text:
    Darrias SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2399
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018
    Darrias Smith, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Darrias Smith appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence, wherein he argues that the life portion of his sentence for aggravated battery with a firearm is illegal because it exceeds the statutory maximum for that offense. We agree and reverse.

In 2008, Smith was found guilty by a jury of aggravated battery, with a special finding that he caused death or great bodily harm by discharging a firearm. The trial court adjudicated him guilty of "aggravated battery with firearm while inflicting great bodily harm" pursuant to section 784.045(1)(a), Florida Statutes (2007). He was sentenced to serve life in prison with a 25-year minimum mandatory term pursuant to the 10-20-Life statute. See § 775.087(2)(a)1.f., (2)(a)3., Fla. Stat. (2007). We conclude the life portion of his sentence was imposed in error.

Based on the jury's verdict, the minimum mandatory sentencing range permitted under section 775.087(2)(a)3., was 25 years to life imprisonment. Here, the trial court did not impose life as a minimum mandatory sentence, but rather 25 years. Thus, the non-mandatory life portion of his sentence is illegal because it exceeds the statutory maximum of 15 years for a second-degree felony. See §§ 775.082(3)(c), 784.045(2), Fla. Stat. (2007) ; Brown v. State, 983 So.2d 706, 707 (Fla. 5th DCA 2008) ("Once the trial court imposed a minimum mandatory term of 25 years, it could not exceed the 30-year maximum penalty for a first-degree felony under section 775.082. The 25-year to life minimum mandatory range under section 775.087(2)(a)3. [the 10-20-Life statute] does not create a new statutory maximum penalty of life imprisonment." (citing Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005) ) ).

Accordingly, we reverse the order of the trial court, vacate the life portion of Smith's sentence, and remand for correction consistent with this opinion. See Brown, 983 So.2d at 707 ; see also Hatten v. State, 203 So.3d 142, 144-46 (Fla. 2016) ; Roberts v. State, 158 So.3d 618, 618 (Fla. 5th DCA 2013).

REVERSED and REMANDED.

BERGER, LAMBERT and GROSSHANS, JJ., concur.

      It appears that the second-degree felony was not reclassified to a first-degree felony despite the special finding. See Johnson v. State, 149 So.3d 727, 728 (Fla. 5th DCA 2014) (explaining reclassification is improper where state charges aggravated battery in such a way that use of firearm is essential element).


source: Caselaw Access Project

author: Winsor, J.

license: Public Domain

text:
    Daniel WINDSOR, Appellant, v. Tiffany WINDSOR, Appellee.
    No. 1D18-764
    District Court of Appeal of Florida, First District.
    December 28, 2018
    Jonathan W. Dingus, Panama City, for Appellant.
    Jeffrey P. Whitton, Panama City, for Appellee.
   Winsor, J.

When Daniel and Tiffany Windsor divorced in 2009, they agreed that Daniel would pay $550 monthly in child support. Financial circumstances changed over time, and Tiffany Windsor (the ex-wife) later petitioned for increased support. Daniel Windsor (the ex-husband) counter-petitioned for a decreased amount. The trial court agreed with the parties that there had been a substantial change in circumstances-a prerequisite to any change in support obligations, see § 61.14, Fla. Stat.-and it also concluded that the ex-husband was voluntarily underemployed. The court then recalculated the ex-husband's child support obligation based on an imputed income of $100,000, rather than the ex-husband's lower, actual income. The sole question here is whether that $100,000 imputation was permitted.

"When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support." Smith v. Smith , 737 So.2d 641, 644 (Fla. 1st DCA 1999) ; see also § 61.30(2)(b), Fla. Stat. Therefore, the first step is to determine whether there is voluntary unemployment or underemployment. If there is, then the second step is to determine the amount of income to impute.

As to the first step, we conclude that competent, substantial evidence supported the trial court's finding of underemployment. The ex-husband was in the restaurant business and once held high-paying executive-chef positions. He then owned his own restaurant, where he perhaps earned somewhat less, but still more than he makes now. More recently, he sold that restaurant and opened a small, unprofitable coffee shop. His current wife owns the coffee shop with him, and she testified that they sold the restaurant in favor of a coffee shop because they were ready to "slow down some." That evidence-that the ex-husband accepted a less profitable arrangement to enjoy slowing down-is enough to support the court's finding of voluntary underemployment. Cf. Gillette v. Gillette , 226 So.3d 958, 961 (Fla. 4th DCA 2017) ("[A] person can become 'underemployed' by leaving a more lucrative position in order to pursue an interest in a family business."); Guard v. Guard , 993 So.2d 1086, 1090 (Fla. 5th DCA 2008) ("[D]espite the family business's lack of success, the husband failed to seek profitable employment.... [I]n choosing to pursue his interest in the family business, he has become underemployed.").

As to the second step, we conclude that there was not competent, substantial evidence supporting the trial court's decision to impute $100,000. The trial court correctly noted that the ex-husband previously earned more than $100,000-and that he once expected to make even more through a Kentucky business arrangement that did not materialize. But to impute $100,000 of income, the court needed evidence that the ex-husband had the present ability to earn $100,000 in his community. § 61.30(2)(b), Fla. Stat.; cf. also Rabbath v. Farid , 4 So.3d 778, 782 (Fla. 1st DCA 2009) (reversing imputation of income based on past, foreign job because "[n]o evidence was presented regarding the current, prevailing earnings level and the potential source(s) or amount of income in the pertinent community ." (emphasis added) ). Yet there was no evidence below about the relevant job market in the ex-husband's area, Panama City. See Rabbath , 4 So.3d at 782 ("Before the trial court could impute income to Appellant, it had to make particularized findings relating to the current job market, Appellant's more recent work history, his occupational qualifications, and the prevailing earnings level in the local community where he and his family live."). There was testimony from the ex-husband's former employer that if his outfit was hiring someone with the ex-husband's credentials, it would pay at least $100,000. But there was no evidence that such a job was available. See § 61.30(2)(b) 1.b. (noting petitioner must provide "evidence of income from available employment for which the party is suitably qualified"). We therefore reverse and remand for further proceedings, during which the trial court should determine an appropriate amount of imputed income.

REVERSED and REMANDED .

Roberts and Ray, JJ., concur.


author: Per Curiam.

text:
    Captain ROMINE, Sgt. T.J. Lingo, Julie L. Jones, Secretary of The Florida Department of Corrections, and Warden Coker, Petitioners, v. Derrick ALLEN, Respondent.
    No. 1D18-1590
    District Court of Appeal of Florida, First District.
    December 28, 2018
    Pamela Jo Bondi, Attorney General, and Erik Kverne, Assistant Attorney General, Tallahassee, for Petitioners.
    James V. Cook of the Law Office of James Cook, Tallahassee, for Respondent.
   Per Curiam.

This petition for writ of mandamus seeks to compel the trial court to apply section 57.085(6), Florida Statutes (2017), to a complaint pending against Petitioners. Because Petitioners have not established that they lack an adequate legal remedy, we deny the petition.

Respondent Allen, a prisoner, filed a six-count complaint against Petitioners in August 2016. He was declared indigent, and summons issued. Petitioners moved to dismiss the complaint. The trial court granted the motion, dismissing the complaint with leave to amend. Respondent then filed a ten-count amended complaint. Petitioners moved to dismiss the amended complaint. The trial court denied the motion and permitted Respondent to amend the complaint again. Respondent then filed a second amended complaint raising fifteen claims against each Petitioner (sixty claims in all). Petitioners did not move to dismiss this complaint, but filed an answer instead. The trial court set an ambitious discovery schedule and scheduled the trial to begin less than sixty days later.

Petitioners moved to continue the trial, asserting that the case was not ready for trial because the claims in the second amended complaint had not been screened as required by section 57.085(6), Florida Statutes. At a case management conference, the court denied the motion, finding Petitioners had not shown good cause for a continuance. When counsel for Petitioners inquired whether the court had screened the claims in the second amended complaint, the trial court responded that the statute related only to initiation of the case, and therefore the trial court complied with the statute by screening the claims in the original complaint.

Petitioners then filed a petition for writ of mandamus in this Court, seeking to require the trial court to screen the claims in the second amended complaint in compliance with section 57.085(6), Florida Statutes, which provides as follows:

Before an indigent prisoner may intervene in or initiate any judicial proceeding, the court must review the prisoner's claim to determine whether it is legally sufficient to state a cause of action for which the court has jurisdiction and may grant relief. The court shall dismiss all or part of an indigent prisoner's claim which:
(a) Fails to state a claim for which relief may be granted;
(b) Seeks monetary relief from a defendant who is immune from such relief;
(c) Seeks relief for mental or emotional injury where there has been no related allegation of a physical injury; or
(d) Is frivolous, malicious, or reasonably appears to be intended to harass one or more named defendants.

