author: Osterhaus, J.

text:
    MILA ALF, LLC d/b/a Dixie Lodge Assisted Living Facility, Appellant, v. State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D18-3346
    District Court of Appeal of Florida, First District.
    May 30, 2019
    John F. Gilroy, III, Tallahassee, for Appellant.
    Nicholas A. Merlin, Agency for Health Care Administration, Tallahassee, for Appellee.
   Osterhaus, J.

MILA ALF, LLC appeals the decision of Florida's Agency for Health Care Administration to reject its change of ownership application for a standard license to operate an assisted living facility. Appellant makes two arguments on appeal. It argues, first, that it is entitled to a license by default under § 120.60(1), Florida Statutes (2015), because AHCA failed to timely decide its application. It argues, second, that AHCA wrongfully overturned a recommended order of the Division of Administrative Hearings in violation of § 120.57(1)(l), Florida Statutes (2015). We affirm AHCA's final order.

I.

In July 2015, Appellant submitted to AHCA an application for a change of ownership license related to the Dixie Lodge Assisted Living Facility. Dixie Lodge had been licensed under previous owners for about thirty years as a seventy-seven-bed assisted-living facility with limited mental health specialty services. AHCA granted Appellant a provisional license to operate the facility while reviewing its application for a standard license. See § 408.808, Fla. Stat. (2015).

Within a couple of months, AHCA issued a notice of intent to deny Appellant's application, citing its failure to meet minimum licensure requirements. AHCA identified eighteen Class III deficiencies and three Class II deficiencies from its change in ownership inspection. AHCA later amended the notice to add legal authority for its decision and results from a subsequently discovered violation.

Appellant petitioned for a formal administrative hearing pursuant to §§ 120.569 and 120.57(1), Florida Statutes. In 2018, the Division of Administrative Hearings held a hearing to decide whether Appellant's application for change of ownership should be approved. A recommended order issued in May 2018. The Recommended Order found that clear and convincing evidence supported many of the AHCA-identified deficiencies: failure to prepare and file adverse incident report, failure to obtain/maintain complete health assessments for residents, failure to provide residents with a minimum weekly number of hours of leisure and social activities, failure to ensure that residents' rights were addressed, failure to provide assistance with self-administration of medications, failure to maintain accurate and up-to-date medication observation records, failure to provide adequate supervision over the facility, failure to timely obtain/maintain in the personnel file of each direct health care provider verification that the staff member was free from communicable disease, failure to ensure that a staff member who had completed CPR courses was in the facility at all times, failure to ensure that staff members timely completed a required training course in DNRs, failure to maintain a three-day supply of food in case of an emergency, and failure to maintain facility records for admission and discharge.

But the ALJ also found that closing Appellant's facility would have a potential negative impact on the residents. The order concluded that AHCA did not demonstrate that the denial of Appellant's application was warranted under §§ 408.815(1)(b), 429.14(1)(a) or (e), or 408.815(1)(d), Florida Statutes ; but that it did have authority to deny Appellant's application under §§ 429.14(1)(h) and 408.815(1)(c), for failing to demonstrate that operations at the facility met minimum licensure requirements. The ALJ recommended, however, that AHCA not deny the application.

On July 12, 2018, AHCA's Final Order incorporated most of the recommended order. But it ultimately denied the application, citing §§ 429.14(1)(e) and 408.806(1)(g), Florida Statutes, because of the twenty-four deficiencies uncovered by AHCA's ownership survey inspection and Appellant's "failure to meet minimum licensure requirements." After AHCA denied Appellant's application, this appeal followed.

II.

A.

The first issue in this appeal involves the interpretation and application of § 120.60(1), Florida Statutes. Appellant argues that the statute requires AHCA to grant its application to operate the assisted living facility by default because AHCA failed to timely issue its final order. An issue involving statutory interpretation is subject to de novo review. W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.3d 1, 8 (Fla. 2012). Courts must give full effect to all statutory language and avoid readings that render a statute meaningless. Bennett v. St. Vincent's Med. Ctr., Inc. , 71 So.3d 828, 838 (Fla. 2011).

Florida law requires those that operate an assisted living facility to have a license granted by AHCA. §§ 429.04(1), 429.07(1), 408.802(11), Fla. Stat. In this case, Appellant applied for such a license, but AHCA denied it because Appellant failed to show that it met licensure requirements in AHCA's pre-licensure inspection. Appellant argues, however, that it is entitled to a default license anyway, because, under § 120.60(1), AHCA failed to make a final decision on its application within 45 days after the ALJ's recommended order. After the ALJ recommended that AHCA grant Appellant's license on May 10, 2018, AHCA didn't issue its final order denying Appellant's license application until July 12, 2018, some 63 days later.

Section 120.60(1) provides in pertinent part as follows:

Any application for a license which is not approved or denied ... within 45 days after a recommended order is submitted to the agency and the parties, whichever action and timeframe is latest and applicable, is considered approved unless the recommended order recommends that the agency deny the license. Subject to the satisfactory completion of an examination if required as a prerequisite to licensure, any license that is considered approved shall be issued and may include such reasonable conditions as are authorized by law.

Previous cases in other contexts have enforced this statute to grant licenses when applications were undecided past the statutory deadline. See, e.g. , Premier Int'l Travel, Inc. v. Bronson , 843 So.2d 294 (Fla. 1st DCA 2003) (" Section 120.60(1) provides that the agency must approve any application for a license if the agency has not approved or denied the application within the time periods prescribed by that subsection.");

Krakow v. Dep't of Prof'l Regulation, Bd. of Chiropractic , 586 So.2d 1271, 1273 (Fla. 1st DCA 1991) (recognizing that "[o]nce the board failed to act in a timely manner, it was precluded from considering the merits of the appellants' application and ... the application must be deemed approved"). Here, it is undisputed that AHCA failed to issue a final order within 45 days after submission of the recommended order.

We conclude, however, that Appellant is not entitled to a default license because it failed to meet minimum licensure requirements in AHCA's pre-licensure survey inspection. Section 120.60(1) makes the issuance of a default license "[s]ubject to the satisfactory completion of an examination if required as a prerequisite to licensure." In this case, AHCA's pre-licensure inspection to determine if an owner-applicant can ably operate an assisted living facility constitutes such an "examination" prerequisite to licensure.

To operate an assisted living facility, a new owner must apply and pass a pre-licensure inspection to confirm upfront its ability to lawfully operate the facility. §§ 408.806(1)(g) (requiring applicants to satisfactorily pass an inspection to show that they can carry out their statutory and regulatory responsibilities); 408.806(7) (requiring applicants to pass an inspection); 408.808(1) (conditioning issuance of a standard license on "compliance with all statutory requirements and agency rules"); 408.811 (authorizing agency inspections), Fla. Stat.; see also Fla. Admin. Code R. 59A-35.060(6)(c) (providing for the "[c]ompletion of a satisfactory inspection" in which no regulatory violations exist, or all prior violations have been corrected). Here, Appellant failed its pre-licensure examination. AHCA concluded that Appellant didn't meet minimum licensure requirements because its survey-inspection results showed more than twenty deficiencies. Under these circumstances, where the applicant has failed the pre-licensure examination, § 120.60(1) does not require a default license to be issued. AHCA retained authority to deny Appellant's license application because Appellant failed its pre-licensure inspection. See § 429.14(1)(h), Fla. Stat. (authorizing AHCA to deny a license due to the applicant's failure to meet minimum requirements at the time of the license application).

B.

Finally, we do not agree with Appellant's argument that AHCA wrongfully overturned the ALJ's recommended order in violation of § 120.57(1)(l).

Section 120.57(1)(l) requires that

When rejecting or modifying [a] conclusion of law ... the agency must state with particularity its reasons for rejecting or modifying [it] and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

In this case, both the Recommended and Final Orders found that the AHCA-identified deficiencies allowed the agency to deny Appellant's license application. Although the Recommended Order did not ultimately recommend that AHCA deny the application, it confirmed the legal basis for AHCA to do so. The Final Order agreed, in turn, that AHCA could deny Appellant's application because of Appellant's inspection-related shortcomings. Accordingly, because the facts and legal conclusions in the Recommended and Final Orders were in agreement regarding AHCA's authority to deny Appellant's application, and AHCA explained its reasons for doing so, the Final Order did not violate § 120.57(1)(l) of the Administrative Procedures Act.

III.

For these reasons, the Final Order denying Appellant's application is affirmed.

AFFIRMED .

Rowe and Makar, JJ., concur.

      The term "examination" in § 120.60(1) is not defined in the statute, so we construe it according to its "plain and ordinary sense." State v. Brake , 796 So.2d 522, 528 (Fla. 2001) (citing State v. Mitro , 700 So.2d 643, 645 (Fla. 1997) ). See, e.g. , Examination, Merriam-Webster Online Dictionary , www.merriam-webster.com/dictionary/examination (defining examination as "1 : the act or process of examining : the state of being examined[;] 2 : an exercise designed to examine progress or test qualification or knowledge[; and] 3 : a formal interrogation").


