Datasets:

harvard-lil

/

cold-cases

like 11

"2003-06-06"

[ "845 So. 2d 1090" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Orleans Levee District Board of Commissioners; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 00-14068; to the Court of Appeal, Fourth Circuit, No. 2002-CA-0374.\nDenied.\nKNOLL, J., would grant the writ.\nWEIMER, J., would grant the writ.\n", "ocr": true, "opinion_id": 7759361 } ]

"2003-04-25"

[ "846 So. 2d 1158" ]

[ { "author_str": "Orfinger", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nORFINGER, J.\nFrancisco J. Diaz appeals the summary denial of his motion for postconviction relief. Diaz pled guilty to trafficking in 28 grams or more of heroin in violation of section 893.135(l)(c)l.c., Florida Statutes (1999), and was sentenced to the statutorily mandated twenty-five year minimum mandatory prison term. The denial of Diaz’s earlier motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 was affirmed by this court. See Diaz v. State, 818 So.2d 521 (Fla. 5th DCA 2002).\nDiaz then filed a second rule 3.850 motion. The trial court correctly concluded that two of Diaz’s three claims for relief were procedurally barred, as they either were raised, or could have been raised, in his previous rule 3.850 motion. The trial court treated Diaz’s third claim that his sentence was illegal as a motion for relief pursuant to Florida Rule of Criminal Procedure 3.800(a). Diaz argues that because Chapter 99-188, Laws of Florida, which revised section 893.135, was determined to be unconstitutional, his sentence is illegal.\nDiaz correctly observes that Chapter 99-188, which enacted changes to section 893.135, was found to be unconstitutional in violation of the single subject rule. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). Diaz is not, however, entitled to relief. In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), this court held that the enactment of Chapter 02-210, Laws of Florida, cured Chapter 99-188’s constitutional infirmity and applied retroactively. While we recognize that our opinion in Hersey conflicts with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), which held that the curative effect of Chapter 02-210 could not be applied retroactively because retroactive application would violate the ex post facto clauses of the United States and Florida Constitution, Diaz’s claim would still lack merit because he was not adversely affected by the amendments made by Chapter 99-188. See Lindsey v. State, 839 So.2d 737 (Fla. 2d DCA 2003). Under the 1998 version of section 893.135, Diaz’s mandatory minimum sentence would have been the same. Accordingly, we affirm the trial court’s order.\nAFFIRMED.\nSHARP, W. and PALMER, JJ., concur.\n", "ocr": true, "opinion_id": 7759501 } ]

"2003-06-18"

[ "847 So. 2d 1113" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. See Fla. R.App. P. 9.315(a).\nWARNER, GROSS and HAZOURI, JJ., concur.\n", "ocr": true, "opinion_id": 7759719 } ]

"2003-06-27"

[ "847 So. 2d 1258" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Craig Wilson, applying for Reconsideration of this Court’s Order dated September 13, 2002; Parish of Washington, 22nd Judicial District Court, Div. E, No. 97-CRI-69944; to the Court of Appeal, First Circuit, No. 2000 KA 2002.\nDenied.\nJOHNSON, J., would grant a reconsideration.\n", "ocr": true, "opinion_id": 7759903 } ]

"2003-06-27"

[ "847 So. 2d 1263" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Wattingney, Beauregard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 98-7344; to the Court of Appeal, Fifth Circuit, No. 02-KH-528.\nDenied.\n", "ocr": true, "opinion_id": 7759923 } ]

"2003-06-27"

[ "847 So. 2d 1271" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Fremin, Roy Sr.; Fremin, Bonnie; Morein, Mary Fremin; Pisani, Jacqueline Fremin; Fremin, Donald J.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 91,617; to the Court of Appeal, Third Circuit, No. 02-1157.\nDenied.\nWEIMER, J., recused.\n", "ocr": true, "opinion_id": 7759953 } ]

"2002-12-17"

[ "852 So. 2d 63" ]

[ { "author_str": "Lee", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLEE, J.,\nfor the court.\nPROCEDURAL HISTORY AND FACTS\n¶ 1. Valerie Gantenbein and Sam Gan-tenbein were married December 16, 1994, *65and had a son, Timothy, born July 17, 1997. Valerie and Sam separated on January 27, 2000, and Valerie filed for divorce citing habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Sam then filed a counter-complaint citing habitual cruel and inhuman treatment and adultery or, in the alternative, irreconcilable differences. The chancellor granted Sam a divorce from Valerie on the grounds of adultery. The chancellor awarded custody of Timothy to Valerie, granted visitation rights to Sam, and ordered Sam to pay child support. Sam appeals to this Court asserting that the chancellor erred in awarding custody of Timothy to Valerie. Finding no merit, we affirm.\nDISCUSSION OF ISSUE\nI. DID THE CHANCELLOR ERR IN AWARDING CUSTODY OF THE MINOR CHILD TO VALERIE GAN-TENBEIN?\n¶ 2. The standard of review in child custody cases is similar to the standard in all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only to determine if the chancellor’s decision was supported by credible evidence. Lee v. Lee, 798 So.2d 1284 (¶ 22) (Miss.2001).\n¶ 3. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the “best interests” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id. However, an appellate court must find a chancellor in error where the chancellor improperly considers and applies the Albright factors. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001).\n¶ 4. In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “review[s] the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by [the] record.” Hollon, 784 So.2d at (¶ 13). Furthermore, differences in religion, personal values, and lifestyles should not be the sole basis for custody decisions. Albright, 437 So.2d at 1005.\n¶ 5. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the chancellor was supported by the record.\n\nAge, Health and Sex of the Child\n\n¶ 6. Timothy was born in 1997 and he is in good health.\n\nContinuity of care\n\n¶ 7. Although Sam testified that Valerie took greater care of Timothy, the chancellor found that both parties contributed substantially to the care of their son before the separation. The chancellor also found *66it important that Sam had agreed to give temporary custody of Timothy to Valerie.\n\nParenting skills and willingness and capacity to provide primary child care\n\n¶ 8. The chancellor determined that both parties have adequate parenting skills. From the record it is evident that both parties want to provide primary child care for Timothy. Furthermore, from Sam’s testimony, it is apparent that he only voiced concern over Valerie’s care of Timothy after she sought a divorce from him.\n\nThe employment of the parent and the responsibilities of that employment\n\n¶ 9. Valerie works in Jackson as an assistant vice-president in investment services for Union Planters Bank. Valerie has a stable job with flexible hours. Sam is self-employed as an automotive recondi-tioner in Tupelo, and he testified that he works as little as three days a week. Sam has had less job stability, having nine different employers over the course of their six-year marriage, with eight of those during the first two-and-a-half years of the marriage.\n\nPhysical and mental health and age of the parents\n\n¶ 10. The chancellor determined that both parties are in good mental health and that Valerie’s physical health is good. Sam admitted to contracting herpes in 1997 three years after his marriage with Valerie, but denied any sexual relations with others during the marriage. Valerie also presented evidence that Sam has a temper and has shown it in front of Timothy.\n\nEmotional ties of the parent and child\n\n¶ 11. The chancellor found that both Valerie and Sam love Timothy a great deal and have strong emotional ties with him.\n\nMoral fitness of the parents\n\n¶ 12. The chancellor found that both parents were morally fit for custody of Timothy, although Valerie and Sam both admitted to committing adultery after their separation. Sam tried to prove that Valerie exposed Timothy to her extra-marital relationship, but the chancellor found no credible proof to support the allegation. Sam, however, did admit to having Timothy around different girlfriends dining weekend visitations. Although both parties admitted adultery, the chancellor awarded the divorce to Sam because he charged adultery and Valerie did not.\n\nThe home, school and community record of the child\n\n¶ 13. The chancellor found this factor not applicable due to the young age of the child.\n\nThe preference of the child at the age sufficient to express a preference\n\n¶ 14. The chancellor also found this factor not applicable because four year old Timothy is not at the age sufficient to express a preference.\n\nStability of the home environment and employment of each parent\n\n¶ 15. Valerie and Timothy live in a rented apartment in Jackson while Sam lives in a home in Tupelo owned by his stepfather. As previously stated, Valerie has job stability, while Sam’s employment record shows less job stability.\n\nOther factors relevant to the parent-child relationship\n\n,¶ 16. Sam has an elderly grandmother who lives in Tupelo, but his other family lives out of state. Valerie has no immediate family in Jackson and her extended family lives in Texas. Both Sam and Valerie are visited periodically by their families. The family members who testified on Sam’s behalf admitted to not having firsthand knowledge of many relevant facts concerning the custody issue, such as Valerie’s parental abilities. Furthermore, the *67chancellor found that a significant factor in his custody decision was Sam’s child from a previous relationship, an eight year old son named Gabriel. Sam testified that he had not seen Gabriel since his first birthday, paid no child support for him, and voluntarily relinquished his parental rights.\n¶ 17. After weighing all the factors, the chancellor found the best interests of the child would be served by granting primary custody to Valerie. We find that the chancellor’s decision was supported by credible evidence; thus, we affirm.\n¶ 18. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.\nMeMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.\n", "ocr": true, "opinion_id": 7760657 } ]

"2003-09-03"

[ "853 So. 2d 575" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe defendant appeals an order entered after an evidentiary hearing on a violation of probation. During the pendency of this appeal, the defendant filed a motion to correct certain technical errors in the sentencing order, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The court denied the motion. Defense counsel has now raised these errors in this appeal. The State agrees that the sentencing order needs correction. We therefore remand the ease to the trial court for correction of the following technical errors.\nFirst, the trial court failed to enter a written sentencing order on count two after making its oral pronouncement. Second, the order refers to the original *576sentence on count two as “two years probation” instead of correctly reflecting the one year term imposed by the court. Third, the order refers to the substantive violation as having occurred on May 23, 2001, when it occurred on February 2, 2002. The case is remanded for the trial court to correct these errors. See Fla. R.App. P. 9.110(b), 9.020(g); Marinelli v. State, 706 So.2d 1374 (Fla. 2d DCA 1998); McBride v. State, 655 So.2d 239 (Fla. 4th DCA 1995).\nSTEVENSON, MAY, JJ„ and CHAVIES, MICHAEL B., Associate Judge, concur.\n", "ocr": true, "opinion_id": 7761121 } ]

"2003-09-05"

[ "853 So. 2d 1107" ]

[ { "author_str": "Kahn", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKAHN, J.\nClaimant Judith Burns challenges a workers’ compensation order by which the judge of compensation claims (JCC) rejected the opinion of an expert medical advisor (EMA) on the grounds that it was lacking in impartiality and medical objectivity and declined to reconsider a previously denied claim for wage loss benefits from February 13, 1997, to May 28, 1999, on grounds of res judicata and estoppel by judgment. We affirm the second challenged ruling without discussion. As to the first issue, we conclude that the JCC here improperly determined that the statutory presumption of correctness, with regard to the EMA’s opinion, was overcome by clear and con-*1108vineing evidence to the contrary. See § 440.13(9)(c), Fla. Stat. (Supp.1994).\nWe recognize that a determination by a JCC rejecting the opinion of an EMA will not be disturbed on appeal so long as it is “predicated on competent substantial record evidence which the judge could reasonably find to be clear and convincing.” Jacaranda Manor v. Randolph, 755 So.2d 781, 782 (Fla. 1st DCA 2000); see also Walgreen Co. v. Carver, 770 So.2d 172 (Fla. 1st DCA 2000). Here, the final order fails to point out evidence that the EMA’s opinion is false or unreliable on its merits. See, e.g., Carver, 770 So.2d at 174-75 (finding “that an expert medical advisor’s opinion has ‘nearly conclusive effect’ ” (citations omitted)); Jacaranda Manor, 755 So.2d at 782. See also Allen v. Protel, Inc., 852 So.2d 916, 920 (Fla. 1st DCA 2003) (following Carver). Criticism by the EMA of one of the disagreeing physicians is not alone a reasonable basis for rejecting the report of an EMA when, under section 440.13(9), the EMA is appointed with an expectation that his testimony will contradict one of the health care providers already in the record. See § 440.13(9)(b), Fla. Stat. (Supp. 1994) (EMAs are engaged “to provide peer review or medical consultation to the division or to a judge of compensation claims in connection with resolving disputes ... ”). In this case, nothing in the EMA’s report or deposition establishes bias or predisposition to disagreeing with the employer/carrier’s independent medical examiner (IME). Instead, the EMA’s report and deposition are a reasoned and thorough critique of the IME’s evaluation of the claimant — apparently as contemplated by the statute. See § 440.13(9)(b), Fla. Stat. (Supp.1994).\nThe Final Order is AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings consistent with this opinion.\nVAN NORTWICK and BROWNING, JJ., concur.\n", "ocr": true, "opinion_id": 7761312 } ]