"One seeking a writ of mandamus must show that he has a clear legal right to the performance of a clear legal duty by a public officer, and that he has no other available legal remedies." Plymel v. Moore , 770 So.2d 242, 246 (Fla. 1st DCA 2000). "Mandamus may be used only to enforce a clear and certain right; it may not be used to establish such a right, but only to enforce a right already clearly and certainly established in the law." Id. Here, Petitioners had a clear legal right for the trial court to perform a clear legal duty under the statute.

The plain language of the statute provides that the court "must" review an indigent prisoner's "claim" and "shall" dismiss all or part of the "claim" that runs afoul of the statute. The trial court here determined that its duty to screen claims under the statute was limited to screening the claims in the original complaint. We disagree with the trial court's interpretation of the statute, and we agree with the other district courts that have held that the statute requires trial courts to screen claims in amended complaints, not just those set forth in the original complaints. See Reed v. Mims , 711 So.2d 169, 172 (Fla. 3d DCA 1998) (affirming the dismissal of the original complaint, but concluding that plaintiff was entitled to leave to file an amended complaint, which "will trigger another section 57.085 review" by the trial court). See also James v. Goryl , 62 So.3d 1225, 1226 (Fla. 5th DCA 2011) (observing that an "amended complaint will also be subject to preliminary review under section 57.085(6)").

As the Third District recognized in Reed , section 57.085 was enacted in part to allow dismissal of frivolous inmate lawsuits to avoid the unnecessary expenditure of taxpayer and judicial resources. 711 So.2d at 170-71 ("One of the specific problems identified by the Legislature in its preamble to the 1996 enactment was that 'under current law frivolous inmate lawsuits are dismissible by the courts only after considerable expenditure of precious taxpayer and judicial resources ....' Ch. 96-106, at 93, Laws of Fla. Accordingly the statute calls for prescreening of an indigent inmate's lawsuit by the court before it is accepted for filing."). Here, Respondent added forty new claims between the time he filed the original complaint and the second amended complaint. The trial court was required to screen these new claims, no less than the claims set forth in the original complaint, to perform the gatekeeping function that section 57.085(6) requires.

But while the Petitioners have demonstrated that they had a clear legal right for the trial court to perform a clear legal duty under the statute, Petitioners have failed to establish that they lack other available legal remedies. This is because pursuant to the statute, the trial court may screen a claim set forth in a complaint at any time, even before the plaintiff has accomplished service of process. See Hall v. Knipp , 982 So.2d 1196, 1199 (Fla. 1st DCA 2008) (noting that "[t]he statute calls for court review before any judicial proceeding is initiated, and the trial court conscientiously complied by conducting its review before authorizing any service of process"). Thus, the trial court's duty to screen claims begins once a complaint is filed, and we conclude that the duty to screen claims in compliance with the statute remains until the trial court has performed the required review. Nothing prevents a defendant from seeking a ruling from the trial court as to whether a claim should be dismissed on grounds that the claim is not legally sufficient.

Here, although Petitioners raised the screening issue during a case management conference after the second amended complaint was filed, Petitioners never sought a ruling on the legal sufficiency of those claims. Thus, because Petitioners have an adequate remedy at law available to them and have not met the standard for this Court to grant mandamus relief, we deny the petition.

Rowe, Bilbrey, and Kelsey, JJ., concur.

      Petitioners later filed a motion for summary judgment that the trial court originally deemed to be untimely. The trial court ruled on the motion while the mandamus petition was pending in this Court.


text:
    Robert MULLALY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4815
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Robert Mullaly appeals his life sentence. We reverse and remand for resentencing because, in sentencing Mr. Mullaly, the trial judge relied on a 1993 assault charge, which was dropped.

Mr. Mullaly was found guilty of rape in 1973 and was required to be treated with sexual psychotherapy as a prerequisite to his sentencing. See Slappey v. State , 584 So.2d 1108 (Fla. 1st DCA 1991). See also Haager v. State , 36 So.3d 883, 884 (Fla. 2d DCA 2010) (describing the sentencing scheme applicable to sex offenders in the 1970s). But the court sentenced him to life in prison without the required treatment. In 2015, Mr. Mullaly filed a motion to vacate the 1973 judgment and sentence and to hold a new sentencing because of the error. The court granted his motion, vacated the 1973 judgment and sentence, and found that he completed the requisite treatment. Mr. Mullaly was then resentenced to life in prison.

At Mr. Mullaly's resentencing, the trial court considered the mitigating factors, as well as the aggravating events that happened while Mr. Mullaly was on parole. One of the events was an alleged 1993 assault on his wife, a charge that was dropped. The trial court mentioned it twelve times in the course of Mr. Mullaly's resentencing and appeared to consider it an aggravator.

Under these circumstances, we agree with Mr. Mullaly that the trial judge sentenced him improperly, by relying partly on the alleged 1993 assault on his wife. See Drinkard v. State , 177 So.3d 993, 994 (Fla. 1st DCA 2015) (remanding for resentencing, because "[a]t sentencing, the trial court repeatedly referred to the state's evidence that appellant had been racing on a highway - conduct for which appellant and a co-defendant had been charged and acquitted"). And the State failed to show that the alleged 1993 assault "played no part in the sentence imposed." See Williams v. State , 8 So.3d 1266, 1267 (Fla. 1st DCA 2009) (citations omitted) ("When portions of the record show the trial court relied upon prior acquittals in determining a defendant's sentence, the State has the burden to demonstrate those considerations 'played no part in the sentence imposed.' ").

Accordingly, we reverse Mr. Mullaly's sentence and remand for sentencing before a different judge.

REVERSED and REMANDED .

Makar, Osterhaus, and Jay, JJ., concur.


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

text:
    Edward LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4965
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Frank Xavier Moehrle, Jr. and Amanda D. Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's denial of his dispositive motion to suppress methamphetamine and drug paraphernalia found during a search. Because Appellant pled no contest without expressly reserving the right to appeal the ruling on his motion, we dismiss for lack of jurisdiction.

Appellant was charged by information with possession of hydrocodone, possession of cocaine, possession of cannabis less than 20 grams, and possession of drug paraphernalia. Appellant pled no contest to all counts and was sentenced to 24 months' probation on the hydrocodone and cocaine possession counts, and 12 months' probation on the marijuana and paraphernalia counts, with all sentences to run concurrently. Less than nine months after Appellant was sentenced, the State filed an affidavit alleging that Appellant had violated the terms of his probation by committing a new law offense of amphetamine trafficking and drug equipment possession.

Appellant filed a motion to suppress, arguing that the alleged methamphetamine and drug paraphernalia were seized as a result of an illegal stop, and any tangible evidence seized was done so without warrant or probable cause. The parties agreed that the motion to suppress was dispositive. At a hearing on the motion, the trial court admitted into evidence two DVDs and one CD, which the State asserted contained a video of Appellant traveling through a stop sign without fully stopping, and an audio of an Escambia County Sheriff's deputy informing Appellant that an odor of marijuana was coming from his vehicle. Following the stop, deputies searched Appellant's vehicle and found approximately 47 grams of methamphetamine. The trial court found that the deputies had probable cause to stop Appellant, and denied his motion to suppress.

Appellant pled no contest to violation of probation, no contest to the new offense of possession of drug paraphernalia, and no contest to the lesser included offense of possession of methamphetamine, more than 14 grams but less than 28 grams. Appellant signed a plea form, which indicated that Appellant waived, inter alia , his right to appeal all matters, including the issue of guilt or innocence. The plea form contained no indication that Appellant was expressly reserving his right to appeal the dispositive motion to suppress, nor did Appellant expressly reserve the right to appeal the trial court's ruling on the dispositive motion at the hearing.

Generally, defendants may not directly appeal a ruling after pleading guilty or nolo contendere. § 924.06(3), Fla. Stat. (2016) ("A defendant who pleads ... nolo contendere with no express reservation of the right to appeal a legally dispositive issue[ ]shall have no right to a direct appeal."); Grimes v. State , 208 So.3d 323, 324 n.1 (Fla. 1st DCA 2017) (" '[W]ithout both an express reservation of the right to appeal and a finding that the issue is dispositive, through either a trial court's ruling or a stipulation by the state, a defendant who pleads guilty or nolo contendere has no right to a direct appeal.' ") (emphasis removed) (quoting Pamphile v. State , 65 So.3d 107, 108 (Fla. 4th DCA 2011) ); Hawk v. State , 848 So.2d 475, 478-79 (Fla. 5th DCA 2003) ; Fla. R. App. P. 9.140(b)(2)(A)(i) ("A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved." (emphasis added) ).