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tony Carl MCBEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3383
    District Court of Appeal of Florida, First District.
    May 30, 2019
    Tony Carl McBee, pro se, Appellant.
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Tony Carl McBee, appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The denial must be reversed as to ground two because the record attachments provided by the trial court did not conclusively refute the sworn allegations of appellant's motion. The summary denial as to grounds one, three, four, and five is affirmed.

The Appellant pled guilty to manslaughter and battery of a person 65 years of age or older. In the months before the Appellant entered his plea, defense counsel hired an expert to conduct a forensic evaluation of the victim's death, and the defense expert's report concluded that the Appellant's battery of the victim was not the cause of death.

In ground two of his motion, the Appellant argues that counsel was ineffective because counsel failed to inform him of this forensic evaluation's conclusion, and if he had been properly informed, he would not have entered a plea of guilty. The trial court denied the claim on the ground that the Appellant told the court under oath that he had discussed all possible defenses with counsel and he was happy with counsel's services. However, nothing in the record showed that the Appellant was aware of a forensic report supporting his defense. See, e.g., Richardson v. State, 723 So.2d 910 (Fla. 1st DCA 1999) (holding that plea colloquy in which defendant indicated he was happy with counsel and had been advised of all possible defenses did not refute ineffective assistance claim based on counsel's failure to advise him of a possible defense); Fletcher v. State, 890 So.2d 1167, 1169 (Fla. 5th DCA 2005) ("While the plea transcript reflects that Fletcher stated that his defense counsel had discussed possible defenses with him, there is nothing to show that Fletcher was made aware of a potential suppression issue prior to entering his plea."); Jones v. State, 846 So.2d 1224 (Fla. 2d DCA 2003) (noting that a generalized plea colloquy confirming satisfaction with counsel was insufficient to refute a claim based on counsel's failure to advise of a specific defense). In its response to this court's order to show cause pursuant to Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986), the State has conceded that the documents attached to the order denying the motion for postconviction relief do not conclusively refute this claim.

Accordingly, we reverse as to ground two and remand for further proceedings. We affirm the summary denial as to the other grounds.

Wolf, Bilbrey, and Winsor, JJ., concur.


author: PER CURIAM.

text:
    Jeffrey C. ABRAMOWSKI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3560
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019 Rehearing Denied May 15, 2019
    Jeffrey C. Abramowski, Indiantown, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Due to Appellant's apparent abuse of the legal process by his abusive, repetitive, malicious, or frivolous pro se filings attacking his judgment and sentence in Brevard County Circuit Court Case Number 05-2002-CF-063402-A, this Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So. 2d 47, 48 (Fla. 1999). Having carefully considered the response and finding it fails to show cause why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, Appellant is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State , 652 So. 2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State , 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

Future Pro Se Filings PROHIBITED.

BERGER, LAMBERT and GROSSHANS, JJ., concur.


text:
    Jessica M. GRAULAU MALDONADO, Appellant, v. ORANGE COUNTY PUBLIC LIBRARY SYSTEM, Appellee.
    Case No. 5D18-2800
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    Jessica M. Graulau Maldonado, Orlando, pro se.
    Eric J. Netcher and Patricia Rego Chapman, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.
   PER CURIAM.

Jessica M. Graulau Maldonado appeals a final order dismissing with prejudice her personal injury action against the Orange County Public Library System ("Library"). We reverse the order dismissing the second amended complaint with prejudice because it sufficiently alleged a negligence cause of action. However, we affirm the dismissal with prejudice of the strict liability claim in the amended complaint without further discussion.

Ms. Maldonado's second amended complaint alleged that she was at the Library's southeast branch, making copies at a photocopier, when she tripped and fell over the bottom drawer of the photocopier. More specifically, she alleged that "without any warning, the bottom door of the machine came loose and suddenly flew wide opened [sic] causing [her] to trip and fall on her both knees regardless [of her] attempt to avoid the fall." She further alleged that the Library owned the photocopier and had a duty to use reasonable care in maintaining the machine to ensure that it was safe for use by patrons. The trial court concluded that the second amended complaint failed to state a cause of action and dismissed the case with prejudice.

We review orders granting motions to dismiss de novo. See Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009) ; Dingle v. Dellinger, 134 So. 3d 484, 487 (Fla. 5th DCA 2014). For purposes of assessing the adequacy of the pleading of a claim, we take the factual allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Jordan v. Nienhuis, 203 So. 3d 974, 976 (Fla. 5th DCA 2016) ; Ray Coudriet Builders, Inc. v. R.K. Edwards, Inc., 157 So. 3d 484, 485 (Fla. 5th DCA 2015). We cannot look further than the complaint and its attachments when considering a dismissal motion. Mohan v. Orlando Health, Inc., 163 So. 3d 1231, 1233 (Fla. 5th DCA 2015).

Florida is a fact-pleading jurisdiction, not a notice-pleading jurisdiction. Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 681 (Fla. 5th DCA 2006). A complaint must contain "a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." Fla. R. Civ. P. 1.110(b). To state a cause of action for negligence, a complaint must allege: "(1) a duty to the plaintiff; (2) the defendant's breach of that duty; (3) injury to the plaintiff arising from the defendant's breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant's breach of duty." Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011). A business owner owes two duties to a business invitee: (1) to use reasonable care to keep its premises reasonably safe and (2) to warn of latent or concealed perils that were known or should have been known to the owner and which the invitee could not discover through the exercise of due care. See Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012).

Here, the second amended complaint sufficiently stated a claim for negligence against the Library. Ms. Maldonado's second amended complaint defined her status on the property (an invitee), the date of the accident (November 4, 2014), her location on the premises (at the photocopier), the cause of her fall (the loose bottom drawer of the photocopier that suddenly flew open in her path) and the Library's alleged failure to maintain and inspect the photocopier. These allegations are sufficient to state a negligence claim that is plausible on its face.

For these reasons, we reverse the dismissal of Ms. Maldonado's negligence claim against the Library, but affirm dismissal of the strict liability claim.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


text:
    Christopher Mack CHARLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-1823
    District Court of Appeal of Florida, First District.
    May 31, 2019
    Christopher Mack Charles, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Makar, and Kelsey, JJ., concur.


text:
    Oliver THAMES, Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-3754
    District Court of Appeal of Florida, First District.
    May 31, 2019
    Oliver Thames, pro se, Petitioner.
    Ashley Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Kelsey, and Winokur, JJ., concur.


author: Ray, J.

text:
    Kenneth OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2765
    District Court of Appeal of Florida, First District.
    June 5, 2019
    Bert Moore, Crestview, for Appellant.
    Ashley Moody, Attorney General, and Benjamin Louis Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
   Ray, J.

In this direct appeal, Kenneth Osborne challenges his judgment and sentence for lewd and lascivious conduct and video voyeurism. Osborne pleaded no contest after he unsuccessfully sought to suppress video from a camera obtained during the search of his residence. The trial court adjudicated Osborne guilty on both counts and sentenced him to fifteen years in prison followed by five years of probation. Osborne now challenges the denial of his motions to suppress.

In general, a defendant who pleads guilty or nolo contendere forfeits the right to appeal the judgment entered on the plea. An exception exists when a defendant "expressly reserve[s] the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved." Fla. R. App. P. 9.140(b)(2)(A)(i) ; see also § 924.051(4), Fla. Stat. (2016) ("If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.").

Here, Osborne failed to reserve the right to appeal the trial court's ruling on the motions to suppress, either in the written plea agreement or during his plea colloquy. Further, the State did not stipulate, and the trial court did not determine, that the motions to suppress were dispositive.

Because Osborne gave up the right to challenge the denial of his motions to suppress, we affirm. See Leonard v. State , 760 So. 2d 114, 119 (Fla. 2000) (holding that a district court should summarily affirm "when the court determines that an appeal does not present ... a legally dispositive issue that was expressly reserved for appellate review").

AFFIRMED .

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


text:
    BLACK POINT ASSETS, INC., AS TRUSTEE OF the 12264 BLACK WALNUT COURT LAND TRUST and Star Pointe Capital, LLC, as Trustee of the 12264BWC Land Trust, Petitioners, v. FREEDOM MORTGAGE CORPORATION, Robert Woodson, Jr., and the Villages of Northwood Homeowners Association, Inc., Respondents.
    No. 1D18-5274
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Shawn G. Brown of Kaye Bender Rembaum, P.L., Tampa, for Petitioners.
    Robert R. Edwards, Choice Legal Group, P.A., Fort Lauderdale, for Respondent Freedom Mortgage Corporation.
    No appearance for other Respondents.
   Per Curiam.

Petitioners failed to establish that the order requiring Respondent Robert Woodson, Jr., to make rental payments into the court registry will result in material injury to petitioners that cannot be remedied on appeal. Accordingly, the petition for writ of certiorari is dismissed for lack of jurisdiction.

DISMISSED .

