author: PLEUS, J. SHARP, W., J.,

text:
    The BOARD OF COMMISSIONERS OF BREVARD, etc., Appellant, v. BARBER BONDING AGENCY, Appellee.
    No. 5D02-3174.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2003.
    Rehearing Denied Nov. 24, 2003.
    Clifford Repperger, Jr., Assistant County Attorney, Viera, for Appellant.
    Robert R. Berry of Eisenmenger, Berry & Peters, P.A., Melbourne, for Appellee.
   PLEUS, J.

The Board of County Commissioners of Brevard County (County) appeals from an order which granted Barber Bonding Agency’s (Barber) motion for remission of 90% of its forfeited bail bond, pursuant to section 903.28(4), Florida Statutes. The County concedes that Barber is entitled to remission under the statute, but it argues the applicable subsection is (6), which permits remission of up to 50% of the forfeited bond. We agree with the able trial judge that subsection (4) applies and affirm the order for remission of 90%.

Section 903.28, Florida Statutes, deals with remission of forfeited bail bonds. Its subsections (2) through (6) are worded identically except for the time periods [90 days, 180 days, 270 days, 1 year and 2 years] and the corresponding maximum amount which can be remitted to the surety for a forfeited bond [100%, 95%, 90%, 85% and 50%].

Section 903.28(4) provides:

If the defendant surrenders or is apprehended within 270 days after forfeiture, the court, on motion at a hearing upon notice having been given to the county attorney and state attorney as required in subsection (8), shall direct remission of up to, but not more than, 90 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant ivhen the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.

(Emphasis added)

Section 903.28(6) has identical language except the time limit is two years and the maximum possible remission is 50%.

The facts in this case are not in dispute. Barber posted a $1,000.00 bail bond for McCloy on September 8, 2000, in a criminal case being prosecuted in the Circuit Court of Brevard County. On January 26, 2001, when McCloy failed to appear, the court forfeited the bond. Barber paid the forfeiture on March 28, 2001.

On August 6, 2001, McCloy was arrested in Dade County, Florida, on different criminal charges than those involved in the Brevard County case. Barber apparently played no part in his apprehension and arrest in Dade County. McCloy remained in the Dade County jail until June 14, 2002, when he was transferred to Brevard County to face the criminal charges underlying this bail bond matter. Barber paid the state’s expenses and costs to return McCloy to Brevard County.

The state agreed in its answer that the prosecution of the case against McCloy had not been thwarted by his failure to appear. Indeed, at the hearing held on Barber’s motion for remission, the assistant state attorney appeared with the assistant county attorney for the purpose of working out a guilty plea for McCloy. The state did not present any argument that the delay in returning McCloy to the Bre-vard Circuit Court had impeded the prosecution of the case against McCloy in any way. Thus, the requirement of the statute (that the delay has not thwarted the prosecution of the case) was satisfied and is not in issue here.

At the hearing on remission, the County argued that inherent in the language of all of the subsections to section 903.28 is the requirement that the defendant be surrendered to or apprehended in the jurisdiction of the court which approved and forfeited the bond, so that it could be said that the defendant has been returned to “justice,” and the status quo breached by the defendant’s skipping the jurisdiction has been cured. Thus, since McCloy was not returned to Brevard County until more than one year later, but less than two years since the bond forfeiture, subsection (6) controls and limits the remission to 50%. We disagree.

Parties’ rights and remedies regarding discharge of forfeited bonds and remission of part or all of the funds forfeited are currently governed by statutes and the courts are limited by their provisions. Leon County v. Aloi-Williams Bonding Agency, 652 So.2d 464 (Fla. 1st DCA 1995); Accredited Sur. & Cas. Co. v. Putnam County, 528 So.2d 430 (Fla. 5th DCA 1988); Accredited Sur. and Cas. Co. v. State, 418 So.2d 378 (Fla. 5th DCA 1982). Courts say that such statutes should be construed liberally to favor sureties, since justice does not favor forfeiture. Liberal interpretation of such statutes in favor of sureties (1) saves the state the expense and burden of keeping an accused in jail pending trial; (2) promotes an accused’s liberty interest consistent with the presumption of innocence; and (3) provides incentives to sureties to offer bails bonds and to pursue those who flee the jurisdiction. See County Bonding Agency v. State, 724 So.2d 131 (Fla. 3d DCA 1998); Leon County.