"2003-09-26"

[ "854 So. 2d 372" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re BG Real Estate Service, Inc.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, CM District Court Div. J, No. 01-17775; *373to the Court of Appeal, Fourth Circuit, No. 2002-CA-1425.\nDenied.\n", "ocr": true, "opinion_id": 7761513 } ]

"2003-10-10"

[ "855 So. 2d 354" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Jones, Chiwana J. et al.; Jones, Henry; James, Wilmareen; James, Wilson; — Plaintiffis); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, Nos. 539-176, 543-220; to the Court of Appeal, Fifth Circuit, No(s). Ol-C-1345, 02-CA-148, 02-CA-149.\nDenied.\nCALOGERO, C.J., would grant the writ.\nJOHNSON, J., would grant for reasons assigned by DALEY, J.\n", "ocr": true, "opinion_id": 7761923 } ]

"2003-08-27"

[ "855 So. 2d 379" ]

[ { "author_str": "Gorbaty", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nI,DAVID S. GORBATY, Judge.\nPlaintiffs appeal a judgment rendered in favor of defendants arguing that the jury erred in applying the law to the undisputed facts presented at trial. Further, plaintiffs argue that the trial court erred in denying their Judgment Notwithstanding the Verdict or, in the alternative, Motion for New Trial. For the following reasons, we affirm.\nFACTS AND PROCEDURAL HISTORY:\nMaria Antonia Ramirez, a Honduras native visiting this country, was injured near the streetcar tracks at the intersection of St. Charles Avenue and Dufossat Street in uptown New Orleans.\nMs. Ramirez and her friend, Belda Medina, had finished visiting with Ms. Medina’s employer who apparently lived on the riverside of St. Charles on Dufossat. The women intended to board the streetcar to downtown New Orleans. Ms. Medina’s employer had given Ms. Ramirez some clothing and shoes for her use in Honduras, but because some of the clothes were for cold weather, the two women decided to place the cold weather items near the lakeside comer of Dufossat and St. Charles for someone else to pick up.\nAccording to Ms. Medina, she and Ms. Ramirez completely crossed both sets of tracks, and Ms. Ramirez waited on the neutral ground while Ms. Medina ^crossed the westbound lanes of St. Charles to drop off the clothes. When Ms. Medina turned around to cross back, she saw the streetcar approaching and yelled to Ms. Ramirez, “Be careful, the streetcar.” Ms. Medina said Ms. Ramirez then turned to *381her left (the direction opposite of where the streetcar was approaching), spun around, and fell. When she first saw the streetcar approaching, Ms. Medina was of the opinion that Ms. Ramirez was in a place where the streetcar could pass without hitting her.\nMs. Ramirez testified that she heard Ms. Medina yell to her from across the street. She explained that she turned to her left, but “then I don’t know when the streetcar hit me.” She had no recollection of anything else until sometime later at the hospital.\nAfter Ms. Ramirez fell, the operator of the streetcar, Michael Parker, stopped the streetcar. There is some dispute as to exactly where he stopped. Mr. Parker claims he did not stop until the service stop at Valmont Street, the corner past Dufossat. However, Mr. Parker’s supervisor testified that when he arrived on the scene ten to twenty minutes after the accident, the streetcar was still near the intersection of Dufossat and St. Charles.\nAccording to Mr. Parker, he saw Ms. Ramirez as he approached the intersection. Although he claimed she was near the curb at that time, he did state that she was about three feet from the side of his streetcar as he passed her. He admitted that he did not sound his warning bell as he approached. However, he testified that his brakes were engaged because of the heavy traffic situation at that time of day, and that he was certain he could clear Ms. Ramirez as he passed. He saw Ms. Ramirez out the glass on the side of the streetcar as he passed her, and made sure that the overhang of the vehicle also cleared. He did hot know that there |Rwas an accident until he looked in his sideview mirror and saw Ms. Ramirez on the ground. Mr. Parker used a passenger’s cell phone to call his dispatcher to report the accident as per company policy. He also asked all passengers to sign a list he provided if they had witnessed what happened. Only three people signed the list.\nDan Fontenot, a FBI special agent stationed in Baton Rouge, was visiting the city that day. He and some friends were enjoying a ride on the streetcar in question. Mr. Fontenot stated that he was seated on the aisle somewhere between halfway and three-quarters of the way to the back of the car. He claimed that he could see Ms. Ramirez out of the front of the streetcar as it approached her, but he did not see the streetcar strike Ms. Ramirez. As they passed Ms. Ramirez, someone to his right or slightly behind him yelled, “oh, my God,” or “she’s been hit.” He stood up and looked to his right, but could not see anything. He looked forward and saw the operator look in his mirror, brake, and stop the streetcar. The operator ran out of the streetcar with a phone or walkie-talkie, and went to where Ms. Ramirez was lying on the ground. Mr. Fontenot did not recall the operator slowing down or sounding his horn or bell prior to passing Ms. Ramirez. He testified that the operator asked each passenger as they disembarked to sign a list if they had seen or heard anything. Mr. Fontenot signed the list. On cross-examination, Mr. Fontenot testified that he approximated Ms. Ramirez to be four or five feet from the side of the streetcar when he first saw her. He saw the front of the car pass without hitting her. It was his opinion that if the streetcar had hit Ms. Ramirez, he could have seen it from his vantage point.\nFollowing a two-day trial, the jury returned a verdict finding that defendants were not negligent. The trial court made the verdict the judgment of the court. Plaintiffs thereafter filed a Motion for Judgment Notwithstanding the Verdict, or, |4in the alternative, Motion for a New Tri*382al, which the trial court denied. In written reasons, the trial court stated:\nDespite the fact that this Court disagrees with the jury’s verdict, this Court will not upset a verdict based on the credibility of the witnesses. The jury believed the testimony of the streetcar operator that Mrs. Ramirez, with her back turned, was a safe distance from the tracks. He had no reason to slow down, or sound his horn. He had no reason to anticipate that she would turn at all.\nThis appeal followed.\nDISCUSSION:\nIn their first assignment of error, plaintiffs argue that the jury erred in applying the law to the undisputed facts. Therefore, because the jury committed legal error, this Court should conduct a de novo review, and reverse the jury’s verdict. Defendants counter that no legal error was committed; rather, the only issue for review is under the manifest error/clearly wrong standard. As stated by the trial court, the jury’s verdict was based on the credibility of the witnesses.\nIn civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Assn., 2002-2660 (La.6/27/03), 851 So.2d 1006, citing Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.\n| .^Because the jury verdict is based on a credibility call, we are restrained from finding the jury’s decision to be manifestly erroneous or clearly wrong. The trial court is in a much better position to evaluate live witnesses (as opposed to the appellate court who must review a cold record). Further, this principle of review is designed to ensure the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).\nAfter carefully reviewing the entire record, we agree with defendants that the jury did not believe that the streetcar actually struck Ms. Ramirez. Therefore, her accident was caused when she fell of her own accord.\nNot one witness testified that the streetcar struck Ms. Ramirez. Ms. Medina, plaintiff’s friend, and the only witness to observe the streetcar and Ms. Ramirez before the fall, testified that she did not see the streetcar physically hit Ms. Ramirez. She stated:\nEverything went so fast that I couldn’t tell you exactly what happened. I only saw her that she took a complete turn, and I saw her fall. And I saw her in the middle of the tracks. I can’t specify whether it hit her, whether it ran her over. I can’t.\nShe further stated:\nIf you’re standing next to a streetcar as it goes by and it goes by very fast, it feels like it pulls you in a way. But I couldn’t tell you whether he pulled her or whether he hit [her], I just don’t know. Because the only thing I saw is that she spun around and she fell down. And it looked to me like she had fallen underneath the wheels of the streetcar.\nIfiMr. Parker, the streetcar operator, testified that he saw Ms. Ramirez still stand*383ing after the front part of the streetcar passed her. Dan Fontenot, a passenger on the streetcar, testified that he saw the front of the car pass without hitting Ms. Ramirez. It was his opinion that if the streetcar had hit Ms. Ramirez, he could have seen it from his vantage point. It was clear from Ms. Ramirez’s testimony that she did not know for certain that the streetcar struck her causing her to fall.\nDr. Raul Diaz, Ms. Ramirez’s treating orthopedic surgeon, testified that he could not tell from looking at the x-rays whether the fractures incurred were caused by a blow from a streetcar or from hitting the ground after falling.\nIt was crucial for plaintiffs to establish that the streetcar actually struck Ms. Ramirez to carry their burden of proof. Without such evidence, we cannot say that the jury erred in finding defendants not negligent.\nAccordingly, we affirm the judgment of the trial court and pretermit discussion of the remaining assignments of error.\nAFFIRMED.\n", "ocr": true, "opinion_id": 7761934 } ]

"2003-10-08"

[ "855 So. 2d 717" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe reverse an order awarding attorney’s fees against counsel for litigating in bad faith because we conclude that counsel’s conduct was not in bad faith. Moakley v. Smallwood, 826 So.2d 221 (Fla.2002). Reversed.\nPOLEN, KLEIN and STEVENSON, JJ., concur.\n", "ocr": true, "opinion_id": 7761990 } ]

"2003-10-17"

[ "855 So. 2d 764" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Armond, Arcenious F. et al.; Ar-mond, A.F. Jr. A Professional Law Corporation; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 574-550; to the Court of Appeal, Fifth Circuit, No. 03-C-444.\nDenied.\n", "ocr": true, "opinion_id": 7762086 } ]

"2003-08-29"

[ "855 So. 2d 1151" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe affirm the final summary judgment entered in favor of appellee in this action for negligent infliction of emotional distress. See Rivers v. Grimsley Oil Co., 842 So.2d 975, 975-76 (Fla. 2d DCA 2003) (affirming summary judgment in favor of defendant and finding that plaintiff could not maintain action for negligent infliction of emotional distress against employer for a robbery that occurred at convenience store work place where robber did not physically harm plaintiff); Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177, 1178 (Fla. 3d DCA 1997) (rejecting argument of plaintiffs that “the mere fact that the robber touched them when he ‘pushed’ them into the bathroom [in their hotel room] is sufficient impact to maintain their negligent infliction of emotional distress claim” against the hotel); Jordan v. Equity Props. & Dev. Co., 661 So.2d 1307, 1308 (Fla. 3d DCA 1995) (affirming order granting summary judgment in favor of mall owner and rejecting argument of plaintiff that impact rule did not bar recovery of damages for negligent infliction of emotional distress from encounter with gunman in mall, during which appellant hit gunman in chest and face with a deposit bag and stumbled backward). Cf. Rowell v. Holt, 850 So.2d 474 (Fla.2003) (affirming vitality of impact rule in Florida, but declining to apply rule to bar recovery because of special professional duty created by attorney-client relationship between plaintiff and defendant and fact of extended pretrial confinement based upon defendant’s professional negligence).\nAFFIRMED.\nKAHN, WEBSTER and DAVIS, JJ., concur.\n", "ocr": true, "opinion_id": 7762132 } ]

"2003-10-15"

[ "855 So. 2d 1276" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe grant the Florida Department of Children and Family Services’s petition for writ of prohibition on the authority of Florida Dep’t of Children & Family Servs. v. C.K., 851 So.2d 206 (Fla. 3d DCA 2003). Petition granted.1\n\n. We are sure that it will be unnecessary to issue the formal writ.\n\n", "ocr": true, "opinion_id": 7762178 } ]

"2003-09-19"

[ "856 So. 2d 1153" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Don Carnell Lawhorn, applying for Reconsideration of this court’s action dated September 17, 2003, from Orleans Parish Civil District Court, No. 2003-13064, to the Fourth Circuit Court, Nos. 2003-C-1610 and 2003-CA-1615.\nReconsideration denied.\nCALOGERO, C.J., concurs in the denial and assigns reasons.\nLCALOGERO, Chief Justice, concurs in the denial of the application for reconsideration.\nThe law and our corresponding rule, La. Rev.Stat. 18:1409(G) and La. Sup.Ct. Rule X, § 5(c), specifically require that the application for certiorari be filed in this court within forty-eight hours after judgment is rendered by the court of appeal. The court of appeal in this case rendered its judgment on September 10, 2003, and that judgment was stamped filed by the clerk of court at 4:40 p.m. that date. Relator filed his application in this court at 5:06 p.m. on September 12, 2003. Thus, his application was not timely filed and was not considered. Smith v. Lawhorn, 03-2591 (La.9/17/03), 853 So.2d 612.\nIn his application for reconsideration, relator contends the court of appeal’s judgment was faxed to him at 5:04 or 5:05 p.m. on September 10, 2003, as revealed by the facsimile date/time stamp from the court of appeal, and that this was his official notification of the judgment. Thus, he argues that he timely filed his application in this court at 5:04 p.m. on September 12, 2003. However, the statute and our rule require that the application be filed within forty-eight hours of the rendition of the court of appeal’s judgment. Relator knew or should have known that the court of appeal judgment had been rendered at some time prior to the time the judgment was faxed to him by the court of appeal, and it was incumbent upon relator | gto ascertain the time of rendition so as to file his application in this court in a timely manner pursuant to the statute and our rule. Accordingly, I concur in the denial of relator’s application for reconsideration.\n", "ocr": true, "opinion_id": 7762278 } ]