Wolf, Wetherell, and Makar, JJ., concur.


text:
    Derek Martin GRIFFIN, Appellant, v. Angela Mary GRIFFIN, Appellee.
    No. 1D18-4078
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Derek Martin Griffin, pro se, Appellant.
    Clark H. Henderson of Henderson Law Firm, PA, Shalimar, for Appellee.
   Per Curiam.

In this dissolution case, the former husband challenges the equitable distribution of the $ 72,000 he received from the settlement of his worker's compensation case. We summarily reject the former husband's argument that the trial court abused its discretion in finding that the settlement proceeds were subject to equitable distribution as a marital asset, but because only about $ 6,400 of the settlement proceeds remained as of the date of the final hearing, a specific finding of misconduct was required for the court to include the entire amount of the settlement in the equitable distribution scheme. See Olivarez v. Olivarez , 250 So. 3d 872 (Fla. 1st DCA 2018) ("Absent a showing of misconduct, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.") (internal quotations omitted); Walker v. Walker , 85 So. 3d 553, 555 (Fla. 1st DCA 2012) ("[I]n order to determine that a spouse has dissipated marital assets, the trial court must make a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.") (internal quotations omitted). Accordingly, we reverse the equitable distribution portion of the dissolution judgment and remand to the trial court for additional findings or reconsideration of the equitable distribution scheme. The dissolution judgment is otherwise affirmed.

AFFIRMED in part; REVERSED and REMANDED in part.

Wolf, Wetherell, and Makar, JJ., concur.

      The former husband testified that he used the rest of the proceeds to pay legal fees, child support, and living expenses during the dissolution proceeding, but the trial court made no findings on the veracity of this testimony or the amount of the remaining settlement proceeds.


author: Winokur, J. Makar, J., dissenting.

text:
    Jerry WEAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2727
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Andy Thomas, Public Defender, Steven Seliger, Assistant Public Defender, Lori A. Willner, Assistant Public Defender, and Aimee Lim, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

A nighttime 911 call from a small, five-mobile-home area at the end of a dirt road reported a suspicious person on a motorcycle walking around a foreclosed home nearby. The caller believed the person might be committing a burglary, but, in the dark of the night, could not provide any additional details and then refused to disclose his or her identity. Two officers responded within minutes, driving down the empty road to the group of mobile homes. Before they got there, Jerry Weakley approached heading in the opposite direction on a motorcycle before aggressively accelerating and veering into the shoulder of the road in an attempt to flee past the officers. Based on the motorcyclist's behavior and the nature of the report, the officers stopped Weakley, discovered the motorcycle to be stolen, and found various articles of contraband. Weakley moved to suppress the contraband, but the trial court found the officers had reasonable suspicion to stop him. Weakley entered a plea to four charges, reserving the right to appeal the denial of his motion to suppress, which he now does. Because we find that Weakley has not met his burden of proving the trial court's ruling incorrect, we affirm.

A stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer's well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.

C.E.L. v. State , 24 So. 3d 1181, 1186-89 (Fla. 2009) (citations omitted) (holding that flight from the police in a high-crime area satisfied reasonable suspicion).

In Baptiste v. State , 995 So. 2d 285, 288, 293 (Fla. 2008), an anonymous caller reported a man's alleged criminal activity and responding officers detained the man without observing "any illegal activity, unusual conduct, or suspicious behavior." The supreme court found that the officers lacked reasonable suspicion. While the Court acknowledged that an anonymous tip alone generally does not provide reasonable suspicion for a stop, it made sure to note that anonymous tips could "provide reasonable suspicion under a totality-of-the-circumstances analysis" in certain cases, such as when an officer makes "subsequent observations of a suspect who matches the description given." Id. at 296-97 (citing United States v. Gooden , 273 F.3d 1100, 1100 (5th Cir. 2001) (unpublished opinion), as holding that "even where the anonymous tip alone failed to establish reasonable suspicion, the fact that the suspect reached for his waistband upon seeing officers provided reasonable suspicion for initiation of a Terry stop"). The supreme court continued, stating that "nervous behavior of a suspect upon the approach of an officer, when considered in conjunction with a purely anonymous tip, may under the totality of the circumstances establish reasonable suspicion for an investigative stop." Id. at 297 (discussing United States v. Sims , 296 F.3d 284, 285-87 (4th Cir. 2002), and noting that neither the anonymous tip nor the suspect's nervous and evasive behavior would have independently justified a search, but did so when considered together). Additionally, the "court may consider 'the time of day, the day of the week, the location, the physical appearance and behavior of the suspect, the appearance and manner of operation of any vehicle involved or anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge.' " Jenkins v. State , 685 So. 2d 918, 920 (Fla. 1st DCA 1996) (quoting Gipson v. State , 537 So. 2d 1080, 1081 (Fla. 1st DCA 1989) ).

Considering the totality of the circumstances, and by interpreting the evidence in the manner most favorable to sustaining the trial court's ruling, we conclude that the officers had reasonable suspicion to stop Weakley. A caller reported an unknown individual on a motorcycle walking around an abandoned home one night and believed a burglary might be occurring. Officers quickly responded to the very secluded area down a dirt road in the dark and found a motorcycle approaching. Rather than calmly stop or pull to the side of the road so the officers could pass, Weakley aggressively veered to pass the officers and flee. Cf. Baptiste , 995 So. 2d at 296-97 ; Tobin v. State , 146 So. 3d 159, 161-63 (Fla. 1st DCA 2014) (finding no reasonable suspicion where the anonymous calls were not corroborated by suspicious activity as the appellant was stopped when simply leaving the property).

In finding the stop unconstitutional, the dissent makes two mistakes. First, it considers the various indicia of suspicion individually, discounting separately the anonymous call about Weakley lurking around the vacant trailer and his later attempt to evade police. But the Supreme Court recently noted that "the whole is often greater than the sum of its parts-especially when the parts are viewed in isolation" and faulted a lower court for viewing each fact in isolation, as the "totality-of-the-circumstances test 'precludes this sort of divide-and-conquer analysis.' " District of Columbia v. Wesby , --- U.S. ----, 138 S. Ct. 577, 588, 199 L.Ed.2d 453 (2018) (quoting United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ). Applying this rule from Wesby and Baptiste , Weakley's flight from the police works in conjunction with the report that he may have just committed or attempted a burglary. Second, having determined that neither the anonymous call nor flight was independently sufficient, the dissent concludes that Weakley's flight was not really a flight, but the expected behavior of an approaching motorist, and could not contribute to the reasonable-suspicion analysis. But the officers testified that Weakley's driving was aggressive and indicative of an attempt to flee, and the trial court found that Weakley attempted to flee. The dissent improperly dismisses the trial court's finding and fails to interpret the evidence in the light most favorable to affirmance, as we must. See Presley , 204 So. 3d at 86-87. The dissent also repeatedly notes that Weakley was not arrested or cited for a traffic violation for fleeing from police. But conduct does not need to be illegal (or acted upon if so) to be suspicious. The Supreme Court explained that "the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts." Wesby , 138 S. Ct. at 588 (quoting Illinois v. Gates , 462 U.S. 213, 244 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). It is thus irrelevant that, as the dissent points out, "no criminal charges or traffic violations were lodged against Weakley, other than the possession charges that arose from his detention." Dissenting op. at 288. We do not need to decide if Weakley's flight may have violated any laws in itself, nor did the officers. It was reasonable to conclude that Weakley attempted to flee when officers approached and that this flight was suspicious in light of the report of a suspected burglary. See Wesby , 138 S. Ct. at 587 (" '[U]nprovoked flight upon noticing the police,' we have explained, 'is certainly suggestive' of wrongdoing and can be treated as 'suspicious behavior' that factors into the totality of the circumstances.... In fact, 'deliberately furtive actions and flight at the approach of ... law officers are strong indicia of mens rea .' " (quoting Illinois v. Wardlow , 528 U.S. 119, 124-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and Sibron v. New York , 392 U.S. 40, 66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) )).

Finding no error in the trial court's findings, we agree that the totality of the circumstances shows that the officers had reasonable suspicion to stop Weakley following his attempted flight. We AFFIRM his convictions.

Winsor, J., concurs; Makar, J. dissents with opinion.

Makar, J., dissenting.

Lowering the bar in this Fourth Amendment anonymous tip case is a limbo dance I cannot join.

Responding to a mid-evening anonymous call about someone pulling up on a motorcycle and walking near a vacant home in a mobile home neighborhood in rural Leon County, Florida, two sheriff's officers separately drove to the area down a narrow, unlit, and bumpy "two-rut" road (Comet Drive). The anonymous caller refused to be identified, gave no physical characteristics of the person (e.g., gender, race, height/weight) or the motorcycle (e.g., make, size, color), saw no criminal activity, and expressed only a generalized concern that a burglary might be in the works. When an approaching motorcycle's headlight came into view, the officers-without their blue lights on-continued to drive slowly (10-15 mph) forward until the motorcycle turned into a small bypass area where, when two vehicles meet, one gets out of the way. At that moment, the first officer-believing the motorcyclist might be taking flight-activated his vehicle's blue lights, exited the vehicle, and immediately detained and began questioning the driver, Jerry Weakley, who was simultaneously blocked in by the second officer's closely trailing squad car, which was just "a few feet" behind. Weakley-detained within seconds-made no attempt to flee. The officers ran the motorcycle's license plate, determined it was reported as stolen, and-after searching Weakley-arrested him for possession of a firearm by a felon, for possession of paraphernalia, and for theft of the motorcycle (the latter charge was later dropped due to lack of a good faith basis to prosecute). No burglary, trespass, or any other criminal activity was discovered in the neighborhood, and no criminal charges or traffic violations were lodged against Weakley, other than the possession charges that arose from his detention.

