author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Patrick John RIVERS, Appellee.
    No. 2D02-1743.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellant.
    Peter D. Ringsmuth, Fort Myers, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order dismissing the charges against Patrick Rivers. Rivers had been charged with one count of DUI with serious bodily injury following a motorcycle crash involving Rivers and his friend, Morrie Yedor. The trial court dismissed the charges after concluding that the State’s loss of an audio recording that contained exculpatory material denied Rivers due process of law. We reverse.

After the accident, law enforcement took an oral statement from Yedor, which was later transcribed. The officer who took the statement reviewed the transcript and said it was an accurate transcription of Yedor’s statement. The bulk of Yedor’s statement refers to Rivers as the driver of the motorcycle and Yedor as the passenger. However, at the end of his statement, Yedor said: “I made a left turn and lost control of the motorcycle.” The audiotape of Yedor’s statement was subsequently lost, but the transcript was not. Because Yedor’s last statement would appear to exonerate Rivers, Rivers argued that the loss of the audiotape of Yedor’s statement violated Rivers’ right to due process. The trial court agreed with Rivers and granted his motion for discharge, citing Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975).

The court in Farrell, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held that any suppression by the prosecution of evidence that is material and favorable to the accused violates due process regardless of the good or bad faith of the prosecution. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), however, the Supreme Court added a wrinkle to the Brady rule. The Youngblood court distinguished between “potentially useful” evidence and evidence that is both material and directly exculpatory, holding that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58,109 S.Ct. 333.

We believe that the lost audiotape here falls into the Youngblood category of potentially useful evidence due to the existence of the transcript of the tape. Even in the absence of the audiotape, Rivers had “ ‘alternative means of demonstrating [his] innocence.’ ” Id. at 56, 109 S.Ct. 333 (quoting California v. Trombetta, 467 U.S. 479, 490, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).

The only prejudice to Rivers in not having the audiotape available would be his inability to present to the factfinder the sound of Yedor’s voice making the allegedly exculpatory statement. Because we believe the lost audiotape was only potentially useful, we conclude that the trial court erred in finding that the lost audiotape denied Rivers due process of law. Accordingly, we reverse Rivers’ discharge and remand for further proceedings.

ALTENBERND, C.J., and STRINGER, J., Concur.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Harold Joe DEXTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4032.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
   NORTHCUTT, Judge.

Harold Joe Dexter appeals the summary denial of his motion for postconviction relief. We affirm, but we write to address one claim. Dexter contends his trial counsel was ineffective in failing to seek dismissal of the charges against him upon the expiration of the speedy trial period. See Fla. R.Crim. P. 3.191(a). We affirm on this point because Dexter has not alleged prejudice, and therefore his claim is facially insufficient.

We acknowledge that under this court’s decision in Williams v. State, 452 So.2d 657 (Fla. 2d DCA 1984), Dexter’s claim would have been facially sufficient. However, when Williams was decided in 1984 a defendant who was not brought to trial before expiration of the speedy trial period was entitled to discharge. Several months after Williams, our Supreme Court amended the speedy trial rule. The Florida Bar re: Amendment to Rules — Criminal Procedure, 462 So.2d 386 (Fla.1985). Under the version of the rule applicable to Dexter’s case, the State may bring a defendant to trial within fifteen days after receiving notice that the speedy trial period has expired. See Fla. R.Crim. P. 3.191(p). Therefore, in order to show prejudice from counsel’s failure to give notice that the speedy trial period has expired, a defendant would have to allege that the State could not have brought him to trial within the recapture period. Dexter has made no such allegation.

Accordingly, we affirm.

DAVIS and CANADY, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    Zenun SPAHALIC, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3231.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
   SILBERMAN, Judge.

Zenun Spahalic appeals the trial court’s denial of his motion to clarify sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Spahalie pleaded nolo contendere to possession of a firearm by a convicted felon and was sentenced to three years’ imprisonment.

In his motion Spahalie alleged that when the trial court orally pronounced the sentence, it did not state that the term of imprisonment was a minimum mandatory term pursuant to section 775.087(2)(a), Florida Statutes (2000). Spahalie asked that the trial court clarify the sentence and notify the Department that the sentence did not involve a minimum mandatory term.

In its order denying relief, the trial court concluded that Spahalie was on notice of the three-year minimum mandatory term because the charging document indicated that information. The trial court also noted that the plea form contained Spahalic’s acknowledgment that he and his attorney discussed the maximum and minimum penalties.

Imposition of the three-year minimum mandatory sentence was not optional for the crime to which Spahalie pleaded. See § 775.087(2)(a); Elbert v. State, 705 So.2d 651 (Fla. 2d DCA 1998); State v. Sesler, 386 So.2d 293, 294 (Fla. 2d DCA 1980). Based on the record before us, we affirm the denial of relief; however, our denial is without prejudice to any right that Spahalic may have to file a timely, facially sufficient motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

DAVIS and CANADY, JJ., Concur.


text:
    Patrick CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3165.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
   NORTHCUTT, Judge.

Patrick Cherry appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion on the first two grounds alleged in his motion, but we reverse and remand on the third ground.

Cherry pleaded guilty to armed robbery and aggravated battery and received concurrent sentences of fourteen years in prison followed by two years of probation on each count. Cherry seeks to withdraw his plea based on his trial counsel’s misadviee as to the amount of prison time he would actually serve if he pleaded guilty. Cherry claims that his trial counsel told him he would only serve four and one-half to five and one-half years in prison and then be sent to work release and placed on parole. He claims that he has since found out that he is not eligible for either work release or parole.

A defendant may seek to withdraw his plea on the ground that it was involuntary due to reliance on counsel’s misadviee or misrepresentation regarding the length of a sentence or the amount of time the defendant would serve. See State v. Leroux, 689 So.2d 235 (Fla.1996); Hoch v. State, 679 So.2d 847 (Fla. 2d DCA 1996). Such a claim can only be denied without an evidentiary hearing if it is conclusively refuted by the record. Leroux, 689 So.2d at 237. Here, the circuit court denied Cherry’s claim on the basis that it was refuted by the transcript of the plea colloquy. However, the plea colloquy did not address whether or not Cherry’s trial counsel advised him regarding the amount of time Cherry would actually serve on his sentences. Since the matter was not addressed by the court in the plea colloquy, Cherry’s claim is not refuted by the record, and he is entitled to an evidentiary hearing on his claim. See id. at 238. Accordingly, we reverse and remand for an evidentiary hearing on the third ground alleged in Cherry’s motion.

Affirmed in part; reversed in part; and remanded.

DAVIS and CANADY, JJ„ Concur.

      . We recognize that parole is no longer available in Florida. However, this fact does not refute Cherry's claim that his attorney told him he would be eligible for parole after four and one-half to five and one-half years.


text:
    Johnny HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3646.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
   NORTHCUTT, Judge.

Johnny Harrison challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, Harrison alleged that his plea was involuntary because defense counsel affirmatively misadvised him regarding the future sentence enhancing effects of the plea in regard to an as yet uncommitted crime. In Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002), we held that this claim is not cognizable in a rule 3.850 motion. We certify the same question that we certified in Stansel.

Affirmed.

WHATLEY and CASANUEVA, JJ„ Concur.


author: BROWNING, J.

text:
    David Earl SENTERFITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-5023.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Nancy A. Daniels, Public Defender; and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant appeals his conviction for firearm possession or concealed weapon by a convicted felon. Appellant argues that his motion for judgment of acquittal was erroneously denied and that the trial court reversibly erred by allowing the state to impeach a state witness as she was called primarily for impeachment purposes. We affirm the first issue without comment, and reverse the second issue and remand for a new trial.

As a part of the police investigation that led to Appellant’s prosecution, Appellant’s mother, Mrs. Senterfitt, made a written statement to the police in which she said that Appellant had possessed and fired a gun. After the prosecution was commenced, during her deposition, Mrs. Sen-terfitt denied making such statement. At trial, the state offered the testimony of Mrs. Senterfitt, and Appellant objected on the basis that the state was calling her as a witness for the primary purpose of impeaching her. The trial court overruled the objection, and permitted her to testify subject to impeachment about her statement by the state.

When Mrs. Senterfitt testified that Appellant did not have a gun that night, the state promptly impeached her with the statement she gave to the police, and she admitted that she had written the statement and that it said that Appellant had a gun. Appellant then requested a cautionary instruction that a prior inconsistent statement is not substantive evidence, and the trial court gave such instruction.