The parties stipulated that Appellant's motion to suppress was dispositive; however, nothing in the record reflects Appellant's express reservation of his right to appeal the dispositive issue. We therefore dismiss the appeal for lack of jurisdiction.

DISMISSED .

Makar and Winsor, JJ., concur.


author: LAMBERT, J.

text:
    Rodney Mallory HONOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3304
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 4, 2019
    Rodney Mallory Honor, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

In July 1989, seventeen-year-old Rodney Mallory Honor was adjudicated guilty of first-degree murder and sentenced to serve life in prison with a minimum mandatory provision of twenty-five years. Twenty-nine years later, Honor filed the present motion for correction of his sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Relying primarily upon Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Henry v. State , 175 So.3d 675 (Fla. 2015), Honor essentially argued that he is entitled to be resentenced because the life sentence imposed when he was a juvenile, which does not provide either a review hearing or some other mechanism allowing him a meaningful opportunity to obtain early release from prison based upon demonstrated maturity and rehabilitation, is constitutionally infirm. The postconviction court, with citations to State v. Michel , 257 So.3d 3 (Fla. 2018), and Stallings v. State , 198 So.3d 1081 (Fla. 5th DCA 2016), summarily denied Honor's motion without further elaboration. We affirm and explain why, under the facts of this case, Honor is not entitled to relief.

In Miller , the United States Supreme Court determined that a sentence of life in prison without parole for a juvenile offender who was convicted of a homicide constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. 567 U.S. at 465, 132 S.Ct. 2455. Subsequently, in Horsley v. State , 160 So.3d 393, 408 (Fla. 2015), the Florida Supreme Court held that all juvenile homicide offenders whose sentences are unconstitutional under Miller are entitled to resentencing in conformance with Florida's then-recently-enacted juvenile sentencing laws in chapter 2014-220, Laws of Florida. Among other things, these laws provide for judicial review hearings that could lead to early release from prison for juvenile offenders based upon their demonstrated maturity and rehabilitation.

Despite the apparent applicability of both Miller and Horsley to the instant written judgment and sentence imposing life in prison for a juvenile homicide offender, Honor is not entitled to resentencing. The Florida Supreme Court has recently determined that juvenile offenders sentenced to life in prison with the possibility of parole after twenty-five years are not entitled to resentencing under Florida's juvenile sentencing laws. See Michel , 257 So.3d at 4-5 (approving Stallings , 198 So.3d at 1082 and Williams v. State , 198 So.3d 1084 (Fla. 5th DCA 2016), to the extent that they are consistent with this opinion). In Michel , the court specifically held that the juvenile offender's sentence in that case did not violate the Eighth Amendment of the United States Constitution as delineated by the United States Supreme Court in Miller , Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Virginia v. LeBlanc , --- U.S. ----, 137 S.Ct. 1726, 198 L.Ed.2d 186 (2017), because it was not the equivalent of a life sentence without the possibility of parole. Id. at ----. The court further concluded that "Florida's statutorily required initial interview and subsequent reviews before the Florida Parole Commission include the type of individualized consideration discussed by the United States Supreme Court in Miller ." Id. at ----.

In 1988, when Honor committed the first-degree murder in this case, section 775.082(1), Florida Statutes (1987), provided only two possible penalties for this offense: death or life imprisonment with no possibility of parole for twenty-five years. Admittedly, the written judgment and sentence entered in this case do not mention Honor's parole eligibility. However, this statute has been interpreted to necessarily confer parole eligibility after twenty-five years, even without such a pronouncement in the final sentencing order. See Gomez v. State , 137 So.3d 1037, 1038 (Fla. 3d DCA 2014) (citing Menendez v. State , 976 So.2d 81, 82 (Fla. 3d DCA 2008) ); accord Jensen v. State , 225 So.3d 348, 348 (Fla. 3d DCA 2017) ("[W]hether or not the sentencing order contains language reflecting the eligibility for parole after serving twenty-five years is immaterial to the legality of the sentencing, as the statute is self-executing." (alteration in original) (quoting Gomez , 137 So.3d at 1038 ) ).

Accordingly, because Honor was eligible for parole after twenty-five years when first sentenced, pursuant to Michel , he is not entitled to resentencing. We therefore affirm the order denying his motion for correction of sentence.

AFFIRMED.

ORFINGER and EISNAUGLE, JJ., concur.

      Honor's reliance in his motion and brief on Henry is slightly misplaced because Henry pertained to juvenile nonhomicide offenders whose sentences violated the Eighth Amendment.

      Presently codified at sections 775.082, 921.1401, and 921.1402, Florida Statutes (2018).

      The statute was amended in 1994 so that a defendant convicted of first-degree murder is now ineligible for parole. See ch. 94-228, § 1, Laws of Fla.


author: VILLANTI, Judge.

text:
    Keisha FREEMAN, a/k/a Keisha Monique Freeman, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5105
    District Court of Appeal of Florida, Second District.
    Opinion filed January 9, 2019
    Andrea M. Norgard of Norgard, Norgard, & Chastang, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Keisha Freeman appeals her convictions and sentences for one count of uttering a forged document, one count of third-degree grand theft, one count of criminal use of personal identification information, one count of fraudulent use of a credit card, and one count of scheme to defraud. Because Freeman's convictions for scheme to defraud and grand theft violate double jeopardy, we vacate the grand theft conviction and remand for resentencing. In all other respects, we affirm.

Freeman was arrested and charged with these offenses after she took a check payable to her cousin while he was in prison, deposited it into a newly opened bank account, and then began spending the funds using a debit card to access the new account. The jury found Freeman guilty as charged, and the trial court entered convictions and sentences for each of the offenses.

However, under Florida law, dual convictions for both scheme to defraud and grand theft violate double jeopardy when the convictions are based on the same course of conduct. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) ; see also Henry v. State, 64 So.3d 181, 183 (Fla. 2d DCA 2011) ; Raines v. State, 19 So.3d 331, 332 (Fla. 2d DCA 2009) ; Beamon v. State, 23 So.3d 209, 210 (Fla. 4th DCA 2009). When such a double jeopardy violation occurs, the conviction for the lesser offense, i.e., the grand theft conviction, must be vacated. See Pizzo, 945 So.2d at 1207. Moreover, because a double jeopardy violation constitutes fundamental error, it can be raised for the first time on appeal. See Henry, 64 So.3d at 183 ; Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005).

Here, the evidence at trial established that Freeman used a debit card to access her cousin's funds twenty-one times over a period of three weeks without his permission. These same facts supported the convictions for both scheme to defraud and grand theft. Therefore, the dual convictions violate double jeopardy, and the grand theft conviction must be vacated.

In this appeal, the State contends that the dual convictions do not violate double jeopardy because multiple transactions occurred on multiple days and the jury could have found that one transaction was sufficient for grand theft while the remaining twenty constituted the scheme to defraud. However, because such a factual finding was not made on the verdict form, we need not address this argument.

Accordingly, we must vacate Freeman's conviction for grand theft and affirm the remaining convictions. On remand, the trial court must resentence Freeman using a corrected scoresheet.

Affirmed in part, vacated in part, and remanded with directions.

LaROSE, C.J., and LUCAS, J., Concur.

      Freeman also correctly argues that her convictions for both grand theft and fraudulent use of a credit card violate double jeopardy as well. See Ross v. State, 760 So.2d 214, 214 (Fla. 2d DCA 2000), receded from on other grounds by Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006) (en banc); State v. McDonald, 690 So.2d 1317, 1319 (Fla. 2d DCA 1997). However, because we are vacating the grand theft conviction due to the double jeopardy violation with the scheme to defraud conviction, this argument is moot.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Paul Arthur MORRICAL, Respondent.
    Case No. 5D18-2589
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 11, 2019
    Mark L. Mason, of Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    Stuart I. Hyman, of Stuart I. Hyman, P.A., Orlando, for Respondent.
   LAMBERT, J.

The Department of Highway Safety and Motor Vehicles (the "Department") seeks second-tier certiorari review of the final order of the appellate panel of the circuit court quashing the decision of the hearing officer suspending Respondent's driving privileges. Based upon our limited scope of review, we deny the petition.