Weakley pleaded guilty to the possession charges and appeals the denial of his motion to suppress, which argued that his physical detention, search, and questioning were illegal because the tipster's call was anonymous, provided no physical features or characteristics of the person or the motorcycle, and lacked reliability or corroboration (no effort was made to contact the caller). Neither the caller nor the officers observed any behavior that could form the basis for a well-founded and reasonable suspicion that Weakley had or was about to commit a crime. The trial court denied the motion, a ruling that on appeal presents a mixed question of fact and law: the former receives deference while the latter requires the independent application of the constitutional standard (i.e., de novo review). Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."); Majors v. State , 70 So. 3d 655, 659 (Fla. 1st DCA 2011) ("A trial court's factual findings supporting a motion to suppress are reviewed to determine whether they are grounded in competent, substantial evidence, and its legal conclusions are reviewed de novo.... whether reasonable suspicion exists for a detention under a specific set of facts is a question of law to be reviewed de novo.").

The Fourth Amendment and its Florida counterpart establish the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" absent a warrant or a judicially-recognized exception. U.S. Const. amend. IV ; FLA. CONST. art. I, § 12 (requiring that this "right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court."). No dispute exists that Weakley was seized without a warrant, leaving only the question of whether the State met its burden to establish that the "investigatory detention" exception applies in this case. Florida v. Royer , 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.")

In accord with Supreme Court precedent, our supreme court has held that "a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime." See Popple v. State , 626 So. 2d 185, 186 (Fla. 1993) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that reasonable suspicion requires more than a "hunch" about possible criminal activity)). To avoid a Fourth Amendment violation, "an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop." Popple , 626 So. 2d at 186 ; see also § 901.151 Fla. Stat. (1991).

To justify an investigative detention, a law enforcement officer must have a reasonable suspicion that a person has committed or is about to commit a crime .... A hunch or a mere suspicion is not enough. As the Florida courts have explained, the officer must be able to articulate the supporting facts, and the suspicion must be well-founded.

Faunce v. State, 884 So. 2d 504, 506 (Fla. 1st DCA 2004) (emphases added). The quantity and quality of information are key in assessing reasonable suspicion, which "is dependent upon both the content of information possessed by police and its degree of reliability. Both factors-quantity and quality-are considered in the 'totality of the circumstances-the whole picture,' ... that must be taken into account when evaluating whether there is reasonable suspicion." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ); see also Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (reaffirming the use of "the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations.").

The two-step process for assessing the constitutionality of an investigatory stop requires, first, the identification of the "historical facts" leading up to the search and, second, whether these facts, "viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion" of criminal activity to justify a stop. Ornelas , 517 U.S. at 696, 116 S.Ct. 1657. The second step-application of an objective standard-presents a "mixed question of law and fact." Id. Reasonableness "is measured in objective terms by examining the totality of the circumstances," Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), with the subjective intentions of the officers playing no role, Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

The dispositive issue is whether the limited information the officers had from the anonymous call plus Weakley's conduct meets the constitutional standard for an investigatory detention, i.e., whether the detaining officers had a well-founded and reasonable suspicion that the approaching motorcyclist had committed or was about to commit a crime that justified his immediate detention. Put another way, what crime did the officers reasonably believe the oncoming motorcyclist had committed to justify immediate detention? The unverified anonymous tip and motorcyclist's conduct viewed collectively and objectively fail to show a well-founded basis to reasonably suspect that the motorcyclist had committed a crime for which immediate investigatory detention was permissible.

Unlike cases involving reliable and detailed information from known tipsters buttressed by police observations that corroborate or independently observe potential criminal conduct, the totality of the evidence in this case is skimpy: a bare-bones anonymous tip plus the perceived flight of an approaching motorcyclist. To begin, an anonymous tip must be closely scrutinized for reliability because "[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ... 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity[.]' " Florida v. J.L. , 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (citation omitted). Unlike information from reliable and verifiable third parties, upon which officers can rely, an anonymous tip falls at the lower spectrum of reliability and is accorded little to no weight. Baptiste v. State , 995 So. 2d 285, 292 (Fla. 2008) ("a truly anonymous tip has been consistently held to fall on the low end of the reliability scale, primarily because the veracity and reliability of the tipster is unknown.").

The anonymous call here is at the bottom of the reliability index. The caller refused to be identified and, indeed, was never contacted, remaining unknown and nameless today. The information provided was generic and overly vague. No description was given of the person or the motorcycle, no crime or illegal activity was observed (or ultimately discovered), and the anonymous caller expressed only a hunch that something suspicious may be afoot.

The record does not include audio or a transcript of the anonymous call, but it was essentially no more informative than the following hypothetical call:

Anonymous Caller : Someone just drove a motorcycle up to my neighbor's home. They're on vacation.
Police Operator : Can you describe the motorcycle or its driver?
Anonymous Caller : No.
Police Operator : Did you see any criminal activity?
Anonymous Caller : No, but I'm concerned about a burglary or something.
Police Operator : Thank you.

Anonymous calls of this type lack meaningful details for police officers to corroborate as to the vehicle, its driver, or suspected criminal activity. It provides nothing more than a highly speculative hunch, and nothing reliable upon which to conclude, that a crime was in progress or about to occur, let alone that the motorcyclist was the perpetrator. As the Supreme Court stated in its unanimous opinion in J.L. :

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality , not just in its tendency to identify a determinate person . Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed.1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).

529 U.S. at 272, 120 S.Ct. 1375 (emphases added). As the accentuated language makes clear, an anonymous tip must (a) reliably identify a "determinate person" and (b) reliably provide a reasonable suspicion as to the likelihood of criminal activity.

Neither of these facets of reliability for assessing anonymous sources-reliability as to a subject's readily observable appearance and reliability as to the assertion of criminal activity-is met in this case. The former obviously is not met because the caller couldn't even say whether the subject was a man or woman and couldn't describe the motorcycle. As to the latter facet, at the time Weakley was detained, the officers "did not have knowledge of any facts relating to a specific criminal offense" to support detaining him. Hill v. State , 51 So. 3d 649, 651 (Fla. 1st DCA 2011). The anonymous caller didn't see illegal activity and merely fretted that a burglary might be taking place; no burglary or other criminal activity was observed and, indeed, no burglary or other criminal activity was shown to have occurred. As such, the anonymous call was both quantitatively and qualitatively lacking as to specifics and reliability. Alabama, 496 U.S. at 330, 110 S.Ct. 2412.

Because the anonymous call had a "relatively low degree of reliability," "more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id. The only additional information is the officer's belief that the approaching motorcyclist may have been attempting to flee the area, which objectively doesn't move the "totality of the circumstances" needle enough to justify an immediate, split-second detention. Armed with threadbare anonymous information, the officers had nothing reliable upon which to base their immediate stop of the motorcyclist as he approached, hemming him in and stopping his movement instantly. They had no reliable information that any crime, let alone a specific crime, had occurred that justified detention. Majors , 70 So. 3d at 659. At best, one officer characterized Weakley's turn into the bypass area as "veering" in an "aggressive" way that made him believe Weakley might be attempting to "flee" the area. This belief is too slender a reed upon which to lower the bar to permit immediate detention under the Fourth Amendment, see, e.g. , Hill , 51 So. 3d at 651 ("reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears."), and doesn't transform the anonymous caller's speculative and unsubstantiated surmise into a well-founded basis to believe that the motorcyclist had just committed some unspecified and unseen crime.

Plus, at the fleeting moment when the approaching motorcyclist veered into the bypass shoulder, even if to flee the area, what specific crime did the officers have a well-founded and reasonable basis to believe the motorcyclist had committed? Answer: None. As in J.L. , the officers had no reason to suspect the approaching motorcyclist of illegal conduct other than pure speculation based on the sketchy anonymous tip. 529 U.S. at 268, 120 S.Ct. 1375 ("Apart from the tip, the officers had no reason to suspect any of the three [juveniles] of illegal conduct."). The anonymous caller saw no illegal conduct and the officers admitted that they saw no illegal conduct or traffic infractions, making it all the more attenuated to conclude that a well-founded reasonable suspicion existed that a crime had occurred. See also Majors , 70 So. 3d at 660 ("officers' inability to point to facts that suggested a particular crime had occurred, was occurring, or was about to occur" weighs "against a conclusion that reasonable suspicion existed."). Presented with anonymously-provided and exceedingly-slim information, the officers had no objective basis upon which to form a well-founded, reasonable suspicion that any crime had occurred, let alone that the approaching motorcyclist was the culprit. Apart from the anonymous tip, the officers lacked any reason to suspect the motorcyclist of illegal conduct, making the stop unconstitutional. See J.L. , 529 U.S. at 268, 120 S.Ct. 1375.