In Morton v. State, 689 So.2d 259, 264 (Fla.1997), receded from on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000), cert. denied, 531 U.S. 859, 121 S.Ct. 145, 148 L.Ed.2d 96 (2000), the court held that “if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded.” In making this determination, courts may consider the following factors: (1) whether the witness’s testimony surprised the calling party, (2) whether the witness’s testimony affirmatively harmed the calling party, and (3) whether the impeachment of the witness was of de minimis substantive value. See James v. State, 765 So.2d 763, 766 (Fla. 1st DCA 2000).

An application of the James factors clearly demonstrates that the state’s impeachment was improper. It is true that factors two and three weigh in favor of the state. Mrs. Senterfitt’s testimony that Appellant did not have a gun affirmatively harmed the state because it directly opposed the point the state was trying to prove, namely, that Appellant did have a gun. The impeachment was not of de minimis value to the state because none of the state’s other witnesses had testified that Appellant did not have a gun. However, analysis of the first factor reveals that the impeachment should have been disallowed. It is clear that the state was not surprised by Mrs. Senterfitt’s testimony that Appellant did not have a gun. When the defense objected, a bench conference was held, at which the judge told the prosecutor:

Once you know that there’s been a recanting, you can’t get prior statement just by calling the witness and impeaching a witness about a prior inconsistent statement to bootstrap up that statement for the truth of the matter asserted. You’re using the witness for other things, too, and I understand your argument. It sounds like this is the centerpiece of it.

The prosecutor responded that “[i]t is the centerpiece.” The state thereby admitted that it was aware of the prior inconsistent statement, and that it had called Mrs. Sen-terfitt for the primary purpose of introducing her prior inconsistent statement. Furthermore, Mrs. Senterfitt’s other testimony did not relate to any substantive matter that had not been previously testified to by other prosecution witnesses. Thus, the impeachment should have been excluded under Morton and James.

Finally, as in James, the cautionary instruction did not cure the error and render it harmless beyond a reasonable doubt because the evidence of Appellant’s guilt is mostly circumstantial and not undisputed. See James, 765 So.2d at 766. See generally State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Accordingly, we REVERSE the conviction and sentence, and REMAND for a new trial.

ERVIN, J., CONCURS; BOOTH, J., DISSENTS.


text:
    Eddy LAFAILLE, Appellant, v. Carolyn LAFAILLE, Appellee.
    No. 1D01-5142.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.

      Frantz Olivier, Miami, for Appellant.
    John 0. Williams, of Williams & Holz, P A, Tallahassee, for Appellee.
   BROWNING, J.

Eddy Lafaille, the former husband, appeals a final judgment of dissolution of marriage on the grounds that the trial court abused its discretion by making an inequitable distribution of assets and liabilities, contrary to section 61.075, Florida Statutes (2001); and by imputing income to him for purposes of determining the parties’ respective child-support obligations under section 61.30, Florida Statutes (2001). We affirm.

The parties were married in July 1987 and have four children, all of them minors. After nearly 13 years of marriage, the appellant petitioned for a divorce. The former husband currently lives in Miami and is employed as a school teacher in the Miami-Dade County system. Carolyn Lafaille, the former wife, lives in Tallahassee and works as an academic administrator at Florida A & M University. The former marital home is located in Tallahassee.

In his petition for dissolution, the former husband asked the trial court, inter alia, to award custody of the children to the former wife, to divide all outstanding debts equally between the parties, to award child support, and to order the sale of the former marital residence and equally divide the proceeds from the sale. Both parties testified at the dissolution trial, which is not transcribed.

In its final judgment, the trial court found that the former husband earned $2,195.70 bi-weekly ($57,088.20 annually) as a teacher as of October 2000; and that he had earned, currently earned, or had the continuing ability to earn, an additional $500.00 monthly ($6,000.00 annually) from non-teacher employment. Additionally, the court found that the former husband has the ability to earn $2,000.00 monthly ($8,000.00 annually) during the summer months when he is not regularly employed as a teacher. The court calculated his earnings at $5,923.01 monthly ($71,088.20 annually). The former wife’s earnings were found to be $4,309.74 monthly ($51,-716.88 annually). The final judgment states that the parties maintained retirement accounts through their respective employers and that no evidence of discrepancies was presented regarding the values of their respective accounts. The court found that the former husband had incurred $36,000.00 in personal non-marital debt prior to the parties’ separation, whether in his own or her name. The court found no evidence either from the financial affidavit or from the evidence presented at the hearing to support the former husband’s claim to have incurred additional debts in the form of school loans.

Under the terms of the final judgment, the former wife was awarded primary parental responsibility for the children. She was made responsible for paying for day care and for before- and after-school care, which she listed as $385.00 and $560.00 monthly, respectively, with the former husband to share the costs proportionately according to Chapter 61, Florida Statutes. Commencing December 1, 2001, the former husband was ordered to remit to the former wife $1,584.84 monthly for child support based on the calculation that their respective parental financial responsibilities are 56.4% (his) and 43.6% (hers) under the statutory guidelines. § 61.30(9), Fla. Stat. He was adjudged in arrearage in the amount of $28,527.12 for child support, to be paid in $250.00 increments monthly commencing at the same time. The former wife was ordered to maintain health and dental insurance coverage for the children, with the parties sharing equally any unreimbursed treatment. Each of the parties was ordered to maintain existing or comparable life insurance naming the other as a beneficiary, to protect the children financially. No alimony was awarded.

The court awarded the former wife the former marital residence along with the current household furnishings. Each party was awarded right, title, and interest in the personal property current in his or her possession, subject to any indebtedness. To the extent that the debts for such items are joint, the party retaining the item was instructed in good faith to seek to have the other’s name removed from such debt. Each party was awarded full interest in any bank, stock, investment, or retirement account currently in his or her name. Except as otherwise provided, each party was made responsible for his or her debts individually incurred since the petition filing date. The former husband was made responsible for his own credit card debts, any debts associated with his personal property, his student loans, and his debts relating to three loans under Account # 51053-0. The former wife was made responsible for her own credit card debts and all debts associated with her personal property. Each party was made responsible for his or her own attorney’s fees and costs. A supplemental final judgment transferred to the former wife all rights, title, and interest in the former marital home.

In his appellate brief, the former husband contends that the trial court failed to make an equitable distribution, resulting in his having substantial liabilities and no assets, and the former wife’s getting the former marital home and all the parties’ net assets. To relieve this alleged error, the former husband sought a reversal of the final judgment in pertinent part and a remand with instructions to award the former wife exclusive possession of the former marital home until the youngest child reaches 18, after which the residence would be sold and the proceeds equally divided between the parties. Subsequent to the filing of the briefs, the former wife filed a suggestion of mootness with this court alleging that any issue regarding the award of the former marital residence to her is moot because the home has been foreclosed upon and is no longer titled in her name. The former husband neither filed a response to the suggestion nor otherwise contested the allegation of foreclosure. We agree that, under these facts, any consideration of the award of the former marital residence is moot in light of the foreclosure.

The former husband’s second ground for challenging the final judgment is that the trial court erred in calculating his imputed income for purposes of determining his child-support obligation. The court set his monthly child-support obligation at $1,584.84. The child-support guidelines provide that the presumptive amount is derived from the statutory “schedules,” which are to be applied to the parents’ “combined net income.” § 61.30(l)(a) & (6), Fla. Stat. Because $1,584.84 is 56.4% (the former husband’s share of financial responsibility) of $2,810.00, one can reasonably deduce that the trial court found the parties’ combined monthly available income to be $7,900.00. That is, in the column corresponding to parents with four children, $2,810.00 is the presumptive amount where the income is $7,900.00.

The trial court’s findings and final judgment come to us clothed with a presumption of correctness and cannot be disturbed absent a record demonstrating reversible error. Boylan v. Boylan, 571 So.2d 580 (Fla. 4th DCA 1990); Moore v. Moore, 512 So.2d 1141 (Fla. 1st DCA 1987). As the appellant, the former husband has the burden to present us with an adequate record to support his appeal. Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983). The dissolution trial is not transcribed, and the former husband has not submitted a statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Where an appellant challenges the sufficiency of the evidence and the record on appeal is so limited, “we must presume that there was sufficient evidence and testimony presented to the trial court to support its findings of fact.” Damkohler v. Damkohler, 336 So.2d 1243, 1243 (Fla. 4th DCA 1976). Therefore, we are “limited to a consideration of any fundamental error which appears on the face of the order.” Id. Finding no fundamental error on the face of the final judgment regarding the findings regarding income, we AFFIRM the final judgment.

AFFIRMED.