Surety Continental Heritage Insurance Co. v. Orange County, 798 So.2d 837 (Fla. 5th DCA 2001) provides precedent for the view that section 903.28 only requires that an absconding accused be arrested or apprehended in a different jurisdiction to stop the running of the times in the statute. In that case, a surety located two absconding defendants in Jamaica, caused their arrest, and had done all it could to set in motion extradition proceedings there. However, the authorities in the bailing jurisdiction refused to issue an arrest warrant or to initiate extradition proceedings. The surety filed a motion for remission pursuant to section 903.28 approximately one year after forfeiture of the bail bonds. This court held that the surety was entitled to relief under the remission statute because the surety had substantially attempted to procure the defendant and the state had prevented his being returned to the court’s jurisdiction by the state’s failure to cooperate. See also County Bonding Agency (.dictum).

In cases in which the prosecution has not been thwarted by the defendant’s failure to appear, we hold that the time of the surrender or apprehension of the skipping defendant stops the times running in section 903.28, without regard to whether the apprehension or surrender is in a different or even foreign jurisdiction, or for different criminal charges. Since McCloy was arrested in Dade County within 270 days after the bond was forfeited, subsection (4) applies and allows a maximum remission of 90%.

AFFIRMED.

PALMER, J., concurs.

SHARP, W., dissents, with opinion.

SHARP, W., J.,

dissenting.

I respectfully dissent because I think that the language of section 903.28(4), the remission statute, is susceptible to more than one interpretation, and in my view, the better interpretation is that the surrender or apprehension of the absconding defendant does not stop the running of the time periods in the remission statute where the apprehension or surrender is in a different or foreign jurisdiction, until he or she is returned to the custody and jurisdiction of the bailing court.

Section 903.28, Florida Statutes, deals with remission of forfeiture of bail bonds. Its subsections (2) through (6) are worded identically except for the time periods [90 days, 180 days, 270 days, 1 year and 2 years] and the corresponding maximum amount which can be remitted to the surety for a forfeited bond [100%, 95%, 90%, 85% and 50%].

Section 903.28(4) provides:

If the defendant surrenders or is apprehended within 270 days after forfei: ture, the court, on motion at a hearing upon notice having been given to the county attorney and state attorney as required in subsection (8), shall direct remission of up to, but not more than, 90 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant ivhen the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant. (emphasis added)

Section 903.28(6) has identical language except the time limit is two years and the maximum possible remission is 50%.

The County conceded that Barber is entitled to remission under the statute, but it argues the applicable subsection is (6), which permits remission of up to 50% of the forfeited bond rather than up to 90%.

The issue presented in this case is one of first impression in the State:

MUST A DEFENDANT BE APPREHENDED OR SURRENDERED TO THE JURISDICTION OF THE COURT WHICH APPROVED THE BAIL BOND, WHICH IS FORFEITED DUE TO THE DEFENDANT’S FAILURE TO APPEAR, IN ORDER TO STOP THE TIMES RUNNING, UNDER THE REMISSION STATUTE, AS ARGUED BY THE COUNTY, OR DO THE TIMES STOP RUNNING WHEN THE DEFENDANT IS APPREHENDED .OR SURRENDERED IN A DIFFERENT COURT’S JURISDICTION, WITHOUT REGARD TO WHEN THE DEFENDANT IS RETURNED TO THE JURISDICTION OF THE COURT WHICH APPROVED THE BAIL BOND, AS ARGUED BY BARBER?

The facts in this case are not in dispute. Barber posted a $1,000.00 bail bond for McCloy on September 8, 2000, in a criminal case being prosecuted in the Eighteenth Judicial Circuit for Brevard County, Florida. On January 26, 2001, when McCloy failed to appear, the court forfeited the bond. Barber paid the forfeiture on March 28, 2001.