In the early morning hours of October 12, 2017, Officer Emilio Medugno with the Altamonte Springs Police Department was conducting a business check of a Pep Boys store when he observed a vehicle in the parking lot with its engine running and lights on. Officer Medugno parked his patrol vehicle in front of the car. He then walked towards the vehicle where he observed Respondent sleeping in the driver's seat with his pants and underwear down to his knees. Medugno called for backup, and a second police officer promptly arrived on the scene. The second officer positioned his police car behind Respondent's car, effectively preventing Respondent from being able to move his vehicle. At that point, Officer Medugno opened the driver's side door, which caused Respondent to awaken. Medugno then inquired if Respondent was "alright," to which Respondent indicated that he was.

Officer Medugno next advised Respondent that he should "hop on out [of the car] for us." Respondent complied. Because Medugno observed Respondent showing signs of impairment, he told Respondent that he would be conducting a "DUI investigation." After Respondent performed poorly on Field Sobriety Exercises, Officer Medugno placed Respondent under arrest and transported him to the Seminole County Jail. Based upon the results of the breath tests administered to Respondent at the jail, the Department issued Respondent a notice that his driver's license was suspended for exhibiting an unlawful breath-alcohol level of .08 or higher.

Respondent timely requested and received a formal review hearing under section 322.2615, Florida Statutes (2017), challenging his license suspension. Officer Medugno testified at this hearing, and various materials were admitted into evidence, including the video of the traffic stop, Officer Medugno's arrest report, and the offense report. Respondent's counsel also actively participated at the hearing.

The hearing officer affirmed the suspension of Respondent's driver's license. He concluded that Officer Medugno had probable cause to believe that Respondent was driving or in actual physical control of a motor vehicle in the State of Florida while under the influence of alcoholic beverages. The hearing officer also found that when Officer Medugno opened Respondent's car door and inquired of his well-being, he "was performing his community care taking duty."

Respondent timely petitioned for certiorari review of this order in the circuit court. See § 322.31, Fla. Stat. (2017). The three-judge appellate panel of the circuit court granted the petition and quashed the hearing officer's decision. The court first determined that Officer Medugno's encounter with Respondent was an investigatory stop under Popple v. State , 626 So.2d 185, 186 (Fla. 1993) (allowing "a police officer [to] reasonably detain a citizen temporarily [when] the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime"); and then, citing to Danielewicz v. State , 730 So.2d 363, 364 (Fla. 2d DCA 1999) (holding that a police officer's observation of the defendant apparently asleep in a legally parked car with the engine running was insufficient to establish a well-founded suspicion that defendant had been or was about to become involved in criminal activity and, thus, was insufficient to justify an investigatory stop), the court held that no competent substantial evidence existed giving rise to a reasonable suspicion that Respondent either did, was, or was about to commit a crime, as would be necessary to justify Officer Medugno's investigatory stop.

The court next analyzed whether competent substantial evidence nevertheless supported Officer Medugno's actions under the community caretaking exception to the requirement that an officer have reasonable suspicion of criminal activity before undertaking an investigatory stop. This exception specifically recognizes that a "legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior." Agreda v. State , 152 So.3d 114, 116 (Fla. 2d DCA 2014) (quoting State, Dep't of High. Saf. & Motor Veh. v. DeShong , 603 So.2d 1349, 1352 (Fla. 2d DCA 1992) ). The circuit court reiterated, however, that even under an officer's community caretaking responsibilities, the investigatory stop must still "be based on specific articulable facts showing that the stop was necessary for the protection of the public." Id. (quoting Majors v. State , 70 So.3d 655, 661 (Fla. 1st DCA 2011) ). The court concluded that there was no competent substantial evidence in the record to support the hearing officer's finding that Officer Medugno was acting in a "community caretaking capacity" or "pursuant to a welfare check."

The standard of review for a district court in a second-tier certiorari case was recently summarized by the Third District Court of Appeal in State, Department of Highway Safety & Motor Vehicles v. Sperberg , 257 So.3d 560 (Fla. 3d DCA 2018) :

On second-tier certiorari review of a circuit court's first-tier certiorari review of a judicial/quasi-judicial administrative action, this Court must determine "whether the circuit court [1] afforded procedural due process and [2] applied the correct law." Broward Cty. v. G.B.V. Int'l, Ltd. , 787 So.2d 838, 843-44 (Fla. 2001) (citing City of Deerfield Beach v. Vaillant , 419 So.2d 624, 626 (Fla. 1982) ). These two prongs are "merely expressions of ways in which the circuit court decision may have departed from the essential requirements of the law." Haines City Cmty. Dev. v. Heggs , 658 So.2d 523, 530 (Fla. 1995). This Court "must exercise caution not to expand certiorari jurisdiction to review the correctness of the circuit court's decision." Futch v. Fla. Dep't of Highway Safety & Motor Vehs. , 189 So.3d 131, 132 (Fla. 2016) (citing Nader v. Dep't of Highway Safety & Motor Vehs. , 87 So.3d 712, 723 (Fla. 2012) ).

"The departure from the essential requirements of the law necessary for granting a writ of certiorari [upon second-tier review] is something more than a simple legal error," Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So.3d 1086, 1092 (Fla. 2010) (citing Allstate Ins. Co. v. Kaklamanos , 843 So.2d 885, 889 (Fla. 2003) ). For example, the circuit court "applying the correct law incorrectly" would not warrant relief. State, Dep't of High. Saf. & Motor Veh. v. Walsh , 204 So.3d 169, 171 (Fla. 1st DCA 2016). Second-tier certiorari relief is only "reserved for those situations when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Futch , 189 So.3d at 132 (quoting Nader , 87 So.3d at 717 ). It is not justified by the mere fact that the appellate court may well have reached a different conclusion than the circuit court. See Dep't of High. Saf. & Motor Veh. v. Roberts , 938 So.2d 513, 515 (Fla. 5th DCA 2006) (explaining that on second-tier certiorari review, the appellate court cannot review the circuit court's decision and reach a different result simply because it is not satisfied with the result reached by the circuit court (citing Ivey v. Allstate Ins. Co. , 774 So.2d 679, 682 (Fla. 2000) ) ).

In the present case, the Department does not argue that the circuit court failed to afford it due process. Moreover, it appears that the circuit court sufficiently identified the applicable legal issues and principles. Consistent with our standard of review, we do not reach the "correctness" of the circuit court's decision or whether we would have made the same decision; thus, we avoid converting the instant proceeding into a second appeal. See Futch, 189 So.3d at 132 (explaining that "second-tier certiorari should not be used simply to grant a second appeal" (quoting Nader , 87 So.3d at 717 ) ). Because we conclude that the circuit court's decision did not result in a miscarriage of justice, the Department's petition is denied.

PETITION DENIED.

WALLIS and HARRIS, JJ., concur.

      First-tier certiorari review requires that the circuit court determine "whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence." City of Deerfield Beach v. Vaillant , 419 So.2d 624, 626 (Fla. 1982).


text:
    Joshea J. GILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1594
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Andy Thomas, Public Defender, Tallahassee, and Victor D. Holder, Assistant Public Defender, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this second-degree murder case, defendant Joshea J. Gilliams argues that the trial court erred in preventing him from cross-examining the medical examiner about other possible intervening causes of the victim's death. We disagree. A trial court has discretion to limit relevant evidence, including that which may be revealed in cross examination, when the "probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Fla. Stat. § 90.403. The Florida Supreme Court long ago held:

A defendant cannot escape the penalties for an act which in point of fact produces death, which death might possibly have been averted by some possible mode of treatment. The true doctrine is that, where the wound is in itself dangerous to life, mere erroneous treatment of it or of the wounded man suffering from it will afford the defendant no protection against the charge of unlawful homicide.

Johnson v. State , 64 Fla. 321, 59 So. 894, 895 (1912) (quoting Daughdrill v. State , 113 Ala. 7, 21 So. 378, 387 (1897) ). The rule has since been that where a defendant inflicts a wound that is life threatening, "supervening lack of optimal medical attention or affirmative medical malpractice is not an intervening cause of the victim's death." State v. Smith , 496 So.2d 195, 196 (Fla. 3d DCA 1986) (citing Hallman v. State , 371 So.2d 482 (Fla. 1979) ); see also Rose v. State , 591 So.2d 195, 200 (Fla. 4th DCA 1991) (on motion for rehearing, the court held that evidence of medical malpractice is irrelevant unless it can be shown to be the sole cause of death).

In Gilliams's case, the medical examiner gave testimony in deposition and at trial that the victim would have died had he not received medical attention and that the cause of death was a gunshot wound of the chest/abdomen. The trial court was within its discretion in restricting Gilliams's counsel from questioning the medical examiner on intervening causes of death because it was "not relevant to a legally recognizable defense in this case." The bullet wound was a life-threatening injury for which medical malpractice or lack of optimal medical care was not a legally valid defense under the circumstances.

AFFIRMED .