ERVIN and BOOTH, JJ, CONCUR.


author: PER CURIAM.

text:
    Mark OSTERBACK, Appellant, v. L.E. TURNER, Jim Sutherland, and Michael W. Moore, Appellees.
    No. 1D01-5113.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.

      Mark Osterback, pro se.
    Richard E. Doran, Attorney General and Philip A. Fowler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mark Osterback, an inmate in the state prison system, appeals an order denying declaratory and mandamus relief. In his complaint, Osterback sought to have declared invalid, as an unpromulgated rule, a procedure used at the Hamilton County Correctional Facility relating to the delivery of inmate mail. The trial court denied relief prior to service of the complaint on the appellees, defendants below, pursuant to the pre-trial screening procedures set forth in section 57.085(6), Florida Statutes (2001). Because the trial court determined that the complaint was legally insufficient prior to adjudicating appellant indigent, contrary to the requirements of section 57.085(6), we reverse and remand for further proceedings. See Drayton v. Moore, 807 So.2d 819 (Fla. 2d DCA 2002).

Section 57.085(6) provides:

(6) Before an indigent prisoner may intervene in or initiate any judicial proceeding, the court must review the prisoner’s claim to determine whether it is legally sufficient to state a cause of action for which the court has jurisdiction and may grant relief. The court shall dismiss all or part of an indigent prisoner’s claim which:
(a) Fails to state a claim for which relief may be granted;
(b) Seeks monetary relief from a defendant who is immune from such relief;
(c) Seeks relief for mental and emotional injury where there has been no related allegation of a physical injury;
(d) Is frivolous, malicious, or reasonably appears to be intended to harass one or more named defendants.
As the Drayton court explained: The prescreening provisions of section 57.085(6) only apply to actions filed by “indigent” prisoners. Therefore, the trial court should not have prescreened the claim of a prisoner who was not adjudicated indigent. For this reason, we do not reach the question of whether Dray-ton’s petition stated a cause of action. Upon remand, if Drayton is adjudicated indigent and the trial court again dismisses the claim for failure to state a cause of action, we recommend that the trial court detail the deficiencies in the petition that justify dismissal, which are not readily apparent to us.
This case has brought to our attention the need to set forth guidelines for the trial courts to follow in applying section 57.085. With respect to application of the substantive provisions of the statute, we remind trial courts that the pres-creening mandate in section 57.085(6) applies only to civil actions filed by prisoners who have been adjudicated indigent. Thus, indigency status must be determined first. If indigency status is denied, the trial court should give written reasons. If a prisoner is denied leave of court to obtain indigency status because of prior qualifying adjudications of indigency, the trial court should attach documentation to support this factual determination together with its written reasons for denying leave of court. When a trial court dismisses a case under section 57.085, it must retain all original pleadings necessary to effectuate appellate review. If the statute is properly applied, prescreening and dismissals mil occur only m cases where a prisoner has been granted indigency status. Once indigency status is granted, we presume that a case file with an assigned case number will be opened in which the original pleadings and any resulting court orders will be maintained.

807 So.2d at 823 (footnote omitted).

REVERSED AND REMANDED.

BOOTH, BENTON AND VAN NORTWICK, JJ, CONCUR.


text:
    Terry McCART, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4880.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated December 20, 2002, this appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

BARFIELD, POLSTON and HAWKES, JJ., concur.


author: STRINGER, Judge.

text:
    Randy L. CUFF, Appellant,v. UNEMPLOYMENT APPEALS COMMISSION and A-1 Temps Incorporated, Appellees.
    No. 2D02-4711.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2003.
    Randy L. Cuff, pro se.
    John D. Maher, Deputy General, Tallahassee, for Appellee, Unemployment Appeals Commission.
    No appearance for Appellee, A-l Temps Incorporated.
   STRINGER, Judge.

Randy Cuff challenges an order disqualifying him from receiving unemployment compensation benefits because he refused suitable work. We affirm.

Carrie Mitchell, Senior Service Coordinator for A-l Temps, testified that Mr. Cuff was advised of three suitable positions but rejected each of them without good cause. Although Mr. Cuff disputes the truthfulness and accuracy of Ms. Mitchell’s testimony, the appeals referee apparently found Ms. Mitchell credible and relied on her testimony in making his determination. This court may not substitute its judgment for that of the appeals referee as to the weight of evidence on disputed facts. § 120.68(7)(b), Fla. Stat. (2001); Doyle v. Unemployment Appeals Comm’n, 635 So.2d 1028, 1030 (Fla. 2d DCA 1994). The final order of the Unemployment Appeals Commission is supported by competent, substantial evidence and must therefore be affirmed.

Affirmed.

NORTHCUTT and DAVIS, JJ., Concur.


text:
    Paul A. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3243.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2003.
   SILBERMAN, Judge.

Paul White challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, White argued that his prior convictions in South Carolina should have been considered misdemeanors that could not support the imposition of a habitual felony offender sentence under section 775.084(l)(a), Florida Statutes (Supp.1998). The record reflects that the trial court correctly denied relief on this ground.

In his appellate brief, White raised for the first time a claim that his predicate convictions did not occur within the requisite time period specified by section 775.084(l)(a). Because that claim was not raised in the trial court, it was not preserved for appellate review. See Robbins v. State, 816 So.2d 783, 785 (Fla. 2d DCA 2002). We note, however, that White has not raised the issue of whether his predicate convictions met the sequential convictions requirement of section 775.084(5), Florida Statutes (Supp.1998). See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001). Therefore, we affirm the order denying relief without prejudice to White’s filing a facially sufficient motion pursuant to rule 3.800(a) regarding issues not previously addressed by the trial court.

DAVIS and CANADY, JJ., Concur.


text:
    Jorge CABALLERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3449.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Rier & Doherty, and Andrew F. Rier, Miami, for appellant.
    Charlie Crist, Attorney General, and Andrea D. England, Assistant Attorney General (Fort Lauderdale), for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Waldo v. State, 728 So.2d 280 (Fla. 3d DCA 1999), quashed on other grounds, 759 So.2d 674 (Fla.2000); DeLuge v. State, 710 So.2d 83 (Fla. 5th DCA 1998).


text:
    Eduardo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2729.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   PER CURIAM.

The motion for belated appeal is granted and the sentence on appeal is affirmed on the authority of State v. Franklin, 836 So.2d 1112(Fla. 3d DCA Case no. 3D02-957, opinion filed, 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).


text:
    Arnoldo GUTIERREZ, Appellant, v. FLORIDA UNEMPLOYMENT COMPENSATION, etc., et al., Appellees.
    No. 3D02-2616.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Amoldo Gutierrez, in proper person.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
    Before JORGENSON and FLETCHER, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Because the claimant’s appeal to the Florida Unemployment Appeals Commission was untimely and he did not allege that the referee’s decision was not timely mailed, we affirm. See § 443.151(4)(b)3, Fla. Stat. (2001); Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).


text:
    The STATE of Florida, Petitioner, v. Terrence BURNS, Respondent.
    No. 3D02-2872.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Charlie Crist, Attorney General, and Andrea D. England (Ft.Lauderdale), Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for respondent.
    Before COPE, LEVY, and FLETCHER, JJ.
   PER CURIAM.

In this certiorari proceeding, the State requests that this court quash a decision of the appellate division of the circuit court, which decision reversed the battery conviction of respondent Burns and remanded the cause for a new trial. Our review of the record leads us to conclude that -the circuit court did not depart from the essential requirements of the law. See Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983). As a consequence we must deny the State’s petition.

Petition denied.


text:
    Jesus CABANELA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2967.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before JORGENSON, GERSTEN and GODERICH, JJ.
   PER CURIAM.

We affirm without prejudice to appellant’s right to seek post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.

Affirmed.


author: TORPY, J.

text:
    Michael DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1115.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Michael Daniels, Bristol, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., and PALMER, JJ., concur.


text:
    Chris EVANS, Appellant, v. Deborah Sue HICKS and Jimmy Scott Hicks, Appellees.
    No. 5D02-1865.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Michael M. Naughton, Jacksonville, for Appellant.
    James L. Nipper, Jacksonville, and Leanna S.A. Freeman, for Appellees.
   PER CURIAM.

The appellant appeals the grant of a summary judgment in favor of the appel-lees in connection with the appellant’s amended petition for specific performance of a contract. Since the record before the trial court reflects that the contract proposal failed to comport with Florida Statutes § 725.01, and was neither accepted, nor delivered, the summary judgment was properly rendered. Likewise, there was no error associated with the timing of the summary judgment hearing. Accordingly, the judgment is affirmed.

AFFIRMED.