On August 6, 2001, McCloy was arrested in Dade County, Florida, on different criminal charges than those involved in the Brevard County case. The surety (Barber) apparently played no part in his apprehension and arrest, in Dade County. McCloy remained in the Dade County jail until June 14, 2002, when he was transferred to Brevard County by the State to face the criminal charges underlying this bail bond matter. The record does not show why McCloy remained in the Dade County Jail for more than eleven months after his arrest in Dade County nor whether Barber tried to get him transferred back earlier to Brevard County, and was prevented from doing so by the State or County. Barber apparently played a part in obtaining the transfer of McCloy to Brevard County and it paid the State’s expenses and costs to return McCloy to Brevard County.

The State agreed in its answer that the prosecution of the case against McCloy had not been thwarted by his failure to appear. Indeed, at the hearing held on Barber’s motion for remission, the Assistant State Attorney appeared with the Assistant County Attorney for the purpose of working out a guilty plea for McCloy. He did not present any argument that the delay in returning McCloy to the Brevard Circuit Court had impeded the prosecution of the case against McCloy in any way. Thus, the requirement of the statute (that the delay has not thwarted the prosecution of the case) was satisfied and is not disputed here.

At the hearing on remission, the lawyers representing Barber and the County presented different possible interpretations of section 903.28, as applied to the facts of this case. The County argued that inherent in the language of all of the subsections to section 903.28 is the requirement that the defendant be surrendered to or apprehended in the jurisdiction of the court which approved and forfeited the bond, so that it could be said that the defendant has been returned to “justice,” and the status quo breached by the defendant’s skipping the jurisdiction has been cured. Thus, since McCloy was not returned to Brevard County until more than one year later, but less than two years since the bond forfeiture, subsection (6) controls and limits the remission to 50%.

Barber argued that it is not relevant when a skipping defendant is actually returned to the jurisdiction of the court which approved the forfeited bond, but rather the time of the surrender or apprehension of the skipping defendant stops the times running in section 903.28, without regard to whether the apprehension or surrender is in a different or even foreign jurisdiction, or for different criminal charges. Thus, Barber reasons, since McCloy was arrested in Dade County within 270 days after the bond was forfeited, subsection (4) applies, and allows a maximum remission of 90%.

Parties’ rights and remedies regarding discharge of forfeited bonds and remission of part or all of the funds forfeited are currently governed by statutes and the courts are limited by their provisions. Leon County v. Aloi-Williams Bonding Agency, 652 So.2d 464 (Fla. 1st DCA 1995); Accredited Surety & Casualty Co. v. Putnam County, 528 So.2d 430 (Fla. 5th DCA 1988); Accredited Surety and Casualty Co., Inc. v. State, 418 So.2d 378 (Fla. 5th DCA 1982). See also People v. Goldsmith, 955 P.2d 561 (Colo.App.1997). Courts say that such statutes should be construed liberally to favor sureties, since justice does not favor forfeiture.

Liberal interpretation of these statutes in favor of sureties promotes the administration of justice, since bail places the defendant in the protective custody of a surety, to insure his or her presence for trial, thereby saving the State the expense and burden of keeping an accused in jail pending trial, and it also promotes an accused’s liberty and freedom, consistent with the presumption of innocence. Further, in order to promote and encourage sureties to write bonds, they must be given incentives to enter into bail contracts, and to go after and bring back to justice any accused who flees the jurisdiction. See County Bonding Agency v. State, 724 So.2d 131 (Fla. 3d DCA 1998); Leon County; County Bonding Agency v. State, 724 So.2d 131 (Fla. 3d DCA 1998). See also State v. Amador, 98 N.M. 270, 648 P.2d 309 (1982).

Comparing Florida’s statutes over time concerning discharge of a forfeited bail bond and remission of funds paid under specified circumstances, it is clear the Legislature has increasingly liberalized the conditions under which sureties may seek relief from forfeited bail bonds. For example, the 1970 version of the applicable statute, section 903.28 provided:

After the payment of the forfeiture, the court before which the case is pending may, for reasonable cause shown, within one year of the date of forfeiture, direct a remission of forfeiture in whole or in part, upon such terms as are just; and shall direct a remission of forfeiture if it shall appear there was no breach of the undertaking of the defendant was at the time of required appearance adjudicated insane and confined in an institution or hospital, or confined in a jail or prison for a felony, provided hoivever, if the bail bondsman or his surety company shall apprehend the defendant whose failure to appear or to fulfill his bond contract which resulted in the forfeiture of the undertaking and cause him to be returned to the custody of the official in whose custody he was at the time bail was taken or an official into ivhose custody he would have been given had he been committed, within one year from the date of forfeiture, said forfeiture shall be refunded, except where the trial court shall find that the failure to sooner apprehend or return, the defendant has defeated the ends of justice and thwarted the successful prosecution of the defendant, (emphasis added)

