No. 2017-C-2074
    Supreme Court of Louisiana.
    June 27, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM

In this case, we are called upon to decide whether an insurer waived its defenses to plaintiff's current claim by paying on an earlier claim to him in error. For the reasons that follow, we find that the insurer did not waive its rights. Accordingly, we reverse the judgments of the courts below.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Brandon Forvendel, was injured in a multi-vehicle accident in 2013. At the time of the accident, plaintiff was driving a Chevrolet Equinox owned by him and insured under a policy issued by State Farm Mutual Automobile Insurance Company ("State Farm"), which included uninsured motorist ("UM") coverage. Plaintiff recovered the limits of his UM coverage under his State Farm policy.

At the time of the 2013 accident, plaintiff lived in the household of his mother, Deborah Forvendel, who was also insured by State Farm. Plaintiff also sought to recover under his mother's State Farm UM policy, which carried significantly higher policy limits. State Farm refused to allow him to recover under his mother's policy, citing the anti-stacking provisions of La. R.S. 22:1295(1)(c).

As a result, plaintiff filed the instant suit against State Farm. In his petition, plaintiff alleged that the facts of the instant case were strikingly similar to an earlier 2007 accident in which State Farm allowed him to recover UM benefits under both his own UM policy and his mother's UM policy.

At trial, plaintiff offered evidence regarding the 2007 accident. In particular, he relied on a June 9, 2008 letter from a State Farm manager to plaintiff's attorney. This letter referenced to the 2007 accident and plaintiff's claim under his mother's policy, stating, "your client does qualify as an insured for Uninsured Motorist coverage." Thereafter, State Farm allowed plaintiff to recover under both policies for the 2007 accident. Ms. Forvendel testified State Farm did not notify her of any error in permitting plaintiff's recovery under her policy in 2007.

State Farm's representative, Aaron Angel, testified that the 2007 payment was made in error. Paul Robichaux, a State Farm Auto Team Manager in 2008, testified the 2007 claim was referred to him to consider whether plaintiff, as a resident relative, could select UM coverage under Ms. Forvendel's policy, but he did not consider the anti-stacking statute. Mr. Robichaux stated he was unaware plaintiff collected UM benefits under his own policy at the time, and he did not make any determination regarding stacking.

At the conclusion of trial, the district court entered judgment for plaintiff in the amount of $50,000 in damages, plus interest and costs. In its reasons for judgment, the district court explained "State Farm previously interpreted the agreement between the parties to cover plaintiff under his mother's UM policy, and this fact can be considered by the Court in interpreting the agreement between the parties in effect at the time of the 2013 accident."

State Farm appealed. In a split decision, the Court of Appeal, Fifth Circuit, affirmed, concluding the trial court did not err in finding State Farm waived any defense to the 2013 claim by paying the 2007 claim in error. Forvendel v. State Farm Mut. Auto. Ins. Co. , 17-77 (La. App. 5 Cir. 11/15/17), 230 So.3d 687. The dissenting judge rejected the majority's reasoning, finding it would be in contravention of the anti-stacking statute to find State Farm extended coverage to plaintiff beyond his policy limits.

Upon State Farm's application, we granted certiorari to consider the correctness of this decision. Forvendel v. State Farm Mut. Auto. Ins. Co. , 17-2074 (La. 3/9/18), --- So.3d ----.

DISCUSSION

The anti-stacking statute, La. R.S. 22:1295 provides, in pertinent part:

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subparagraph (1)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under such policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy ....
[emphasis added].

Plaintiff does not dispute that the provisions of this statute apply under the instant facts. However, he argues State Farm waived its right to assert this defense based on its actions in connection with plaintiff's earlier 2007 accident.

In finding a waiver occurred, the court of appeal relied on our opinion in Steptore v. Masco Constr. Co. , 643 So.2d 1213 (La. 1994). In Steptore , we held an insurer waived its right to assert a coverage defense by assuming and continuing the defense of its insured in the face of facts indicating that it had a right to deny coverage for the accident. We explained the law as follows:

Waiver is generally understood to be the intentional relinquishment of a known right, power, or privilege. Tate v. Charles Aguillard Ins. & Real Estate, Inc. , 508 So.2d 1371 (La.1987) ; Ledoux v. Old Republic Life Ins. Co. , 233 So.2d 731 (La.App. 3d Cir.), cert denied 256 La. 372, 236 So.2d 501 (1970) ; Peavey Co. v. M/V ANPA , 971 F.2d 1168 (5th Cir.1992) ; Comment, Waiver and Estoppel in Louisiana Insurance Law, 22 La.L.Rev. 202 (1961); 16B Appleman, Insurance Law and Practice, § 9081 (1981); Couch on Insurance 2d, § 35:249 (Rev. ed. 1985). Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. Tate , supra ; Peavey , supra ; Ledoux , supra ; 16B Appleman, supra, § 9085. A waiver may apply to any provision of an insurance contract, even though this may have the effect of bringing within coverage risks originally excluded or not covered. Tate , supra .
It is well established that an insurer is charged with knowledge of the contents of its own policy. Youngblood v. Allstate Fire Ins. Co. , 349 So.2d 462 (La.App. 3d Cir.1977) ; Davis v. Aetna Casualty & Surety Co. , 329 So.2d 868 (La.App. 2d Cir. 1975), writ denied , 333 So.2d 233 (1976) ; Pellets, Inc. v. Millers Mutual Fire Ins. Co. , 241 So.2d 550 (La.App. 2d Cir.1970), writ denied , 257 La. 607, 243 So.2d 274 (1971). In addition, notice of facts which would cause a reasonable person to inquire further imposes a duty of investigation upon the insurer, and failure to investigate constitutes a waiver of all powers or privileges which a reasonable search would have uncovered. Swain for and on behalf of Swain v. Life Ins. Co. of Louisiana , 537 So.2d 1297 (La.App. 2d Cir.1989), writ denied , 541 So.2d 895 (1989) ; Foret v. Terrebonne Towing Co., Inc. , 632 So.2d 344 (La.App. 1st Cir.1993) ; Peterson v. Pacific Fire Ins. Co. , 148 So. 283 (La.App.Orl.Cir.1933) ; Franz v. United Casualty Co. , 49 F.Supp. 267 (E.D.La.1943) ; Comment, La.L.Rev. supra 206; 16B Appleman, supra § 9084.
Waiver principles are applied stringently to uphold the prohibition against conflicts of interest between the insurer and the insured which could potentially affect legal representation in order to reinforce the role of the lawyer as the loyal advocate of the client's interest. Employers Mutual Liability Ins. Co. of Wisconsin v. Sears, Roebuck & Co. , 621 F.2d 746, 747 (5th Cir.1980) ; Pacific Indemnity Co. v. Acel Delivery Serv. , 485 F.2d 1169, 1173 (5th Cir.1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1974) ; Parsons v. Continental National American Group , 113 Ariz. 223, 550 P.2d 94 (1976) ; Employers Casualty Co. v. Tilley , 496 S.W.2d 552 (Tx.1973) ; Transamerica Ins. Group v. Chubb and Son, Inc. , 16 Wash.App. 247, 554 P.2d 1080 (1976). Cf. Dugas Pest Cont. v. Mutual Fire, Marine and Inland Ins. Co. , 504 So.2d 1051 (La.App. 1st Cir.1987) ; Brasseaux v. Girouard , 214 So.2d 401 (La.App. 3d Cir.), writ denied , 253 La. 60, 216 So.2d 307 (1968) ; Storm Drilling Company v. Atlantic Richfield Corp. , 386 F.Supp. 830 (E.D.La.1974). See Rule 1.7, La.Rules of Professional Conduct ; Restatement of the Law (3rd), The Law Governing Lawyers, Chapter 8, Introductory Note, §§ 201 & 202 (Tentative Draft 1990); Opinion 342, Opinions of the Committee on Professional Responsibility (La.State Bar Ass'n 1974); 15 McKenzie & Johnson, Insurance Law and Practice § 216 (1986). Accordingly, when an insurer, with knowledge of facts indicating noncoverage under the insurance policy, assumes or continues the insured's defense without obtaining a nonwaiver agreement to reserve its coverage defense, the insurer waives such policy defense . Peavey Co. v. M/V ANPA , 971 F.2d 1168 (5th Cir.1992) ; Pitts By and Through Pitts v. American Sec. Life Ins. Co. , 931 F.2d 351 (5th Cir.1991) ; Ideal Mut. Ins. Co. v. Myers , 789 F.2d 1196 (5th Cir.1986) ; Employers Mutual Liability Ins. Co. of Wisconsin v. Sears, Roebuck & Co. , 621 F.2d 746, 747 (5th Cir.1980) ; 16C Appleman, Insurance Law and Practice § 9361.25 (1981). Cf. Tate v. Charles Aguillard Ins. & Real Estate, Inc. , 508 So.2d 1371 (La.1987) ; Ledoux v. Old Republic Life Ins. Co. , 233 So.2d 731 (La.App. 3d Cir.), cert. denied 256 La. 372, 236 So.2d 501 (1970).
There is no genuine dispute as to the material facts pertinent to the waiver issue. Applying the foregoing precepts to those facts, we conclude that Ocean Marine waived its right to assert a coverage defense by assuming and continuing the defense of its insured in the face of facts indicating that it had a right to deny coverage for the accident.
Id. at 1216-1217 [emphasis added].