THOMPSON, C.J, SAWAYA and MONACO, JJ., concur.


author: SHARP, W., J.

text:
    Joshua HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3829.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Joshua Hampton, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Hampton appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief. He asserts a claim of ineffective assistance of counsel. The trial court denied his motion on the sole ground that it was untimely because it was not filed within the two year time limit established by the rule. We reverse.

On July 24, 2000, Hampton pled guilty, was sentenced on various charges, and a judgment was rendered. He took no appeal. On August 19, 2002, he filed this rule 3.850 motion.

With regard to time limits, the rule provides:

A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than two years after the judgment and sentence become final in a noncapital case .... (emphasis supplied)

Fla. R.Crim. P. 3.850(b). The rule also provides for various exceptions to the two year time limit not applicable here.

When a judgment and sentence become final is key to the commencement of the running of the two year time limit. In Hampton’s case, since he took no appeal, his judgment and sentence became final thirty days after they were rendered; i.e., the time his appellate rights expired. See Ayo v. State, 708 So.2d 692 (Fla. 5th DCA 1998); Davis v. State, 687 So.2d 292 (Fla. 2d DCA 1997). See also Mitchell v. State, 818 So.2d 696 (Fla. 5th DCA 2002).

Hampton thus had until August 23, 2002, in which to file his motion. Since he filed it on August 19, 2002, it was timely.

REVERSED and REMANDED.

THOMPSON, C.J., and MONACO, J, concur.


text:
    Lester GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3964.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Lester Gray, Florida City, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

We affirm the trial court’s summary denial of Gray’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) which asserts he was inappropriately sentenced as an habitual offender. At the time Gray was sentenced in 1985 for a crime committed in 1982, only one prior felony conviction was required in order for the trial court to classify a defendant as an habitual offender. See § 775.084(l)(a)l.a., Fla. Stat. (1981).

An habitual offender sentence can be corrected in a rule 3.800(a) proceeding if the error is apparent on the face of the record. See Bover v. State, 797 So.2d 1246 (Fla.2001). Gray argues here that the pri- or felony conviction used in this case to merit his habitual offender sentence was attempted burglary of a structure and since the structure was unoccupied, the crime was a misdemeanor of the first degree and not a felony. See §§ 810.02(3); 777.04(4), Fla. Stat. (1981). However, in making its habitual offender findings, the sentencing court did not specify whether the structure was occupied. The sentencing court, however, found that defendant had been convicted of the prior felony of attempted burglary of a structure. Thus it is not clear on the face of this record that Gray was improperly classified as an habitual offender.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.


text:
    Deryck KATWAROO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-214.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Deryck Katwaroo, Chipley, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The trial court’s order dismissing defendant’s rule 3.850 motion is affirmed without prejudice to defendant filing a timely motion with either a sworn oath or a declaration. See, e.g., Creel v. State, 769 So.2d 450 (Fla. 4th DCA 2000) (affirming summary denial of postconviction motion that failed to include a proper oath; affirmance without prejudice to defendant filing properly sworn motion).

AFFIRMED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    Anthony AHEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-172.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Anthony Ahedo, Jasper, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Anthony Ahedo appeals the denial of his motion to modify sentence. He alleges that he entered a plea of guilty to a variety of offenses based on an agreement with the State and the sentencing judge that he would serve the agreed sixteen-year-state sentence concurrent with a ninety-year-federal sentence. Ahedo alleges that instead, he was transported to, and is now serving, his sentence in state prison and has not yet begun his federal sentence. If that is true, this violation of the plea bargain would entitle Ahedo to relief pursuant to a properly and timely filed rule 3.850 motion for postconviction relief. Taylor v. State, 710 So.2d 636 (Fla. 3d DCA 1998). However, Ahedo’s motion to modify sentence filed below was unauthorized, and is therefore not appealable.

Accordingly, we dismiss the instant appeal without prejudice to the filing of a motion for postconviction relief in the trial court within the two-year limitation period provided for by Florida Rule of Criminal Procedure 3.850(b).

APPEAL DISMISSED.

MONACO and TORPY, JJ., concur.


text:
    Luis RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4829.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.
   SILBERMAN, Judge.

Luis Rivera appeals the summary denial of his motion for postconviction relief. We affirm without comment the trial court’s denial of relief as to the issues referred to in its order as grounds one through six on the basis that they were time-barred and legally insufficient. Concerning the seventh ground, we affirm without prejudice to Rivera’s filing a legally sufficient motion.

The trial court correctly determined that Rivera’s seventh ground was based on con-clusory statements that did not warrant relief. “[I]n order to provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones v. State, 591 So.2d 911, 915 (Fla.1991); Robinson v. State, 770 So.2d 1167, 1170 (Fla.2000). Relief is not warranted when the allegations are based on “tenuous speculation.” Davis v. State, 736 So.2d 1156, 1159 (Fla.1999). Our decision is without prejudice to Rivera’s filing a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 based on newly discovered evidence within sixty days of the issuance of our mandate. Should he do so, the trial court must determine whether the evidence qualifies as newly discovered evidence and, if so, whether it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998).

Affirmed.

DAVIS and CANADY, JJ., Concur.


author: KLEIN, J.

text:
    Thomas LETT, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-132.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2003.

      Carey Haughwout, Public Defender, Steven Malone and Thomas Mahoney, Assistant Public Defenders, West Palm Beach, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Petitioner was charged with sexual battery committed in February, 1980, but before he was arrested he was convicted and incarcerated in Maryland for over twenty years. He seeks a writ of prohibition to prevent Florida from now prosecuting him because the statute of limitations has run. We grant the writ.

After the information was filed and warrant issued in 1980, Florida had the Maryland Department of Corrections place a detainer on petitioner, but did not seek extradition. The warrant was not served on petitioner until his release in 2002.

The applicable statute of limitations, section 775.15, Florida Statutes (1979), required prosecution to be commenced within three years of the commission of this second degree felony. § 775.15(2)(b), Fla. Stat. (1979). That period could have been extended a maximum of three years if the defendant was eontin-uously absent from the state. § 775.15(6), Fla. Stat. (1979).

A prosecution is commenced, for purposes of the statute of limitations, “when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay.” § 775.15(5), Fla. Stat. (1979). An unexcused delay in serving the appropriate process until after the statute of limitations has run bars prosecution for the offenses charged. Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995)(finding that statute of limitations continues to run even while defendant is in the custody of another sovereign). The trial court concluded that the delay in executing the warrant was reasonable.

In State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000), Florida knew the defendant was imprisoned in New Jersey, but, during an eight-year incarceration, did not attempt to execute process. The trial court held that the eight-year delay was unreasonable, and this court affirmed. See also State v. Fields, 505 So.2d 1336 (Fla.1987); Colvin v. State, 541 So.2d 724 (Fla. 2d DCA 1989).

The filing of a detainer, which merely advises prison officials that a prisoner has other charges and requests notice of the prisoner’s release, is not the equivalent of the process contemplated by section 775.15(5). Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001) and cases cited. The only issue in this case, accordingly, is whether the twenty year delay is reasonable. We conclude that it is not. In Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995), the court, holding that the statute of limitations is not tolled when a defendant is incarcerated out of state, explained:

We recognize that our decision places a burden on the state to monitor the limitations period and to extradite a defendant when necessary to avoid having a prosecution barred by a statute of limitations. We do not find this to be an inappropriate burden. Nor do we find it to be an unreasonable burden given the ability of the state to obtain a defendant from the custody of either another state or the federal authorities pursuant to the Interstate Agreement on Detainers Act. See § 941.45, Fla. Stat. (1993); 18 U.S.CApp. 2, § 1 et seq.

Id. at 741-42 (footnotes omitted).

We therefore grant the writ.

POLEN, C.J., and SHAHOOD, J., concur.

      . In 1997 the statute was amended to excuse the failure to execute process on or extradite a defendant in another state. § 775.15(5), Fla. Stat. (1997). That amendment is not applicable. State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000)(the statute of limitations applicable is the one in effect when the crime was committed).


text:
    STATE of Louisiana v. Alcide A. DUFRENE.
    No. 2003-KK-0520.
    Supreme Court of Louisiana.
    Feb. 19, 2003.
   In re Dufrene, Alcide A.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 98-7229; to the Court of Appeal, Fifth Circuit, No. 03-K-146.

Writ denied. Stay denied.


text:
    David M. JARROTT, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 2003-OC-0519.
    Supreme Court of Louisiana.
    Feb. 19, 2003.
   In re Jarrott, David M. M.D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2002-8797; to the Court of Appeal, Fourth Circuit, No. 2002-C-1987.