"2003-10-29"

[ "857 So. 2d 977" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThierry Michael Morno appeals an order denying his motion for jail time credit. The State concedes that it appears defendant-appellant Morno was not granted full credit for the time previously spent in jail. Accordingly we reverse the order and remand for a hearing to determine the exact amount of jail time credit the defendant should be awarded.\nReversed and remanded for a hearing.\n", "ocr": true, "opinion_id": 7762602 } ]

"2003-11-12"

[ "859 So. 2d 1242" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).\nSHARP, W., PETERSON and TORPY, JJ., concur.\n", "ocr": true, "opinion_id": 7763047 } ]

"2003-11-26"

[ "859 So. 2d 1275" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe reverse that portion of the trial court’s omnibus order dated February 3, 2003, as it relates to Magaly Blanco (vacating the dismissal of Magaly Blanco’s claims and reinstating them). The trial court is instructed to reinstate that portion of the trial court’s order dated March 27, 2002, dismissing Magaly Blanco’s claims. See Department of Revenue v. Riley, 684 So.2d 905 (Fla. 3d DCA 1996)(a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor); City of Miami Beach v. Chadderton, 306 So.2d 558 (Fla. 3d DCA 1975)(generally a successor judge cannot review, modify, or reverse upon the merits and on the same facts final orders of a predecessor unless there exists some special circumstance such as mistake or fraud perpetrated upon the court).\nReversed and remanded with instructions.\n", "ocr": true, "opinion_id": 7763065 } ]

"2003-12-03"

[ "860 So. 2d 517" ]

[ { "author_str": "Stevenson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSTEVENSON, J.\nT.J., the putative father of D.G., appeals an order establishing his paternity as to the minor child and adjudicating the child dependent as to him on the ground of abandonment. T.J. seeks reversal of the adjudication of paternity, arguing, among other things, that the trial court applied an incorrect “preponderance of the evidence” burden of proof. We reverse.\nChapter 742, Florida Statutes, is the primary vehicle for the establishment of paternity. See § 742.10(1), Fla. Stat. (2002); P.N.V. v. Wash, exrel. T.R.D., 654 So.2d 1274, 1275 (Fla. 2d DCA 1995). Under chapter 742, paternity must be established by clear and convincing evidence. See § 742.031, Fla. Stat.; Gingola v. Fla. Dep’t of Health & Rehabilitative Servs., 634 So.2d 1110, 1111 (Fla. 2d DCA 1994). This burden of proof cannot be avoided simply because, in this case, the paternity adjudication was made in the context of a chapter 39 proceeding.\nIt is unclear from the trial court’s order precisely what burden of proof was applied as the order appealed simply finds that there was “sufficient credible” evidence of paternity. We have reviewed the record, however, and find the evidence before the trial court, which consisted primarily of the mother’s naked and equivocal allegation that T.J. was the father,1 could not rise to the level of “clear and convincing.” See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995)(defining “clear and convincing evidence”). Thus, we are compelled to reverse the order appealed and remand for further proceedings. On remand, the trial court may take additional evidence on the issue of T.J.’s paternity.\nSHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.\n\n. Here, there was no genetic testing, and the mother had initially identified an ex-boyfriend, W.G., as the putative father.\n\n", "ocr": true, "opinion_id": 7763115 } ]

"2003-12-10"

[ "860 So. 2d 525" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAppellant pled no contest to several felony counts of driving under the influence and was denied a downward departure sentence. Relying on our decision in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), disapproved in State v. VanBebber, 848 So.2d 1046 (Fla.2003), the trial judge ruled that the mitigating factor that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant had shown remorse” was not available to support a downward departure on a DUI conviction.\nIn Warner, we held that a trial court cannot depart downward in a DUI case on the grounds that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” Constrained by Warner, the trial court stated:\nNo, there’s nothing more to say. I’ve listened to all the argument. I’ve reviewed the statutes. I paid close attention to the case law you submitted to me. I’ve asked my questions and I have — my personal feelings are irrelevant. My thoughts on the Court’s discretion and things of that nature are irrelevant in a case such as this.\nI believe the statute is sufficiently clear that I have no discretion in this matter. That I cannot downward depart and I will not downward depart. If there’s going to be any downward departure it’s going to be after the higher court hears about it.\nDuring the pendency of this appeal, the Florida Supreme Court disapproved of our decision in Warner and held that the miti-gator in section 921.0026(2)(j), Florida Statutes, is available to support a downward departure from a sentence for a felo*526ny DUI conviction. See State v. VanBebber, 848 So.2d 1046 (Fla.2003). Agreeing with the second district’s reasoning in State v. VanBebber, 805 So.2d 918 (Fla. 2d DCA 2001), the court stated:\nSection 921.0026 plainly states, “This section applies to any felony offense, except any capital felony, committed on or after October 1, 1998.” Because the mitigator in section 921.0026(2)© applies to any felony offense, except any capital felony, committed on or after October 1,1998, it is available to support a downward departure from a felony DUI conviction. The fact that the Legislature specifically exempted only capital felonies is further support for the conclusion that section 921.0026(2)© applies to felony DUI convictions.\n848 So.2d at 1049 (footnotes omitted).\nThe state recognizes that the Florida Supreme Court has determined that the statutory mitigator set forth in section 921.0026(2)© is available as grounds for a downward departure. However, it argues that the particular facts of this case do not warrant a downward departure. Whether the facts in this case would or would not support a downward departure is not an issue properly before us at this time. Because the trial court followed Warner in determining it lacked discretion to impose a downward departure sentence in a DUI case, it did not consider the merits of appellant’s request for a downward departure. We note, however, that at sentencing, the court indicated that it would consider imposing a downward departure sentence if it were allowed to do so by appellate mandate.\nAccordingly, we reverse appellant’s sentence and remand for the trial court to review the facts and circumstances of this case and consider whether a downward departure sentence is appropriate on the ground that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” See Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998)(remanding for the trial court to consider imposing a departure sentence where the court had determined it lacked discretion to impose a departure sentence due to erroneous appellate directions).\nREVERSED and REMANDED.\nFARMER, C.J., GROSS and TAYLOR, JJ., concur.\n", "ocr": true, "opinion_id": 7763124 } ]

"2003-11-12"

[ "860 So. 2d 531" ]

[ { "author_str": "Victorysupremelouisiana", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nORDER\nTreating respondent’s September 22, 2003 correspondence as a motion by respondent seeking to practice law during the pendency of her reinstatement proceeding,\nIT IS ORDERED that the motion be and hereby is denied. There is no procedure in Supreme Court Rule XIX permitting a suspended attorney to practice law prior to a determination that the criteria for reinstatement set forth in Supreme Court Rule XIX, § 24 have been satisfied,\n/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana\n", "ocr": true, "opinion_id": 7763131 } ]

"2003-12-12"

[ "860 So. 2d 1162" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Holiday, Debra d/b/a; Debra’s Medical Transport; Scottsdale Insurance Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 031742; to the Court of Appeal, First Circuit, No. 2003 CW 1357.\nDenied.\nVICTORY, J., would grant the writ.\n", "ocr": true, "opinion_id": 7763401 } ]

"2003-12-31"

[ "861 So. 2d 528" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe appellant in this direct criminal appeal challenges his conviction for burglary of a dwelling with an assault or battery therein, arguing that the trial court committed fundamental error by incorrectly *529instructing the jury as to the applicable statutory definition of burglary. Concluding that the trial court provided the jury an incorrect definition of burglary, and concluding further that the incorrect instruction related to disputed issues of fact, we reverse the appellant’s conviction.\nChapter 2001-58, Laws of Florida, amended section 810.02, Florida Statutes, to provide a new definition of burglary for offenses committed after July 1, 2001. Although the date of the appellant’s alleged offense was November 18, 2001, the trial court instructed the jury in accordance with the definition applicable to offenses committed on or before July 1, 2001. The appellant did not offer any objection to the incorrect instruction or otherwise preserve the argument he now makes on appeal. He nevertheless relies upon Reed v. State, 837 So.2d 366 (Fla.2002), in arguing that the error was fundamental and may therefore be presented for the first time on appeal. Like State v.Delva, 575 So.2d 643 (Fla.1991), Reed stands for the proposition that the giving of an inaccurate instruction as to a disputed element of a crime is fundamental error.\nBecause the jury in the present case could not have determined whether the appellant’s acts amounted to burglary without resolving disputed issues of fact, the elements contained within the definition of burglary were disputed elements of the charged offense. The incorrect instruction as to these elements therefore amounted to fundamental error.*\nThe appellant’s conviction for burglary of a dwelling with an assault or battery therein is accordingly reversed and this case is remanded.\nALLEN, DAVIS and BENTON, JJ., concur.\n\n The appellant argues that section 810.02(l)(b)2 applies only in a situation where there is a licensed or invited entry. Our decision in this case should not be interpreted as necessarily approving this reading of the statute, as opposed to a reading which would make section 810.02(l)(b)2 applicable regardless of whether a licensed or invited entry has occurred.\n\n", "ocr": true, "opinion_id": 7763560 } ]

"2004-01-09"

[ "862 So. 2d 993" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Guidry, Guy M.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 6, No. 01-03319; to the Court of Appeal, First Circuit, No. 2002 CA 2693.\nDenied.\nCALOGERO, C.J., would grant the writ.\n", "ocr": true, "opinion_id": 7763945 } ]

"2003-12-10"

[ "862 So. 2d 1073" ]