The part of the 1970 statute italicized above, which corresponds with the current section 903.28, required the surety to actually apprehend the defendant and return him to the custody of the applicable county jail or institution, within one year of the bond forfeiture. In 1982, this statute was substantially revised. Portions of the 1970 statute dealing with discharge of a forfeiture were moved to section 903.26. Portions dealing with remission of a forfeiture were placed in a revised section 903.28, containing subsections similar to the current version. However, the 1982 version had less liberal time limits (one year maximum) and smaller percentages of maximum remission recoverable than the current statute.

For example, under the 1982 version of subsection (4), if a defendant was surrendered or apprehended within 270 days after forfeiture, the maximum remission permitted was 60% of the forfeited bond. And, in the current version of the statute, unlike the 1982 statute, sureties who do not substantially participate in or attempt to participate in the apprehension or surrender of the defendant, are provided a remedy if the costs of returning the defendant to the jurisdiction of the court are deducted from the remission amount.

The question here is whether the Legislature intended to further liberalize remedies for the sureties after forfeiture of a bail bond, to require only that an absconding accused be surrendered or apprehended in some other jurisdiction within the time limits set forth in the current statute, or that he or she must be returned to the jurisdiction of the bailing court within those time periods. In general, most courts take the view that the incarceration of an absconding defendant, after forfeiture of a bail bond in a different jurisdiction on different criminal charges, does not suffice to grant the bonding company relief from forfeiture or remission. However, some recent cases have granted relief. Because of the terms of the remission statute in Florida, Florida is among those states permitting some relief for a bail bond forfeiture for the surety under these circumstances, provided the conditions set forth in the statute are met. The relevant question here is how much relief the surety is entitled to?

Barber argues that Surety Continental Heritage Ins. Co. v. Orange County, 798 So.2d 837 (Fla. 5th DCA 2001) provides precedent for the view that section 903.28 only requires that an absconding accused be arrested or apprehended in a different jurisdiction to stop the running of the times in the statute. In that case, a surety located two absconding defendants in Jamaica, caused their arrest, and had done all it could to set in motion extradition proceedings there. However, the authorities in the bailing jurisdiction refused to issue an arrest warrant or to initiate extradition proceedings. The surety filed a motion for remission pursuant to section 903.28 approximately one year after forfeiture of the bail bonds. This court held that the surety was entitled to relief under the remission statute because the surety had substantially attempted to procure the defendant and the State had prevented his being returned to the court’s jurisdiction by the State’s failure to cooperate. See also County Bonding Agency {dictum).

The result in the Surety Continental Heritage case is consistent with many other cases in which actions taken by the bailing State’s officials have prevented a surety from returning a defendant to the bailing court’s jurisdiction. The question as to which subsection of section 903.28 or applicable time limit should apply in that case was not at issue. This court said the remission statute should apply because the surety had filed its motion for remission “approximately one year” after forfeiture. However, the court gave as its reason for providing relief to the surety the fact that the principals “would have been apprehended and returned to justice, but for the State’s refusal to extradite.” (emphasis supplied). Return of the absconding accused to the jurisdiction of the bailing court or its equivalent, was the requisite fact for remission and also the triggering fact in determining which subsection or time limit was applicable.

In this case, the record provides no basis to conclude that the State or County impeded or delayed McCloy’s return to the jurisdiction of the bailing court. Nor did Barber make that argument below. As noted above, McCloy lingered in the Dade County Jail a substantial period of time before being returned to Brevard County for reasons unknown. To come within the ambit of the rule of law established by the Surety Continental Heritage case, I think Barber had the burden to show that the delay was attributable to State or County officials, and but for their actions, McCloy would have been returned to Brevard at an earlier time, which would then be the triggering time to determine which subsection of 903.28 was applicable. Absent those proofs, the time periods set forth in section 903.28 should be determined based on when the defendant was returned to the jurisdiction of the bailing court. See Wiley v. State, 451 So.2d 916 (Fla. 1st DCA 1984).