Denied. Moot.


text:
    Charles C. GIBSON, III, et al. v. GARDEN PARK NURSING & REHABILITATION CENTER, L.L.C.
    No. 2002-CC-2967.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Garden Park Nursing & Rehabilitation Center, L.L.C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. K, Nos. 463,850, 468,342; to the Court of Appeal, Second Circuit, No(s). 36908-CW, 36909-CW.

Granted. The case is remanded to the trial court for reconsideration of relator’s exception of prescription in light of Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460.


text:
    Lisa Minor BROWN v. DYNACARE.
    No. 2003-C-0159.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Brown, Lisa Minor; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Worker’s Compensation-Dist. 6, No. 01-06389; to the Court of Appeal, Fifth Circuit, No. 02-CA-531.

Not considered; not timely filed.


text:
    STATE ex rel. Andre JONES v. STATE of Louisiana.
    No. 2002-KH-0687.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Jones, Andre; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div. 0, No. 48769; to the Court of Appeal, Third Circuit, No. 00-1115.

Denied.


text:
    STATE ex rel. Harrison BREAUX v. STATE of Louisiana.
    No. 2002-KH-0690.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Breaux, Harrison; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 98-3066; to the Court of Appeal, Fifth Circuit, No. 02-KH-92.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Kevin BROWN v. STATE of Louisiana.
    No. 2002-KH-0762.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Brown, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 409-710; to the Court of Appeal, Fourth Circuit, No. 2001-K-2144.

Denied.


text:
    STATE ex rel. Jerry OSBERRY v. STATE of Louisiana.
    No. 2002-KH-0765.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Osberry, Jerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 367-651.

Denied.


text:
    STATE ex rel. Tyronne FORREST v. STATE of Louisiana.
    No. 2002-KH-0805.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Forrest, Tyronne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 387-885; to the Court of Appeal, Fourth Circuit, No. 2002-K-0140.

Denied.


text:
    STATE ex rel. George SIMON v. STATE of Louisiana.
    No. 2002-KH-0806.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Simon, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 391-509; to the Court of Appeal, Fourth Circuit, No. 2002-K-0005.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Calvin D. RICE v. STATE of Louisiana.
    No. 2002-KH-0808.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Rice, Calvin D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 394-951; to the Court of Appeal, Fourth Circuit, No. 2000-KA-0300.

Denied.


text:
    STATE ex rel. Elliot MONTANA v. STATE of Louisiana.
    No. 2002-KH-0809.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
    Reconsideration Denied April 21, 2003.
   In re Montana, Elliot; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 372-000; ■ to the Court of Appeal, Fourth Circuit, No. 2001-K-2300.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2002-KH-0825.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Lay, Richard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, Slidell City Court, No. Unknown; to the Court of Appeal, First Circuit, No. 99 KW 0729.

Denied. Moot. The Court of Appeal has acted.

WEIMER, J., recused.


text:
    STATE ex rel. John ROGERS v. STATE of Louisiana.
    No. 2002-KH-0829.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Rogers, John; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 10-98-878; to the Court of Appeal, First Circuit, No. 2000 KA1749.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.

WEIMER, J., recused.


text:
    STATE ex rel. Rodrick BETZ v. STATE of Louisiana.
    No. 2002-KH-0839.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Betz, Rodrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-99-111; to the Court of Appeal, First Circuit, No. 2001 KA 0755.

Denied.


text:
    STATE ex rel. Frank TRAMMELL v. STATE of Louisiana.
    No. 2002-KH-0852.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Trammell, Frank; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 379-449; to the Court of Appeal, Fourth Circuit, No. 2002-K-0009.

Denied.


text:
    STATE ex rel. Dwayne THOMAS v. STATE of Louisiana.
    No. 2002-KH-0853.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Thomas, Dwayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 388-068; to the Court of Appeal, Fourth Circuit, No. 2001-K-1570.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Jerome MANUEL v. STATE of Louisiana.
    No. 2002-KH-0854.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Manuel, Jerome;; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. A, No. 004426; to the Court of Appeal, Second Circuit, No. 35,-482-KA.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Harold Joseph VINCENT v. STATE of Louisiana.
    No. 2002-KH-0856.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Vincent, Harold Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 23,807.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Lum DAVIS v. STATE of Louisiana.
    No. 2002-KH-0857.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Davis, Lum;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 99-7146; to the Court of Appeal, Fifth Circuit, No. 01-KH-586.

Denied.


text:
    STATE ex rel. Willie Carl JONES, Jr. v. STATE of Louisiana.
    No. 2002-KH-0858.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Jones, Willie Carl Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 175,875; to the Court of Appeal, Second Circuit, No. 36049-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Eddie J. ARMANT v. STATE of Louisiana.
    No. 2002-KH-0860.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Armant, Eddie J.,; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. D, No. 2584; to the Court of Appeal, Fifth Circuit, No. 02-KH-157.

Denied.


text:
    STATE ex rel. Robert HARRISON v. STATE of Louisiana.
    No. 2002-KH-0862.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Harrison, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 390-256; to the Court of Appeal, Fourth Circuit, No. 2001-K-2394.

Denied.


text:
    STATE ex rel. Ray RATLLER v. STATE of Louisiana.
    No. 2002-KH-0863.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Rather, Ray; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 304-693; to the Court of Appeal, Fourth Circuit, No. 2002-K-0037.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Sam PATE v. STATE of Louisiana.
    No. 2002-KH-0873.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Pate, Sam;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 369-373; to the Court of Appeal, Fourth Circuit, No. 2001-K-2370.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Khalil S. KHAN.
    No. 2002-KP-1005.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Kahn, Khalil S.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 109,489; to the Court of Appeal, Second Circuit, No. 36104-KW.

Denied.


text:
    STATE of Louisiana v. Raymond BLACHER.
    No. 2002-KO-1057.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Blacher, Raymond; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 4-99-795; to the Court of Appeal, First Circuit, No. 2001 KA 0871.

Denied.


text:
    STATE of Louisiana v. Albert PARKER.
    No. 2002-KO-1058.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Parker, Albert; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 00-4929; to the Court of Appeal, Fifth Circuit, No. 01-KA-0958.

Denied.


text:
    STATE of Louisiana v. Michael WALKER.
    No. 2002-KO-1059.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Walker, Michael; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 3-95-2737; to the Court of Appeal, First Circuit, No. 01 KA 1409.

Denied.


text:
    STATE of Louisiana v. Carlos W. COOPER.
    No. 2002-KO-1062.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Cooper, Carlos W.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 302,960; to the Court of Appeal, First Circuit, No. 2001 KA 1396.

Denied.


text:
    STATE of Louisiana v. Ramone Dominque BONNER.
    No. 2002-KO-1063.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Bonner, Ramone Dominque;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 45859; to the Court of Appeal, Second Circuit, No. 35,614-KA.

Denied.


text:
    STATE ex rel. Eric J. WILSON v. STATE of Louisiana.
    No. 2002-KO-1076.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Wilson, Eric J.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. A, No. 004639; to the Court of Appeal, Second Circuit, No. 35,483-KA.

Denied.


text:
    STATE of Louisiana v. Ernest Randal COMEAUX.
    No. 2002-KP-1078.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Comeaux, Ernest Randal;- — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, Nos. 81642, 56626; to the Court of Appeal, Third Circuit, No. KW 01-01353.

Denied.


text:
    STATE ex rel. Lacey BILLIOT v. Burl CAIN.
    No. 2002-KP-1168.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Billiot, Lacey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 163,364; to the Court of Appeal, First Circuit, No. 2001 KW 2786.

Denied. See, e.g., State v. Deloche, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir.1998).


text:
    STATE of Louisiana v. Aaron TAYLOR.
    No. 2002-KP-1173.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Taylor, Aaron; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 357-777; to the Court of Appeal, Fourth Circuit, No. 2002-K-0537.

Denied. Application was untimely in the Court of Appeal.


text:
    STATE of Louisiana v. Michael THOMAS.
    No. 2002-KP-1178.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Thomas, Michael; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 185,645; to the Court of Appeal, Second Circuit, No. 36072-KW.

Denied.


text:
    STATE of Louisiana ex rel. Michael Thomas CUPP v. STATE of Louisiana.
    No. 2002-KP-1192.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Cupp, Michael Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, Nos. 8-91-1873, 8-91-1874, 10-91-1261; to the Court of Appeal, First Circuit, No. 2002 KW 0557.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Gary JONES.
    No. 2002-K-2075.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Jones, Gary; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 410-448; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0438.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Kelly NELSON.
    No. 2002-K-2090.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Nelson, Kelly; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-2820; to the Court of Appeal, Fifth Circuit, No. 02-KA-65.