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


author: HARRIS, J.

text:
    Paralee MIDDLETON, Appellant, v. DON ASHER & ASSOCIATES, INC. and Lemon Tree Condominium Association, Inc., Appellees.
    Case No. 5D17-3884
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 25, 2019
    Blair M. Dickert, of Kanner & Pintaluga, P.A., Boca Raton, for Appellant.
    Scott A. Cole, of Cole, Scott & Kissane, PA, Miami, for Appellees.
   HARRIS, J.

Paralee Middleton appeals from an adverse final summary judgment in a trip and fall case, arguing that the trial court erred in concluding that Don Asher & Associates, Inc. ("Property Management Co.") and Lemon Tree Condominium Association, Inc. ("Lemon Tree") (collectively, "Appellees") were entitled to summary judgment on the basis that the condition of the sidewalk was open and obvious and thus, not dangerous. Because a genuine issue of fact existed regarding whether Appellees should have anticipated that Middleton would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding the obvious condition, summary judgment was in error. We reverse.

Middleton owns property within Lemon Tree and has resided there for fifteen years. While walking on premises owned by Lemon Tree and managed by Property Management Co., Middleton tripped on an uneven sidewalk and was injured. She had previously walked the property on several occasions and frequently passed the area where she fell. She then brought a negligence action against Appellees.

Appellees moved for summary judgment, arguing that they had no duty to warn Middleton of the sidewalk condition because the uneven joint between the two concrete segments was an open and obvious condition. In response to Appellees' motion, Middleton argued that even if the condition was open and obvious an issue of fact remained as to whether Appellees should have anticipated that condominium residents would use the sidewalk and encounter the cracked and uneven concrete. The trial court, citing Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. 5th DCA 1990), found that the condition of the sidewalk was so open and obvious that it could not be held to constitute a hidden, dangerous condition and granted Appellees' motion for summary judgment.

The first inquiry in a negligence action is whether the defendant owes a duty of care to the plaintiff. Under the facts of this case, Middleton occupies the status of an invitee. This Court has held that the duty owed to invitees is "1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier." Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001). Appellees contend that the condition of the premises that caused Middleton's injury was neither latent nor concealed, but rather, open and obvious. Therefore, Appellees argue, the legal duty owed to Middleton as an invitee did not require them to give notice or warning of this obvious condition. The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their own senses. See Ferguson, 556 So.2d at 1208.

Uneven floor levels are obvious and not inherently dangerous conditions as a matter of law. E.g., Casby v. Flint, 520 So.2d 281, 282 (Fla. 1988) (finding that multiple floor levels in dimly lit and overcrowded room are not inherently dangerous conditions); Bowles v. Elkes Pontiac Co., 63 So.2d 769, 772 (Fla. 1952) (concluding that uneven floor levels in public places do not constitute latent, hidden, and dangerous conditions); Rosenfeld v. Walt Disney World Co., 651 So.2d 811, 812 (Fla. 5th DCA 1995) (holding that street curb in amusement park is not inherently dangerous condition); Gorin v. City of St. Augustine, 595 So.2d 1062, 1062 (Fla. 5th DCA 1992) (concluding that sidewalk curb used as platform to pick up and drop off passengers riding a tram is not hidden dangerous condition); Aventura Mall Venture v. Olson, 561 So.2d 319, 320 (Fla. 3d DCA 1990) (finding that six-inch sidewalk curb located at a mall is not "concealed or latent danger"). Therefore, in the instant case, the trial court was correct in finding that the uneven sidewalk was open and obvious as a matter of law.

However, "[w]hile the fact that a danger is obvious discharges a landowner's duty to warn, it does not discharge the landowner's duty to maintain his premises." De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So.3d 885, 888 (Fla. 4th DCA 2013). Thus, notwithstanding that the condition of the sidewalk was open and obvious, Appellees had a duty to maintain the property in a reasonably safe condition by repairing conditions that they foresee will cause harm. See Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204, 206 (Fla. 5th DCA 2012) ("[Some] conditions are dangerous, but are so open and obvious that an invitee may be reasonably expected to discover them and to protect himself. The rule applied in these circumstances is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness.") (citations omitted); Lomack v. Mowrey, 14 So.3d 1090, 1092 (Fla. 1st DCA 2009) ("Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner's duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.")

In Lotto v. Point East Two Condominium Corp., 702 So.2d 1361 (Fla. 3d DCA 1997), a condominium resident tripped and fell on a portion of an exterior sidewalk that was cracked and partially uneven. The resident sued the condominium association for negligence in failing to maintain the sidewalk in a reasonably safe condition and for failure to warn of the condition of the sidewalk. The condominium association acknowledged that the stretch of sidewalk had been in the same cracked and deteriorated condition for over three years, but took the position that it had no duty to warn the resident of the sidewalk's condition because the deteriorated condition was obvious. The trial court agreed and granted summary judgment in the condominium association's favor.

The Third District Court of Appeal agreed with the trial court that the association did not owe a duty to warn the resident of the condition of the sidewalk under the circumstances because the deteriorated condition was obvious. However, the court held that the obviousness of the condition did not relieve the condominium association of the duty to repair it. The district court reversed the summary judgment, holding that a factual issue remained as to whether the association should anticipate that condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, notwithstanding that the condition was obvious, and would be harmed thereby.

In this case, it is clear that Appellees knew of the significant disrepair of the sidewalk within the condominium property. In fact, Appellees had been aware of the condition for as long as eighteen months, as indicated by a series of blue dots that had been placed on the sidewalk throughout the property. As Appellees' own agent testified, the blue dots were placed not to warn residents and other invitees of the condition of the premises but rather to indicate the areas Appellees felt were most in need of repair. Despite their knowledge of the need to repair the sidewalk, Appellees took no action to do so.

While Appellees may not have owed a duty to warn Middleton of the condition of the sidewalk, we do not agree that the obviousness of the condition relieved Appellees of the duty to repair it. Therefore, a factual issue remained as to whether Appellees should have anticipated that, notwithstanding that the condition was obvious, condominium residents would use the sidewalk and proceed to encounter the cracked and uneven concrete, and could be harmed thereby. See Lotto, 702 So.2d at 1362 ; see also Hogan v. Chupka, 579 So.2d 395, 396 (Fla. 3d DCA 1991) (holding fact issue existed regarding due to maintain sidewalk precluding summary judgment).

We conclude that the trial court erred in entering summary judgment. Because Middleton was thoroughly familiar with the condition of the sidewalk, her decision to proceed to encounter the risk does, of course, raise the question as to whether she was comparatively negligent. See De Cruz-Haymer, 117 So.3d at 888. The summary judgment is reversed and the cause remanded for further proceedings.

REVERSED and REMANDED.

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


text:
    Michael REASE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3624
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Michael Rease, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Curtis BROWN, Petitioner, v. Mark S. INCH, Secretary Fla. Dept. of Corr., Respondent.
    No. 1D18-5230
    District Court of Appeal of Florida, First District.
    January 28, 2019
    Curtis Brown, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    George P. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5198
    District Court of Appeal of Florida, First District.
    January 28, 2019
    George P. Carter, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    George WALKER IV, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5176
    District Court of Appeal of Florida, First District.
    January 28, 2019
    George Walker IV, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

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


text:
    Larry Crandall ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0332
    District Court of Appeal of Florida, First District.
    January 31, 2019
    Luke Newman of Luke Newman, P.A., Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Larry Crandall Roberts appeals his judgments and sentences for two counts of aggravated assault with a firearm following a nonjury trial. Roberts's sole argument on appeal is that the trial court erred in rejecting both his statutory and common law affirmative defenses of citizen's arrest regarding his use of a shotgun while attempting to detain two unarmed individuals, whom he believed had committed a felony.

A detailed recitation of the facts is unnecessary to our resolution. While we agree with Roberts that he initially had probable cause to effect a citizen's arrest, the State presented evidence at trial contradicting Roberts's affirmative defense by showing that he did not act in a reasonable manner when he attempted to detain the two individuals. This factual dispute regarding the affirmative defense was resolved by the trier of fact adversely to Roberts, and the record contains competent substantial evidence supporting his convictions.

AFFIRMED .

Evander, Lambert, and Eisnaugle, Associate Judges, concur.

      Sitting as Associate Judges of the First District Court of Appeal in this case by designation and order of the Chief Justice of the Florida Supreme Court.

      See § 810.09(2)(c), Fla. Stat. (2013).

      In a criminal case, "[a]n affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, 'Yes, I did it, but I had a good reason.' " State v. Cohen , 568 So.2d 49, 51-52 (Fla. 1990).