[ { "author_str": "Brown", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBROWN, C.J.\nMaternal grandparents have appealed from the trial court’s dismissal of their latest attempt to obtain custody of their eight-year-old grandson. Their petition was described by the trial court as “... a rather unique perhaps ingenious combination of ... a ‘Child in Need of Care’ proceeding with ... allegations that Louisiana has jurisdiction under the Uniform Child Custody Jurisdiction Act because of ... an emergency.” Finding no error, we affirm.\n\nBrief Factual Background\n\nThe grandparents, Richard and Marian Pearson, had been granted visitation for the month of July 2003 with the child after losing custody of the boy to his father, Scott Lamp, in an action in the Fifth Judicial District Court, West Carroll Parish, Louisiana. See Lamp v. Lamp, 36,919 (La.App.2d Cir.12/11/02), 833 So.2d 1224. On August 1, 2003, at the end of their summer visitation, the Pearsons filed a petition for adjudication of a child in need of care and a motion for an emergency protective order in the Sixth Judicial District Court, East Carroll Parish, Louisiana. On August 6, 2003, a hearing was held; the only issue addressed by the trial court was jurisdiction. The court found that: Arkansas was the home state of the child; any investigation into allegations of abuse occurring in Arkansas should be conducted in that state; and, any request for a modification of custody should be heard in either the child’s home state, Arkansas, or the Fifth Judicial District Court. The trial court dismissed the Pearsons’ petition and denied their request for alternative relief.\n\nDiscussion\n\nLouisiana adopted its version of the Uniform Child Custody Jurisdiction Act (“UCCJA”), La. R.S. 13:1700 et seq., in 1978. The primary purposes of the UC-CJA are to avoid jurisdictional competition among the states, and to promote resolution of custody disputes by the forum most likely to have the greatest amount of relevant information about the case. Bradford v. Bradford, 33,985 (La.App.2d Cir.11/01/00), 772 So.2d 302; Lopez v. Lopez, 27,330 (La.App.2d Cir.09/27/95), 661 So.2d 665.\nIn order for Louisiana to have jurisdiction over proceedings involving a minor child, one of the jurisdictional requirements of the UCCJA must be met at the time the petition is filed. Broadway v. Broadway, 623 So.2d 185 (La.App. 2d Cir. 1993). In preferential order, the bases for jurisdiction under the UCCJA are: (1) home state; (2) significant connection, plus *1076evidence regarding the best interest of the child; (3) emergency; and (4) default jurisdiction (no other state has jurisdiction or has declined it). La. R.S. 13:1702(A)(1)-(4); Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991).\nThe home state is automatically given jurisdiction because theoretically, “the court of the home state is in the best position for evidence gathering and for exercising continuity of control so that when the home state has jurisdiction, courts of other states should generally defer to and cooperate with that jurisdiction.” Revere v. Revere, 389 So.2d 1277, 1279 (La.1980). In the instant case, it is uncontroverted that Arkansas is the child’s home state.\n An exception to the preferential consideration given to the child’s home state is continuing jurisdiction, which is retained by the state that rendered the original custody order, as long as it has not relinquished jurisdiction and jurisdiction requirements of the UCCJA are met at the time modification is sought. Holdsworth v. Holdsworth, 621 So.2d 71 (La.App. 2d Cir.1993); Gay v. Morrison, 511 So.2d 1173 (La.App. 4th Cir.1987), writ denied, 515 So.2d 1108 (La.1987). (Emphasis added). We note that as of September 17, 2003, the Fifth Judicial District Court, West Carroll Parish, Louisiana, after a conference with the judge of the Circuit Court of Benton County, Arkansas, relinquished jurisdiction as to “any future matters involving this case.” Therefore, continuing jurisdiction does not apply.\nSecond in preferential rank is “significant connection” jurisdiction. Renno, supra. This criterion provides a basis for jurisdiction if it is in the child’s best interest to determine custody in Louisiana, the child and at least one parent have significant connection to Louisiana, and the maximum amount of evidence concerning the child is available in Louisiana. Johnson v. Johnson, 31,038 (La.App.2d Cir.09/23/98), 718 So.2d 629; Broadway, supra.\nUnder the circumstances of the instant case, we do not find that it is in the best interest of the child for this state to exert jurisdiction on a “significant connection” basis. Before the boy’s father, Scott Lamp, obtained custody, the child’s presence in Louisiana with his grandparents was not with the consent of the child’s father, who hired investigators and searched for his ex-wife and son over a four-year period. In Lamp, supra, this court recognized that the Pearsons bore a “significant amount of responsibility” for the situation, having “gone to considerable lengths to eradicate all vestiges of [the father] and his family” from the child’s life, including a petition to change the child’s name from Lamp to Pearson alleging that the whereabouts of the father was unknown. Id. at 1232. Upon locating his son, rather than seizing the child and hiding with him (as had been done by the mother and grandparents), Scott Lamp immediately filed for custody, first in Arkansas and then in the Fifth Judicial District Court in Louisiana. A protracted custody dispute ensued, with Scott being given custody of his son, with whom he had not had any meaningful contact since the child was 18 months old. The child’s connection to Louisiana under these circumstances cannot be classified as “significant” such that jurisdiction would be appropriate and, as noted by the trial court, the only current connection with Louisiana was the child’s summer visitation with his grandparents.\nThus, the only possible basis for jurisdiction in this matter would be emergency. As noted by the court in Dillon v. Medellin, 409 So.2d 570 (La.1982), emergency jurisdiction is reserved for extraordinary circumstances and exists only if *1077required by the immediate needs of the child due to abandonment, mistreatment, abuse or neglect. See also Renno, supra; Sullivan v. Mitchell, 99-946 (La.App. 5th Cir.01/25/00), 750 So.2d 1173; State in the Interest of Fischer, 95-2007 (La.App. 4th Cir.12/28/95), 666 So.2d 724. Under this provision, jurisdiction can be conferred when the child is present in this state and there exists an emergency requiring the child’s immediate protection. Kelly v. Gervais, 567 So.2d 593 (La.1990); Renno, supra. (Emphasis added).\nMore than conclusory allegations are required. Douglas v. Douglas, 528 So.2d 699 (La.App. 2d Cir.1988). Any alleged emergency must be serious, significant, immediate and based upon credible evidence. Dillon, supra. Furthermore, emergency jurisdiction is temporary; it must be asserted at the time there is a danger to the child and applies only if the child has urgent, immediate and serious needs requiring assertion of jurisdiction. Dillon, supra; Renno, supra. (Emphasis added).\nThe trial court did not err in finding no basis for the exercise of emergency jurisdiction in this matter. In the custody case in the Fifth J.D.C. permanent custody was awarded to the father effective January 1, 2003. In March 2003, the Pearsons filed abuse allegations with Arkansas authorities. Thereafter, the Pearsons waited until the “last possible moment”, the last day of their month-long summer visitation, to file their child in need of care petition with the Sixth J.D.C. As noted by the trial court, their petition alleged abuse that occurred in Arkansas; however, the allegations were not particular as to dates. Considering the history of this custody matter, the trial court raised questions of forum shopping. As the trial court stated, “If there is abuse occurring in Arkansas it seems to this Court that Arkansas would be the most appropriate place ... to investigate and protect the child if necessary.” We agree.\n\nConclusion\n\nFor the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to petitioners-appellants.\n", "ocr": true, "opinion_id": 7763959 } ]

"2003-12-10"

[ "863 So. 2d 589" ]

[ { "author_str": "Landrieutempore", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJ^MOON LANDRIEU, Judge Pro Tempore.\nSTATEMENT OF THE CASE\nOn April 30, 2002 the State filed a bill of information charging the defendant-appellant with one count of possession of cocaine with the intent to distribute, a violation of La. R.S. 40:967(A)(1), and one count of possession of heroin with the intent to distribute, a violation of La. R.S. 40:966(A)(1). The defendant pled not guilty to both counts at his arraignment on May 3, 2002. On May 15, 2002 the court heard and denied the defendant’s motion to suppress evidence. Trial began on October 29, 2002; after a one-day recess, trial concluded on October 31, 2002 when the twelve-person jury returned verdicts of guilty as charged on both counts. On November 21, 2002 the trial court denied motions for new trial filed by the defendant pro se and by counsel. On November 22, 2002 the court sentenced the defendant to serve twenty years at hard labor on each count to run concurrently with each other and any other sentences, with credit for time served.1 The court denied the defendant’s motion to reconsider sentence and granted his motion for an appeal. The State filed a multiple bill charging defendant with being the same person who pled guilty to the crime of aggravated battery in 121990, possession of cocaine in 1986 and manslaughter in 1992. The trial court denied defendant’s motion to quash the multiple bill of information. The hearing on the multiple bill of information has been continued. After the appeal record was lodged in this Court, counsel moved to supplement the record with the motion hearing transcript, which was done on May 1, 2003. After counsel filed a brief, the appellant pro se moved to file a supplemental brief. That motion was granted, and on June 18, 2003 the record was sent to defendant, who has not filed a pro se brief as of this date, although he has unsuccessfully sought to supplement the record with the tape recording of the motion hearing and his trial attorney’s file.\n\n*591\nSTATEMENT OF THE FACTS\n\nThe New Orleans Police Department (“NOPD”) received complaints about narcotics violations in the area of LaSalle and Josephine Streets. On April 15, 2002 at approximately 7:15 p.m., Officer Thedrick Andres took up a position from which he could view this intersection with binoculars. Officer Andres testified that the area was particularly well lit, like daytime. Other officers were in marked units farther away, in locations from which they could support the operation. Officer Andres saw a black male wearing a black shirt and blue jeans standing near the intersection. The subject, later identified as the defendant, attempted to flag down several vehicles, but initially none stopped. After a few minutes, a black truck pulled up by the defendant. The defendant approached the truck and engaged in a conversation with the driver. Officer Andres observed the defendant look around nervously, reach in the rear waistband of his pants, and extract what appeared to be a white paper napkin. From that' napkin the defendant removed a silver foil and handed it to the driver of the truck; the driver gave the defendant currency. The | ¡¡defendant then balled the white napkin back up, looked around again, and placed it back into the rear of his waistband. The truck then left the area.\nBased on his experience, Officer Andres believed he had witnessed a drug transaction. Accordingly, he contacted his backup teams and asked Officer Louis Faust and his partner to conduct an investigatory stop of the Ford truck that was driving out of the area2 and that Officers Mike Pierce and Kevin Newton stop the defendant. He provided a description of the defendant as a black male, around five feet six inches in height, wearing a black t-shirt and blue jeans. As the uniformed officers exited their marked vehicle, the defendant fled on foot. Although Officer Andres lost sight of the defendant as he ran around a corner, he did see the defendant reach into his rear waistband as he ran and communicated that observation to the officers pursuing the defendant.\nOfficer Faust made an in-court identification of the defendant as the person arrested.\nOfficers Pierce and Newton acted on Officer Andres’ request that the defendant be stopped. Officer Pierce testified that as they pulled up to the intersection, they exited their marked unit and identified themselves to the defendant as police officers. The defendant then ran, and they pursued him on foot, never falling more than twenty feet behind. They observed the defendant reaching into the back of his pants as he ran. When the defendant reached St. Andrew Street, he turned the corner, ran to the front of a Dodge Neon automobile, and discarded a white object by the right front tire. Officer Pierce was able to apprehend the defendant a few steps away when the defendant stumbled. Officer Newton retrieved the object the defendant had discarded and discovered that it was |4a. white napkin yvrapped around several tin foils containing what appeared to the officers to be heroin and clear plastic bags containing powder that appeared to the officers to be cocaine. The defendant was arrested and searched. That search resulted in the seizure of a plastic bag containing green vegetable matter described by Officer Pierce as appearing to be marijuana, and approximately fifty dollars in cash.