text:
    The STATE of Florida, Appellant, v. Jorge VELASQUEZ, Appellee.
    No. 3D02-2756.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Charles J. Crist, Jr., Attorney General and Marni A. Bryson and Lucretia A. Pitts, Assistant Attorney Generals, for appellant.
    Bennett H. Brummer, Public Defender and Carlos Gonzalez and Robert Kalter, Assistant Public Defenders, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

The State appeals the trial court’s order reducing a charge of trafficking in cannabis to a charge of possession of cannabis. We reverse. In his motion for rehearing, the appellee, Jorge Velasquez, raises, for the first time, the sole issue of whether an appellate court has jurisdiction to review a trial court’s order reducing a criminal charge. See State v. Richars, 792 So.2d 570 (Fla. 4th DCA 2001). We have ruled that we do have jurisdiction in such cases. State v. Exposito, 854 So.2d 674 (Fla. 3d DCA 2003). We therefore grant the appellee’s motion for rehearing, withdraw our previous opinion of June 30, 2004, and issue this opinion in its stead. In so doing, we certify conflict with the Fourth District’s opinion in Richars.

Jorge Velasquez was charged with one count of trafficking in cannabis after officers recovered 55 cannabis plants, weighing 30 pounds total. Velasquez moved to dismiss, arguing that 300 plants are needed to sustain a trafficking charge. The trial court granted Velasquez’s motion and Velasquez pled guilty to a possession count.

The applicable statute provides, in pertinent part:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree, which felony shall be known as “trafficking in cannabis[J”

§ 893.135(l)(a), Fla. Stat. (2002) (emphasis added). Velasquez argues that the phrase “in excess of 25 pounds of cannabis” refers only to processed cannabis and that unprocessed cannabis plants, though weighing more than 25 pounds, do not meet the statute’s requirements for trafficking unless they reach 300 in number. We disagree. The statutory definition of cannabis does not distinguish between processed and unprocessed cannabis. See § 893.02(3), Fla. Stat. (2001); State v. Castro, 840 So.2d 1121, 1121-22 (Fla. 3d DCA 2003). Therefore, 25 pounds of cannabis is 25 pounds of cannabis, whether it is in processed or unprocessed form. Since Velasquez had 30 pounds of cannabis, albeit in unprocessed form, the trial court erred in reducing the trafficking charge to a possession charge.

Velasquez argues, in the alternative, that section 893.135(l)(a) is unconstitutional because it is derived from chapter 99-188, Laws of Florida, which violates the single subject rule. Velasquez fails to recognize that the 2002 legislature re-enacted section 893.135(l)(a) in chapter 02-212, section 1, at 1454-55, Laws of Florida, which became effective April 29, 2002. See Ch. 02-212, § 5, at 1499; Wright v. State, 869 So.2d 24, 25 (Fla. 2d DCA 2004). Velasquez’s crime was committed May 6, 2002, after the section was re-enacted, so chapter 02-212 governs. Velasquez’s argument regarding chapter 99-188, therefore, is inapplicable.

Accordingly, the trial court order is reversed and the case remanded. Conflict certified.

      . Wrapping materials, commingled soil, and excess water not inherent in the plant’s vegetable matter, however, may not be included in its weight. Cronin v. State, 470 So.2d 802, 804 (Fla. 4th DCA 1985).

      . There is a conflict among districts on this issue. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA) (en banc) rev. granted, Franklin v. State, 854 So.2d 659 (Fla.2003); Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002).

      . The legislature decreased the amount of cannabis necessary for a trafficking charge from 50 pounds to 25 pounds. Ch. 02-212, § 1, at 1454-55, Laws of Fla.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Enrique GONZALEZ, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2708.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Arthur Joel Berger, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Frederica Sands, Assistant Attorney General, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   PER CURIAM.

We affirm the defendant’s convictions. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986); White v. State, 330 So.2d 3 (Fla.1976). This affirmance is without prejudice to defendant raising any ineffective assistance of trial counsel claims in a post-conviction relief motion. We reverse the sentence, however, and remand for a new sentencing proceeding. The general sentence imposed is error. Defendant must be sentenced separately for counts one through four. Brazley v. State, 871 So.2d 986 (Fla. 3d DCA 2004). We also reverse the imposition of discretionary court costs. The record demonstrates that the court did not orally announce the imposition of costs, nor did it consider defendant’s financial resources in its decision to assess costs. Huesca v. State, 841 So.2d 585 (Fla. 2d DCA 2003).

Convictions affirmed; sentence reversed; and cause remanded for further consistent proceedings.


text:
    James RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2658.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

James Russell appeals his conviction and sentence for assault after a jury trial. His sole contention on appeal is that the trial court erroneously denied his peremptory challenge to a prospective juror. We agree and therefore reverse and remand for a new trial.

During voir dire, a Hispanic, female ven-ireperson told the court that her ex-husband had served nine years in prison on federal charges for conspiracy to traffic in drugs and evade taxes. When asked if she harbored any resentment against law enforcement based upon her ex-husband’s experience, she said, “No, I don’t .... my brother is a sergeant and he has been a police officer for over ten years. So I have had to keep a happy medium in my family with my ex-husband being in his situation incarcerated and my brother being in law enforcement.”

The defense moved to peremptorily strike this juror. The State challenged the motion, noting that the juror, as a Hispanic woman, was a member of a protected class. The judge asked defense counsel to state his reason for the strike. The attorney replied that it was based on “pure gut.” The judge rejected this justification as a race-neutral reason and gave defense counsel still another opportunity to provide a race-neutral, gender-neutral reason for the strike. Defense counsel then stated that the juror might be pro-state because her brother is a law enforcement officer. The judge found this not to be a race- or gender-neutral reason and denied the peremptory challenge. The trial court accordingly declined to make a finding as to the genuineness of this proffered reason. The juror in question served on the jury which ultimately found Russell guilty of assault. This appeal followed.

In Melbourne v. State, 679 So.2d 759 (Fla.1996), the Florida Supreme Court set forth a three-step process for a trial court’s determination of whether a proposed peremptory challenge is being used in a discriminatory manner. Id. at 764-65. First, the party objecting to the peremptory challenge on racial, ethnic or gender grounds must make a timely objection on that basis, show that the venireperson is a member of a protected class, and request that the court ask the striking party its reason for the strike. Id. at 764.

Second, the proponent of the strike must give a race-neutral reason for the strike. Id. The reason must also be gender neutral. Abshire v. State, 642 So.2d 542, 544 (Fla.1994). If the explanation is not facially gender neutral and race neutral, the inquiry ends and the strike is denied. Melbourne, 679 So.2d at 764 n. 7.

If, however, the attorney gives a facially race-neutral reason, the court must move to the third step, which requires the judge’s assessment of whether the proffered reason is genuine or pretextual. See id. at 764. The Florida Supreme Court has stressed that the burden of persuasion throughout this process remains on the opponent of the strike to prove purposeful discrimination and that peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Id.

Here, it is uncontested that the State met the requirements of the first step by timely objecting to the strike, indicating the venireperson’s membership in a protected class, and requesting that the defense give a race-neutral reason for the strike.

It was then up to the defense counsel to provide a race-neutral rationale for the strike. He accomplished this by noting that the prospective juror had a relative on a police force — a reason that has been repeatedly found to be a valid, race neutral and gender neutral reason for a peremptory strike. See, e.g., Rojas v. State, 790 So.2d 1219, 1221 (Fla. 3d DCA 2001); Czaja v. State, 674 So.2d 176, 177 (Fla. 2d DCA 1996); Alexander v. State, 643 So.2d 1151, 1152 (Fla. 3d DCA 1994). Thus, the judge’s failure to accept this as a facially neutral reason for the strike was erroneous as a matter of law. See Anderson v. State, 750 So.2d 741, 743 (Fla. 3d DCA 2000)(stating that appellate courts look only to the facial neutrality of the reason in reviewing step 2). This error was then compounded by the court’s explicit refusal to move to step 3 of the Melbourne analysis and assess the genuineness of the proffered reason. Where a judge incorrectly rejects a facially race-neutral reason for striking a juror and then fails to inquire into the genuineness of the reason, the courts have found this to be per se reversible error. Anderson, 750 So.2d at 744; Washington v. State, 773 So.2d 1202, 1204 (Fla. 3d DCA 2000); see also Gilliam v. State, 514 So.2d 1098, 1099 (Fla.1987); Rogers v. State, 844 So.2d 728, 736-37 (Fla. 5 th DCA 2003); Austing v. State, 804 So.2d 603, 604-05 (Fla. 5th DCA 2002). We therefore reverse Russell’s conviction and sentence and remand for a new trial.

Reversed.

      . This required that the defense counsel give a race-néutral, gender-neutral reason for striking the juror and, if counsel met this requirement, that the trial court determine whether counsel's reason was genuine or merely pretextual. See Melbourne v. State, 679 So.2d 759 (Fla.1996).