      One of the individuals was a minor.


author: PER CURIAM.

text:
    Jermaine GODBOLT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3972
    District Court of Appeal of Florida, First District.
    January 28, 2019
    Jermaine Godbolt, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

MAKAR, WINOKUR, and M.K. THOMAS, JJ., concur.


author: Winokur, J. Winsor, J., dissenting.

text:
    Patricia Ann BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4687
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Sharon S. Traxler, Assistant Attorney General, and Amanda Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Patricia Banks appeals the trial court's order revoking her probation for failing to pay court costs or completing community service. We find that the trial court did not make the findings required for revocation due to the failure to pay court costs, and that the community service option was not a mandatory condition of probation. Thus, we reverse the revocation of Banks' probation.

Condition 10 of Banks' probation order provided that she "will pay" court costs. Special condition 28 of the order provided that she "may perform [community service hours] in lieu of court costs." Banks neither paid court costs nor performed community service. The trial court did not determine if Banks had the ability to pay her court costs, but determined she had the ability to perform community service hours, and revoked her probation.

Before probation may be revoked, the trial court "must find that the probationer willfully and substantially violated a condition of probation." Del Valle v. State , 80 So.3d 999, 1012 (Fla. 2011). "In probation revocation proceedings for failure to pay a monetary obligation as a condition of probation, the trial court must find that the defendant's failure to pay was willful-i.e., the defendant has, or has had, the ability to pay the obligation and purposefully did not do so." Id. Because the trial court declined to make a determination as to Banks' ability to pay, we cannot affirm revocation on this ground.

We also cannot affirm revocation due to Banks' failure to perform community service because the probation order did not obligate her to do so. Banks was required to pay court costs ("You will pay ... court costs") and permitted to perform community service hours in lieu of paying court costs (you "may perform" community service "in lieu of court costs"). This special condition provided Banks with an alternative to paying costs if she wished, but she did not. As such, the requirement to pay costs remained in place, and Banks cannot have her probation revoked for failing to pay costs unless the court finds that she has the ability to pay. See Williams v. State , 165 So.3d 870 (Fla. 1st DCA 2015) ; Crowley v. State , 124 So.3d 434, 436 (Fla. 1st DCA 2013).

The dissent agrees that "it is true that 'will' or 'shall' is generally mandatory and 'may' is generally permissive," but believes that we should look to the context and interpret "may" as "shall" with regard to the community service option. We agree that context matters, but the dissent makes too large a leap-interpreting a word that is "generally permissive" to mean the opposite-when considering that these words were written in a probation order. "Fundamental fairness requires that a defendant be placed on notice as to what he must do or refrain from doing while on probation." Hines v. State , 358 So.2d 183, 185 (Fla. 1978) ; see also Lawson v. State , 969 So.2d 222, 230 (Fla. 2007) ("In addition to the procedural due process that is required at the time of an alleged violation, the trial court and the probation order must also adequately place the probationer on notice of conduct that is both required and prohibited during the probationary period."). The dissent makes a cogent contextual argument, but we find that the order did not provide sufficient notice that, here, "may" meant "shall."

The State's intent may have been to set forth a mandatory alternative, and it could have done so with compulsory language-e.g., "You will perform community service if you do not pay court costs." Because the performance of community service was not a required condition of probation, we REVERSE the revocation of probation and REMAND for a determination as to Banks' ability to pay court costs.

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

Makar, J., concurring with opinion.

I concur that revoking Patricia Banks's probation was impermissible based on the language of her probation order, which required her to pay $ 671 of court costs. It did not require, however, that she perform community service if she lacked the ability to pay them. To the contrary, the clear language of the order merely allowed her to perform community service in lieu of paying these costs. Had it said Banks "must either pay court costs or do community service," a different meaning and outcome would result.

Under the probation order, the only question was whether Banks had the ability to pay the court costs at the time of the revocation hearing. After hearing testimony from Banks and her probation officer as to her financial situation and her failure to perform community service, the trial judge decided not to "get into the issue of the financial capabilities" of Banks to pay the court costs, in part, because "we're just used to that nobody pays them." Instead, the focus was solely on Banks's failure to complete community service hours, which the trial court deemed mandatory ("So I am going to find that there is a violation of probation. There is a willful and substantial violation as it relates to community service, not as to payment."). He modified Banks's probation, extending it by six months, and ordered that she complete community service hours during that time period.

In doing so, the trial court transformed a discretionary condition of probation into a mandatory one. By the probation order's plain language, Banks was required only to pay court costs. She had the discretion to perform community service, but it was not mandated. A box on a standard pre-printed probation form was checked that said "The Defendant may perform community service in lieu of court costs at the rate of $ 10 per hour." (Emphasis added). This option gave Banks the ability to reduce or fully satisfy the $ 671 owed by performing up to sixty-eight hours of community service if she chose to do so (she worked full-time, had physical ailments, and shouldered family responsibilities that, in her view, made additional physical work infeasible). Because the trial court did not address and resolve the only mandatory condition of probation, i.e., Banks's payment of court costs, reversal is warranted and a remand is necessary to address the matter anew.

That said, trial judges justifiably are frustrated when they lack objective financial information to assess the ability of probationers to pay court-ordered costs. Bemoaning this lack of information, the trial judge noted that "we just trust what the folks are telling us, that, 'I can't pay it.' " If defendants routinely say they can't pay court costs, or fail to provide objective evidence as to their financial status, mandatory community service hours become an option to consider; they don't generate revenue, but they do provide a means for probationers to do something productive to pay back society or better themselves (provided the hours aren't merely make-work).

Finally, to make community service a mandatory alternative, probation orders would simply have to say that defendants must pay court costs or perform community service, and that the willful failure to do one or the other is a violation of probation. Rephrasing the probation order at issue to achieve this result is preferable to an appellate court straining to conclude that "may" means "must." And a community service option is unlike an extension of a tax filing date. A tax extension is not an alternative to a tax filing: it merely postpones the inevitable; a tax return must be filed. In contrast, community service is an alternative for payment of court costs, albeit an imperfect one (the payment of court costs requires the defendant's money, while community service requires the defendant's labor). Given these differences and distinctions, a court should not impose a mandatory contribution of a defendant's labor in lieu of a payment of money absent clear language of the intent to do so.

Winsor, J., dissenting.

Patricia Banks fraudulently obtained thousands in welfare benefits. After she was convicted of felony welfare fraud, the trial court sentenced her to probation rather than prison. The probation order imposed conditions, and Banks did not comply with them. None of that is challenged on appeal. The issue is whether Banks's failure to comply was willful. The trial court found it was, and that finding was supported by competent, substantial evidence. We should affirm.

At the revocation hearing, the parties disputed whether Banks had the ability to perform community service. Banks testified that she worked forty hours a week at a sandwich shop and was too tired to do community service on top of that. She admitted she had done zero hours but insisted she just couldn't: "Sir, if I had the ability to do those community service hours, I would have." But the court rejected Banks's testimony and made a factual finding that Banks indeed had the ability to perform community service. The court noted that not all community service requires physical exertion-observing, for example, that Banks could have accrued service hours by sitting in court, watching proceedings.

Banks has not challenged the court's factual finding, and the majority takes no issue with it either. So this appeal does not turn on whether Banks could have done community service; we all accept that she could have. The real question-the one on which the majority and I disagree-is whether her choice to eschew community service even matters. And that turns on how we interpret the probation order.

The probation order says Banks "will pay" court costs. But it also says she "may perform [community service hours] in lieu of court costs." The majority seizes on the distinction between "will pay" and "may perform" to conclude that the former was mandatory and the latter was permissive. And it is true that "will" or "shall" is generally mandatory and "may" is generally permissive. See Fla. Bar v. Trazenfeld , 833 So.2d 734, 738 (Fla. 2002). But we cannot ignore the context. Cf. Comcoa, Inc. v. Coe , 587 So.2d 474, 477 (Fla. 3d DCA 1991) ("[A]ccording to the context and surrounding circumstances, a statutory 'shall' is to be read as 'may' and vice versa."); Lomelo v. Mayo , 204 So.2d 550, 552 (Fla. 1st DCA 1967) (similar); cf. also RLS Assocs., LLC v. United Bank of Kuwait PLC , 380 F.3d 704, 710 (2d Cir. 2004) ("[T]o appreciate whether [a provision] was intended to create a mandatory obligation, as opposed to a discretionary option, a court must read the relevant terms of a provision in full and in context, rather than simply assume that the selection of a particular word was intended to denote the significance lawyers normally intend by its use."). And the context makes clear that Banks did not have to pay; she had two independent means of satisfying the relevant probation condition.