\nBoth Officers Pierce and Newton testified that the defendant was wearing a *592black t-shirt and blue jeans when they apprehended him. From the scene of the arrest, they transported the defendant to the Sixth District station and then to Central Lock-up. The defendant did not change clothes from the time of the arrest to the time they delivered him to Central Lock-up. Officer Newton confirmed Officer Pierce’s testimony.\nCorey Hall, a criminalist and expert in the testing and analysis of controlled dangerous substances, testified that he tested a white powder inside the plastic bags; the powder tested positive for cocaine. He tested powder that was wrapped in foil; it tested positive for heroin. A test of the seized vegetable matter was positive for marijuana.\nThe defendant testified on his own behalf. He stated that he was wearing a flowered shirt on the day in question. He identified the shirt in a photograph taken at Central Lock-up during the booking process. The defendant admitted that another photograph, a Polaroid, taken at Central Lock-up at the beginning of the booking process showed him in a black t-shirt without a flowered over shirt. He accounted for the change by testifying that, when Officer Andres wrestled him to |sthe ground, the officer placed the flowered shirt into the defendant’s back pocket.3 The defendant further admitted that the photograph in which he was wearing the flowered shirt showed a maroon-colored shirt, not a black t-shirt, underneath. The defendant stated that the maroon shirt was a sweatshirt provided by the sheriffs office because the holding cell was cold, and he admitted that his black t-shirt was underneath the sweatshirt.\nThe defendant denied that he sold and possessed drugs. He said that he was in the area of Josephine and LaSalle Streets to visit an elderly relative who lived in the 2400 block of St. Andrew Street. He had first spent a little time playing dice with some old friends whom he knew because his mother used to live on Josephine Street. According to the defendant, as he was walking to his relative’s home, an officer appeared with his gun drawn and said, “Freeze. Don’t run.” The defendant said he ran because he had been shot the year before and was startled. Officer Andres tackled him, and then asked him who had run past. When the defendant said no one had, he was placed in the police car and arrested. He denied all knowledge of any of the drugs or of a drug sale. He did admit having pled guilty in prior cases to manslaughter, to possession of cocaine, and to having been a convicted felon in possession of a firearm.\nTo support his testimony that he was wearing a flowered shirt, the defendant presented the testimony of Major William C. Hunter of the Orleans Parish Sheriffs Office. Major Hunter testified that he is in charge of the intake booking in the Records and Release Divisions. He identified two bags of items, a valuable property bag and a clothing bag, which he matched to the defendant’s arrest by the folder number assigned at intake. The clothing bag contained one pair of black | rjeans and one partially black shirt.4 The bag also contained a visor that was not reflected on the inventory attached to the bag.\nMajor Hunter testified during cross-examination that it was possible for an *593inmate to change clothing with another inmate while in the holding cell. This admission is consistent with the testimony of Officer Newton. Major Hunter further testified that there were several steps in inmate processing. He identified defense exhibit VI, which is entitled “Suspect Rap Sheet” and contains the computerized photograph of the defendant in the black flowered shirt, as the identification step during which the inmate’s fingerprints are electronically sent to the State and a criminal history returned. In further testimony Major Hunter identified the Polaroid photograph of the defendant as having been taken during an earlier step in the booking process. The Polaroid was taken for the sheriffs office file. Major Hunter was unable to state what happened to the black shirt the defendant was wearing in the first photograph; it was not in the clothing bag nor was it listed on the inventory.\nThe State called Officers Andres and Pierce on rebuttal. Officer Andres denied having physically apprehended the defendant or having tackled him on the ground. He testified that the defendant was not wearing the flowered shirt or a visor during the surveillance. Both officers stated that the defendant was never wearing a flowered shirt.\n\nERRORS PATENT\n\nA review of the record for errors patent reveals none.\nI ^ASSIGNMENT OF ERROR: The trial court should have allowed defense witness, Ladrine Day, to testify at trial.\nThe appellant admits that Ms. Day violated the trial court’s sequestration order in effect during the trial.\nExclusion of witnesses is governed by La. C.E art. 615 which mandates that, upon request of a party, the court shall order the witnesses excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. La.C.Cr.P. art. 764. “The resolution of sequestration problems is within the sound discretion of the trial court.” State v. Coleman, 2002-1000, p. 16 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, 1140. This Court noted:\nThe purpose of the rule of sequestration is “to prevent witnesses from being influenced by the testimony of earlier witnesses” and “to strengthen the role of cross-examination in developing the facts.” State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276.\nIn examining sequestration violations, the reviewing court considers the facts of each case to determine whether or not prejudice resulted. Further, a violation of the sequestration order does not warrant a mistrial absent an indication that the infraction materially prejudiced the defendant. State v. Barber, 30,019 (La. App. 2 Cir. 1/21/98), 706 So.2d 563.\nColeman, pp. 16-17, 828 So.2d at 1140.\nIn Coleman, as in the instant case, the sequestration order was given at the beginning of the first day of trial. The violation of the sequestration order by the defense witnesses occurred on the second day of trial. The trial court found that the defense witnesses, whom the defendant wished to call to rebut an allegation that he used drugs, did not willfully or deceitfully violate the court’s sequestration order. Nevertheless, they were not permitted to testify. On appeal, this Court found no abuse of the trial court’s discretion because the defendant during his own testimony admitted using marijuana.\n*594| ¡¡Here, the defendant attempted to call Ladrine Day to testify after the State had concluded its case and two defense witnesses had testified. The State objected, noting that she was present when the State’s first two witnesses testified that morning; it is unclear whether Ms. Day was also present when the defense witnesses testified. A recess was called, and the parties retired to chambers. When they returned, the judge informed the jury that the defendant’s witness had been excused because she was present in court when other witnesses testified. The court explained the purpose of the sequestration rule and admonished the jury that the disqualification of the witness should not be considered as an adverse reflection on either the State or the defense. The defense counsel did not object on the record to the disqualification of the witness or the trial judge’s admonition.\nLa.C.Cr.P. art. 8415 precludes review of an alleged error for which there was no contemporaneous objection. This issue was not preserved for review. We note that defense counsel made no proffer on the record of the nature of Ms. Day’s expected testimony, nor did he object to the court’s refusal to allow her to testify.\nThe failure to make a proffer was a factor in State v. Watson, 02-1154 (La. App. 5 Cir. 3/25/03), 844 So.2d 198, the case upon which the appellant relies to support his argument that he has a constitutional right to present witnesses. The court there stated:\nIn State v. Jones, 354 So.2d 530, 532 (La.1978), the Louisiana Supreme Court explained:\nAlthough our jurisprudence allowing trial judges to 19enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence that interest is not sufficient to override the defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitution.\nThe exclusion of a witness is a disfavored sanction, absent a showing that the sequestration violation occurred with the consent, connivance, procurement or knowledge of the party or his counsel for whom the witness was to testify. Warren, 437 So.2d at 840.\nIn the present case, the trial court excluded the testimony of Latasha Dabney because she had been present during the testimony of the defendant. Her presence in the courtroom was known to defense counsel, who had previously advised Dabney he would not need her testimony. Because the violation of the sequestration order occurred with the consent and knowledge of defense counsel, the exclusion of Dabney’s testimony was within the trial court’s discretion.\nFurther, defense counsel never stated on the record the substance of *595Dabney’s testimony and never proffered her testimony pursuant to La. C.E. art. 103. Therefore, the record does not reflect whether Dabney was in a position to offer testimony that might have substantially helped the defense and the defendant failed to preserve the excluded testimony for appeal by failing to proffer the evidence. See, State v. Searcy, 621 So.2d 83, 87-88 (La.App. 2 Cir. 6/23/93).\nState v. Watson, pp. 20-21, 844 So.2d at 211. (Footnotes omitted.)\nTrial counsel in the instant case never proffered Ms. Day’s testimony on the record.6 Appellate counsel avers that Ms. Day is the defendant’s common-law wife and would have testified that he was wearing the flowered shirt earlier in the day. This statement of expected testimony can be found in the defendant’s pro se |inmotion for new trial wherein he averred further that his counsel should have discovered and presented the testimony of several witnesses who would have established that Ms. Day and he were together shopping throughout the day. The defendant stated that the stores they visited would have surveillance tapes that would have depicted him wearing the flowered shirt. Notably, however, the defendant in this motion does not aver that Ms. Day was with him at the time of his arrest, nor does he list any witnesses who would have testified that he had the shirt on at the time he was at the intersection of Josephine and LaSalle Streets.\nDuring his testimony, the defendant admitted that he had a black t-shirt on under the flowered shirt; he did not dispute that he was photographed at Central Lock-up without the flowered shirt on before he was photographed with it on. Ultimately, whether he was wearing the flowered shirt earlier in the day does not eliminate the possibility that he had removed it at the time of the incident. The defendant himself contended that the shirt was placed in his back pocket by one of the officers. Arguably the defendant could have done so himself, prior to engaging in the drug activity, for the specific purpose of confusing his identity later.\nEven assuming that the issue of Ms. Day’s disqualification was preserved, the defendant was not prejudiced by the court’s refusal to allow her to testify that the defendant was wearing a flowered shirt over a black t-shirt earlier in the day. This assignment lacks merit.\n\nCONCLUSION\n\nFor the foregoing reasons, we affirm the defendant’s convictions and sentence.\n\nAFFIRMED.\n\n\n. The defendant was also sentenced on a marijuana charge.\n\n\n. At trial, Officer Louis Faust testified that he and his partner were the team who attempted to stop the truck. He stated that they were unsuccessful in locating it.\n\n\n. The defendant repeatedly testified that it was Officer Andres who apprehended him even though all of the police witnesses testified that Officer Andres was the officer who was conducting the surveillance and was not on the takedown team.\n\n\n. The defendant was allowed to dress in the clothing prior to testifying to show that the items fit him.\n\n\n. La.C.Cr.P. art. 841 provides:\nA.An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.\nB. The requirement of an objection shall not apply to the court's ruling on any written motion.\nC. The necessity for and specificity of evidentiary objections are governed by the Louisiana Code of Evidence.\n\n\n. Appellate counsel alternatively argues that this case be remanded for a hearing on the content of Ms. Day’s testimony and whether her violation of the sequestration order was with the knowledge or connivance of defense counsel, citing State v. Jones, 354 So.2d 530 (La.1978). However, in Jones defense counsel's request to proffer the testimony had been denied. Furthermore, the witness at issue had been subpoenaed by the State, and it was not until after trial commenced that defense counsel learned the witness may have testimony favorable to the defendant and sought to subpoena him as a defense witness. The State objected on the grounds that its own subpoenaed witness had violated the sequestration order. The Jones case appears to be distinguishable from the instant case.\n\n", "ocr": true, "opinion_id": 7764062 } ]