      . Specifically, the judge stated: "We can’t get to [part three of the Melbourne analysis], unless we pass [part two]. [Part two] is there has to be a race, ethnic, or gender neutral reason.... The reasons you gave me so far do not meet the standard of a race, ethnic or gender neutral reason based upon the answers she's given here. They just don't. So what we're going to have to do is deny your peremptory challenge....”

      . A race-neutral reason is simply one that is not based on race. Washington v. State, 773 So.2d 1202, 1203 (Fla. 3d DCA 2000).


text:
    Romaine REATH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3008.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.

      Gonzalez Walsh, and Lisa Walsh, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Reeder v. State, 399 So.2d 445 (Fla. 5th DCA 1981).


text:
    Adolfo A. MONTANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2794.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Bennett H. Brummer, Public Defender, and Mark Graham Hanson, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. The evidence was sufficient to support a conviction of conspiracy to traffic in cocaine where appellant Adolfo A. Montano drove to two different meeting places with the co-defendant. Montano drove the co-defendant to the first meeting place, where the co-defendant agreed to purchase cocaine and was provided with a sample. Montano again drove the co-defendant to the second meeting place and left, evidently to retrieve the money for the purchase. Upon his return, Montano was introduced to the undercover officer who was posing as the seller. When the officer asked Montano whether he had the money, Montano nodded and pointed out an envelope in the back seat of his car. The officer went to the trunk of his car to retrieve the drugs and gave the signal to the other officers to make the arrest. After his arrest, Montano admitted that he acted as a broker, worked with the co-defendant, and intended to share a $500 commission with the co-defendant. “[T]he crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of this crime.” See Velunza v. State, 504 So.2d 780, 782 (Fla. 3d DCA 1987). We are convinced that the State proved a conspiracy to traffic in cocaine through the acts of both Montano and the co-defendant and the admissions of Montano.


author: GREEN, J.

text:
    BAL HARBOUR VILLAGE, Appellant, v. William WELSH, Appellee.
    No. 3D03-3188.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.

      Weiss, Serota, Helfman, Pastoriza, Gue-des, Cole Boniske, P.A. and Edward D. Guedes, Miami, for appellant.
    Marcy I. Lahart, for appellee.
    Before GERSTEN, GREEN and SHEPHERD, JJ.
   GREEN, J.

Appellant, Bal Harbour Village (the “Village”), an incorporated municipality in Miami-Dade County, Florida, enacted an ordinance (“Ordinance”) on June 19, 2001 that limited the number of dogs a homeowner or commercial property owner may maintain. Specifically, the Ordinance provides that “[n]o Responsible Party shall keep more than a total of two (2) dogs and/or four (4) puppies at any household in the Village or any commercial property.” Village Code, § 5-7(c)(l). According to the record evidence, the Village enacted this ordinance in response to a rash of problems involving dogs within the Village, namely, dogs roaming around unleashed, documented dog bites, excessive barking and the failure of owners to clean up after their pets. At the time that the Ordinance was enacted, appellee William Welsh, a resident of the Village, already owned and housed four dogs, three rottweilers and a mixed-breed.

After the enactment of the Ordinance, the Village sought to enforce it against Welsh by citing him for repeated violations on January 15, 2002, March 28, 2002 and April 4, 2002. Despite these citations and other unsuccessful attempts to issue further citations by the Village, Welsh refused to restrict the number of dogs in his household to two.

The Village then filed the action below which sought the entry of temporary and permanent injunctive relief restraining Welsh from owning and harboring more than two dogs at his residence and for the payment of all outstanding fines and administrative costs associated with Welsh’s violation of the Ordinance. The trial judge initially assigned to this case entered a temporary injunction against Welsh restricting the manner in which Welsh could maintain his dogs, but did not require Welsh to limit the number of dogs to two.

The case was then reassigned to a different trial judge and the parties filed cross-motions for summary judgment given the absence of disputed issues of material fact. At the final hearing, Welsh stipulated that the Ordinance was lawfully enacted pursuant to the Village’s police power and did not contest the reasonable basis for the same. He nevertheless argued that the Ordinance could not be enforced against Village residents who owned more than two dogs prior to its enactment. The trial court agreed and entered a final judgment which, among other things, denied the Village’s request for permanent injunctive relief. This appeal followed.

At issue on this appeal is whether the Ordinance, duly enacted pursuant to the Village’s police power to abate a nuisance, may be constitutionally enforced against a Village resident who owned and housed more dogs than the established limit, prior to the enactment of the Ordinance. We conclude that it can and reverse the final summary judgment to the contrary.

The legislature has broad discretion to declare a particular activity to be a public nuisance and enact legislation to abate the same in the exercise of its police power. As the Florida Supreme Court has recognized:

A public nuisance violates public rights, subverts public order, decency or morals, or causes inconvenience or damage to the public generally. The Legislature has broad discretion to designate a particular activity to be a public nuisance. In the exercise of its police power the State has authority to prevent or abate nuisances, for police power is the sovereign right of the State to enact laws for the protection of lives, health, morals, comfort and general welfare.

Thompson v. State, 392 So.2d 1317, 1318 (Fla.1981).

In order to pass constitutional muster, however, all laws or ordinances enacted pursuant to the exercise of such police power must be reasonable and not arbitrary. See Knowles v. Cent. Allapattae Props., Inc., 145 Fla. 123, 198 So. 819, 823 (1940) (“The validity of a police regulation therefore depends on whether, under all circumstances, the regulation is reasonable or arbitrary and whether it is reasonably designed to accomplish a purpose falling within the scope of the police regulation.”); Gates v. Sanford, 566 So.2d 47, 49 (Fla. 5th DCA 1990) (“Ordinances enacted pursuant to general police powers must not infringe constitutional guarantees by invading personal or property rights unnecessarily or unreasonably or by denying due process or equal protection of laws.”).

The government’s regulation of animals pursuant to its police powers enjoys a long-standing history of surviving constitutional challenges. See id.; State v. Peters, 534 So.2d at 760, 765 (Fla. 3d DCA 1988). In particular, with regard to dogs, the United States Supreme Court observed over a century ago that damages attributable to dogs “are usually such as are beyond the reach of judicial process, and legislation of a drastic nature is necessary to protect persons and property from destruction and annoyance.” The Court stated that dogs are

subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens. That a state, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be which has for its object the welfare and comfort of the citizen.

Id. at 765.

On this appeal, Welsh does not challenge the Village’s authority to enact the subject Ordinances pursuant to its broad police power. Nor does he challenge the Village’s legislative findings that the ownership of more than two dogs per household constitutes a detriment to the public welfare. What Welsh does take exception to is the Village’s constitutional right to have this Ordinance enforced against him where he lawfully owned and housed more than two dogs prior to the Ordinance’s enactment.

Preliminarily, Welsh argues that the Village is prohibited from enforcing the Ordinance against him by virtue of the Village Code, section 1-7, entitled “Code does not affect prior offenses, rights.” This section states that:

[n]othing in this Code or the ordinances adopting this Code shall affect any offense or act committed or done, or any penalty or forfeiture incurred, or any contract or right established or accruing before the effective date of this Code.” (emphasis added).

Welsh therefore reasons that because there was no limitation on the number of pets a Village resident could own prior to the enactment of the Ordinance, the plain language of section 1-7 prevents the Village from enforcing the Ordinance against dog owners in the Village who lawfully owned more than two dogs when the Ordinance was enacted. This argument, however, was never advanced to the trial court and, as such, has been waived for purposes of appeal. See Bill Seidle Aircraft Sales & Servs., Inc. v. Bellomy, 782 So.2d 449 (Fla. 3d DCA 2001) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) and Wildwood Props., Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691, 692 (Fla. 4th DCA 1993)).

Even if this argument wasn’t foreclosed on this appeal, it would afford Welsh no relief. That is because Section 1-7 states only that rights established pri- or to the enactment of the Village Code cannot be abrogated by the Code’s adoption. If, as the Village suggests, we were to take judicial notice of the fact that the Village was incorporated in 1946 and its charter and Code were enacted in 1947, Welsh would be entitled to no relief since he most certainly did not own his dogs 57 years ago. He therefore had no established property rights to his dogs prior to the adoption of the Village code. We therefore turn our attention to Welsh’s constitutional argument.

Welsh argues that ordinances or laws which take away existing rights are substantive rather than procedural in nature and cannot be applied retroactively. See Serna v. Milanese, Inc., 643 So.2d 36, 38 (Fla. 3d DCA 1994); Winston Towers 200 Ass’n, Inc. v. Saverio, 360 So.2d 470 (Fla. 3d DCA 1978). Although this is a correct statement of law, we conclude that it is inapplicable in the context of legislation enacted pursuant to a government’s police power for the health and welfare of the general populace to abate a nuisance. Indeed, the cases relied upon by Welsh were not even decided in this context. See Serna v. Milanese, 643 So.2d at 37 (considering whether section 673.4021, Florida Statutes (1993), which absolved corporate officers from liability for signing corporate checks, could be retroactively applied), Serna v. Arde Apparel, Inc., 657 So.2d 966 (Fla. 3d DCA 1995) (same); Winston Towers, 360 So.2d at 470-71 (finding amendment to private condominium association’s bylaws banning all pets, including any pet acquired as a replacement of a prior pet not registered as of a date one year prior to amendment, to be void as an attempt to impose a retroactive regulation). For this reason, Welsh’s reliance upon these decisions is misplaced.