Importantly, nothing establishes that Weakley knew the approaching vehicle was a police car, whose blue lights had not been activated, making it pure speculation that he was fleeing from the police. Moreover, even accepting the officer's subjective belief that Weakley was attempting to flee, and that Weakley knew he was fleeing from approaching police vehicles, it was not the type of "headlong" and "unprovoked flight" from police in a high crime area that ramps up the reasonable suspicion meter. Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("presence in an area of heavy narcotics trafficking" plus "unprovoked flight upon noticing the police" supported a finding of reasonable suspicion); C.E.L. v. State , 24 So. 3d 1181 (Fla. 2009) (investigatory detention permissible where juvenile's continued flight from officers was in a high-crime area and in defiance of a police officer's order to stop); Majors , 70 So. 3d at 660 ("Typically, flight from the police justifies a stop when it is unprovoked and occurs in a high-crime area."). No evidence suggests that the handful of mobile homes in rural Leon County was a "high crime" area, and 9:30 pm is not a particularly crime-suspicious time of day (versus, say, 4:00 am. like in Cooks v. State , 28 So. 3d 147 (Fla. 1st DCA 2010) ). Motorcycles coming and going from mobile homes mid-evening are not unusual or suspicious events, at least not in Florida; turning into a small bypass area on a narrow road, even if subjectively described as "aggressive," isn't unusual or unexpected and is not an objective basis for automatically stopping a motorist where no reliable information of a crime is possessed. Veering isn't a crime or even a traffic infraction, as the officer admitted; it is exactly what would be expected of any oncoming vehicle under the circumstances. After all, the officer described the bypass as "an area where, when two vehicles met, one of them would get up on the shoulder."

In summary, the evidence fails to objectively establish a well-founded and reasonable suspicion that the oncoming motorcyclist, Weakley, had just committed a crime that justified his detention. His seizure was based on pure speculation without a well-founded and reasonable suspicion that any crime had occurred. No crime was observed by the anonymous caller or the police officers, no crime was reported, and no crime was discovered; all that existed was the unsupported speculative hunch. The majority cannot identify a well-founded factual basis for what crime was allegedly committed that would justify immediate physical detention of an approaching (or even fleeing) motorcycle; the anonymous caller's hunch was that a burglary might be afoot, but one could speculate as to almost any property crime being a possibility (arson, larceny, motor vehicle theft, vandalism, etc.), thereby demonstrating the unreasonableness of detention.

No case remotely supports the majority's holding on the facts presented. That's because the benchmark applied in this case is lower than any this Court (or the United States Supreme Court or our supreme court) has applied in other similar investigatory detention cases; indeed, it falls below the benchmark set in three citizen informant cases (i.e., cases where information provided is deemed more reliable than anonymous tips) from this Court. For instance, in Cooks , a 4:00 am report of suspicious activity was made by a hotel clerk ("Glenda") that a black male-who was with three other black males in a maroon four-door vehicle, possibly a Lincoln-was trying to open the back door of the hotel. 28 So. 3d at 148. The clerk told them to leave and, fearing for her safety, called the sheriff's office. "En route to the hotel, the deputy saw a car matching the description in the [dispatch] report. The deputy turned behind it and stopped the car. [Cooks] was driving and there was one other person in the car." Id. Cooks was detained, drugs were found in the car and in his jacket, and his motion to suppress challenging the constitutionality of the investigatory stop was denied.

This Court reversed, concluding that although the hotel clerk, Glenda, was a "citizen informant" whose information is accorded greater reliability and weight, the detailed information she provided failed to "create a reasonable suspicion that [Cooks] (or anyone else) had committed, was committing, or would commit a crime." Id. at 150.

According to the deputy's testimony, the hotel clerk told the dispatcher that a black man tried to open the back door of the Blue Angel Inn about an hour before she called, that the man left in a maroon Lincoln, and that there were a total of three black men in the car. Assuming all of this is true ..., it is difficult to see how this forms a reasonable suspicion that [Cooks] had committed, was committing, or would commit a crime . Even the deputy did not know what crime had been committed; he was on his way to "ascertain" just that.
The deputy testified that he felt there might have been a trespass or attempted burglary, but the state makes no real attempt to argue that trying the back door to a hotel and then leaving rises to the level of those crimes, and it is noteworthy that [Cooks] was not charged with any offense related to the suspicious activity reported by the hotel clerk. Even if, as the police report states, the hotel clerk was afraid that the men she saw may have been trying to see whether she was alone for purposes of robbing her, the clerk's "hunch" about the men's intention (which apparently was not correct because the men left and no robbery occurred) was not enough to establish a reasonable suspicion that would justify the stop .

Id. (emphasis added). Because "the tip was not reliable 'in its assertion of illegality' " the stop of Cooks was impermissible. Unlike the anonymous caller in this case, the hotel clerk in Cooks was a "citizen informant" who "falls at the higher end of the reliability scale." Baptiste, 995 So.2d at 291. Even with a higher level of reliability and far greater detail about the suspicious conduct in Cooks , this Court found no "reasonable suspicion that [Cooks] (or anyone else) had committed, was committing, or would commit a crime." Cooks , 28 So. 3d at 150.

Similarly, in R.E. v. State , 536 So. 2d 1125 (Fla. 1st DCA 1988), a citizen informant, Harold Davis, made calls to the sheriff's department after observing what he believed might be drug transactions.

Mr. Davis reported that he had been in a parking lot in Williston when he observed a meeting between two persons in a late model white automobile and other persons in a blue Pontiac. What appeared to be a key case passed between the cars and the occupants of the blue car opened the trunk of the white car. Although Mr. Davis did not see drugs or money change hands, the behavior of the participants suggested to him that a drug transaction had taken place. Mr. Davis identified the participants as white males and provided a partial license plate number for the white car.

Id. at 1126. After receiving another call from Davis, a message was sent to "be on lookout for a white Pontiac, tag number CEB-9?U, whose driver might be selling drugs," after which an officer soon saw and stopped a vehicle matching the description (with tag number CEB-92U) even though "there was nothing to arouse suspicion and the driver was obeying the traffic laws" at the time. Id. Amongst the three juveniles in the car were "several cans of beer" and marijuana. Id. at 1127.

In concluding that the investigatory detention was improper, this Court made two points. First, it rejected the view that the information provided by the informant "pertained to a specific offense," concluding instead that the report was of "generalized, allegedly suspicious activity" and that "it is necessary to make the additional showing that the information made it reasonable to suspect that a crime had been, was being, or would be committed." Id. at 1128. Second, a "citizen's claim of suspicious activity that has a minimal objective basis" must be corroborated by more than the "innocent details of identification (e.g., a license plate number)" to make the "required showing that the information was sufficiently detailed to single out the suspect." Id. Such information, however, does not "create or support a suspicion that crime is afoot, which is essential if a report of generalized, allegedly suspicious activity is to justify a stop." Id. ; see also N.S. v. State , 227 So. 3d 132 (Fla. 4th DCA 2017) (detective responding at 9:00 pm to a call of a suspicious vehicle at apartments detained a juvenile who was walking away as he approached; held, an unconstitutional investigatory detention); Collins v. State , 115 So. 3d 1040, 1042, 1043 (Fla. 4th DCA 2013) ("anonymous tip that two juveniles were loitering around the complex and that narcotics were possibly involved," but providing "no race, no gender, no other description" was "bare bones" and not "sufficient, even if corroborated, to justify an investigatory stop."). Applied here, it is obvious that the anonymous call-which gave far less information than the citizen informant in R.E. -pertained to no specific offense and amounted to a generalized and nonactionable suspicion that lacked an objective basis for detention.

Additionally, in Majors , a "bank manager called 911 and, whispering, reported that a customer was 'acting weird' and attempting to withdraw $ 17,500." 70 So. 3d at 658. The customer, who'd not made large withdrawals before, "wanted to make a check payable to the driver of a Nissan that was parked in front of the bank, and the customer kept going back and forth between the Nissan and the bank, acting strangely and having discussions with the people in the Nissan." Id. The bank manager said, "the customer seemed to know what he was doing but that the bank employees thought he might be on drugs." Id. Officers arrived at the bank and used their vehicles to block the Nissan, which was attempting to back out of a parking space, arresting Majors in the process. Id.

In concluding that the investigatory stop was unjustified, this Court made two critical points that are dispositive here. First, it noted that the officers admitted "that they did not suspect any particular crime was occurring when they stopped the Nissan," id. at 660, which weighs against the requirement that they "must be able to articulate in particular and objective terms his reasonable suspicion of criminal activity," id. (quoting Palmer v. State, 625 So. 2d 1303, 1306 (Fla. 1st DCA 1993) ).