"2004-01-16"

[ "864 So. 2d 612" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 414-852; to the Court of *613Appeal, Fourth Circuit, No. 2002-KA-2011.\nGranted.\n", "ocr": true, "opinion_id": 7764265 } ]

"2004-01-16"

[ "864 So. 2d 625" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Triche, Eric H.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 01-2421; to the Court of Appeal, Fifth Circuit, No. 03-KA-149.\nDenied.\n", "ocr": true, "opinion_id": 7764309 } ]

"2003-12-30"

[ "864 So. 2d 875" ]

[ { "author_str": "Rothschild", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWALTER J. ROTHSCHILD, Judge.\nOn January 25, 2001, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Larry Robertson, with theft of goods valued over $100 and less than $500 from J.C. Penny’s, a violation of LSA-R.S. 14:67.1o.1 The Indigent Defender Board (IDB) was appointed to represent him and the defendant pled not guilty at arraignment. On April 10, 2002, the defendant’s attorney informed the trial judge that the defendant desired to represent himself, but the trial judge denied the request. The defendant filed a motion to appoint a sanity commission on June 18, 2002, and the trial judge subsequently found the defendant was competent to stand trial.\nAfter a trial before a six-person jury, the defendant was found guilty as charged on July 25, 2002. On July 31, 2002,, the trial judge sentenced the defendant to two years of imprisonment at hard labor. On October 23, 2002, the State filed a multiple offender bill of information alleging the defendant to be a | ..second felony offender based on a 1984 armed robbery conviction, and the defendant denied the allegations therein.2\nOn June 25, 2003, the State filed another multiple offender bill of information alleging the defendant to be a third felony offender based on the 1984 armed robbery conviction and a 1980 theft conviction. That day, the court vacated the defendant’s original sentence, found the defendant was a second felony offender based on the 1984 armed robbery conviction, and resenteneed the defendant to four years at hard labor to run consecutively with a sentence the defendant received for contempt.\n\nFACTS\n\nOn January 15, 2001, Yvette Morris and Debra Billiot, loss prevention officers for J.C. Penny’s at Oakwood Mall, were monitoring the store’s security cameras. Both ladies testified that the defendant brought six pairs of jeans into a fitting room, but exited the fitting room carrying only two pairs of jeans. Ms. Morris left her post to *877check the fitting rooms for the other pairs of jeans. When she discovered the fitting rooms were empty, Ms. Morris advised security of the situation. Meanwhile, the defendant exited the store, but he was subsequently stopped by the store’s personnel in the parking lot.\nMs. Morris and Ms. Billiot met the group in the parking lot and discovered that the defendant was wearing the missing jeans under his own pants. The defendant was asked to return to the loss prevention room, where four pairs of jeans, which still bore the store’s price tags, were removed from the defendant. According to Ms. Morris, the total value of the jeans was $104.96. Both Ms. Morris and Ms. Billiot positively identified the defendant at trial.\n\nDISCUSSION\n\n|4In his sole assignment of error, the defendant contends that the trial judge improperly denied his oral motion to represent himself. The State responds that the trial judge properly denied the motion because defendant did not unequivocally urge his right of self-representation.\nThe Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant in a criminal prosecution the right to counsel and the right to represent himself. The right to counsel may be waived, but only when a defendant makes an unequivocal request to represent himself and voluntarily and intelligently waives the right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975); State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant who vacillates between self-representation and representation by counsel will be considered to have forfeited the right to represent himself. State v. Bridgewater, supra.\nOnce a defendant makes an unequivocal request for self-representation, the trial judge should determine whether the defendant is competent to waive the right to counsel. Faretta v. California, supra. Although no minimum requirements have been established for judging the sufficiency of a waiver of counsel, there must be a reasonable inquiry to establish on the record a valid waiver under the overall circumstances. State v. Strain, 585 So.2d 540, 542 (La.1991); State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1065, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.\nIn this case, the record reveals that the defendant did not unequivocally assert his right to self-representation. The defendant, who had been represented by IDB since February 26, 2002, first indicated that he wanted to represent himself through his attorney on April 10, 2002. That day, the matter was set for a pre-trial hearing, and the defendant began addressing the court about his multiple offender | Sstatus. During this discussion, the defendant voiced his displeasure with his appointed attorney, Anthony Angelette, because Mr. Angelette had not discussed the case with him since the defendant’s incarceration. Mr. Angelette explained that he was not sure when he was appointed to the case. The record reflects that the defendant became so animated that the court warned him to quiet down or face contempt charges. The discussion between the court, the defendant, and Mr. Ange-lette continued, and then the trial court handled other matters on the docket.\nLater, Mr. Angelette informed the court that the defendant had “expressed the wish to represent himself, so to speak.” Thereafter, the defendant was sworn and the trial judge informed the defendant that *878he had a constitutional right to counsel. The court also informed the defendant that he had a right to represent himself, but recommended against it. The court asked the defendant what was his “desire,” and the defendant responded, “My desire is to represent myself.” During the colloquy, the defendant revealed that he was literate and answered affirmatively when the court asked if he understood the legal system. He also stated that he could perform legal research.\nThe defendant explained that his strategy was to disprove the State’s theory of his aliases and prior convictions. However, the defendant told the judge his name was really Harry Lucas. The defendant reiterated that he did not believe it was fair that he should be multiple billed when had already served his time for the prior armed robbery conviction. Thereafter the trial judge denied the defendant’s request to represent himself:\nTHE COURT:\nMr. Lucas, I certainly can empathize with the fact that you think it’s unfair; but that’s not what makes the law. And therefore I’m going to deny your request to represent yourself. Because it’s an interesting argument, but it’s an argument — not an argument in law. And I’m going to order that Mr. Angelette continue to represent you.\nIfiAt a contempt hearing on June 10, 2002, the defendant characterized his former motion as one for “corepresentation,” not self-representation:\nBY THE DEFENDANT:\nOkay. The only problem is that when I file a motion, I file a motion for the corepresentation. The motion was denied because maybe you was [sic] under the impression I was asking to represent myself. I was asking for corepresentation.\nBY THE COURT:\nYou have got court representation. Mr. Angelette is your lawyer.\nBY THE DEFENDANT:\nTo help my attorney I felt as though I had a Constitutional [sic] right to corepresentation.\nBY THE COURT:\nYou’ve got court representation.\nBY THE DEFENDANT:\nI’m saying C-0 representation, to help.\nBY THE COURT:\nCorepresentation. You mean you want to represent yourself and you want Mr. Angelette to help you?\nBY THE DEFENDANT:\nNo, I want to be allowed to also file petitions to the Court, but in reality—\nBY THE COURT:\nIf you want to file a petition on your own behalf, you can.\nThereafter, the defendant asked for a “reassignment of attorney” because he felt Mr. Angelette had a “personal vendetta” against him, since the defendant had previously cursed at Mr. Angelette in court. The defendant explained that he wanted a new attorney so that he would not continue to lose his temper in court and continue to be found in contempt of court.\n17Based on the foregoing, we find that the defendant did not unequivocally assert his right to represent himself. Rather, it is clear that the defendant wanted an attorney, but not Mr. Angelette. At best, the defendant’s remarks indicate that he wanted to actively participate in the legal process, which the court assured him that he could do. In State v. Treadway, 97-901 (La.App. 5 Cir. 3/25/98), 710 So.2d 1121, 1123, writ denied, 98-1634 (La.9/25/98), 725 So.2d 490, this Court found that the *879defendant abandoned his motion to represent himself because he requested alternative counsel after he filed the motion to proceed pro se. In State v. Bridgewater, supra, the Louisiana Supreme Court held that the trial judge did not err in denying the defendant’s motion to represent himself because the request was not clear and unequivocal. Rather, the Bridgewater court concluded that the defendant’s request was grounded in his desire to obtain a different appointed attorney. State v. Bridgewater, supra at 895.\nIn Bridgewater and in the instant case, the defendants specifically stated that it was current counsel with whom they were dissatisfied. While an indigent defendant has the right to an attorney, he does not have the right to any particular attorney. State v. Bond, 94-509 (La.App. 5 Cir. 1/31/95), 650 So.2d 354, 358. Considering that the defendant told the judge that he wanted the assistance of counsel and specifically stated that the judge had misunderstood his former motion, we conclude that the trial judge did not err in denying the motion for self-representation. As pointed out by the State, the judge could have inferred that the defendant’s request was grounded in his desire to remove Mr. Angelette, not to unequivocally assert his right for self-representation. Accordingly, this assignment of error is without merit.\nThe record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following errors requiring corrective action were noted.\nFirst, it is noted that the minute entry and the sentencing transcript conflict in that the minute entry reflects that the trial judge advised the defendant of the prescriptive period for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8, whereas the transcript does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter and instruct the trial court to send appropriate written notice to the defendant of the prescriptive period for post-conviction relief, and to file written proof in the record that defendant received the notice within ten days of the rendering of the opinion. State v. Stelly, 98-578 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.\nSecond, there are numerous discrepancies between the multiple offender minute entry/commitment and the corresponding transcript of June 25, 2003. First, the transcript reflects that the State filed an amended multiple offender bill of information, whereas the minute entry/commitment does not. Further, the transcript reflects that, after the amended bill was filed, the defendant denied the allegations therein, whereas the minute entry does not.3 Additionally, the minute entry reflects that the defendant “pleaded GUILTY [sic]” to the multiple bill, but the transcript reflects the trial judge determined the defendant’s status based on records introduced by the State of the defendant’s predicate convictions and transcripts of pre-trial proceedings.\nThere is an additional discrepancy between the transcript and multiple offender minute entry/commitment. While the transcript reflects that the State introduced evidence at the multiple offender hearing, the minute entry/transcript | fldoes not so reflect. The prosecutor stated that she would “reoffer, file and introduce” transcripts of the April 10, 2002 and June *88010, 2002 proceedings in which the defendant admitted he had a previous armed robbery conviction. The prosecutor also stated that she would “submit” a certified copy of the defendant’s conviction for the armed robbery. Finally, the prosecutor stated she would “offer, file and introduce” a certified copy of the second predicate, a 1980 theft conviction.4 None of this evidence is listed on the minute entry.\nAccordingly, we remand the matter and order the district court to correct the minute entry/commitment to reflect that the State filed an amended multiple offender bill of information, that the defendant denied the allegations in the amended multiple bill, and that the trial court found the defendant to be a second felony offender. The reference in the minutes that the defendant pled guilty to the multiple bill should be deleted, and the exhibits introduced into evidence should be noted on the minute entry.\n\nDECREE\n\nFor the reasons set forth above, we affirm the defendant’s conviction and sentence. We remand the matter and order the trial court to send written notice to the defendant of the prescriptive period for filing post-conviction relief. We further order the trial court to correct the errors in the minute entries in this case, as specified in this opinion.\n\nAFFIRMED; REMANDED WITH INSTRUCTIONS.\n\n\n. The bill of information was subsequently amended to add seven aliases of the defendant.\n\n\n. The record reflects that the defendant denied allegations in a multiple bill again on June 18, 2003.\n\n\n. It should be noted that the appellate record does not contain the amended bill.\n\n\n. The exhibit envelope lodged with the appellate record contains a packet of documents relating to the defendant’s prior convictions. There is a yellow note dated September 8, 2003, stating that \"these papers were found in the record immediately behind the Multiple Offender Bill.” However, the documents do not contain any indication that they were marked or introduced as exhibits at the multiple offender hearing.\n\n", "ocr": true, "opinion_id": 7764370 } ]

"2004-03-03"

[ "866 So. 2d 779" ]

[ { "author_str": "Klein", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKLEIN, J.\nGoldsmith sued Mercedes Homes seeking in Count I, specific performance of a contract for sale of real property, and in Count II, damages for breach of contract as an alternative to specific performance. Mercedes moved to transfer venue under a' venue provision in the contract. The trial court denied the motion because the property was located in the county in which the complaint was filed, and the jurisdictional authority of the court over the property existed only in that county. Ruth v. Dep’t of Legal Affairs, 684 So.2d 181 (Fla.1996).\nMercedes argues that venue should not be governed by the principle of Ruth, which is known as the local action rule, because Mercedes sold the property to a bona fide purchaser before the lawsuit was filed and Goldsmith, accordingly, cannot obtain specific performance. That contention is premature. Because the specific performance claim is still pending, we affirm, but without prejudice to Mercedes again raising venue in the event Goldsmith’s claim is limited to monetary relief.\nMAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.\n", "ocr": true, "opinion_id": 7764974 } ]

"2004-02-13"

[ "867 So. 2d 706" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re State Farm Mutual Automobile Ins. Co.;' — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 01-3762; to the Court of Appeal, Third Circuit, No. 03-577.\nDenied.\nTRAYLOR, J., would grant the writ.\n", "ocr": true, "opinion_id": 7765428 } ]

"2004-03-26"

[ "867 So. 2d 1280" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nBased on the State’s concession of error, for which we commend it, the order finding Botarf in violation of his probation and the sentence imposed thereafter is reversed. On remand, the State may proceed on the original affidavit alleging that Botarf violated his probation, or may amend it. See Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003).\nREVERSED AND REMANDED.\nPLEUS, PALMER and ORFINGER, JJ., concur.\n", "ocr": true, "opinion_id": 7765525 } ]

"2003-09-10"

[ "868 So. 2d 541" ]