In Knowles v. Central Allapattae Properties, the Florida Supreme Court expressly reaffirmed the principle that although constitutional rights may not be transgressed by the sovereign, the possession and enjoyment of all rights are subject to the paramount police power of the state to do that which is necessary to secure the comfort, health, welfare, safety, and prosperity of the people:

It is a well settled rule that all property is held subject to the right of the State to regulate it under the police power in order to secure safety, public welfare, health, peace, public convenience and general prosperity. The rule is based upon the concept that all property is held on the implied condition or obligation that its use shall not be injurious to the equal rights of others to the use and benefits of their own property. The public interest is paramount to property rights. The right of the State to regulate a business which may become unlawful is a continuing one, and a business lawful today may, in the future, because of changed conditions, the growth of population, or other causes, become a menace to the safety and public welfare, and the continuance thereof must yield to the public good.

Knowles, 198 So. at 823 (citations omitted). Thus, the court upheld a permanent injunction enjoining the operation of a veterinary hospital adjacent to a residential subdivision, which had been declared a nuisance by virtue of the continuous barking of the dogs and odors from the kennels, even though this business had been fully established prior to the development of the residential community. The fact that this business had been constructed and operated prior to the construction of the plaintiffs’ homes near the same was found not to be a defense to this action. Id. at 822-24.

Similarly, in this case, we conclude that Welsh’s ownership of more than two dogs prior to the enactment of the Ordinance is not a defense to the Village’s enforcement of the same against him to abate a nuisance in the Village. His rights to his dogs must yield to the Village’s need to curb and correct the problems associated with multiple dog ownership within the Village. We therefore reverse the order under review and remand with directions that a permanent injunction be entered against Welsh enjoining him from continuing to own and house more than two dogs in his household in the Village.

Reversed and remanded with directions.


text:
    Richard REYES, Petitioner, v. Charles McCRAY, Director, Dade Co. Dept. of Corr., Respondent.
    No. 3D04-806.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Juan De Jesus Gonzalez, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and COBB, WARREN H., Senior Judge.
   PER CURIAM.

This case comes before us on the petition of Richard Reyes for a writ of habeas corpus. We have jurisdiction. Art. V, § 4(b)(3), Fla. Const.

On January 6, 2004, the Petitioner, Richard Reyes, was arrested on one count of unlawful cultivation of marijuana and one count of unlawful possession of marijuana, both in violation of § 893.13, Fla. Stat. (2003). Petitioner was released on bond. On January 27, 2004, Reyes appeared without counsel for arraignment. At the arraignment, before petitioner was given the opportunity to enter a formal plea, the court sua sponte ordered Reyes to submit to an immediate drug test with the stern warning, “You better be clean.” Reyes tested positive for cocaine and was taken into custody. On February 4, 2004, Reyes appeared with counsel at a second arraignment. Petitioner’s counsel moved the court to either reinstate the original bond or impose a new bond with new conditions. The court refused noting that Reyes committed a new offense by testing positive for drugs the week before. Thereafter, Petitioner’s counsel lodged a petition for writ of habeas corpus with this court on the above facts. We grant the petition.

The State argues that the language of the bail contract signed by Petitioner in this ease which requires that he “shall submit to orders and process of said Court and not depart from same without leave .... ” provides the authorization necessary for the sua sponte drug testing of the accused in this case. We disagree. The record reflects that at no time prior to or during the January 27 hearing was the Defendant charged with violating a court order or court decorum. Nor is there any evidence or findings by the trial court that the Defendant was in any way impaired at the hearing. As we read this condition of the bail bond contract, the Defendant must simply comply with orders relating to the proceeding at hand. The provision does not authorize a trial judge to become a prosecutor, issuing orders without any cause whatsoever, not to mention probable cause.

In a perversion of logic, the State also seeks to justify the trial court’s action by reference to § 903.0471, Fla. Stat. (2000), which reads:

Notwithstanding § 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.

However, probable cause did not exist to take Petitioner into custody at the January 27 hearing. And, of course, it would be a violation of due process to manufacture it after the fact. See, e.g., Times Publ’g Co. v. Burke, 375 So.2d 297, 299 (Fla. 2d DCA 1979) (after the fact determination that First Amendment protection was unavailable did not suffice to afford reporter due process when reporter was called to testify regarding investigation without notice or subpoena). Furthermore, if, as it appears may be the case from the State’s briefing, the State seeks to justify the trial court’s action on the grounds of drug-related or other criminal activity that preceded the instant incident, that likewise fails constitutional muster. See State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989) (application for search warrant that included a recitation of past criminal history insufficient). Indeed, the Petitioner’s past conduct should have been and presumably was considered when he was first released on bond. Fla. R.Crim. P. 3.131(b)(3); Harp v. Hinckley, 410 So.2d 619, 624 (Fla. 4th DCA 1982).

We make no comment here on the rights or obligations of the trial judge had some ongoing criminal activity been evident from Petitioner’s conduct at the hearing. Nevertheless, for the reasons explained in this opinion, we grant the petition for writ of habeas corpus, and direct that the detention based upon the sua sponte drug test ordered by the trial court be vacated.


author: PER CURIAM. SHEPHERD, J.

text:
    RIVERLAND AND INDIAN SUN L.C., Appellant, v. L.J. MELODY & COMPANY, Appellee.
    No. 3D03-3325.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Hogan & Hartson L.L.P., and Mark R. Cheskin, Richard C. Lorenzo, and Brian L. Lerner, for appellant.
    Aragon, Burlington, Weil, Schwiep, Kap-lan & Blonsky, P.A., and Ronald P. Weil and Christopher N. Dawson, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and BARKDULL, THOMAS H„ JR., Senior Judge.
   PER CURIAM.

This controversy arises out of a real estate brokerage agreement, which created a trust “res” from a portion of the purchase funds in favor of the broker at the time of closing.

The contract reads in part:

3) In the event the Owner closes a sale of the Property in accordance with the terms herein, then it shall pay to the Broker a fee.... All fees will be paid by wire transfer out of sale proceeds by the closing as a line item on the closing statement.

When it became apparent to the broker that the purchase and sales transaction was going to be closed without notice to it and, allegedly, contrary to the terms of the brokerage agreement, it sought and obtained a temporary injunction without notice due to lack of time, freezing the amount of the commission by the impressment of a constructive trust pending further order of the court.

Seller has appealed, urging an abuse of discretion in the entry of a temporary injunction. We disagree. The brokerage agreement identified a particular fund to be set aside at the closing for the broker’s benefit. Only in the event the transaction closed was the broker to receive funds, and then only from proceeds paid by the purchaser. The broker was clearly a named beneficiary of a particular fund and, therefore, a constructive trust was alleged and the temporary injunction was proper. See Vargas v. Vargas, 771 So.2d 594 (Fla. 3d DCA 2000); Wise v. Schmidek, 649 So.2d 336 (Fla. 3d DCA 1995); Korn v. Ambassador Homes, Inc., 546 So.2d 756 (Fla. 3d DCA 1989); Campbell v. Pace, 369 So.2d 413 (Fla. 3d DCA 1979).

We therefore affirm the order under review.

Affirmed.

RAMIREZ, J„ and BARKDULL, THOMAS H., JR., Senior Judge, concur.

SHEPHERD, J.

(dissenting).

I respectfully dissent.

The temporary injunction was entered in this case prior to the time the transaction closed. Even though it may be desirable to order that the disputed monies be set aside pending the outcome of litigation, the law does not permit such a result, and such a result could raise issues of constitutional dimensions. However, the latter question does not need to be reached in this case.