Importantly, the officers in this case were not able to articulate a basis for suspecting criminal activity, as they were not even able to state a crime they believed was occurring . As suggested above, this factor weighs heavily in favor of a conclusion that no reasonable suspicion existed. Moreover, had they named a crime they believed was occurring, there would have been insufficient evidence to support their suspicion . The customer's activity inside the bank was strange, but the concern that this strange behavior and his interaction with the Nissan related to criminal conduct was not supported by any articulable facts.

Majors , 70 So. 3d at 661 (emphasis added). Like those in Majors, the officers here failed to articulate any particular crime for which a well-founded and reasonable suspicion existed to stop Weakley. And, most importantly, even if the officers had "named a crime they believed was occurring," the anonymous tip in this case contained no information upon which to conclude that a well-founded and reasonable suspicion of criminal activity existed.

Second, the Court in Majors concluded that the "Nissan's attempt to leave the bank when the officers arrived does not tip the scale in favor of finding reasonable suspicion because the testimony indicates that the Nissan simply began to back out of a parking space." Id. Like the Nissan in Majors , the motorcyclist's turn into the bypass area, even if subjectively believed to be flight, does not tip the scales under the circumstances. The Court rejected the State's argument that "the Nissan's attempt to leave the bank supports a conclusion that the officers had reasonable suspicion." Id. at 660. Though agreeing that flight can be a factor, particularly headlong flight from police in a high-crime area, it emphasized that " 'reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears.' " Id. (citation omitted). In considering "all of the circumstances" in Majors , this Court held that "any suspicion that the people in the Nissan were ... involved in a crime is highly speculative and properly characterized as a hunch." Id. at 661. Measured against the facts, legal principles, and holding in Majors , the outcome in this anonymous tip case ought to be a reversal.

The majority is critical of my view, citing to District of Columbia v. Wesby , --- U.S. ----, 138 S. Ct. 577, 199 L.Ed.2d 453 (2018) and United States v. Arvizu , 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), which-upon inspection-demonstrates how far afield their legal analysis strays. Wesby involved whether the totality of the circumstances established probable cause to arrest a partygoer for unlawful entry at a vacant, unfurnished, squalid, and beer can-ridden home where loud music, marijuana smoke, strippers, men with a naked woman on a bare mattress, and other obvious indicia of illicit revelry were "going strong when the officers arrived after 1 a.m.," supporting the conclusion that attendees "knew their party was not authorized." 138 S. Ct. at 586-87. Under these extreme circumstances, the officers could reasonably infer "that the partygoers knew their party was not authorized" because "most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy." Id. at 587. But these circumstances aren't remotely similar to the anonymous tip/veering in this case. And Weakley-unlike the partygoers in Wesby who scattered and hid when police arrived-didn't engage in unprovoked flight at the "first sign of police." Id. at 589. Indeed, no evidence exists that he knew a police car was approaching that evening until he was hemmed in and detained (at which point blue lights were first turned on).

In Arvizu , a border patrol agent intercepted, followed, obtained the tag and registration of, ultimately stopped, and then conducted an investigatory detention of a minivan that drove along a largely unpaved backroads route "very rarely traveled except for use by local ranchers and forest service personnel," but often used by drug smugglers and those illegally immigrating to avoid the border checkpoint. 534 U.S. at 269, 122 S.Ct. 744. The route is populated with sensors to detect traffic trying to evade the checkpoint and gain access from Mexico to the cities of Tucson and Phoenix. Two sensors were triggered during a checkpoint shift change, which the agent knew was when smugglers, who did extensive scouting of their own, would most likely use the route. Id. at 269-70, 122 S.Ct. 744. The agent drove to the area and saw a minivan (of the "type" the agent "knew smugglers used") driven by a man with a woman and three small kids. Id. at 270, 122 S.Ct. 744. The "driver appeared stiff and his posture very rigid" and "seemed to be trying to pretend that [the agent] was not there," which was odd because "in that area most drivers give border patrol agents a friendly wave." Id. Two of the "children sitting in the very back seat were unusually high, as if their feet were propped up on some cargo on the floor." Id.

The agent followed the minivan, whose passengers included three children who "though still facing forward, put their hands up at the same time and began to wave at [the agent] in an abnormal pattern. It looked to [the agent] as if the children were being instructed. Their odd waving continued on and off for about four to five minutes." Id. at 270-71, 122 S.Ct. 744 (internal citation omitted). After the van made some unusual signals, it turned onto a rough road (primarily suitable for four-wheel drive vehicles) that lacked a picnic area (the agent had never seen anyone picnicking or sightseeing in the area). Id. at 271, 122 S.Ct. 744. The agent decided to check the minivan's registration, learning that it was registered to an address "that was four blocks north of the border in an area notorious for alien and narcotics smuggling." Id. At that point, the agent pulled over the minivan, asked the driver if he could inspect the interior (the driver consented), and found "marijuana in a black duffel bag under the feet of the two children in the back seat" and "[a]nother bag containing marijuana was behind the rear seat." Id. at 272, 122 S.Ct. 744. On these facts, the Supreme Court reversed the Ninth Circuit, which had used a ten-factor test that isolated and independently evaluated each factor without consideration of their totality.

Unlike this case, Arvizu did not involve an anonymous tip, was based on reliable evidence of at least ten potential factors relevant to ongoing drug trafficking at the U.S.-Mexico border, and involved the specialized experience and direct observations of a border agent who followed and watched the suspicious minivan and its oddly-acting occupants for many miles before deciding to conduct a stop after a check of the vehicle's registration placed it in a "notorious" drug neighborhood. The quantity and quality of evidence supporting reasonable suspicion for an investigatory stop in Arvizu fully eclipses the scanty, unreliable information here. It took the Ninth Circuit, which engaged in a "sort of divide-and-conquer analysis" and hyper-critical parsing of the ten factors, to find a lack of reasonable suspicion. Id. at 274, 122 S.Ct. 744. In sharp contrast, it doesn't take that type of hyper-critical parsing of the two factors here (a vague/uncorroborated anonymous tip and Weakley's veering) to conclude that an investigatory stop was unwarranted. Arvizu does show, however, the value of observing a vehicle and checking its registration before conducting a stop, which did not occur here (the officers immediately detained and hemmed in Weakley).

Finally, and importantly, the appropriateness of police officers undertaking steps to investigate the anonymous tip in this case is not in dispute. They had broad investigative leeway in doing so without precipitously seizing Weakley as they approached the neighborhood. For example, they could have attempted to ask him questions (a citizen's encounter), follow him, or get his tag number. As the Supreme Court said in Royer :

... law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

460 U.S. at 497, 103 S.Ct. 1319. Even if Weakley refused to cooperate and departed, that wouldn't foreclose efforts to track him and get the motorcycle's license plate. But immediate detention or seizure was impermissible. See Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure."); see also Royer , 460 U.S. at 497-98, 103 S.Ct. 1319 ("The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.... He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.").

Under the majority's holding, what's the point of undertaking more modest and incremental investigative techniques if officers can now simply precipitously stop, physically restrain, and question persons in situations such as this one, where an unverified and paltry anonymous tip is received? At the margin, officers in reliance on this case have greater leeway to detain people despite the obvious potential for anonymous tips of this type to "be used as a tool of harassment-a situation condemned by the Supreme Court in J.L. " Baptiste , 995 So. 2d at 298 (noting that "all a tipster would need to do is inform police that an individual had exhibited a firearm in public-rather than possessed a firearm-and that person would be subjected to gunpoint seizure and an embarrassing public search by the police.").

For example, a resident who does not wish to see other persons in his or her neighborhood hypothetically could telephone a false tip that a person having a particular description had publicly displayed a firearm. Analogously, a man or woman who seeks revenge against and to harass an ex-girlfriend or ex-boyfriend could telephone a tip alleging that she or he had brandished a firearm in public .

Id. (emphasis added). The majority's holding breathes new life into anonymous tips as tools of harassment. If an anonymous caller wants a person to be detained, all she "would need to do is inform police that an individual [was near a vacant building]," fret about a possible burglary, and that person would be subjected to seizure based solely on perceived flight; the caller wouldn't even have to mention that a weapon was displayed or brandished.

* * *

I cannot conclude, as the majority does, that the generic and unreliable anonymous call in this case plus Weakley's perceived flight met the requirements under the totality of the circumstances to justify an immediate investigatory detention. The record falls short of objectively establishing that a well-founded and reasonable suspicion existed that a crime was committed for which immediate detention of Weakley was permissible. At best, only a hunch or mere suspicion existed, which justified an investigation, but not Weakley's precipitous detention. Today's decision chips away a part of the Fourth Amendment's protection against "unreasonable searches and seizures" and undermines the constitutionally-protected liberty of all persons detained unjustifiably in the future based upon its holding.

      "The ruling of the trial court on a motion to suppress comes to us clothed with a presumption of correctness and we must interpret the evidence and reasonable inference and deductions in a manner most favorable to sustaining the trial court's ruling." Presley v. State , 204 So. 3d 84, 86-87 (Fla. 1st DCA 2016) (quoting Johnson v. State , 608 So. 2d 4, 9 (Fla. 1992) ).