[ { "author_str": "Covington", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCOVINGTON, Judge.\nIn Bowen v. State, 791 So.2d 44 (Fla. 2d DCA 2001), we reversed Bernice Bowen’s *543convictions for accessory after the fact to escape and to the first-degree murder of Tampa Police Detectives Randy Bell and Ricky Childers. We remanded for a new trial in light of the fact that Bowen’s defense had been prejudiced since these violations were tried together with another charge.1 On retrial, Bowen was again convicted of these three offenses. In this appeal, Bowen alleges that insufficient evidence was presented to convict her, that several evidentiary errors were committed, and that she was improperly sentenced. Upon careful review of the record and due consideration of the briefs filed by the parties as well as the oral argument, we find no reversible error and affirm.. , .\nThe facts established in the first trial are set forth in significant detail-in Bowen, 791 So.2d 44. In essence, the charges against Bowen stem from the fact that even after she became aware that her boyfriend, Hank Earl Carr, had killed two police officers, she continued to deceive law enforcement about Carr’s true identity. At trial the State argued that Bowen engaged in this behavior as part -of a planned pattern of deceit. The State submitted that Bowen’s goal was to stall law enforcement so that Carr would have an opportunity to escape. Bowen acknowledges that she did indeed provide false information to law enforcement as to Carr’s true identity. However, she says that was before she knew the police officers had been killed. Bowen argues that once she became aware of the officers’ deaths she fully cooperated with law enforcement.\nThese tragic events began to unfold on the morning of May 19, 1998. Around 9:30 a.m., Bowen’s son, Joey Bennett, suffered a fatal gunshot wound while in the apartment that Bowen shared with Carr. Police officers took Carr to the police station so that Detectives Bell and Childers could question him. Bowen was - also taken to the police station for questioning, although separately. As she had done earlier in the day, Bowen told police that Carr’s- name was Joseph Bennett. That was, however, an untrue statement. Joseph Bennett was the name of Bowen’s former husband, who resided in Ohio. In addition, Bowen gave differing stories to law enforcement concerning her relationship with Carr. She first told police that Carr was her husband and the father of Joey Bennett; she later said that Carr was her ex-husband; at the police station she told Detective Julia Mas-succi that Carr was her boyfriend.\nDetectives Bell and Childers took Carr back to the apartment sometime after 1:00 p.m. for further questioning. Around 2:00 p.m., while they were returning to the police station, Carr was able to escape from the detectives. He shot and killed both officers.\nDetective Massucci, who was still at the police station with Bowen, became aware of the killings and informed Bowen that the two officers had been shot. She knelt down in front of Bowen, took Bowen’s hand, and told-her the police needed her help. Detective Massucci told Bowen that she knew she had been through a lot with the loss of her son, Joey, and now the lives of two police officers also had been lost. The police needed to know the identity of the man who had committed these acts so they could find ‘him. Bowen said she would help. However, the assistance Bowen provided was to tell Detective Massucci that the man they were looking for was named Joseph Bennett.\n*544Detective Donna Keene also advised Bowen of the deaths of the police officers and Carr’s escape. As Detective Massucci had done, Detective Keene asked Bowen for her help in providing information concerning Carr. Bowen responded by telling Detective Keene that her boyfriend’s name was Joe Bennett. Subsequently, Bowen gave Detective Keene other names, including Boo, Earl Carr, and Hank, but she did not give the entire name Hank Earl Carr.\nThe crime of accessory after the fact is defined by section 777.03(1), Florida Statutes (1997), as:\nAny person not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, who maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that the offender had committed a felony or been accessory thereto before the fact, with intent that the offender avoids or escapes detection, arrest, trial or punishment, is an accessory after the fact.\nAs this court set forth in Bowen, the crime of accessory after the fact has five elements. That is, the State is required to prove:\n(1) the crime was committed by Carr; (2) Ms. Bowen knew Carr had committed the crime; (3) Ms. Bowen thereafter “maintained, assisted or gave any other aid” to Carr; (4) Ms. Bowen gave the aid with the intent that Carr avoid or escape arrest; and (5) Ms. Bowen was not related to Carr by blood or marriage.\nBowen, 791 So.2d at 50.\nAs to the first element, the record supports the conclusion that Carr committed the crimes of first-degree murder and escape, and Bowen does not contest this fact on appeal.\nThe second element of the offense requires the State to prove Bowen knew Carr committed the crimes. In order to comply with this requirement, the State must establish “that Ms. Bowen either directly knew or was provided sufficiently reliable information of facts that would give a reasonable person sufficient basis to believe that Carr had committed the crime alleged.” Id. at 51. The testimony of Detective Massucci, as well as that of Detective Keene, establishes that Bowen was informed of the murders and Carr’s escape.\nNext the State must prove that after Bowen was made aware of the murders of the police officers and of Carr’s involvement, she provided some maintenance, assistance, or aid to Carr. After both Detectives Massucci and Keene told Bowen that Carr had shot Detectives Bell and Childers and that Carr had escaped, Bowen continued to deceive the police as to Carr’s identity. By telling the police that Carr’s name was Joseph Bennett, Bowen assisted and aided Carr in his attempted escape from law enforcement.\n The fourth element of the crime of accessory after the fact requires proof of Bowen’s intent. “The State must prove that any aid Ms. Bowen gave to Carr was given with the specific intent to aid him in avoiding punishment.” Id. at 53. A defendant’s intent is not often shown by direct evidence, and it may very well be that the only available proof is in the form of circumstantial evidence. Id. at 52. Bowen submits that she had no intent to aid Carr, but rather she wanted to assist law enforcement with Carr’s capture.\nBowen’s argument centers on the notion that despite her earlier false statements to the police, she later cooperated with law enforcement by providing the name and *545address of Carr’s mother, informing the police of the names of several of Carr’s friends, agreeing to travel to the service station where Carr was holding an individual hostage, and subsequently providing law enforcement with Carr’s full name. This cooperation, according to Bowen, shows she did not intend to help Carr. However, the only inference that can be drawn from her providing false information to the police was that she intended to “[aid Carr’s] flight to avoid detection and arrest, [and] committed the crime of accessory after the fact.” 'See Schramm v. State, 374 So.2d 1043, 1044 (Fla. 3d DCA 1979). The fact that Bowen may have subsequently cooperated with law enforcement does not diminish the impact of her earlier actions. Cf. Bowen, 791 So.2d at 53.\nThe last criterion requires the State to prove that Bowen was not related to Carr by blood or marriage. Bowen does not contest this fact. Since the State presented prima facie evidence permitting a jury to conclude that Bowen was an accessory after the fact as to all three crimes, we cannot say the trial court erred when it denied Bowen’s motion for judgment of acquittal.\nBowen’s second contention on appeal is that the trial court erred in admitting certain pieces of evidence and in excluding evidence that Bowen claims was relevant and important. A trial court’s ruling concerning the admissibility of evidence will not be disturbed on appeal, except when abuse of discretion can be.established. Blanco v. State, 452 So.2d 520, 523 (Fla.1984). After careful review of the record, including the transcripts of the testimony of the witnesses involved, we find that Bowen has failed to show that the trial court abused its discretion in admitting the evidence at issue. Likewise, we find that Bowen has failed to show abuse of discretion in the trial court’s decision to exclude evidence that it determined to be inadmissible. ■\nWe now turn to Bowen’s assertion that the trial court erred in imposing an upward departure sentence of 259 months’ imprisonment. In reviewing the trial court’s assessment on this issue, we note that:\n[A] trial court’s decision to depart from the guidelines is a two-step process. First, the trial court must determine whether it can depart by determining as a mixed question of law and fact whether there is a valid legal ground supported by an adequate factual basis. If so, the second step is the discretionary decision whether departure is the best sentencing option considering the totality of the.circumstances, including mitigation and aggravating circumstances.\nHimes v. State, 775 So.2d 381, 383 (Fla. 2d DCA 2000) (citations omitted).\nAt the senteneihg hearing, the State offered several reasons why the court should impose an upward departure sentence. After considering the argument of counsel, the trial court determined that a “valid reason does exist” to depart from the guidelines. In explaining its departure from the guidelines, the court reasoned that it was Carr’s flight “after committing two first degree murders and escaping” that exposed many people to danger. There was an increase in the period of time when law enforcement did not know Carr’s true identity, due specifically to Bowen’s actions. The trial court went on to conclude that consequently it was Bowen’s “conduct in this offense [that] created a substantial risk of death or great bodily harm to many persons or to one or more small children,” which constituted “an aggravated circumstance” meriting a departure from the sentencing guidelines.\n*546In light of the facts developed at trial, we find that there is an adequate basis for the trial court’s decision. We also find no abuse of discretion in the trial court’s decision to impose a departure sentence given the aggravating circumstances identified by the court.\nBowen next contends that the trial court erred in imposing an increased sentence on retrial. The trial court here sentenced Bowen to 259 months, the same sentence imposed after the first trial. Although the length of both sentences is the same, arguably Bowen has received an increased sentence since she was convicted of fewer charges in her second trial. Nevertheless, we note that two different judges presided over Bowen’s two trials and thus two different judges sentenced her. When a second sentence, albeit harsher, is imposed by a different judge “a sentence ‘increase’ cannot truly be said to have taken place.” Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). Furthermore, because the “record provides logical and non-vindictive reasons for the sentence,” Van Loan v. State, 779 So.2d 497, 500 (Fla. 2d DCA 2000), we find no error in the sentence the trial court imposed.\nAccordingly, we affirm Bowen’s conviction and sentence.\nWHATLEY and STRINGER, JJ„ Concur.\n\n. We also reversed Bowen’s convictions for accessory after the fact to the murder of Trooper James Crooks and in the manslaughter of Bowen's son, Joey Bennett. This court determined that Bowen was entitled to a judgment of acquittal on these charges.\n\n", "ocr": true, "opinion_id": 7765594 } ]

"2004-03-19"

[ "869 So. 2d 630" ]

[ { "author_str": "Monaco", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMONACO, J.\nYvondia Herring asserts the commission of a variety of errors by the trial court in this appeal from a final judgment of dissolution of marriage. We detect only one matter that requires correction.\nBecause there are no findings of fact contained in the judgment related to child support, as required by section 61.30, Florida Statutes (2003), we conclude that we must reverse on this point. If a trial court does not articulate findings regarding the actual income of the parties or any adjustments to income, a reviewing court cannot ascertain whether a child support award is within the guidelines. See Manolakos v. Manolakos, 871 So.2d 258, 2004 WL 384151 (Fla. 4th DCA Feb.11, 2004); Levi v. Levi 780 So.2d 261 (Fla. 3d DCA 2001). Here, there are no findings concerning the amount of income of either party, nor are we provided with any information concerning the manner in which the award of child support was computed. We are, thus, unable to examine meaningfully the matter of imputed income and the total amount of child support awarded. Accordingly, we affirm the final judgment in all respects except for the award of child support, and remand to the trial court for specific findings to support the imputed income amount and the total amount of child support.\nAFFIRMED in part,' REVERSED in part, REMANDED.\nSHARP, W., and TORPY, JJ., concur.\n", "ocr": true, "opinion_id": 7765821 } ]

"2004-04-02"

[ "869 So. 2d 868" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Golston, Shannon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 187,502; to the Court of Appeal, Second Circuit, No. 37371-KH.\nDenied. La.C,Gr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.\n", "ocr": true, "opinion_id": 7766100 } ]

"2004-04-21"

[ "870 So. 2d 915" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nCONFESSION OF ERROR\n\nPER CURIAM.\nThe cause is remanded and the trial court is directed to vacate its order of revocation of probation and to enter a written order which conforms to its oral pronouncements. See Jefferson v. State, 732 So.2d 408 (Fla. 3d DCA 1999); Cushion v. State, 637 So.2d 2 (Fla. 3d DCA 1994). Bertrán need not be present. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003).\nRemanded.\n", "ocr": true, "opinion_id": 7766582 } ]

"2004-04-30"

[ "872 So. 2d 490" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re B.C., et al.; J.C.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 98-5832; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0576.\nDenied.\n", "ocr": true, "opinion_id": 7767017 } ]

"2004-04-30"

[ "872 So. 2d 492" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Catholic Mutual Relief Society of America et al.; Roman Catholic Church of the Diocese of Houma-Thibodaux; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Terre-bonne, 32nd Judicial District Court Div. E, No. 130,702(E); to the Court of Appeal, First Circuit, No. 2003 CW 2113.\nDenied.\nWEIMER, J., recused.\n", "ocr": true, "opinion_id": 7767022 } ]

"2004-05-14"

[ "872 So. 2d 526" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Barthel, Patrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2002-275; to the Court of Appeal, Fourth Circuit, No. 2004-C-0098.\nNot considered. Not timely filed. See Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So.2d 1220.\n", "ocr": true, "opinion_id": 7767138 } ]

"2004-05-07"

[ "872 So. 2d 1069" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Lewis, Jerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, *1070Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 8-88-151; to the Court of Appeal, First Circuit, No. 2003 KW 0215.\nDenied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.4(A); art. 930.4(D).\nWEIMER, J., recused.\n", "ocr": true, "opinion_id": 7767242 } ]

"2004-05-21"

[ "874 So. 2d 161" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Woods, Claude; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. W-75-2-61.\nDenied.\n", "ocr": true, "opinion_id": 7767570 } ]

"2004-05-21"

[ "874 So. 2d 167" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Riley, Walter Kendrick;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 248,834; to the Court of Appeal, Third Circuit, No. KH 02-01024.\nDenied. Repetitive. La.C.Cr.P. art. 930.4(A).\n", "ocr": true, "opinion_id": 7767593 } ]

"2004-05-13"

[ "875 So. 2d 441" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe review the recommendation of the Investigative Panel of the Judicial Qualifications Commission (JQC) that Judge Robert Lance Andrews receive the sanction of a public reprimand for his judicial misconduct.1 We approve the recommendation.\nThe JQC filed charges against Judge Andrews, alleging that while he presided over the case of Carnato v. Novartis Pharmaceuticals Corp., he made various inappropriate statements concerning the defendant, Novartis, in an interview with a reporter for the Daily Business Review. It was alleged he made the following statements:\n1. Novartis was trying to bury the plaintiffs in documents;\n2. Novartis has only itself to blame for developments in the litigation;\n3. The defense’s strategy backfired; and\n4. The entire database [the Special Master is creating at Novartis Pharmaceuticals’ expense] would provide a national plaintiffs blueprint for filing suit against Novartis over Parlodel [the drug in the case.]\nThe comments were made in reference to a discovery request made by the plaintiff in the case. The defendant, Novartis, responded to the discovery request by producing over one million documents.2 Novartis claimed that the documents were privileged and requested an in-camera inspection of the documents. Judge Andrews appointed a special master to review the documents, at great expense to Novartis. Novartis then sought to have the in-camera inspection suspended.\nThe JQC alleged that the statements were inappropriate and evidenced a bias against the defendant, Novartis. The JQC and Judge Andrews presented a stipulation to this Court pursuant to article V, section 12 of the Florida Constitution, and rule 6(j) of the JQC’s rules. In that stipulation, Judge Andrews admitted to the conduct alleged and did not contest the findings of guilt and recommendation of discipline. The Investigative Panel of the JQC recommended a public reprimand of Judge Andrews. We note that ordinarily the JQC, not the Investigative Panel of the JQC, submits its findings and recom*442mendations to this Court. However, in this case Judge Andrews specifically stipulated that “Without further reference to the Hearing Panel or a trial before that body, the Investigative Panel may enter its findings of guilt on the charges3 and recommend to the Supreme Court that the respondent be reprimanded for this conduct.”\nThis Court reviews the findings of the JQC to determine if they are supported by clear and convincing evidence and reviews the recommendation of discipline to determine whether it should be approved. ‘While this Court gives the findings and recommendations of the JQC great weight, ‘the ultimate power and responsibility in making a determination rests with this Court.’ ” In re Kinsey, 842 So.2d 77, 85 (Fla.2003) (footnote omitted) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). Accordingly, we review the findings to ensure that there is “clear and convincing evidence” to support the alleged ethical violations-a standard of proof which has been described as “more than a ‘preponderance of the evidence,’ but the proof need not be ‘beyond and to the exclusion of a reasonable doubt.’ ” Id. (quoting In re Davey, 645 So.2d at 404).\nJudge Andrews’ alleged conduct violates canons 1, 2, and 3 of the Code of Judicial Conduct. The JQC’s findings in this case show that the statements made by Judge Andrews evidenced a bias against Novartis. Judge Andrews admitted to the conduct alleged by the JQC. Accordingly, the JQC’s findings are supported by clear and convincing evidence. The second issue for this Court is whether the JQC’s recommendation of a public reprimand is an appropriate discipline in this case. An analogous case where a public reprimand was administered is In re Hayes, 541 So.2d 105 (Fla.1989). The judge in Hayes, while presiding over a murder trial, discussed his opinions and reactions to the trial with a journalist, with knowledge that the discussions would be used by the journalist in a publication. Statements attributed to Hayes were later published by the journalist. The Court held that a public reprimand was the appropriate discipline.\nWe accept the JQC’s recommendation of a public reprimand for Judge Andrews, which is consistent with this Court’s precedent as to the appropriate sanction for this type of judicial misconduct. See id. We hereby command Judge Andrews to appear before this Court for the administration of a public reprimand at a time to be established by the clerk of this Court. See In re Frank, 753 So.2d 1228, 1242 (Fla.2000).\nIt is so ordered.\nANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.\n\n. We have jurisdiction. See art. V, § 12, Fla. Const.\n\n\n. The 247 boxes produced by Novartis contained \"a total doocument [sic] count of approximately 1,088,282 individual pieces of paper.” Transcript of hearing at 25, Carnoto v. Sandoz Pharmaceuticals Corp., (Fla 17th Cir., Aug. 8, 2002).\n\n\n. The Notice of Formal Charges in this case did not specify which canons of the Code of Judicial Conduct Judge Andrews allegedly violated. However, canons 1, 2, and 3 were mentioned in the Notice of Investigation and the Findings and Recommendations of the Investigative Panel state that “the respondent is guilty as charged in the Notice of Investigation.” Judge Andrews has raised no objection to the Findings and Recommendations of the Investigative Panel.\n\n", "ocr": true, "opinion_id": 7767834 } ]