This dispute arises out of a common, ordinary, commercial real estate transaction in which the appellee-broker, L.J. Melody, claims it is due a fee at closing. Had the appellee-broker been just modestly more energetic about attempting to provide notice to the defendants prior to the entry of the injunction, the record concerning the particulars of the dispute may have been better known to us, but the fact of a genuine dispute is sufficient for our purposes. As is conceded by it, however, appellee-broker here seeks to impose a constructive trust upon moneys “to be wired” to an “account to be established” at the time of a real estate closing. As such, there was no “res” in existence upon which to impose a constructive trust. See, e.g., Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000) (“A constructive trust may be imposed only where the trust res is specific and identifiable property, or can be clearly traced in assets of the defendant.”) (citations omitted); Brown v. Hanger, 368 So.2d 63, 65 (Fla. 3d DCA 1979) (denying injunction for failure to state a “res”.); 76 Am.Jur.2d Trusts 47 (2003) (“In other words, a basic requirement for the creation of a valid trust is the existence, at the time of the creation of the trust, of trust property or subject matter — that is, the existence of a trust “res” consisting of property actually in existence, and in which the trustor has a transferable title or interest. A trust without a res is impossible.”) (footnotes omitted). This is a case in which close is not good enough, and with good reason — else jilted brokers could, as the case here, henceforth enlist the power of the state judiciary to disrupt ex parte all manner of commercial business transactions. Nor, I should note, is there any evidence here that the defendant was planning to secrete assets from the jurisdiction of the court. Cf. Vargas v. Vargas, 771 So.2d at 596 (enjoining the disposition of identifiable assets during pendency of action for breach of fiduciary duty and conversion where evidence showed a likelihood that they “would no longer be available ...” at the conclusion of the litigation without court intervention). In the end, I am of the view that this case is no different than the numerous other broker commission cases in which this court has denied an injunction because an adequate remedy at law existed. E.g., Airport Executive Towers v. CIG Realty, Inc., 716 So.2d 311, 312 (Fla. 3d DCA 1998); Konover Realty Assoc. v. Mladen, 511 So.2d 705, 706 (Fla. 3d DCA 1987).

Finally, procedural due process required L.J. Melody do more than it did to advise the defendants of the pending legal action. The verified complaint in this case was filed by the broker at 11:58 a.m. The letter to the defendants faxed just four minutes earlier advised that because there had been no response to prior efforts to contact them, the broker was “left with no recourse other than to seek immediate intervention by the courts.” While that is a pretty ominous warning, the fact of the matter is that the broker’s counsel was at the courthouse at the moment the letter was faxed, looking for an emergency judge. However unpleasant it may have been for the parties at the time, the broker had a legal and professional obligation to advise opposing counsel that it was in the process of seeking an emergency hearing and invite appellants to join them if they so desired. See State Dept. of Transp. v. Plunske, 267 So.2d 337, 338 (Fla. 4th DCA 1972) (“It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by [court] order ...” quoting from Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205 (Fla.1939)); City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660, 663 (Fla. 5th DCA 2001) (“[N]otice encompasses a reasonable opportunity to prepare and offer evidence.”); Fla. R. Civ. P. 1.610(a)(1)(b) (requiring “the movant’s attorney [to] cer-tif[y] in writing any efforts that have been made to give notice and the reasons why notice should not be required”). Lawyers are trained in the art of precise communication. If the defendants had ignored such a precise warning, they would have done so at their peril.

As a general rule, trial courts are granted broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court will not disturb the trial court’s decision. Sanchez v. Solomon, 508 So.2d 1264, 1265 (Fla. 3rd DCA 1987). However, it is axiomatic that temporary injunctions are not favored where there is an adequate remedy at law, City of Miami Springs v. Steffen, 423 So.2d 930, 931 (Fla. 3d DCA 1982), and collectibility per se is not determinative of the issue. Lopez-Ortiz v. Centrust Savings Bank, 546 So.2d 1126, 1127 (Fla. 3d DCA 1989) (“The test for unavailability of an adequate remedy at law ... is whether a judgment can be obtained, not whether it will be collectible.”). My belief is that the appellee has not satisfied the requirements for the entry of a temporary injunction in this case.

For the foregoing reasons, I would reverse the order on appeal.

      . The appellant abandoned its Motion to Dissolve, but succeeded with a motion to increase the injunction bond.

      . Rosenberg v. Rosenberg, 511 So.2d 593 n. 3 (Fla. 3d DCA 1987) (record on appeal is limited to the evidence before the trial court when it entered the contested order). See also Hotel-Motel Rest. Employees & Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc., 290 So.2d 479, 481 (Fla.1974) (appellate court's review of order granting temporary injunction is limited to the contents of verified complaint and supporting affidavits when appellant opts to fore-go an evidentiary hearing on Motion to Dissolve Temporary Injunction).

      . Among the cases cited by the majority is Campbell v. Pace, 369 So.2d 413 (Fla. 3d DCA 1979). However, I believe that Campbell is inapplicable here because the real estate transaction there had closed, there was no dispute that the broker had earned a fee, he had been receiving payments, and a fund was in existence post-foreclosure containing the full amount of the debt due on which a trust "res” could be imposed. Similarly, both Vargas and Wise, cited by the majority, involve bank accounts or property in existence. Vargas v. Vargas, 771 So.2d 594 (Fla. 3d DCA 2000); Wise v. Schmidek, 649 So.2d 336 (Fla. 3d DCA 1995). Kóm does not address the validity of the "res” in question in that case. Korn v. Ambassador Homes, Inc., 546 So.2d 756 (Fla. 3d DCA 1989).

      . The injunction was entered at 1:58 p.m.


text:
    Julio M. GONZALEZ, Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Dept. of Corrections, etc., Respondent.
    No. 3D03-3332.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Julio M. Gonzalez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney, General, for respondent.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   PER CURIAM.

Julio M. Gonzalez petitions for a belated appeal. We deny the petition as untimely, and alternatively, on the merits.

In 1998 defendant-appellant Gonzalez entered a guilty plea to second degree murder in exchange for a sentence of twenty-four years imprisonment. After the Florida Supreme Court announced its decision in Heggs v. State, 759 So.2d 620 (Fla.2000), the defendant filed a motion for postconviction relief seeking resentencing. As the defendant specifically agreed to the twenty-four-year sentence as a part of his plea bargain, and the sentence was not conditioned on the sentencing guidelines, the defendant is not entitled to any Heggs relief. See Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000).

There has been confusion in this case because the trial court in 2001 entered an order indicating that the defendant was to be sentenced under the 1994 guidelines. In the immediate aftermath of the Heggs decision there was some uncertainty about whether resentencing would be necessary (a) in all eases where the crime date fell within the Heggs window period (even if the individual defendant’s sentence length was not adversely affected by Heggs), or (b) only in those cases in which the sentence length was adversely affected by Heggs. As Heggs itself indicates, it is only in the latter situation that resentencing is required. 759 So.2d at 627. Thus, the 2001 order in the defendant’s case was improvidently entered. As the trial court itself later clarified, the defendant is not entitled to any change in his twenty-four-year agreed sentence for second degree murder.

Petition denied.


author: hKNOLL, Justice. h TRAYLOR, Justice,

text:
    STATE of Louisiana v. Quincy BROWN.
    No. 2003-K-2788.
    Supreme Court of Louisiana.
    July 6, 2004.
    Rehearing Denied Sept. 3, 2004.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, for Applicant.
    Clive A. Stafford Smith, New Orleans, Stephen I. Singer, for Respondent.
   hKNOLL, Justice.

This criminal case concerns the enhancement of a sentence under Louisiana’s Habitual Offender Law; specifically, whether it is constitutionally permissible to use a juvenile adjudication, in which the juvenile had not been afforded the right to a trial by jury, to enhance his sentence for a felony committed when he is an adult. This issue raises the question of whether enhancing the sentence of the defendant on the basis of a prior juvenile adjudication is contrary to Apprendi v. New Jersey.

In the present case, when defendant became an adult he committed an armed robbery for which he was convicted by a jury. The sentencing court found defendant a second felony offender as a result of his prior juvenile delinquency adjudication (attempted second-degree murder), and sentenced defendant to 198 years at hard labor without benefit of parole. The court of appeal affirmed his conviction, but reversed his sentence as constitutionally excessive and remanded the case to the trial court for re-sentencing. The court of appeal held the prior juvenile adjudication without the right to a jury trial was constitutionally inadequate under the Apprendi exception for purposes of subsequent sentence enhancement. We granted the State’s application |gfor a writ of certiora-ri to consider this weighty issue of whether the use of juvenile adjudications to enhance a statutory penalty, where the defendant did not have the right to a jury trial, is constitutionally permissible.

FACTS AND PROCEDURAL HISTORY

The facts underlying defendant’s charged and prior offenses are not relevant to the issue presented by this writ application, but for the sake of completeness we will briefly summarize the history of the case. After defendant, Quincy Brown, became an adult, he allegedly committed several felony crimes. He was charged by bill of information with two counts of attempted first-degree murder (La.Rev.Stat.l4:27(30)), one count of armed robbery (La.Rev.Stat.l4:64) and one count of simple robbery (La.Rev. Stat.l4:65). He pleaded guilty to the simple robbery count and proceeded to trial on the armed robbery charge and the remaining charge of attempted first-degree murder. The jury acquitted defendant of attempted first-degree murder and convicted him of armed robbery. The trial court sentenced him to serve 99 years at hard labor without benefit of parole, probation or suspension of sentence for the armed robbery and to seven years at hard labor with benefits for the simple robbery. The sentences were ordered to run concurrently with credit for time served.

The State then charged defendant as an habitual offender pursuant to La.Rev.Stat. 15:529.1, based on a juvenile adjudication. Defense counsel filed a motion to exclude evidence of the prior adjudication, arguing the use of defendant’s juvenile adjudication for purposes of enhancing his sentence under La.Rev.Stat. 15:529.1 is unconstitutional. The defendant urged the use of the adjudication to enhance the ^sentence violated Apprendi, because in the juvenile proceeding defendant did not have the right to a jury trial. The trial court rejected the motion and found defendant a second felony offender and sentenced him to 198 years at hard labor without benefit of parole for the armed robbery conviction and a concurrent term of 14 years for the simple robbery. Defendant appealed his sentence as excessive and unconstitutional.