Denied.


text:
    STATE of Louisiana v. Daniel E. DICKERSON.
    No. 2002-K-2108.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Dickerson, Daniel E.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 99-2946; to the Court of Appeal, Fifth Circuit, No. 01-KA-1287.

Denied.


text:
    STATE of Louisiana v. Alfredo PAOLI.
    No. 2002-K-2137.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Paoli, Alfredo; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 326359E; to the Court of Appeal, First Circuit, No. 2001 KA 1733.

Denied.


text:
    Evelyn PERDUE v. Dr. E. Ward SUDDERTH and Westbank Medical Clinic, Inc.
    No. 2002-C-2821.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Louisiana Patients’ Compensation Fund Oversight Board; — Other; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 499-047; to the Court of Appeal, Fifth Circuit, No. 02-CA-357.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    STATE of Louisiana v. Lawrence JACOBS.
    No. 2002-KK-2890.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Jacobs, Lawrence; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 02-4757; to the Court of Appeal, Fifth Circuit, No. 02-K-1112.

Denied.

KNOLL, J., recused.


text:
    Alvin HEBERT, Sr. and Marion M. Dupuis Hebert v. ANCO INSULATION, INC., A.P. Green Industries, Inc., Armstrong World Industries, Inc. Asbestos Claims Management Corp., f/k/a National Gypsum Company, Asbestos Corporation, Ltd., A.W. Chesterton Company, the Dow Chemical Company, Mortimer Currier, Charlie Halphen, Lester Poirrier, Harold Hoyle, Theodore Trokelson, James E. Campbell, Joe Bristol, Gerard W. Daigle, Malcolm L. McNabb, V.K. Rowe, Dr. Holder, Dr. Gordon, Don Morris, John Calmes, Al Paradiso, Charlie Melancon, Associates Indemnity Corporation, the American Insurance Company, Travelers Casualty and Surety Company, Flexiallic, Inc., GAF Corporation, the McCarty Corporation, AC & S, Pittsburgh Corning Corporation, Rapid American Corporation T & N, Union Carbide Corporation, and Uniroyal, Inc.
    No. 2002-C-2956.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Dow Chemical Co.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 51,810; to the Court of Appeal, First Circuit, No. 2000 CA 1929.

Denied.

VICTORY, J., would grant the writ.


text:
    Alvin HEBERT, Sr. and Marion M. Dupuis Hebert v. ANCO INSULATION, INC., A.P. Green Industries, Inc., Armstrong World Industries, Inc., Asbestos Claims Management Corp., f/k/a National Gypsum Company, Asbestos Corporation, Ltd., A.W. Chesterton Company, the Dow Chemical Company, Mortimer Currier, Charlie Halphen, Lester Poirrier, Harold Hoyle, Theodore Trokelson, James E. Campbell, Joe Bristol, Gerard W. Daigle, Malcolm L. McNabb, V.K. Rowe, Dr. Holder, Dr. Gordon, Don Morris, John Calmes, AL Paradiso, Charlie Melancon, Associates Indemnity Corporation, the American Insurance Company, Travelers Casualty and Surety Company, Flexiallic, Inc., GAF Corporation, the McCarty Corporation, AC & S, Pittsburgh Corning Corporation, Rapid American Corporation T & N, Union Carbide Corporation, and Uniroyal, Inc.
    No. 2002-C-2959.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Hebert, Alvin Jr. et al.; Hebert, Marion M. Dupuis; Hebert, Stanley Robert; Himel, Cindy Hebert; Villerette, Haney Hebert; Harelson, Catherine Hebert; Hebert, Blake J.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 51,810; to the Court of Appeal, First Circuit, No. 2000 CA 1929.

Denied.


text:
    SMART GROWTH FOR LOUISIANA, et al. v. The CITY OF NEW ORLEANS.
    No. 2002-CC-3063.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Smart Growth for Louisiana et al.; Louisiana Landmarks Society Inc.; Coliseum Square Assn. Inc.; Historic Magazine Row Assn.; Urban Conservancy; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 02-11346; to the Court of Appeal, Fourth Circuit, No. 2002-C-2077.

Denied.


text:
    Joey PRICE and Danielle Price v. HUDSON, POTTS & BERNSTEIN, Robert Baldwin and Elizabeth Bogan.
    No. 2002-CC-3080.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Hudson, Potts & Bernstein. L.L.C.; Baldwin, Robert; Bogan, Elizabeth; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 02 2135-CV; to the Court of Appeal, Second Circuit, No. 36988-CW.

Denied.


text:
    Paulette NELSON and Watts M. Nelson v. LOUISIANA STADIUM AND EXPOSITION DISTRICT, SMG Inc., and ABC Insurance Company.
    No. 2002-C-3085.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Louisiana Stadium and Exposition District et al.; SMG Inc.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2000-10095; to the Court of Appeal, Fourth Circuit, No. 2001-CA-1764.

Denied.

CALOGERO, C.J., recused.


text:
    Lisette CROZAT v. LOUISIANA COASTAL, VII, LLC, and Its Member/Managers, James Macphaille and Catherine Macphaille.
    No. 2002-C-3100.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Louisiana Coastal VII LLC et al.; Macphaille, James; Macphaille, Catherine; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 01-1354; to the Court of Appeal, Fourth Circuit, No. 2001-CA-2404.

Denied.


text:
    Lisette CROZAT v. LOUISIANA COASTAL, VII, LLC, and Its Member/Managers, James Macphaille and Catherine Macphaille.
    No. 2002-C-3103.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Sequin, Romaine Marie; Rogers, Diane; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 01-1354; to the Court of Appeal, Fourth Circuit, No. 2001-CA-2404.

Denied.


text:
    Myrtle RUSSELL v. NORFOLK-SOUTHERN RAILWAY COMPANY, Celanese, Ltd.; a/k/a Celanese Clearlake, a/k/a or d/b/a Celanese Chemical, Ltd., Celanese Ltd.; and ABC Insurance Co.
    No. 2002-CC-3106.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Celanese-LTD; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, First City Court For The City Of New Orleans, Nos. 01-53250, 01-53268, 01-53259, 01-53247, 01-53265, 01-53316, 01-53310, 01-53271, 01-53253, 01-53256,; to the Court of Appeal, Fourth Circuit, No(s). 2002-C-1597, 2002-C-1598, 2002-C-1599, 2002-C-1600, 2002-C-1601, 2002-C-1602, 2002-C-1603, 2002-C-1604, 2002-C-1605, 2002-C-1606, 2002-C-1610, 2002-C-1611, 2002-C-1612, 2002-C-1613, 2002-C-1614, 2002-C-1615, 2002-C-1616, 2002-C-1617, 2002-C-1618, 2002-C-1619.

Denied.


text:
    Myrtle RUSSELL v. NORFOLK-SOUTHERN RAILWAY COMPANY, Celanese, Ltd.; a/k/a Celanese Clearlake, a/k/a or d/b/a Celanese Chemical, Ltd., Celanese Ltd.; and ABC Insurance Co.
    No. 2002-CC-3108.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Norfolk-Southern Railway Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, First City Court For The City Of New Orleans, Nos. 01-53250, 01-53268, 01-53259, 01-53247, 01-53265, 01-53316, 01-53310, 01-53271, 01-53253, 01-53256,; to the Court of Appeal, Fourth Circuit, No(s). 2002-C-1597, 2002-C-1598, 2002-C-1599, 2002-C-1600, 2002-C-1601, 2002-C-1602, 2002-C-1603, 2002-C-1604, 2002-C-1605, 2002-C-1606, 2002-C-1610, 2002-C-1611, 2002-C-1612, 2002-C-1613, 2002-C-1614, 2002-C-1615, 2002-C-1616, 2002-C-1617, 2002-C-1618, 2.

Denied.


text:
    PRIORITY E.M.S. v. CRESCENT CITY E.M.S. d/b/a Medic One and Medic One, Inc.
    No. 2002-C-3111.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Priority E.M.S. et al.; Boatright, Michael; Boatright, Jan; Priority E.M.S. Inc.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 90-19542; to the Court of Appeal, Fourth Circuit, No. 2001-CA-2171.

Denied.

CALOGERO, C.J., recused.

VICTORY, J., would grant the writ.


text:
    In re Norman and Joan OSTARLY v. ZONING APPEALS BOARD, Parish of Jefferson.
    No. 2002-C-3112.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Hauck, Jeffery; — Other; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 560-832; to the Court of Appeal, Fifth Circuit, No. 02-CA-55.