"2004-06-08"

[ "875 So. 2d 724" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).\nSHARP, W., GRIFFIN and ORFINGER, JJ., concur.\n", "ocr": true, "opinion_id": 7767866 } ]

"2004-07-07"

[ "876 So. 2d 729" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDonald Walker seeks certiorari review of a Palm Beach County Circuit Court order denying his petition for writ of mandamus, in which he challenged decisions of the Florida Parole Commission that suspended his presumptive parole release date. The circuit court denied mandamus relief, not on the merits of Walker’s challenges, but rather because Walker did not take a direct appeal of the Florida Parole Commission decisions. In so ruling, the circuit court has failed to apply the correct law. Jurisdiction of the district courts of appeal to entertain direct appeals by parolees and prisoners from final orders of the Florida Parole Commission was eliminated in 1983, and the proper remedy is by petition for an extraordinary writ filed in the circuit court. See Ch. 83-78, § 1, at 258, Laws of Fla.; see also Johnson v. Fla. Parole Comm’n, 841 So.2d 615, 617 (Fla. 1st DCA 2003). We note that while there is no thirty-day time limit for challenging orders by the Parole Commission in extraordinary writ petitions, the question of timeliness may be raised by the affirmative defense of laches. See Johnson, 841 So.2d at 617.\nWe grant the petition for writ of certio-rari, quash the order of the circuit court, and remand for further proceedings.\nPETITION GRANTED.\nWARNER, STEVENSON and TAYLOR, JJ., concur.\n", "ocr": true, "opinion_id": 7768161 } ]

"2004-06-18"

[ "876 So. 2d 799" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Leblanc, Chris J.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. E, No. 97-753; to the Court of Appeal, Third Circuit, No. KH 03-00025.\n*800Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.\n", "ocr": true, "opinion_id": 7768225 } ]

"2004-06-18"

[ "876 So. 2d 811" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Duhon, Jay Anthony et al.; Duhon, David Thomas; Duhon, Marlisa Tortorici; Backwater Golf Club Inc.;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 981104-B; to the Court of Appeal, Third Circuit, No. 03-898.\nDenied.\n", "ocr": true, "opinion_id": 7768263 } ]

"2004-06-25"

[ "876 So. 2d 822" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Bennett, Gabriel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 00-0346; to the Court of Appeal, Fifth Circuit, No. 03-KA-19.\nDenied.\n", "ocr": true, "opinion_id": 7768301 } ]

"2004-06-25"

[ "876 So. 2d 847" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Honeywell International Inc.; Amax Metals Recovery Inc.; Columbian Chemicals Company; Blount Inc.; Rust Engineering Company; H.B. Zachry Company; Colfax Corporation; Ajax Boiler & Heater Company; — Defendant(s); Applying for Motion to Vacate Appointment of Ad Hoc Judge and Alternative Application for Rehearing, Parish of Morehouse, and Parish of Ouachita.\nDenied.\n", "ocr": true, "opinion_id": 7768385 } ]

"2004-06-29"

[ "877 So. 2d 547" ]

[ { "author_str": "Irving", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIRVING, J., for the Court.\n¶ 1. Andrea and Melvin Hinson were divorced in November 2002 on the ground of irreconcilable differences. The parties submitted to the lower court for resolution issues of property settlement, alimony, child support and custody. The chancellor divided the property between the parties and awarded Andrea periodic alimony. Unsatisfied with the chancellor’s rulings, Andrea filed a motion for a new trial, but the chancellor denied her motion. Aggrieved by this decision, Andrea appeals asserting that the trial court: (1) failed to make findings of fact or conclusions of law when dividing the marital property and awarding alimony, (2) failed to equitably divide the marital assets of the parties, and (3) should have awarded lump sum alimony.\n¶2. Due to a lack of jurisdiction, we dismiss this appeal.\nFACTS\n¶ 3. Andrea Hinson filed a complaint for divorce in July 2001, in the Chancery Court of Warren County. In October 2002, the chancellor issued and signed a bench ruling granting Andrea and Melvin a divorce on the ground of irreconcilable differences. However, this ruling was not filed until November 2002. The chancellor granted the parties joint legal custody of the couple’s two minor children, with Andrea having physical custody and Melvin having reasonable visitations. Melvin was also ordered to pay child support in the amount of $1,300 per month and maintain health and life insurance for the children.\n¶ 4. The marital assets of the parties were divided, and Andrea was awarded thirteen acres of property and one-half ownership interest in the couple’s house. Melvin was ordered to pay the monthly notes for his wife’s Chevrolet Tahoe and pay her $350 per month in periodic alimony. The bench ruling was not filed until November 4, 2002. The record does not reflect a final judgment. Unsatisfied with *548the bench ruling, Andrea filed a pleading styled, “Motion for a New Trial or to Alter or Amend the Judgment” on November 8, 2002. The chancellor entered an order overruling the motion in January 2003, and thereafter, Andrea filed a notice of appeal to this Court. Additional facts will be related during our discussion of the issue.\nANALYSIS AND DISCUSSION OF THE ISSUES\n¶ 5. Although Andrea assigns three issues for resolution, we are unable to adjudicate this case on the merits due to a lack of jurisdiction. A thorough review of the record reveals only a bench opinion, and no final judgment. The bench ruling which the parties treated as a final judgment fails to comply with M.R.C.P. 58, which states that “[e]very judgment shall be set forth on a separate document which bears the title of ‘Judgment.’ ” The Mississippi Supreme Court has held that “a chancellor’s bench ruling is not final, but subject to modification by that same chancellor.” Grey v. Grey, 638 So.2d 488, 492 (Miss.1994). Therefore, “the chancellor’s decision is not the same thing as the court’s final judgment.” Id. “Only a final judgment is appealable.” Id. We must, therefore, dismiss this appeal because the chancellor’s bench opinion does not have the requisite finality to make it appealable.\n¶ 6. Although we are unable to address the merits of this case because of the jurisdictional issue, we note that even if the chancellor had issued a final judgment, supported only by the bench ruling, we would still be unable to decide the merits of the case because the chancellor failed to make required findings of fact as to the basis for her ruling. She also failed to make a determination and valuation of the marital estate. Our supreme court has consistently held that a chancellor must support her “decisions with findings of fact and conclusions of law for purposes of appellate review.” Johnson v. Johnson, 823 So.2d 1156, 1160(¶9) (Miss.2002). Further, a chancellor’s “failure to make findings of fact and conclusions of law [is] manifest error requiring reversal on remand.” Id. citing Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997). The appellate court “must have these findings of fact because [it] cannot determine whether the chancellor abused his discretion until he provides a record of his determination of both parties’ nonmarital assets, of his equitable distribution in light of each parties [sic] non marital property, guided by the Ferguson factors, and, if necessary to do equity by an award of alimony.” Id. citing Johnson v. Johnson 650 So.2d 1281, 1287 (Miss.1994).\n¶ 7. This dismissal is without prejudice to the rights of the parties to again pursue an appellate remedy after the chancellor has entered a final judgment and made the required findings of fact as mandated by Ferguson.\n¶ 8. THE APPEAL FROM THE WARREN COUNTY CHANCERY COURT IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\nZING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.\n", "ocr": true, "opinion_id": 7768595 } ]

"2004-09-01"

[ "880 So. 2d 1268" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe petition for writ of habeas corpus is denied as facially insufficient.\nKAHN, WEBSTER and HAWKES, JJ., concur.\n", "ocr": true, "opinion_id": 7769186 } ]

"2004-09-01"

[ "880 So. 2d 1277" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nTeofilo Bermudez Centano (“Centano”) appeals an order revoking probation and sentencing him to a term of thirty years incarceration. We reverse.\nCentano was charged with sexual battery on a child under twelve years of age and lewd assault on a child, crimes committed in 1993. In 1994 Centano pled no contest to a reduced charge of attempted sexual battery and lewd assault. The court sentenced him to five years in state prison followed by ten years of reporting probation. A special condition of his probation was that Centano complete a Mentally Disordered Sex Offender (“MDSO”) program.\nCentano served his time in prison but in January 2001 while on probation, the State filed an Amended Affidavit of Violation of Probation against him, alleging that Centa-no (1) failed to report to his probation officer since November 2000; (2) failed to list his complete and current residential and work address since November 2000; (3) failed to attend a TASC drug evaluation and treatment program as ordered by his probation officer; and (4) failed to complete the required MDSO program. Cen-tano eventually surrendered himself to the Dade County Jail in November 2001.\nA parole violation hearing was conducted before Judge David H. Young on April 30, 2002, a successor judge to the' sentencing judge, and the court thereafter revoked appellant’s probation, sentencing him to 30 years in prison on the attempted sexual battery charge and 10 years on the lewd assault charge to run concurrently. However, no written order revoking probation was entered.\nThere is considerable confusion in the record concerning the grounds upon which probation was revoked. It was conceded by the Defendant below that he failed to *1278report monthly as required. However, it is unclear from the record below whether the trial court violated the Defendant for alleged failure to report his work and residential addresses monthly. On appeal, the State concedes that the Order of Probation did not so require and that the Defendant therefore could not be violated on this ground. Similarly, while the State conceded almost in passing below that the Defendant could not be violated for a probation officer imposed condition that he participate in the TASC drug evaluation and treatment program,1 the absence of an order below makes it impossible for us to know whether the trial court appreciated the fact that the concession was made. Finally, while the transcript does include one explicit finding by the trial judge— that Centano violated the special condition that he successfully complete an MDSO program by not “showing up” — there is no evidence in the record that the trial court considered the merits of Centano’s proffered reason for failing to show — that he would be arrested for failing to report to the now concededly unlawfully imposed TASC drug treatment program. Arias v. State, 751 So.2d 184, 186 (Fla. 3d DCA 2000)(“A violation which triggers a revocation of probation must be both willful and substantial in nature, and must be supported by the greater weight of the evidence”).\nOur case law requires an appropriate written order revoking the defendant’s probation based upon the evidence presented. See Watson v. State, 807 So.2d 166 (Fla. 3d DCA 2002). While the failure of the trial court to render a written order is sufficient to require reversal, we further conclude here that the combination of the piecemeal concessions made by the State as this violation proceeding has progressed, taken together with the apparent alacrity with which the trial court reached the conclusion that Centano’s one failure to show up at the MDSO program constituted a violation, compels us, in the interests of justice, to order a de novo evidentiary hearing on the probation violation followed by the entry of a written order relating the courts findings. If the court concludes that Centano has violated the conditions of his probation, then it shall likewise conduct a new sentencing hearing. Centano shall be entitled to be present at such proceedings as may occur and should be prepared to direct the successor judge’s attention to any portion of the record that predates the successor judge’s accession to this case that Centano deems relevant.\nReversed and remanded with directions.\n\n. The Order of Probation did not include a drug evaluation or treatment special condition. See Gerber v. State, 856 So.2d 1113, 1115 (Fla. 4th DCA 2003) (double jeopardy protection against multiple punishments includes protection against enhancements or extensions of conditions of probation); Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988) (failure of defendant to report to probation counselor ordered drug and alcohol counseling may not be relied upon for revocation where same was not ordered by sentencing judge).\n\n", "ocr": true, "opinion_id": 7769187 } ]