A unanimous panel of the appellate court affirmed the conviction, but reversed the sentence as constitutionally excessive. The court of appeal found the trial court erred in enhancing the defendant’s sentence on the basis of the prior juvenile conviction. It noted the split in the federal courts of appeal on the issue of whether prior juvenile adjudications, in which the juvenile did not have the right to a jury trial, are constitutionally inadequate under the Apprendi exception for purposes of subsequent sentence enhancement. It concluded, based in part on limited guidance from this Court in State in the Interest of DJ. that juvenile adjudications without a right to a jury trial are constitutionally inadequate for purposes of subsequent sentence enhancement. State v. Brown, 02-1217, p. 12 (La. Ct.App. 4 Cir. 5/28/03), 853 So.2d 8, 15.

| ¿DISCUSSION

Louisiana’s Habitual Offender Law is codified at La.Rev.Stat. 15:529.1. In this matter before us, the pertinent language of the statute provides:

A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana’s Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less that one-half the longest term and not more than twice the longest term prescribed for a first conviction; (Emphasis added).

The italicized language was added in 1994, when the Legislature enacted Act 23 of the Third Extraordinary Session. The digest for that act provided the proposed law would equate an adjudication of delinquency for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law or a crime of violence as a conviction for purposes of sentencing as a habitual offender.

Before we reach the issue of whether La.Rev.Stat. 15:529.1 was unconstitutionally applied in violation of the defendant’s Fourteenth Amendment Due Process right, we will first address whether this constitutional issue can be resolved on statutory grounds. We have repeatedly and consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the | .^decision of the case or controversy. Ring v. State, Dep’t of Transp. and Dev., 02-1367, p. 4 (La.1/14/03), 835 So.2d 423, 426; State v. Fleming, 01-2799, p. 4 (La.6/21/02), 820 So.2d 467, 470.

During oral argument of this case, this court noted that subparagraph (a) of La. Rev.Stat. 15:529.1 A(l) did not refer to juvenile adjudications but only referred to convictions, notwithstanding that paragraph A(l) specifically referred to “adjudicated a delinquent.” We requested post-argument briefs to address this discrepancy and specifically, whether this discrepancy would have this case resolved upon statutory grounds rather than constitutional grounds.

In post-argument brief, defendant posited because a prior adjudication of delinquency is not a felony, it cannot be used to make the current conviction a second felony under La.Rev.Stat. 15:529.1 A(l)(a). We find a statutory analysis shows notwithstanding the discrepancy in the language, the adult offense was intended to be treated as a “second felony” where the offender had only a prior juvenile adjudication.

It is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Carr, 99-2209, p. 4 (La.5/26/00), 761 So.2d 1271, 1274. Thus criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State. Id. However, the rule of strict construction of penal statutes is not to be applied with “such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute.” State v. Everett, 00-2998, p. 12 (La.5/14/02), 816 So.2d 1272, 1279, reh’g denied, 6/21/02, quoting State v. Broussard, 213 La. 338, 342, 34 So.2d 883, 884 (La.1948). The general rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of | filenity applies when the court is uncertain about the statute’s meaning and is “not to be used in complete disregard of the purpose of the legislature.” Perrin v. United States, 444 U.S. 37, 49, n. 13, 100 S.Ct. 311, 317, 62 L.Ed.2d 199 (1979). The principle of strict construction “does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.” United States v. Levy, 579 F.2d 1332, 1337 (5th Cir.1978), cert denied, 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d 471 (1979) (quoting United States v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed.2d 594 (1955)). A criminal statute, like all other statutes, should be so interpreted as to be in harmony with, preserve, and effectuate the manifest intent of the legislature, and an interpretation should be avoided which would operate to defeat the purpose and object of the statute. Broussard, 34 So.2d at 884.

An examination of Act No. 23 clearly reveals the Legislature intended to provide that any person who had been adjudicated a delinquent for certain felony-grade violations was subject to sentence enhancement for a subsequent felony conviction. In order to effectuate this purpose, Act No. 23 did not just amend Louisiana’s Habitual Offender Law (La.Rev.Stat.l5:529.1), but also amended Children’s Code Article 414(A), Code of Evidence Article 609.1(F) and enacted Children’s Code Article 412(A)(6). These revisions and enactments were necessary because the law generally provided that all records concerning proceedings in juvenile court were confidential and not to be disclosed. A reading of the transcript of the meeting of the Senate Committee on Judiciary B, in which House Bill No. 343 was discussed, further evidences the Legislature’s intent to make juvenile adjudications subject to predicate offenses for felony sentence enhancement.

|7Considering the extensive revisions the Legislature made to Louisiana law, which not only included the amendment to the Habitual Offender Law but corresponding changes to the Children’s Code and the Code of Evidence, it is evident the Legislature’s manifest intent was to provide that any person who had been adjudicated a delinquent for certain felony-grade violations was subject to subsequent sentence enhancement for conviction of a felony. Even though Quincy Brown’s conviction for armed robbery is technically not a “second felony” because his juvenile adjudication was not a first “felony,” an application of the rule of lenity to this ambiguity would be an unreasonable technicality, which would defeat the purpose and object of the statute. To find that the rule of lenity prohibits sentence enhancement where the defendant was adjudicated a delinquent because the felony is not technically a “second” felony simply stretches the general rule of strict construction too far. The Court has a duty to ascertain the intent of the legislature. Under these tenets, the most logical interpretation is to find the statute provides that the felony is subject to enhanced penalties if the defendant had previously been adjudicated a delinquent. Thus we will address the constitutional issue defendant has raised.

The Constitutionality of Non-Jury Juvenile Adjudications as Predicate Offenses

A proper discussion of the constitutional issue before us must commence with the United State’s Supreme Court’s decision in Apprendi v. New Jersey, supra. The question before the Supreme Court was whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence be made by a jury on the basis of proof beyond a reasonable doubt. Apprendi, 530 U.S. at 469, 120 S.Ct. at 2351. The catalyst for this issue was a New Jersey hate crime statute, which authorized a judge to increase a defendant’s maximum prison sentence if the trial court found by a preponderance of |sthe evidence that in committing the crime, the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. Charles Apprendi pleaded guilty to two counts of firearm possession for an unlawful purpose and one count of unlawful possession of an antipersonnel bomb. The trial judge imposed an enhanced sentence, finding by a preponderance of the evidence that Ap-prendi’s actions were taken with a purpose to intimidate as provided by the statute. “The question of whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt [was] starkly presented.” Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355. The Court declared the answer was foreshadowed by its opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), construing a federal statute. “We there noted that ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355, quoting Jones, 526 U.S. at 243, n. 6, 119 S.Ct. at 1224. The Ap-prendi court found the Fourteenth Amendment commands the same answer in the case of a state statute. Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355.

The Court ruled “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. It reasoned due process required a jury to find the facts upon which a court based an enhanced sentence as an “element” of the offense at trial, rather than to allow a judge to find those facts by a preponderance of the evidence as |fla “sentencing factor” at a sentencing hearing. Barry C. Feld, The Constitutional Tension Between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts, 38 Wake Foeest L. Rev. 1111, 1112 (2003). The Court exempted the fact of a prior conviction from its holding because defendants enjoyed criminal procedural safeguards, including the right to a jury trial and proof beyond a reasonable doubt, which assured the accuracy and reliability of the prior record. Id.

After Apprendi’s holding that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” courts around the nation have been confronted with the question of whether a juvenile adjudication falls within the Apprendi exception for “prior convictions.” The federal appellate courts have divided over the use of delinquency adjudications to enhance criminal sentences beyond the statutorily mandated maximum. The question that has divided the federal circuits is whether a prior juvenile adjudication, in which the juvenile does not have the right to a jury trial, qualifies as a “prior conviction” for purposes of the Apprendi exception. In each of these federal cases, the court reviewed the legality of using juvenile adjudications to enhance an adult sentence above a prescribed statutory maximum pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Congress has characterized juvenile adjudications as prior convictions under the ACCA. 18 U.S.C. § 924(e)(2)(B), (e)(2)(C).

The Ninth Circuit Court of Appeals became the first court in Apprendi’s wake to report a published decision on this issue. Brian Thill, Comment, Prior “Convictions” Under Apprendi: Why Juvenile Adjudications May Not Be Used to Increase an Offender’s Sentence Exposure if They Have Not First Been Proven To |ina Jury Beyond a Reasonable Doubt, 87 MaRQ. L. Rev. 573, 575 (2004) [hereinafter Prior Convictions ]. In United States v. Tighe, a divided panel held Apprendi’s narrow “prior conviction” exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt. 266 F.3d at 1194. In reaching this conclusion, the Tighe court noted the significant constitutional differences between adult convictions and juvenile adjudications, and inquired into the scope of the term “conviction” as used by the Supreme Court in Apprendi, and the cases leading up to Apprendi. Tighe, 266 F.3d at 1192-93.