Denied.


text:
    Kathy MITCHELL and Lawrence Mitchell v. LIFEMARK HOSPITAL OF LOUISIANA, INC., d/b/a Kenner Regional Medical Center.
    No. 2002-C-3113.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Lifemark Hospital of Louisiana Inc. d/b/a; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 560-749; to the Court of Appeal, Fifth Circuit, No. 02-C-819.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Korry Dion KING.
    No. 2002-KK-3115.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re King, Korry Dion; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 259960; to the Court of Appeal, Third Circuit, No. KW 02-01111.

Denied.


text:
    STATE of Louisiana v. Desmond ROBINSON.
    No. 2003-KK-0325.
    Supreme Court of Louisiana.
    Feb. 21, 2003.
   In re Robinson, Desmond; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 416-358; to the Court of Appeal, Fourth Circuit, No. 2002-K-2167.

Denied.


author: ^WALTER I. LANIER, JR, J. | FITZSIMMONS, Judge,

text:
    William SWANSON v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 2001 CA 1066.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2002.
    Benn Hamilton, Baton Rouge, Counsel for Plaintiff/Appellee William Swanson.
    Debra A. Rutledge, Baton Rouge, Counsel for Defendants/Appellants The Louisiana Department of Public Safety and Corrections and Washington Correctional Institute.
    Before: CARTER, C.J., FOIL, FITZSIMMONS, DOWNING, and LANIER
      , J.J.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeals, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   ^WALTER I. LANIER, JR, J.

This is an action for injunctive relief brought by a prisoner, William Swanson, in the custody of the Louisiana Department of Public Safety and Corrections (DPSC). In his petition, the plaintiff asserts this action is being brought pursuant to the Prison Litigation Reform Act (PLRA), La. R.S. 15:1181 et seq. The plaintiff prays for a temporary restraining order (TRO), a preliminary injunction and a permanent injunction prohibiting DPSC from (a) keeping him in extended lock-down, (2) tampering with his medication, food supply or urinalysis results, and (3) refusing to grant him a geographical and medical transfer to Hunt’s Correctional Center. The trial court judge issued a TRO prohibiting DPSC from tampering with plaintiffs medication, food supply or urinalysis results. At the hearing for the preliminary injunction on February 8, 2001, the trial court judge stated the following:

The original request for the TRO and request for injunction included other items, included prohibiting the department from keeping Mr. Swanson in extended lockdown and asking that the department be ordered to transfer him to a different facility. I had struck those portions of the TRO under the understanding that those are subject to the administrative revieiv process that has been in place for a number of years for all adult inmates in the custody of the Department of Corrections. (Emphasis Added.)

The trial court then took evidence on whether a preliminary injunction should be issued on the tampering claims. After the taking of evidence was concluded, the trial court judge gave the following pertinent reasons for judgment:

The test for a granting of a preliminary injunction is whether the petitioner has made out a prima facias [sic] case that they could prevail on the merits, not that they’ve actually proved their entire case on the merits. In this case, Mr. Swanson has complaints about what he contends are problems that he has received or that he has experienced at the prison. There has been limited proof of any tampering, but clearly Mr. Swanson believes there has been tampering of his medication, his food supply and his urinalysis results.
* * *
There have been no allegations and no proof here of any infringement on the constitutional rights. You may not like the way things are done, but they have the right to do it. That being said, I think there is no harm that could come to anyone by the issuance of an injunction in this case. All that is being-asked is that the institution not tamper with his medication, his food supply or his urinalysis results. As indicated, I don’t believe — though there has been perhaps a prima facie case, I personally am not convinced there has been any tampering but again, I see no harm to come from the granting of this injunction and since it may help to alleviate what has become a difficult situation for both sides in this matter, I am going to grant the injunction prohibiting the department from tampering | ¡¡with the medication, food supply or urinalysis results of inmate William Swanson. (Emphasis added.)
DPSC took this devolutive appeal.

SUBJECT MATTER JURISDICTION

La. R.S. 15:1184 A(2) of the PLRA provided as follows:

No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice. However, the prisoner shall be prohibited from filing any subsequent suits in forma pauperis based on the same claim or claims. (Emphasis added.)

Administrative remedies are available for prisoners pursuant to the Corrections Administrative Remedy Procedure law (CARP), La. R.S. 15:1171 et seq. Pursuant to La. R.S. 15:1171B “all claims seeking ... injunctive ... relief’ are covered by CARP and “[s]uch administrative procedures, when promulgated, shall provide the exclusive remedy available to the offender for complaints or grievances governed thereby insofar as federal law allows.” La. R.S. 15:1172B provides as follows:

No state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative remedy procedure ' unless and until the offender shall have exhausted the remedies as provided in said procedure. If the offender has failed timely to pursue administrative remedies through this procedure, any petition he files shall be dismissed. If at the time the petition is filed the administrative remedy process has not yet been completed, the court shall stay the proceedings for ninety days to allow for completion of the procedure and exhaustion of the remedies thereunder. (Emphasis added.)

La. R.S. 15:1177 A(3) and A(5) and D provide as follows:

(3) Within thirty days after service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs related thereto. The court may require or permit subsequent corrections or additions to the record.
(5) The review shall be conducted by the court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level. In cases of alleged irregularities in procedure before the agency, proof thereon may be taken in the court.
|4P. This Section shall provide the exclusive procedure and standard for review for all offenders as defined seeking review under this Part.

In Robinson v. Parole & Probation, Department of Public Safety & Corrections, 2000-1574, p. 3 (LaApp. 1 Cir. 9/28/01), 819 So.2d 1031, 1032-33 appears the following:

As in any case before this court, the first issue to be considered is whether the case is properly before the court and whether there is a basis for jurisdiction. Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. C.C.P. art. 1; Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 99-0863 (La.App. 1 Cir. 12/20/00), 774 So.2d 1193, 1196 (on rehearing en banc), writ granted, 2001-0185 (La.6/1/01), 793 So.2d 188. It is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Id. at 1197. In this case, the commissioner and the trial court did not have jurisdiction over Mr. Robinson’s claim because he failed to exhaust administrative remedies available to him under the Corrections Administrative ' Remedy Procedure (CARP), La. R.S. 15:1171 et seq., prior to filing this application for a writ of habeas corpus in the district court.

Pursuant to CARP, the DPSC adopted an administrative remedy procedure for receiving, hearing and disposing of any and all complaints and grievances by offenders against the State which arise while an offender is within the custody or under the supervision of the DPSC. As previously indicated, injunctive relief is such a claim. La. R.S. 15:1171 B. The administrative procedures in CARP provide the exclusive remedy available to offenders for preserving this cause of action against DPSC. La. R.S. 15:1171(B); La. R.S. 15:1172 B; La. R.S. 15:1172 A; see also King v. State, Department of Public Safety and Corrections, 98-2910 (La.App. 1 Cir. 2/18/00), 754 So.2d 1119, 1121. Concomitantly, no state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative remedy procedure unless and until the offender shall have exhausted the remedies as provided in said procedure. La. R.S. 15:1172 B; Id. If the offender has failed to timely pursue administrative remedies through this procedure, any petition he files shall be dismissed. La. R.S. 15:1172 B and 15:1184 A(2).

In paragraphs 11 and 23 of his petition, Swanson indicates that he has complied with La. R.S. 15:1171. However, the record before us does not reflect that he did. | .Although it is required by La. R.S. 15:1177A(3) and (5), there is no record of a CARP administrative proceeding in the record before us.

Pursuant to La. R.S. 15:1171 B, claims for injunctive relief must go through a CARP administrative proceeding before any further action is taken. Pursuant to La. R.S. 15:1184 A(2), relief under PLRA is not available “until such administrative remedies as are available are exhausted.”

Pursuant to the authority of La. C.C.P. art. 2132, we ordered the trial court judge to cause the record on appeal to be supplemented with the CARP administrative record, or file reasons stating why he was unable to do so. The trial court has advised that there is no CARP record.

Because the above described administrative remedies provide the exclusive remedy available to an offender for complaints or grievances, Swanson’s application for injunctive relief in the district court should have been processed through administrative channels before being reviewed by the commissioner and trial court at the Nineteenth Judicial District Court. Thus, the district court did not have subject matter jurisdiction over Swanson’s claim and its judgment is void. La. C.C.P. art. 3; State v. L.B., 95-2116 (La.App. 1 Cir. 5/30/96), 676 So.2d 179, 181; Boeing Company v. Louisiana Department of Economic Development, 94-0971 (La.App. 1 Cir. 6/23/95), 657 So.2d 652, 659. For these same reasons, this court does not have subject matter jurisdiction to hear this case.