Everyone agrees that Banks could have satisfied the condition through community service. Had she performed sufficient community service, nobody could credibly argue that she nonetheless violated by not also paying costs-even though the provision said she "will pay" costs. She never had to pay. What she had to do was satisfy the probation condition, which she may have done by paying costs-or which she may have done though community service. She could choose either, but she could not choose neither.

The majority takes issue with this, saying the court could have worded the order differently. And surely, the court could have said "you must pay and if you don't you must do community service." Or it could have said "you must either pay or do community service." But there is no logical difference between saying on one hand, that someone "shall" do A but nonetheless "may" do B instead of A-and on the other hand saying someone "shall" do either A or B. Either way, the person does not have to do A; he may do B instead. It is not that A is mandatory and B is optional.

Suppose a tax law said tax returns "shall be filed on or before the 15th day of April following the close of the calendar year." 26 U.S.C. § 6072(a) (emphasis added). And suppose another provision said taxpayers "may " obtain from the Secretary of the Treasury "a reasonable extension of time for filing any return." 26 U.S.C. § 6081(a) (emphasis added). Would we say that because "shall" is mandatory and "may" is permissive, all taxpayers must file by April 15, whether they secure an extension or not? We shouldn't. Instead, we should read the provisions together and understand that taxpayers may avoid the April 15 deadline by opting for an extension, even though opting for an extension is not mandatory. Although the text says returns "shall be filed" by April 15, it is clear taxpayers don't have to file by April 15 if they secure an optional extension. It would be no different if the text said taxpayers "shall either file by April 15 or obtain an extension." It is the same thing.

We therefore ought not focus on whether Banks had the ability to pay, but rather on whether Banks had the ability to satisfy the relevant condition. Indeed, the whole point of requiring an ability to pay before punishing for nonpayment is based on constitutional limitations. "The Equal Protection and Due Process Clauses of the United States Constitution ensure that an indigent probationer is not incarcerated based solely upon inability to pay a monetary obligation." Del Valle v. State , 80 So.3d 999, 1005 (Fla. 2011). But when a probationer can satisfy a condition by paying costs or without paying costs (like Banks could), we never face a situation where someone is jailed "based solely upon inability to pay a monetary obligation." Id.

Once we accept-as the majority and I have-that (i) Banks could have satisfied the probation condition through community service, (ii) that she had the ability to do community service, and (iii) that she nonetheless chose to not do community service, it inescapably follows that the trial court was justified in finding a willful violation. Neither Banks's financial resources nor the wording of the probation order changes any of this. Nevertheless, the majority reverses because the probation order said (essentially) "you must do A, but you may do B instead of A," rather than saying "you must do either A or B."

We should affirm.


text:
    Michael J. GILES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1110
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Bruce S. Rogow and Tara A. Campion, Fort Lauderdale, for Petitioner.
    Ashley B. Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The writ of habeas corpus alleging ineffectiveness of appellate counsel is denied as untimely, pursuant to rule 9.141(d)(5), Florida Rules of Appellate Procedure. See Partridge v. Moore , 768 So.2d 1128 (Fla. 1st DCA 2000). Even if we were to reach the merits, appellate counsel is not ineffective for failure to raise every conceivable nonfrivolous issue. See Valentine v. State , 98 So.3d 44, 57 (Fla. 2012).

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


text:
    Barbara Ann KELLY, Appellant, v. SUNTRUST BANK, et al., Appellee.
    No. 1D18-0222
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Barbara Ann Kelly, pro se, Appellant.
    Amelia Hallenberg Beard of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee.
   Per Curiam.

Appellant's motion for reinstatement filed on December 7, 2018, in case number 1D18-0222, is granted, and the appeal in case number 1D18-0222 is hereby reinstated.

Case number 1D18-0222 is treated as an appeal from the final judgment of foreclosure, rendered by the lower tribunal's December 14, 2017, Order Denying Defendant Barbara Kelly's Motion to Vacate Final Judgment. On the Court's own motion, the appeal in case number 1D18-0220 is dismissed as duplicative of the appeal in case number 1D18-0222. Review of the order in case number 1D18-0220 shall proceed in case number 1D18-0222.

Appellant's request to consolidate the two appeals, contained within the foregoing motion, is denied as moot.

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


text:
    Barbara Ann KELLY, Appellant, v. SUNTRUST BANK, et al., Appellee.
    No. 1D18-0220
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Barbara Ann Kelly, pro se, Appellant.
    Amelia Hallenberg Beard of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee.
   Per Curiam.

Appellant's motion for reinstatement filed on December 7, 2018, in case number 1D18-0222, is granted, and the appeal in case number 1D18-0222 is hereby reinstated.

Case number 1D18-0222 is treated as an appeal from the final judgment of foreclosure, rendered by the lower tribunal's December 14, 2017, Order Denying Defendant Barbara Kelly's Motion to Vacate Final Judgment. On the Court's own motion, the appeal in case number 1D18-0220 is dismissed as duplicative of the appeal in case number 1D18-0222. Review of the order in case number 1D18-0220 shall proceed in case number 1D18-0222.

Appellant's request to consolidate the two appeals, contained within the foregoing motion, is denied as moot.

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


text:
    Dathan S. GRAY, Sr., Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4482
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Dathan S. Gray, Sr., pro se, Petitioner.
    Ashley B. Moody, Attorney General, Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is dismissed as moot.

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Alice CISLO, Appellee.
    No. 1D17-2151
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    James Dale Gibson, of Gibson, Kohl, Wolff & Hric, P.L., Sarasota, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The Florida Supreme Court has quashed the decision in this case and remanded with instructions that we reconsider the matter in light of its decision in Dyck-O'Neal, Inc. v. Lanham , 257 So.3d 1 (Fla. 2018). In compliance with the Florida Supreme Court's directive, we reverse the trial court's dismissal order and remand this case for determination on the merits of Dyck-O'Neal's deficiency claim.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Grigoriy BRUTSKIY, Appellee.
    No. 1D17-891
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    David P. Grigaltchik and Boris Galustov, of Grigaltchik & Galustov, P.A., Jacksonville, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The Florida Supreme Court has quashed the decision in this case and remanded with instructions that we reconsider the matter in light of its decision in Dyck-O'Neal, Inc. v. Lanham , 257 So.3d 1 (Fla. 2018). In compliance with the Florida Supreme Court's directive, we reverse the trial court's dismissal order and remand this case for determination on the merits of Dyck-O'Neal's deficiency claim.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Jacob KRAWIEC; Kayela Krawiec, Appellees.
    No. 1D17-508
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Adam B. Schemer, Jacksonville, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The Florida Supreme Court has quashed the decision in this case and remanded with instructions that we reconsider the matter in light of its decision in Dyck-O'Neal, Inc. v. Lanham , 257 So.3d 1 (Fla. 2018). In compliance with the Florida Supreme Court's directive, we reverse the trial court's dismissal order and remand this case for determination on the merits of Dyck-O'Neal's deficiency claim.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    Reginald A. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5172
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wolf and M.K. Thomas, JJ., concur; Makar, J., concurs with opinion.

Makar, J., concurring with opinion.

Reginald A. Walker, who was convicted of sexual battery in 1991, was later voluntarily designated a sexual violent predator and thereby subject to civil commitment under the Jimmy Ryce Act and held in custody by the Department of Children and Families (DCF). In 2014, he was placed in custody of the Department of Corrections (due to a conditional release violation) where he continues to be held. In 2017, he claimed eligibility for the statutorily-required annual DCF evaluation of his mental condition and fitness to return to society despite being currently in prison; he would have this right if held in DCF's custody. See § 394.918(1), Fla. Stat. ("A person committed under this part shall have an examination of his or her mental condition once every year or more frequently at the court's discretion."). As the Second District has held, on a question of first impression, a sexually violent predator who is in prison on a new offense is not entitled to an annual evaluation. The court noted that "Florida statutes do not specify the procedure to employ for a person already determined to be a sexually violent predator, but in prison again for new offenses." Jackson v. State , 166 So.3d 906, 910 (Fla. 2d DCA 2015). It concluded, however, that when a sexually violent predator is "in prison for new offenses, nothing would be gained by conducting the evaluation and related court proceedings" because he "would not be entitled to immediate release." Id. Here, it does not appear from the record that Walker is entitled to immediate release, nor is it clear when his potential release from prison-and return to DCF custody-is anticipated. As such, I concur and agree that affirmance of the denial of Walker's requested relief is appropriate, and, as in Jackson , we need "not address what procedures DCF must follow when [Walker's] release from prison becomes imminent." Id. (noting that "given the dearth of case law addressing these peculiar circumstances and the lack of specific guidance in the applicable statute, the legislature may wish to explore this issue.").