In examining the Supreme Court jurisprudence concerning the use of prior convictions as a sentencing factor, the Tighe court stated:

[I]n Jones v. United States, ... [t]he Court explained why the fact of prior 1 y, convictions was constitutionally distinct from other sentence-enhancing facts, such that it was permissible, under Almendarez-Torres, to use prior convictions to increase the possible penalty for an offense without treating them as an element of the current offense: “One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S.Ct. [at 1227] (emphasis added). Thus, Jones’ recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.
One year later, in Apprendi, the ... Court explained that “the certainty that procedural safeguards attached to the ‘fact’ of prior conviction” was crucial to Almendarez-Torres’ constitutional holding regarding prior convictions as sentencing factors. Apprendi, 530 U.S. at 488, 120 S.Ct. [at 2362].... “There is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.” Apprendi, 530 U.S. at 496, 120 S.Ct. [at 2366].

Tighe, 266 F.3d at 1193-94.

The Tighe court found the United States Supreme Court’s continued acceptance of Almendarez-Torres’ holding regarding prior convictions was premised on those convictions being the product of proceedings that afford crucial procedural protections, particularly the right to a jury trial and proof beyond a reasonable doubt. Tighe, 266 F.3d at 1194. The court therefore reasoned the “prior conviction” exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Id. The court held juvenile adjudications that do not afford these due process rights do not fall within Apprendi’s “prior conviction” exception. Id.

The Eighth Circuit disagreed with the Ninth Circuit’s Tighe decision. In United States v. Smalley, the court held juvenile adjudications can count as prior convictions for Apprendi purposes. 294 F.3d at 1033. The Smalley court rejected Tighe’s analysis, “concluding] that the question of whether juvenile adjudications should be exempt from Apprendi’s general rule should not turn on the narrow parsing of words, but on an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.” Smalley, 294 F.3d at 1033.

Noting that juvenile defendants have the right to notice, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self incrimination, and that there must be a finding of guilt beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the court found these safeguards more than sufficient to ensure the reliability Apprendi requires. Smalley, 294 F.3d at 1033. While Appren-di established what procedural safeguards were sufficient (a right to a jury trial and proof beyond a reasonable doubt), and what were not (judge-made findings under a lesser standard of proof), “the Court did not take a position on possibilities that lie in between these two poles.” Id. at 1032. “[I]t is incorrect to assume that it is not only sufficient but necessary that the ‘fundamental triumvirate of procedural protections,’ as the Ninth Circuit put it, underly [sic] an adjudication before it can qualify for an Apprendi exception.” Id. The Smalley court recognized a jury does not have a role in trials for juvenile offenses, but did not think that fact undermines the reliability of such adjudications in any significant way because the use of a jury in the juvenile context would “not strengthen greatly, if at all, the fact-finding function” and is not constitutionally required. Id. at 1033, quoting McKeiver v. Pennsylvania, 403 U.S. 528, 547, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

11sThe Third Circuit addressed this issue, considering both the Tighe and Smalley decisions. United States v. Jones, 332 F.3d 688 (3rd Cir.2003), cert denied - U.S. -, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004). The Jones court, like the Smalley court, found nothing in Apprendi or Jones v. United States, that required holding prior nonjury juvenile adjudications, where all required due process safeguards were afforded, cannot be used to enhance a sentence under the ACCA. Jones, 332 F.3d at 696. A prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes. Id. The Supreme Court, in McKeiver, supra, held due process does not require providing juveniles with the right to a jury trial. Therefore, the Jones court held when a juvenile is adjudicated guilty beyond a reasonable doubt in a bench trial that affords all the due process protections that are required, the adjudication should be counted as a conviction for purposes of subsequent sentencing. Id.

Thus, as can be seen, following Appren-di there are two reasonable schools of thought on whether juvenile adjudications, in which the juvenile did not have the right to a jury, can properly be characterized as “prior convictions” for felony sentence enhancement purposes. The State, adopting the rationale of the Smalley and United States v. Jones decisions, argues the defendant was afforded all the safeguards that were constitutionally due in his juvenile proceedings. Therefore, the adjudication was reliable for purposes of the exception under Apprendi, and its use as a predicate crime under La.Rev.Stat. 15:529.1 is proper. The defendant contends Jones v. United States and Apprendi foreclose the use of juvenile adjudications to enhance an adult sentence, where the juvenile did not have the right to a jury trial. In deciding this difficult question, we turn to our recent jurisprudence concerning the juvenile justice system and scholarly works addressing this issue to assist us.

A review of the history of juvenile courts illustrates why juvenile courts have fewer procedural safeguards. The juvenile court movement began near the end of the nineteenth century because “reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals.” Jeremy Hochberg, Note, Should Juvenile Adjudications Count as Prior Convictions for Apprendi Purposes?, 45 Wm. & MaRY L. Rev. 1159, 1172 [hereinafter Juvenile Adjudications ] (quoting In re Gault, 387 U.S. 1, 15, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). The juvenile court movement combined new ideas about children with the new ideology of social control to remove children from the criminal justice system and to provide them with individualized treatment in a separate system. Feld, supra at 1138. Under the guise of parens patriae, juvenile courts emphasized treatment, supervision, and control rather than punishment, and exercised broad discretion to intervene in the lives of young offenders. Id. Characterizing intervention as a civil or welfare proceeding completed the separation of juvenile from criminal courts and allowed greater authority to control and supervise children. Id.

Because of the rehabilitation rationale, the courts justified making the juvenile court less formal. Juvenile Adjudications, supra, at 1173. Reformers modified courtroom procedures to eliminate any implication of a criminal proceeding, adopted |1Ba euphemistic vocabulary, and endorsed a physically separate court building to avoid the stigma of adult prosecutions. Feld, supra, at 1138-39. The early reformers “believed that society’s role was not to ascertain whether the child was ‘guilty’ or ‘innocent,’ ... [t]he child- — essentially good, as they saw it — was to be made ‘to feel that he is the object of (the state’s) care and solicitude,’ not that he was under arrest or on trial.” In re Gault, 387 U.S. 1, 15, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967) (citation omitted). The purpose of sanctions would be for therapeutic and rehabilitative purposes, not for retribution or incapacitation. Prior Convictions, supra, at 584.

In In re C.B. et al., with Chief Justice Calogero authoring the opinion, we addressed the constitutionality of a statute that authorized the Department of Public Safety and Corrections to transfer juveniles who had been adjudicated delinquent to adult facilities upon reaching age seventeen, to be treated for punitive purposes the same as the convicted adult felons with whom they were confined. We found the statute, La.Rev.Stat. 15:901.1, unconstitutional as applied by Regulation B-02-008 as it denied the juveniles their constitutional right to due process guaranteed them by Article I, § 2 of the Louisiana Constitution. In re C.B., p. 6, 708 So.2d at 395. We found it unconstitutional because they received a de facto criminal sentence to hard labor without being afforded the right to trial by jury as mandated by Article I, § 17 of our state constitution. Id.

In reaching this determination, we noted “the unique nature of the juvenile system is manifested in its non-criminal, or ‘civil’ nature, its focus on rehabilitation and 11fiindividual treatment rather than retribution, and the state’s role as parens patriae in managing the welfare of the juvenile in state custody.” Id. p. 10, 708 So.2d at 396-97 (citing, inter alia, McKeiver, supra). We reviewed the procedure this Court uses to determine which due process rights are guaranteed to juveniles. In making these determinations, an attempt is made to “strike a judicious balance by injecting procedural orderliness into the juvenile court system ... to reverse the trend whereby ‘the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.’ ” In re C.B., p. 12, 708 So.2d at 398 (quoting McKeiver, 403 U.S. at 545, 91 S.Ct. at 1986, quoting Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966)). Based on the United States Supreme Court’s reasoning in McKeiver, we previously determined due process and fundamental fairness did not require that the juvenile be granted the right to trial by jury, State in the Interest of Dino, 359 So.2d 586, 597-98 (La.1978), even though that right is guaranteed by Article I, § 17 of our state constitution in certain criminal cases. In re C.B., p. 13, 708 So.2d at 398 (emphasis in original). In McKeiver, the Supreme Court determined the Sixth Amendment of the Federal Constitution did not apply in juvenile adjudications because the juvenile proceeding had not yet been held to be a “criminal prosecution” within the meaning and reach of the Sixth Amendment. McKeiver, 403 U.S. at 541, 91 S.Ct. at 1984. Among the reasons the Court gave for finding jury trials in juvenile proceedings are not constitutionally required was the imposition of a jury trial on the juvenile court system would not strengthen greatly, if at all, the fact-finding function and would tend to place the juvenile squarely in the routine of the criminal process, Id. at 547, 91 S.Ct. at 1987, from which juveniles had been removed by the |17reforms of the late nineteenth century. The Court was reluctant to give up on the promise of the juvenile system concept and in the belief the system could still accomplish its rehabilitative goals. Id.