Pursuant to the .authority of La. R.S. 15:1172 B and 15:1184 A(2), the petition for injunctive relief filed by Swanson is dismissed without prejudice.

DECREE

For the foregoing reasons, the judgment of the trial court granting a preliminary injunction in favor of Swanson against DPSC is vacated and judgment is rendered in favor of DPSC and against Swanson dismissing his petition without prejudice. Swanson is cast for all costs.

JUDGMENT VACATED; PETITION DISMISSED.

FITZSIMMONS, J„ dissents and assigns reasons.

| FITZSIMMONS, Judge,

dissenting with reasons.

I respectfully dissent from the opinion of the majority. I would affirm the decision of the trial court.

With respect to the analysis in this court’s opinion relative to its dismissal of the claim, the procedure employed by the court to have the record supplemented raises serious concerns. I submit that the case should have been remanded to the trial court for its receipt and consideration of applicable agency records dealing with any administrative remedy request(s) by defendant involving tampering with his medication, food supply or urinalysis re-suits. Louisiana Code of Civil Procedure article 2164 provides for such a remand for the introduction of additional evidence if grave injustice might result from failure to do so. MMR-Radon Constructors, Inc. v. Continental Insurance Company, 97-0159, p. 5 (La.App. 1 Cir. 3/3/98), 714 So.2d 1, 4, writ denied, 98-1485 (La.9/4/98), 721 So.2d 915.

Pursuant to La. C.C.P. art. 2088, the jurisdiction of the trial court had been divested when that of the appellate court attached. Armand v. State, Department of Health and Human Resources, 97-2958, p. 22 (La.App. 1 Cir. 2/23/99), 729 So.2d 1085, 1095, unit denied, 99-0842 (La.5/14/99), 741 So.2d 661. Thus, this court is prohibited from supplementing the record on appeal with evidence. Such action would constitute the taking of evidence and the exercise of original jurisdiction in a matter in which this court is not vested with authority. MMR-Radon Constructors, Inc., 97-0159, 714 So.2d at 4.

Lin the instant matter, however, instead of remanding the matter for the receipt of evidence, it appears that this court retained jurisdiction while it perfunctorily ordered the Nineteenth Judicial District Court to obtain what presents to be an ex parte supplementation of the record from the Department of Corrections. The trial court, thereafter, communicated with the. Department of Corrections, resulting in the trial court’s receipt of a statement regarding the issue of administrative proceedings from the Department of Corrections purportedly submitted on its behalf by “Debbie Rutledge.” Finally, and respectfully, in addition to the violations of the procedural requisites regarding the introduction of evidence and jurisdiction of a court, the transmittal does not even indicate whether the plaintiff was ever properly notified of the court’s request regarding the existence of a requisite administrative hearing. Thus, in my opinion the record has never validly been supplemented, and the action taken by this court exceeded the parameters of its review.

      . At a minimum, it would have been appropriate to remand it to the trial court to allow the court its discretionary right to “order that additional evidence be taken before the agency upon conditions determined by the court." La. R.S. 15: 1177 A(4).


author: | .DOWNING, J. |, FITZSIMMONS, Judge,

text:
    Mervin H. WAMPOLD, D.D.S. v. Roland FISHER, Modern Valve, Inc., Commercial Union Insurance and the Paul Revere Life Insurance Company.
    No. 2001 CA 0808.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 2002.

      Thomas R. Pittenger, Baton Rouge, for Plaintiff/Appellee Mervin Wampold, D.D.S.
    Richard E. McCormack, New Orleans, for Defendant/Appellant The Paul Revere Life Insurance Company.
    Brenda Lavergne, Lafayette, for Defendants/Appellees Roland Fisher, Modern Valve, Inc.
    Before: FITZSIMMONS, DOWNING and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .DOWNING, J.

This is an appeal of a judgment on a rule to set expert witness fees and court costs that were taxed as costs against defendant/appellant, The Paul Revere Life Insurance Company (Revere). Dr. Mervin H. Wampold filed this rule after a favorable jury decision awarding him disability benefits.

The following are the disputed expert witness fees:

(1) Dr. Steven Bailey, plaintiffs treating neurosurgeon $9,600
(2) Dr. Gray Barrow, plaintiffs treating physician $3,000
(3) Joe Tidwell, plaintiffs treating physical therapist $1,500

Revere’s sole assignment of error in this appeal alleges that the trial court abused its discretion in awarding expert witness fees to Dr. Wampold as reimbursement for prosecution of his disability claim. Revere alleges that Dr. Wampold has adduced no evidence to support these fees, which are unreasonable and should be reduced. Revere claims that Dr. Wampold did not submit any evidence of the witness’ time or expenses in connection with their trial testimony, either at trial or at the hearing to tax costs. Revere claims that the fees in this case are excessive and are not supported by the record or the law.

The specific question presented is what evidence must a litigant introduce on a contradictory rule to fix and tax expert witness fees under LSA-R.S. 13:3666 B(2). A trial court judge may fix an expert witness fee solely on the basis of what the court has observed or experienced concerning the expert’s time and testimony in the courtroom or in deposition under LSA-R.S. 13:3666 B(l). This article contemplates that “the testimony of the expert relative to his time rendered and the costs of his services” may be adduced outside the presence of the jury. The court then determines the amount of the fee. Allen v. Roadway Exp., Inc., 31,628, pp. 4-5(La.App. ^Cir 2/24/99), 728 So.2d 1015, 1017. If a rule under LSA-R.S. 13:3666 B(2) seeks to set the value on the time the expert witness was before the court, that value may be determined by the court on the basis of its observation of and experience with the expert witness at trial, without further proof. However, if the rule seeks to value the total time employed by the expert, for example, time gathering facts necessary for his testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field, then the plaintiff in rule must prove by competent evidence, what service and expertise the expert rendered in addition to that observed by the trial court. See Northwest Ins. Co. v. Borg-Warner Corp., 501 So.2d 1063 (La.App. 2 Cir.1987). Neither B(l) nor B(2) allows the trial court to value the expert’s services performed away from its hearing and observation without competent and admissible evidence. Id. at 1066.

It has been the law for almost a century that the assertion of an attorney and the bill of an expert do not support an award for the total time of an expert. The expert must testify at the trial of the rule and be subject to cross-examination, unless there is some stipulation between the parties. Northwest, 501 So.2d at p. 1065 and cases cited therein. Also see, Davis v. Husquarna Motor, 561 So.2d 847, 855 (La.App. 2 Cir.1990). Although testimony as to the time rendered and the costs of services is required, the trial court is not bound by agreements between a party and the expert witness. Expert witnesses are only entitled to reasonable compensation. Smith v. Roussel, 2000-1672, p. 6 (La.App. 1 Cir 6/22/01), 808 So.2d 726, 731. The fees of an expert may be reduced if expenses were needlessly or excessively incurred. In re Medical Review Panel on

Behalf of Laurent, 94-1661, pp. 16-17 (La.App. 1 Cir. 6/23/95), 657 So.2d 713, 723-724. The |4factors which the trial court may consider in setting a fee are set out in detail in Albin v. Illinois Cent. Gulf R. Co., 607 So.2d 844, 845 (La.App. 1 Cir.1992).

The trial court committed legal error insofar as he based his assessment of expert witness fees on the argument of counsel rather than on his observation of the witnesses. The trial court observed the expert witnesses and is in the best position to determine the usefulness of their testimony.

DECREE

For the foregoing reasons, the judgment of the trial court assessing expert witness fees is reversed and this matter is remanded to the trial court to set expert witness fees, without the taking of additional testimony, based upon the court’s personal observation of the witnesses and the other criteria discussed herein. Costs of this appeal are assessed against appellee.

REVERSED AND REMANDED.

FITZSIMMONS, J., concurs and assigns reasons.

|, FITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result. As is noted in this court’s opinion, an expert witness is only entitled to “reasonable” expenses. See Albin v. Illinois Central Gulf Railroad Company, 607 So.2d 844, 845 (La.App. 1st Cir.1992). Notwithstanding Dr. Bailey’s travel time to Baton Rouge in order to testify, the record does not contain any substantiation of a requirement that he should have been away from his practice for three days, such that it would have warranted the significant expert fee of $9,500.00. Although Dr. Barrow had been scheduled to testify on the previous day and thus had to delay his testimony, there is no demonstration that Dr. Barrow had originally been required to cancel all of his appointments for the entire day in order to appear as a witness. His testimony was relatively brief. Finally, there is no objective support for granting a physical therapist the sum of $1,500.00, absent a particularized demonstration that such a large fee would be warranted. It is against this backdrop that the trial court is directed to assess the expert witness fees.