      The Supreme Court specifically held in Wesby that the lower court erred in isolating the questionable circumstances of a group of people found in a vacant home from their subsequent flight from police:
      Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers "scattered or hid when the police entered the house" because that fact was "not sufficient standing alone to create probable cause." Similarly, it found "nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome."
      Wesby , 138 S. Ct. at 588 (citations omitted).

      The same is true regarding the failure of the 911 caller to specifically identify a crime that was occurring or had occurred. As Wesby notes, conduct does not necessarily have to be criminal to warrant investigation under the reasonable suspicion standard. This has long been part of Fourth Amendment jurisprudence. See, e.g., Reid v. Georgia , 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (holding that "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot").

      We also reject the dissent's implication that the tip could not factor into the reasonable-suspicion analysis because it did not provide a description of Weakley's physical characteristics. A description of an individual with a motorcycle in a very secluded area down a dirt road at night could provide at least as specific of a description as identifying the race and clothing of someone in a public place like a grocery store. Cf. Baptiste , 995 So. 2d at 288 ("anonymous caller had reported that a black male wearing a white T-shirt and blue-jean shorts had waved a firearm in front of a grocery store").

      Because we find the officers had reasonable suspicion for the stop, we do not address the State's alternative argument the contraband would have been discovered inevitably.

      The mischaracterization in the majority opinion that "Weakley [was] lurking around the trailers" and "was suspected of burglary" has no evidentiary support. The anonymous caller provided no description of the person including gender (so who's to say it was Weakley?) didn't say the person was "lurking" (the person was merely "walking" near the home) and saw no burglary or other illegal conduct (expressing only generally that something might be afoot).

      The officers couldn't conduct an investigatory detention for suspected trespass because Weakley had not been previously issued a no-trespass warning as to the property. Moore v. State , 200 So. 3d 1290, 1292 (Fla. 2d DCA 2016) (no legal authority to conduct an investigatory stop for trespass unless the potential trespasser has been previously warned by the property's owner or agent); Gestewitz v. State , 34 So. 3d 832, 834 (Fla. 4th DCA 2010) (same); see also D.T. v. State , 87 So. 3d 1235, 1241 (Fla. 4th DCA 2012) ("Mere presence on the property is insufficient to give rise to a reasonable suspicion of trespass and a reasonable suspicion of trespass must be based upon something more than 'a mere hunch or guess.' ") (quoting Rochell v. State, 934 So. 2d 586, 586 (Fla. 1st DCA 2006) ).

      For example, the arresting officer testified that had Weakley not stopped he "would have got behind [the motorcycle] and got the tag" and also attempted "to make contact." On direct examination by the State, he testified as follows:
      Q: If this had been a two-lane road and [Weakley] could have just continued to go past you, would you have -- what would your actions have been, if he had - if he had continued past you and not tried to veer off anywhere.
      A: Either myself or I would have directed Deputy Matthews to turn around and get behind the vehicle, get a tag, try to identify who was on it ... we would have got behind that vehicle and got the tag and -- and, you know, tried to make contact.
      (Emphasis added). The focus of the question is what would have happened if Weakley had been able to continue past the officers; the question neither presumed nor established that the officers would have been unable to turn around and follow Weakley. At best, the roadway was narrow and described as "one-way access or egress," which wouldn't necessarily preclude a police vehicle from making a U-turn to pursue Weakley had he rode away (i.e., fled).


author: PER CURIAM

text:
    Jerome DUPLECHAIN v. KINDER MORGAN G.P., INC. a/k/a KMGP Services Company, Inc., and a/k/a Kinder Morgan, Ship Channel Services, Hereinafter Referred to as "Kinder Morgan"
    NO. 2019-CC-0284
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM

In this application, plaintiff seeks review of the district court's ruling excluding portions of the deposition of Captain Louis Hildebrand, who will be unable to testify at trial.

Considering the specific and narrow facts of this case, we find the district court abused its discretion in excluding fifty pages of Captain Hildebrand's deposition. This testimony is admissible for impeachment purposes.

Accordingly, the writ is granted. The judgment of the district court is reversed, and the case is remanded to the district court for further proceedings.

Weimer, Guidry & Clark, JJ., would deny.


text:
    Jerome DUPLECHAIN v. KINDER MORGAN G.P., INC. a/k/a KMGP Services Company, Inc., and a/k/a Kinder Morgan, Ship Channel Services, Hereinafter Referred to as "Kinder Morgan"
    NO. 2019-CC-0282
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM

In this application, plaintiff seeks review of a ruling of the district court excluding from evidence certain Coast Guard documents obtained by plaintiff pursuant to a Freedom of Information Act request.

Considering the specific and narrow facts of this case, we find the district court abused its discretion in excluding the Coast Guard documents. These documents are relevant to the issue of whether defendants properly filed the required notice with the Coast Guard following plaintiff's accident.

Accordingly, the writ is granted. The judgment of the district court is reversed, and the case is remanded to the district court for further proceedings.

Weimer, Guidry & Clark, JJ., would deny.


text:
    IN RE: Daniel James STANFORD
    NO. 2019-B-0626
    Supreme Court of Louisiana.
    May 28, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent was convicted of conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce, money-laundering conspiracy, and money laundering. Following the institution of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that his conduct constitutes a violation of Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Daniel James Stanford, Louisiana Bar Roll number 22639, be and he hereby is disbarred, retroactive to September 17, 2014, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked.

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


text:
    IN RE: Maurice R. FRANKS
    NO. 2018-OB-1903
    Supreme Court of Louisiana.
    May 28, 2019
    ORDER
   Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Maurice R. Franks, and the report and recommendation of the hearing committee,

IT IS ORDERED that respondent's claim of inability to defend be and it hereby is denied as invalid. See Supreme Court Rule XIX, § 22(C)(3).

IT IS FURTHER ORDERED that Maurice R. Franks, Louisiana Bar Roll number 8525, be and he hereby is reinstated to active status from interim disability inactive status. This order shall be effective immediately.

FOR THE COURT:

/s/

JUSTICE, SUPREME COURT OF LOUISIANA


text:
    IN RE: Forrest E. GUEDRY
    NO. 2019-B-0558
    Supreme Court of Louisiana.
    May 28, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has 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 Forrest E. Guedry, Louisiana Bar Roll number 36482, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of unsupervised probation governed by the conditions set forth in the Petition for Consent Discipline. 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 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.


author: PER CURIAM:

text:
    STATE of Louisiana v. Michael J. DUFRENE
    No. 2018-KO-1174
    Supreme Court of Louisiana.
    May 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA
   PER CURIAM:

Writ granted in part, otherwise denied; case remanded. Defendant's sentences are vacated and the case is remanded to the trial court for resentencing in accordance with the provisions of La.C.Cr.P art. 894.1 and La.C.Cr.P. art. 883, including the court's articulation of its reasons for the sentences imposed.

SENTENCES VACATED; CASE REMANDED.

GUIDRY, J., would deny.

      Cf. State v. Green , 16-0107, p. 14 (La. 6/29/17), 225 So.3d 1033, 1042, cert. denied , --- U.S. ----, 138 S.Ct. 459, 199 L.Ed.2d 338 (2017) :
      Here, defendant's conduct transpired within a very short period. ... Absent well-articulated reasons from the sentencing court, we decline to say whether it was an abuse of discretion to impose consecutive terms. Thus, we will remand the matter to the trial court to consider whether defendant indeed poses a grave risk to public safety and, at a minimum, to articulate reasons for the consecutive terms.


text:
    IN RE: Maurice R. FRANKS
    NO. 2018-B-1483
    Supreme Court of Louisiana.
    May 28, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel ("ODC") has filed a petition seeking the imposition of reciprocal discipline against respondent, Maurice R. Franks, an attorney licensed to practice law in Louisiana, Tennessee, and Colorado, based upon discipline imposed by the Supreme Court of Colorado.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 1987, respondent maintained a law office in Denver, Colorado, wherein he accepted new legal cases and collected retainers until October 21, 1987. On October 23, 1987, respondent essentially abandoned his law practice when he moved to Ireland without notice to most of his clients. Thereafter, respondent failed to file his 1988 annual registration statement or pay the $ 90 registration fee.

Seven of respondent's clients filed grievances with the Colorado Disciplinary Counsel. Respondent failed to appear and answer a multiple count disciplinary complaint. The Supreme Court of Colorado ultimately found that respondent abandoned his law practice, converted his clients' funds to his own use, and failed to cooperate in the disciplinary proceedings. For this misconduct, the Supreme Court of Colorado disbarred respondent and ordered him to make restitution to the seven clients in the total amount of $ 14,750.36.

After receiving notice of the Colorado order of discipline on January 27, 2017, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A copy of the Final Judgment and Order issued by the Supreme Court of Colorado was attached to the motion.