Therefore when we were confronted with the constitutionality of the application of a statute that allowed adjudicated juveniles to be transferred to adult facilities, we found the statute unconstitutional as applied, holding the statute through its corresponding regulation had sufficiently tilted the scales away from a “civil” proceeding, with its focus on rehabilitation, to one purely criminal. In re C.B., p. 17, 708 So.2d at 400. Due process and fundamental fairness required that the juvenile have a jury trial if he or she was to be incarcerated at hard labor in an adult penal facility. Id. The determination in McKeiver that a jury trial was not constitutionally required in juvenile adjudications was predicated upon the non-criminal treatment of the adjudicated delinquent. In re C.B., p. 14, 708 So.2d at 399. “It therefore stands to reason that if the civil trappings of the juvenile adjudication are sufficiently subverted, then a proceeding without that safeguard is fundamentally unfair, and thus, violative of due process.” Id. “The hallmark of special juvenile procedures is their non-criminal nature.” Id., p. 17, 708 So.2d at 400.

We recently had cause to re-visit the issue of the right to jury trials in our juvenile justice system in State in the Interest of D.J., supra. There we reaffirmed our holding in State in the Interest of Dino, denying juveniles a constitutional right to a jury trial in delinquency proceedings. State in the Interest of D.J., p. 9, 817 So.2d at 32. The juveniles and the amici argued the policy-based analysis applied when McKeiver and Dino were decided was outdated. Id. p. 7, 817 So.2d at 30. They contended, inter alia, the amendment to the Habitual Offender Law to allow use of juvenile adjudications to enhance subsequent adult felony offenses had torn down the 11sremaining characteristics of what traditionally identified the juvenile system.

We noted we had specifically discussed these amendments in In re C.B. We found our holding in In re C.B. “significant, because it infers that the Court determined that the other statutes that ‘blurred the distinction’ between adult and juvenile proceedings, such as the .public hearing and the sentence enhancement statutes, did not offend due process requirements to such an extent that a jury trial would be required.” State in the Interest of D.J., p. 10, 817 So.2d at 33. However, in finding continued viability in our Dino holding that due process does not afford a juvenile the right to a jury trial in a delinquency adjudicatory proceeding, we found further support in the fact that “notwithstanding the changes in the juvenile system ... there remains a great disparity in the severity of penalties faced by a juvenile charged with delinquency and an adult defendant charged with the same crime.” State in the Interest of D.J., p. 10, 817 So.2d at 33.

Notwithstanding our finding in State in the Interest of D.J., where we inferred the sentence enhancement statutes did not offend due process requirements to such an extent that a jury trial would be required in juvenile adjudicatory proceedings, we find because juveniles do not have a right to a jury trial in these proceedings, juvenile adjudications cannot be used to enhance adult felony convictions pursuant to La.Rev.Stat. 15:529.1. We have well established that juvenile adjudications in Louisiana are sufficiently reliable, even without a jury trial, to support dispositions within the juvenile justice system. However, Apprendi has raised the issue of whether these adjudications, rendered without the right to a jury trial, are sufficiently reliable to support enhanced sentencing for adults. For the reasons that follow, we find they are|1flnot.

Under the guise of parens patriae, juvenile courts emphasize treatment, supervision, and control rather than punishment. Feld, supra, at 1138. The hallmark of special juvenile procedures is their non-criminal nature. In re C.B., p. 17, 708 So.2d at 400. Our state’s juvenile system was founded upon the premise that retributive punishment was deemed inappropriate and the juvenile system dispositions should be individually tailored to address the needs and abilities of the juvenile in question. Id., p. 8, 708 So.2d at 395-96. Because of the unique nature of the juvenile system manifested in its noncriminal or “civil” nature, its focus on rehabilitation and individual treatment rather than retribution, and the state’s role as parens patriae in managing the welfare of the juvenile in its custody, the United States Supreme Court held, despite disappointments, failures and shortcomings in the juvenile court system, juveniles were not constitutionally entitled to jury trials. McKeiver, 403 U.S. at 545, 91 S.Ct. at 1986.

Even though it was argued that because (1) the juvenile justice system had taken on more of the trappings of the criminal justice system; (2) the role of punishment had increased in the juvenile system; and (3) the legislative amendments opening the proceedings to the public and allowing juvenile adjudications to serve as predicate offenses for adult felony sentence enhancement, due process required juveniles receive a jury trial, we continued to uphold Dino’s decree that Art. I, § 2 of our State Constitution does not afford a juvenile the right to a jury trial in a juvenile proceeding. State in the Interest of D.J., p. 13, 817 So.2d at 34. Among our reasons for our continued holding is that even with the changes in the juvenile justice system, “there remains a great disparity in the severity of penalties faced by a juvenile charged with delinquency and an adult defendant charged with the same crime.” Id. p. 10, 817 So.2d at 33. To allow these adjudications to serve as “prior convictions” for purposes of sentence enhancement for adult felony offenses would lessen this disparity and contribute to “blurr[ing] the distinction between juvenile and adult procedures.” In re C.B., p. 8, 708 So.2d at 396.

We find there is a difference between a “prior conviction” and a prior juvenile adjudication, and we believe the Tighe decision more closely comports with the rationale for finding juveniles are not constitutionally entitled to a jury trial. A “prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.” Tighe, 266 F.3d at 1193 (quoting Jones v. United States, 526 U.S. at 249, 119 S.Ct. at 1227). Our holdings that due process does not require juveniles be afforded all the guarantees afforded adult criminals under the constitution have been premised upon the “civil nature” of a juvenile adjudication, its focus on rehabilitation and the state’s role as parens patriae. If a juvenile adjudication, with its lack of a right to a jury trial which is afforded to adult criminals, can then be counted as a predicate offense the same as a felony conviction for purposes of Louisiana’s Habitual Offender Law, then “the entire claim of parens patriae becomes a hypocritical mockery.” In re C.B., p. 17, 708 So.2d at 400 (quoting Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259, 269 (1966)).

A juvenile adjudication is not a conviction of any crime. In re C.B., p. 17, 708 So.2d at 400. Therefore, this adjudication should not be counted as a “prior conviction” for Apprendi purposes. The determination that a jury trial was not constitutionally required in juvenile adjudications was predicated upon the non-criminal treatment of the adjudicated juvenile delinquent. Id. p. 14, 708 So.2d at 399. It would be incongruous and illogical to allow the non-criminal adjudication of a juvenile |^delinquent to serve as a criminal sentencing enhancer. To equate this adjudication with a conviction as a predicate offense for purposes of the Habitual Offender Law would subvert the civil trappings of the juvenile adjudication to an extent to make it fundamentally unfair and thus, violative of due process. In order to continue holding a trial by jury is not constitutionally required, we cannot allow these adjudications, with their civil trappings, to be treated as predicate offenses the same as felony convictions. It seems contradictory and fundamentally unfair to provide youths with fewer procedural safeguards in the name of rehabilitation and then to use adjudications obtained for treatment purposes to punish them more severely as adults. Feld, supra, at 1194. It is inconsistent to consider juvenile adjudications civil for one purpose and therefore not constitutionally entitled to a jury trial, but then to consider them criminal for the purpose of classifying them as “pri- or convictions,” which can be counted as predicate offenses for purposes of the Habitual Offender Law.

We do not agree with the Smalley court and its progeny that because the procedures of juvenile adjudications are sufficiently reliable for juvenile dispositions, they are therefore reliable to “justify the much harsher consequences of their use as criminal sentence enhancements.” Feld, supra, at 1190. We find, as did the Tighe court, the guidance from our United States Supreme Court indicates recidivism is distinct as a sentencing factor and therefore as an exception to the general rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[,]” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, because “unlike virtually any other consideration used to enlarge the possible penalty for an offense, ... a prior | gpconviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones v. United States, 526 U.S. at 249, 119 S.Ct. at 1227 (emphasis added). Because a juvenile adjudication is not established through a procedure guaranteeing a jury trial, it cannot be excepted from Apprendi’s general rule; the use of these adjudications to increase the penalty beyond the statutory maximum violates the defendant’s Due Process right guaranteed by the Fourteenth Amendment of the United States Constitution.

CONCLUSION

For the foregoing reasons, we find it is unconstitutional to apply La.Rev.Stat. 15.529.1 for the purpose of allowing juvenile adjudications to be counted as predicate offenses, where these adjudications were obtained without the right to a jury trial. In our view, the use of such adjudications violates Apprendi’s narrow exception, which exempts only “prior convictions” from its general rule that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Although these adjudications can be reliably and constitutionally obtained without the right to a jury trial, this is because the juvenile proceeding is a “civil” proceeding with a focus on rehabilitation and non-criminal treatment of the adjudicated delinquent. “Prior convictions” are excepted from the Apprendi holding because they were the product of proceedings that afforded crucial procedural protections — particularly fair notice, the right to jury trial and proof beyond a reasonable doubt.