We find Steptore is factually distinguishable from the case at bar. Steptore involved a waiver based on the actions of the insurer during the course of a single proceeding. In sharp contrast to those facts, the plaintiff in the instant case is seeking to rely on the insurer's actions which occurred in connection with a prior 2007 claim to find a waiver occurred in the context of the current 2013 claim.

Although we have not had occasion to address this precise issue, the United States Court of Appeals for the Fifth Circuit rejected a similar argument in American International Specialty Lines Ins. Co. v. Canal Indemnity Co. , 352 F.3d 254 (5th Cir. 2003). We quote with approval the sound reasoning set forth in the opinion of Judge Carl Stewart:

We also find that Louisiana's Code articles governing the "payment of a thing not owed" compel our conclusion that, contrary to Canal's argument, an insurer does not, by virtue of making a payment on a claim, waive the right to assert coverage defenses to a subsequent claim . See La. Civ. Code Ann. arts. 2299 - 2305 (2003). Indeed, Louisiana's intermediate appellate courts have relied on these articles in holding that an insurer's erroneous, or even negligent, payment of a claim to its insured does not bar the insurer from later recouping the amount paid. Dear v. Blue Cross of Louisiana , 511 So.2d 73, 74-76 (La.Ct.App. 3d Cir.1987) (holding that an insurer's erroneous payment to its insured for medical expenses arising from a preexisting condition that was excluded from coverage did not bar the insurer from recovering the amounts paid); Central Sur. & Ins. Corp. v. Corbello , 74 So.2d 341, 344 (La.Ct.App. 1st Cir.1954) (allowing insurer to recover payments it made to its insured for costs related to an accident that occurred after the expiration of the policy); see also Pioneer Bank & Trust Co. v. Dean's Copy Prods., Inc. , 441 So.2d 1234, 1236-37 (La.Ct.App. 2d Cir.1983) (holding that a bank's negligence in mistakenly paying a judgment creditor who had no account with the bank did not bar the bank's claim for reimbursement of the amount of debt paid). Moreover, under Louisiana Civil Code article 2299, analyzed in detail below, even "a person who knowingly has paid a thing not owed may reclaim" the amount paid from the recipient. La. Civ.Code. Ann. art. 2299 cmt. (d) (2003). Applied to the facts before us, even if AISLIC's payment to Canal for the Comal County loss were made knowingly, such knowing payment would not waive its right to reclaim that amount. We therefore are unpersuaded by Canal's assertion that AISLIC's payment of the Comal County claim can waive the right to contest the subsequent Bexar County claim, when under Louisiana law such payment would not even estop the payor, AISLIC, from reclaiming the amounts paid for the Comal County loss. In sum, we decline to extend application of the waiver rule articulated in Steptore to the relationship among insurers particularly when, under the facts presented, such application would contravene the Louisiana Civil Code and this Circuit's precedent. Therefore, like the district court, we reject the contention that AISLIC waived the right to rely on its "other insurance" clause to contest liability for the Bexar County loss by having paid the prior Comal County claim.
Id. at 271 [emphasis added; footnotes omitted].

Applying this reasoning to the present case, we find any purported waiver by State Farm of its defenses with regard to the 2007 claim cannot constitute a waiver with regard to the current claim. Accepting plaintiff's argument would result in the absurd conclusion that State Farm is forever precluded from raising the anti-stacking defense in any future claim filed by plaintiff.

Accordingly, we find the court of appeal erred in affirming the judgment of the district court which held plaintiff was entitled to recover beyond the limits of his UM policy. That judgment must be reversed.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. Judgment is hereby rendered in favor of State Farm Mutual Automobile Insurance Co. dismissing the claims of Brandon Forvendel with prejudice.

      La. R.S. 22:1295(1)(c) provides:
      (c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subparagraph (1)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under such policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following with respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, and the following priorities of recovery under uninsured motorist coverage shall apply:
      (i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary.
      (ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

      Because the 2007 claim is not before us, we need not pass on the question of whether the law or public policy would countenance an action by an insurer which has the effect of expanding coverage beyond the limits set forth in La. R.S. 22:1295, although we acknowledge this question has prompted some divergence in the circuits. See Livas v. State Farm Mutual Automobile Ins. Co. , 99-1169 (La.App. 5 Cir. 7/18/00), 797 So.2d 694 (holding that a policy could extend coverage beyond that required by the statute); Egle v. Allstate Ins. Co. , 04-1144 (La. App. 3rd Cir. 12/08/04), 889 So.2d 413 (explaining the facts of Livas "are inapposite to the ones at hand, and we find this holding inapplicable to this case."). It suffices to say that for purposes of the facts before us, we find State Farm has not waived its defenses under the statute or its policy.