On September 7, 2018, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent did not file a response to the court's order.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the Colorado proceeding, nor do we discern any from our review of the record. Furthermore, we find there is no reason to deviate from the sanction imposed in Colorado as only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re Aulston , 05-1546 (La. 1/13/06), 918 So.2d 461. See also In re Zdravkovich , 831 A.2d 964, 968-69 (D.C. 2003) ("there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority").

Under these circumstances, it is appropriate to defer to the Colorado judgment imposing discipline upon respondent. Accordingly, we will impose reciprocal discipline in the form of disbarment.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Maurice R. Franks, Louisiana Bar Roll number 5825, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys, and his license to practice law in the State of Louisiana shall be revoked.

WEIMER, J., would grant for a hearing.

      According to the Colorado Rules of Civil Procedure, Rule 251.6(a), disbarment is the revocation of an attorney's license to practice law in the state for at least eight years, subject to readmission as provided by Rule 251.29(a), which provides in pertinent part that "[a] disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of disbarment."


text:
    STATE of Louisiana v. Jack CUCCIA
    No. 2018-KP-1726
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. In 2004, an Orleans Parish jury found petitioner guilty as charged of manslaughter, and the trial court later sentenced him as a third-felony offender to 30 years imprisonment at hard labor. The conviction and sentence were affirmed on direct review. See State v. Cuccia , 05-0807 (La. App. 4 Cir. 3/15/06), 933 So.2d 134, writ denied , 06-0903 (La. 10/27/06), 939 So.2d 1273.

In 2007, petitioner filed in the district court a timely application for post-conviction relief, which he supplemented in 2015 with the district court's approval. See State ex rel. Benn v. State , 11-2418 (La. 6/22/12), 90 So.3d 1045, 1045-46 ("Established jurisprudence of this Court grants district judges the discretion to allow or to refuse amendment of timely filed but not yet ruled-on applications for post-conviction relief."). As supplemented and amended, petitioner's application asserts six claims of ineffective assistance of counsel and one claim of cumulative error.

In 2018, one year after it conducted a two-part evidentiary hearing, the district court issued a brief order which set forth no factual findings and denied only one of petitioner's claims of ineffective assistance of counsel. Petitioner unsuccessfully sought supervisory writs in the court of appeal. See State v. Cuccia , 18-0624 (La. App. 4 Cir. 9/19/18) (unpub'd).

Petitioner now correctly argues that the district court erred in failing to address the five outstanding claims of ineffective assistance of counsel. Further, the district court's lack of factual findings renders the addressed claim unreviewable.

The matter is thus remanded to the district court for a full and complete ruling on the merits of all the claims raised in petitioner's application for post-conviction relief, as supplemented, including for the district court to make specific and detailed factual findings in support of its ultimate legal conclusions. Following that ruling, either party may seek supervisory writs from an adverse disposition. See La.C.Cr.P. art. 930.6.

REMANDED


text:
    STATE of Louisiana v. Will NEWSOME and Aaron Henderson
    No. 2019-KK-0439
    Supreme Court of Louisiana.
    May 28, 2019
    On Supervisory Writs to the Criminal District Court, Parish of Orleans
   PER CURIAM

Writ granted.

Pursuant to La. C.Cr.P. art. 703(D), defendants have the burden of proof on a motion to suppress an out-of-court identification. The jurisprudence has established a multi-factor test for ascertaining whether a defendant has carried the burden of proof for suppressing an identification. See, e.g., State v. Higgins , 2003-1980, p. 19 (La. 4/1/05), 898 So.2d 1219, 1233. While the test has multiple factors, globally it asks whether the identification was suggestive, and if so, whether there was a substantial likelihood of misidentification.

The trial court never reached the test described in Higgins , finding instead that there was no reasonable suspicion to detain five subjects, two of whom were eventually presented for a "show-up" identification to the armed robbery victim in this case. The trial court's finding of no reasonable suspicion to detain the subjects is insupportable on this record, which under the "totality of the circumstances" shows police had "a particularized and objective basis for suspecting the particular person[s] stopped of criminal activity." State v. Morgan , 2009-2352, p. 5 (La. 3/15/11), 59 So.3d 403, 406. Here, the subjects were detained in close proximity to a car that had just been abandoned after a high speed chase to elude police, who were pursuing the car based on the victim's description of its involvement in the armed robbery. Accordingly, because the standard of reasonable suspicion to detain the defendants was met, the trial court erred in failing reach the legal issue of whether the defendants' identifications were suggestive and in failing to apply the factors described in Higgins .

From our review of the record, for purposes of defendants' motions to suppress the identifications, we accept that the identifications were suggestive. Police presented each defendant to the victim individually, after each was taken from the back of a police cruiser. Each defendant remained handcuffed with an officer standing beside him and a spotlight trained on him.

However, the present record does not lend itself to a full application of the Higgins test. We therefore remand for the trial court to conduct a separate evaluation of the five factors we adopted in Higgins on the issue of whether an identification presents a substantial likelihood of misidentification. Relatedly, we note the trial court's ruling that probable cause was lacking was a ruling premised on the trial court's having suppressed the identifications. Thus, on remand, after separately evaluating whether the show-up identification of each defendant is viable, the trial court shall evaluate whether probable cause exists as to each defendant.

Hughes and Genovese, JJ., would deny.


text:
    STATE of Louisiana v. Ryan BOUDREAUX
    NO. 2018-KH-1627
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Raymond M. CLAY
    NO. 2018-K-1028
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   GUIDRY, J., would grant.

CRICHTON, J., would grant.


text:
    Robert L. ROYER v. OUR LADY OF THE LAKE HOSPITAL, INC., Our Lady of the Lake Physician Group, LLC, Keith Brian Hodge, M.D., Lura Laborde Wight, M.D., and Louisiana Cardiovascular Specialists, LLC d/b/a Louisiana Cardiology Associates
    NO. 2019-C-0489
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Tyran JONES
    NO. 2019-KK-0836
    Supreme Court of Louisiana.
    May 22, 2019
    Stay denied. Writ denied.
   HUGHES, J., would grant.


text:
    John POULLARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2010-CI-1179
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Julie CLAVO v. FARA INSURANCE SERVICE and LSU Healthcare Medical Center of New Orleans
    NO. 2019-C-0496
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    BANKSTON & ASSOCIATES, L.L.C. v. The LOUISIANA DEPARTMENT OF JUSTICE and Jeff Landry in His Official Capacity as Attorney General for the State of Louisiana
    NO. 2019-CC-0504
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Shannon ALEXANDER
    NO. 2018-KH-1185
    Supreme Court of Louisiana.
    May 28, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State v. Alexander, 18-0267 (La. 12/17/18), 259 So.3d 336.


text:
    STATE of Louisiana v. Jeremiah DOUGLAS
    NO. 2019-KK-0505
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Allison JUGE v. SPRINGFIELD WELLNESS, L.L.C. d/b/a Springfield Wellness Center/Therapia Associates And Dr. Richard Mestayer, III
    NO. 2019-C-0513
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Mozine JOHNSON v. STATE of Louisiana
    NO. 2018-KH-1402
    Supreme Court of Louisiana.
    May 28, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Johnson v. State, 15-0346 (La. 11/20/15), 179 So.3d 590.


text:
    STATE of Louisiana v. James CHATMAN
    NO. 2019-KK-0537
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Natalie Wall FOWLKES v. Justin David FOWLKES
    NO. 2019-CJ-0556
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. BJ RANDLE
    NO. 2019-KK-0557
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Travis Davis MARCEL
    NO. 2018-KH-1509
    Supreme Court of Louisiana.
    May 28, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Marcell v. State, 13-1239 (La. 5/27/16), 193 So.3d 138.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Labarrie Dediric WATSON
    NO. 2018-KH-1623
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    Gerald R. WHITE, et ux. v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al.
    NO. 2019-C-0572
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Tracy PARKER
    NO. 2018-KH-1587
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    James BURDS, Sr. v. Kristi SKIDMORE
    NO. 2019-CC-0631
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 18-PDB-108
    NO. 2019-OB-0461
    Supreme Court of Louisiana.
    May 28, 2019
    Leave to appeal denied.
   HUGHES, J., would grant.


text:
    Charles Ray WALLACE v. James M. LEBLANC, Secretary, Louisiana Department of Public Safety and Corrections
    NO. 2018-CI-1322
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Dwayne CALLAHAN
    NO. 2018-K-1760
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Chad LIGHTFOOT
    NO. 2019-K-0055
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Harlow HUTCHINSON
    NO. 2019-KO-0108
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Major Cartrell JONES
    NO. 2019-KO-0199
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Julius Jamal GARNETT
    NO. 2019-KO-0271
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


text:
    STATE of Louisiana v. Ralph JOHNSON
    NO. 2019-KO-0312
    Supreme Court of Louisiana.
    May 28, 2019
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Fate Vincent WINSLOW
    NO. 2018-KH-1524
    Supreme Court of Louisiana.
    May 28, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Winslow v. State, 15-0658 (La. 1/25/16), 184 So.3d 15.
   CRICHTON, J., recused.