text:
    DYCK-O'NEAL, INC., Appellant, v. Hoang N. NGUYEN, Appellee.
    No. 1D17-203
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Susan B. Morrison, of Law Offices of Susan B. Morrison, P.A., and David M. Snyder, of David M. Snyder, and Joshua D. Moore, of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Gregory S. Gilbert, of Parker & DuFresne, P.A., Jacksonville, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The Florida Supreme Court has quashed the decision in this case and remanded with instructions that we reconsider the matter in light of its decision in Dyck-O'Neal, Inc. v. Lanham , 257 So.3d 1 (Fla. 2018). In compliance with the Florida Supreme Court's directive, we reverse the trial court's dismissal order and remand this case for determination on the merits of Dyck-O'Neal's deficiency claim.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    Herbert Lee BUTLER, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-1727
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Herbert Lee Butler, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Gayla Grant, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

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


author: WEIMER, J., would grant.

text:
    Karonda WASHINGTON, Lateisha Atkinson on Behalf of Her Minor Child Ja'Myah Bass and Tashell Jones on Behalf of Her Minor Child, Ezekiel Blakes v. ONEBEACON AMERICA INSURANCE COMPANY, Sid Gautreaux, East Baton Rouge Parish Sheriff, Tyler Comeaux, GoAuto Insurance Company and Shankeyshia Jones
    No. 2018-C-1967
    Supreme Court of Louisiana.
    January 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    Writ denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

CRICHTON, J., would grant and docket and assigns reasons.

CRICHTON, J., would grant and docket and assigns reasons:

With emergency lights and sirens engaged, defendant Deputy Comeaux was responding to a call regarding "a disturbance with a weapon ... with an individual inside of a house with a gun". Washington v. OneBeacon Am. Ins. Co. , 18-0248, p.2 (La. App. 1 Cir. 11/2/18), --- So. 3d ----, 2018 WL 5732437. There was screaming in the background of the call, further evidencing a potential loss of life and a need for immediate law enforcement attention. Id. The lower courts' finding that the officer acted with reckless disregard in his pursuit raises policy concerns that warrant scrutiny by this Court; accordingly, I would grant and docket this case.


text:
    STATE of Louisiana v. Daniel Jeremy ECKERT
    2018-K-0908
    Supreme Court of Louisiana.
    January 28, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF VERNON
    Writ denied.
    HUGHES, J., would grant for reasons assigned by Judge Perret.
    CRICHTON, J., would grant and assigns reasons.
   GENOVESE,J., would grant for reasons assigned by Judge Perret.

Crichton, J., would grant and assigns reasons.

I would grant the defendant's writ application as it relates to the issue of the admissibility of the testimony of Matthew Larsen, for the reasons set forth in Judge Perret's dissent.


text:
    STATE of Louisiana v. Brady Louis VICE, Sr.
    No. 2018-KK-1926
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE 15th JUDICIAL DISTRICT COURT OF THE PARISH OF LAFAYETTE
    Writ denied.
    HUGHES, J., would grant and assigns reasons.
   GENOVESE, J., would grant for reasons assigned by Justice Hughes.

Hughes, J., would grant the writ.

The judge and the prosecutor, as an officer of the court, have a duty to ensure that criminal defendants, even guilty ones, do not sit in jail after prosecution deadlines have lapsed, without notice or remedy due to the lack of notice. The defendant in this case should be afforded a bond hearing.


author: PER CURIAM:

text:
    STATE of Louisiana v. Christopher E. BUCKLEY
    No. 2018-KH-0168
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Byron Spencer LLOYD
    No. 2018-KH-0107
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Steven CAMPBELL
    No. 2018-KH-0075
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE of Louisiana v. William M. BRANCH
    No. 2018-KH-0071
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Murphy L. CALAIS
    No. 2018-KH-0215
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN
   PER CURIAM:

Denied. The application is properly construed as an untimely application for post-conviction relief. See State ex rel. Glover v. State , 93-2330, pp. 9-11 (La. 9/5/95), 660 So.2d 1189, 1195-96 (distinguishing habeas corpus from post-conviction relief and endorsing La.C.Cr.P. art. 351 and its cmt. (c), which states that "habeas corpus is not the proper procedural device for petitioners who may file applications for post conviction relief;" rather, it "deals with pre-conviction complaints concerning custody."). In addition, relator previously exhausted his right to state collateral review. See State ex rel. Calais v. Smith , 16-0476 (La. 6/5/17), 221 So.3d 58.


text:
    STATE of Louisiana v. Jonterrance WINZER
    No. 2018-KH-0203
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE THIRD JUDICIAL DISTRICT COURT, PARISH OF UNION
   PER CURIAM:

Denied. Relator shows no lower court error.

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


text:
    STATE of Louisiana v. Shearman WISHAM
    No. 2018-KH-0094
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the court of appeal's denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

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


text:
    STATE of Louisiana v. Caddara D. HOGAN
    No. 2018-KH-0068
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DESOTO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Rodney WASHINGTON v. STATE of Louisiana
    No. 2018-KH-0012
    Supreme Court of Louisiana.
    January 28, 2019
    ON SUPERVISORY WRITS TO THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST
   PER CURIAM:

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

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


text:
    Candido PERDOMO v. CITY OF KENNER and Veolia Water Logistics LLC D/B/A Veolia Water
    NO. 2018-01861
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    KENNER FIRE FIGHTERS ASSOCIATION LOCAL 1427, IAFF, et al. v. The CITY OF KENNER
    NO. 2018-CC-1873
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    MALDONADO INVESTMENTS, LLC and Fernando Maldonado, Individually v. Patrick R. JACKSON (a Professional Law Corporation) and Patrick R. Jackson
    NO. 2018-CC-1905
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    QUALITY SITEWORK MATERIALS, INC. v. CADDO-BOSSIER PARISHES PORT COMMISSION, Benteler Steel/Tube Manufacturing Corp., Walbridge Aldinger, LLC F.K.A. Walbridge Aldinger Company, Hardclay, LLC, the Ohio Casualty Insurance Company, Travelers Casualty and Surety Company of America, Liberty Mutual Insurance Company, Hudson Insurance Company and Thomas E. Hardiman
    NO. 2018-CC-1866
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Gustave J. LABARRE, Jr., Ramona H. Talbot, Howard J. Dupre, III, Gail D. Boudreaux, Floyd A. LaBarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes, Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. LeBlanc, Jr., Pierre F. V. DeLaBarre, IV, Mary G. DeLaBarre, Katherine D. LaBarre, Andre F. V. DeLaBarre, Gilbert J. Dupre, Jr., Grant J. Dupre, Grantlyn D. Wheeler, Elena R. LeBlanc, Helen H. Shaw, Anita H. Williams, Gertrude L. Landry, Lydia L. Shavers, Merrill L. Cornay, Harry J. Simoneaux, Sr., Harry J. Simoneaux, Jr., Amy Simoneaux, Lyle T. Simoneaux, Joie A. Simoneaux, Simone S. Lawson, Christopher A. Simoneaux, Gregory J. Dupre, Augusta L. Riffert, Albert H. LeBlanc, Jr., Maria Carmen DeLaBarre, Lizarraga Enterprises, LLC v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2018-CC-1867
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Lisa Seal FRIGON, as the Administratrix of the Estate of Adler Berriman Seal v. UNIVERSAL PICTURES, INC., Deborah Dubois Seal, Aaron Seal, Christina Seal Warmack, and Dean Berriman Seal
    NO. 2018-C-1868
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Willie MASON, Jr. v. STATE of Louisiana THROUGH the BOARD OF SUPERVISORS OF the LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College on Behalf of Louisiana State University Health Sciences Center - Shreveport, and Todd Jaeblon, M.D.
    NO. 2018-CC-1869
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Dr. Calvin NICHOLAS v. EAST BATON ROUGE PARISH SCHOOL SYSTEM
    NO. 2018-C-1865
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Tiffany PARKER
    NO. 2018-KK-1874
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Yolanda CRESSY, et al. v. Pete LEWIS, et al.
    NO. 2018-CC-1877
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Yolanda STEWART v. STATE of Louisiana, THROUGH the LOUISIANA STADIUM AND EXPOSITION DISTRICT and SMG
    NO. 2018-CC-1879
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Jammall BREAUX v. Devin TIPTON
    NO. 2018-CC-1880
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    Michael BELANGER v. SPENCER H. CALAHAN, L.L.C., Spencer Calahan, Jonathan D. Mayeaux, Brady Patin, and ABC Insurance Co.
    NO. 2018-C-1887
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.
    HUGHES, J., would grant and docket.