DECREE

The judgment of the appellate court is affirmed for the reasons expressed herein. We reverse the sentence as unconstitutional, as it violates the defendant’s due process | ^rights. The case is remanded to the trial court for re-sentencing consistent with the views expressed in this opinion.

AFFIRMED.

VICTORY, J., dissents for thé reasons assigned by TRAYLOR, J.

TRAYLOR, J., dissents and assigns reasons.

h TRAYLOR, Justice,

dissenting.

I disagree with the majority’s interpretation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and believe that a fair reading of Apprendi does not require this court to preclude the use of a juvenile adjudication to enhance an adult criminal sentence. In my opinion, United States v. Smalley, 294 F.3d 1030 (8th Cir.2002), and United States v. Jones, 332 F.3d 688 (3rd Cir.2003), reliance on McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), which held that the right to a jury trial is not required to fulfill the fundamental fairness due process standard in a juvenile proceeding, is dispositive in this case. Accordingly, I would hold that it i§ constitutionally permissible to use a juvenile adjudication to enhance an adult criminal sentence where the. juvenile adjudication comports with the requirements of fundamental fairness as set out in McKeiver: notice, counsel, confrontation, cross-examination, and standard of proof.

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . State v. Brown, 03-2788 (La.2/6/04), 866 So.2d 805.

      . The State later entered a nolle prosequi to one of the attempted murder counts.

      . Previously the defendant was adjudicated a delinquent for attempted second-degree murder.

      . 01-2149 (La.5/14/02), 817 So.2d 26. The appellate court found a footnote in State in the Interest of D.J., strongly hinted the difference in adjudication procedures might require the exclusion of such adjudications from later enhancement proceedings. Brown, p. 11, 853 So.2d at 15. Addressing the fact that before the amendment to the Habitual Offender Law allowing adjudications to enhance subsequent felony offenses, juvenile adjudications were sealed and did not follow an individual into adulthood, we noted:
      In United States v. Tucker, 404 U.S. 433, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court prohibited the use of prior convictions that were entered without the advice of counsel to enhance later sentences. In a related vein, some commentators suggest that the practice of using juvenile convictions obtained without the option to be tried by a jury to enhance adult sentences renders the juvenile justice system unconstitutional.

        See e.g., Sara E Kropf, Note, Overturning McKeiver v. Pennsylvania: The Unconstitutionality of Using Prior Convictions to Enhance Adult Sentences Under the Sentencing Guidelines, 87 Geo. L.J. 2149 (1999); David Dormont, Note, For the Good of the Adult: An Examination of the Constitutionality of Using Prior Juvenile Adjudications to Enhance Adult Sentences, 75 Minn. L.Rev. 1769, 1793-94 (1991). State in the Interest of D.J., p. 8, 817 So.2d at 39, n. 6.

      . Paragraph 2 lists the following crimes: attempted first-degree murder; attempted second-degree murder; manslaughter; armed robbery; forcible rape; simple rape; second-degree kidnapping; a second or subsequent aggravated battery; a second or subsequent aggravated burglary; and a second or subsequent offense of burglary of an inhabited dwelling.

      . House Bill No. 343 was subsequently enrolled as Act No. 23, 3rd Extraordinary Session, 1994.

      . 266 F.3d 1187 (9th Cir.2001).

      . The United States Supreme Court first held that prior convictions could be treated as sentencing factors that raise the maximum penalty of an offense in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres involved a statute that authorized a maximum prison sentence of two years for an alien who returned to the United States despite previous deportation, but a maximum sentence of twenty years if the initial deportation was subsequent to a conviction for an aggravated felony. The defendant argued the fact of his prior conviction, which was used to increase the statutorily mandated maximum punishment, was an element of his offense and should have been charged in the indictment. The question before the Court was "whether this latter provision defines a separate crime or simply authorizes an enhanced penalty.” Id. at 226, 118 S.Ct. at 1222. The Court held it to be a penalty provision, "which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Id.

      The next term in Jones v. United States, supra, the Court considered Almendarez-Tor-res’s holding regarding the use of prior convictions in the context of emerging concerns about the viability of using facts not charged in the indictment nor proved to a jury beyond a reasonable doubt to increase the statutory maximum penalty to which a defendant is exposed. In Jones, the defendant was charged with carjacking in violation of 18 U.S.C. § 2119, which provides that a person possessing a firearm who takes a motor vehicle from the person or presence of another by force or intimidation shall: 1) be imprisoned not more than fifteen years; 2) if serious bodily injury results be imprisoned not more than 25 years; and 3) if death results be imprisoned for any number of years up to life. The indictment made no reference to the numbered subsections and charged none of the facts mentioned in the latter two. Defendant was told at the arraignment that he faced a maximum 15 year sentence for carjacking, and the jury instructions at his trial defined that offense by reference solely to § 2119(1). The trial judge, after determining that one of the victims suffered serious bodily injury, imposed a 25 year sentence. The defendant argued that serious bodily injury was an element of the offense that had neither been pleaded in the indictment nor proven to the jury. The United States Supreme Court held the carjacking statute established three separate offenses by the specification of distinct elements, each of which must be charged by indictment and proven to a jury beyond a reasonable doubt. Jones v. United States, 526 U.S. at 252, 119 S.Ct. at 1228.

      . 294 F.3d 1030 (8th Cir.2002), cert denied 537 U.S. 1114, 123 S.Ct. 870, 154 L.Ed.2d 790 (2003).

      . We have found the sole state supreme court addressing this issue is Kansas. That court was presented with the question of whether the absence of the jury trial safeguard in juvenile adjudications was enough to remove it from the narrow exception for prior convictions built into the Apprendi rule. State v. Hitt, 273 Kan. 224, 42 P.3d 732, 736 (2002), cert. denied 537 U.S. 1104, 123 S.Ct. 962, 154 L.Ed.2d 772 (2003). It held juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards and therefore, are encompassed within the Apprendi exception. Id. at 740.

      . Additionally, the defendant strenuously argues a majority on the United States Supreme Court appears to have moved rapidly away from the position taken in Almendarez-Torres that recidivism “does not relate to the commission of the offense, but goes to the punishment only, and therefore ... may be subsequently decided [by a judge].” 523 U.S. at 244, 118 S.Ct. at 1231. We decline the invitation to speculate as to what the Court's position is, or may become, on treating recidivism as a factor in sentence enhancement, and restrict ourselves to the guidance thus far provided by the Court’s holdings.

      . 97-2783 (La.3/4/98), 708 So.2d 391.

      . Article I, § 2 provides: "No person shall be deprived of life, liberty, or property, except by due process of law."

      . Article I, § 17 of the Louisiana Constitution is our state counterpart to the Sixth Amendment of the Federal Constitution which grants the right to trial by jury to certain criminal defendants.

      . cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978), rev'd on other grounds, State v. Fernandez, 96-2719 (La.4/14/98), 712 So.2d 485.

      . The other legislative amendment argued to have tom down the remaining characteristics of what traditionally identified the juvenile system was the amendment to La. Ch.Code art. 407(A), opening to the public all proceedings in juvenile delinquency cases involving crimes of violence.

      . While we note sentencing courts frequently refer to and consider a defendant’s juvenile record when imposing a statutory sentence for a proscribed crime, that is not the same as counting these adjudications as predicate offenses for the purpose of imposing the harsher mandatory sentence required by Louisiana's Habitual Offender Law.


text:
    BOYCE INNERARITY v. THE MCCARTY CORPORATION, et al.
    No. 2004-CC-1928.
    Supreme Court of Louisiana.
    Aug. 4, 2004.
   ORDER

Considering the Motion to Withdraw Application for Writ of Certiorari or Review filed by relator, Exxon Mobil Corporation,

IT IS ORDERED that the captioned application be and hereby is withdrawn on relator’s motion.


text:
    In re: William J. RILEY, III
    No. 2004-OB-1930.
    Supreme Court of Louisiana.
    Aug. 4, 2004.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that William J. Riley, III, Louisiana Bar Roll number 11275, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    Stephen P. BASCO, et ux. v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 2004-CC-2039.
    Supreme Court of Louisiana.
    Aug. 11, 2004.
   PER CURIAM.

Granted. A district court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Cheairs v. State of Louisiana, through Department of Transportation and Development, 03-0680 (La.12/3/03), 861 So.2d 536. Based on our review of the transcript of the hearing, we find that the trial court did not abuse its discretion in finding Dr. Harrigan may testify as an expert. Further, in light of the trial court’s finding that Dr. Harrigan is qualified to testify, we agree with the trial court’s conclusion that partial summary judgment in favor of plaintiffs on the issue of causation is inappropriate at this time.

Accordingly, the judgment of the court of appeal is reversed and the trial court’s judgment of July 14, 2004 is reinstated in its entirety. The case is remanded to the trial court for further proceedings.

TRAYLOR and KNOLL, JJ., would deny the writ.