In Leon County, a defendant was arrested and posted bond on September 21, 1991. He failed to appear in county court and the bond was estreated. The defendant left the country and resided in India. But on March 23, 1993, the defendant voluntarily surrendered to Leon County authorities. All of the statutory conditions for remission of the forfeited bond in that case were met, and the issue was whether the bailing court had the power or discretion to remit the full amount of the bond since defendant surrendered himself to the county jail more than one year, but less than two years, after forfeiture.

The first district concluded the bailing court was bound by subsection 903.28(6) and could only remit a maximum of 50% of the forfeited bond, pursuant to the provisions of that subsection. It described the statutory scheme of section 903.28 as having been designed by the Legislature:

[T]o encourage the expeditious apprehension or surrender of a defendant, in that a statutory graduating scale calculates the percentage of the forfeiture remittable according to the amount of time that has passed after forfeiture, until a defendant is returned to justice. (emphasis added)

652 So.2d 466.

In order to be “returned to justice” an absconding defendant must be returned to the jurisdiction of the bailing court to face those charges for which the bond was set. Barber argues that the time limits in section 903.28 reference the time that an absconding defendant either surrenders him or herself to police authorities or is apprehended by them, without regard to where the apprehension or surrender occurs, or when he or she is returned to the bailing court’s jurisdiction to face the pertinent criminal charges.

This interpretation could lead to strange results. For example, a defendant could be arrested in a foreign country or other state and held there many years on other criminal charges before being returned to the bailing court or “to justice.” To allow remission under section 903.28 based on the time he or she was arrested in another jurisdiction does not comport with a policy of encouraging the expeditious apprehension or surrender of an absconding defendant and bringing him or her “to justice.”

Section 903.26(5) “Forfeiture of the Bond; ...” deals with conditions under which a bond forfeiture can be discharged. It includes a provision that if discharge is sought within 60 days of the forfeiture, a determination that at the time of the required appearance the defendant was adjudicated insane and confined in an institution or hospital or was confined in a jail or prison permits a discharge. This releases of the surety for situations involving “impossibility of performance.”

But section 903.26(5) also contains a provision similar to those in 903.28:

(5) The court shall discharge a forfeiture within 60 days upon:
(c) Surrender or arrest of the defendant if the delay has not thwarted the proper prosecution of the defendant. If the forfeiture has been before discharge, the court shall direct remission of the forfeiture. The court shall condition a discharge or remission on the payment of costs and the expenses incurred by an official in returning the defendant to the jurisdiction of the court, (emphasis added)

All of the cases I have found which were decided under this provision involve situations where the absconding defendants were returned to the jurisdiction of the bailing court within the required time limit set by the statute, measured by the span of time between forfeiture and return to the court’s jurisdiction. See Easy Bail Bonds v. Polk County, 784 So.2d 1173 (Fla. 2d DCA 2001); Rubin S. Williams Bailbonds, Inc. v. State, 493 So.2d 1065 (Fla. 1st DCA 1986); Morra v. State For Use and Benefit of Monroe County, 460 So.2d 507 (Fla. 3d DCA 1984). Section 903.28 should have a consistent interpretation.

Therefore, I would reverse, but certify as a question of public importance to the Florida Supreme Court the question of first impression stated at the beginning of my dissenting opinion.

      . At the hearing below, the surety offered to present evidence on this matter, but the trial court declined to hear it on the ground that it was not relevant and would make no difference under the wording of the subsection.

      . See Surety Continental Heritage Ins. Co. v. Orange County, 798 So.2d 837 (Fla. 5th DCA 2001).

      . Leon County v. Aloi-Williams Bonding Agency, 652 So.2d 464 (Fla. 1st DCA 1995); Accredited Sur. and Cas. Co., v. State, 418 So.2d 378 (Fla. 5th DCA 1982); 8A Am.Jur.2d Bail and Recognizance § 125.

      . I too agree with the majority that this trial judge, and all of our trial judges, are "able,” but I respectfully differ in my interpretation of the statute.

      . At the hearing below, the surety offered to present evidence on this matter, but the trial court declined to hear it on the ground that it was not relevant and would make no difference under the wording of the subsection.

      . See Surety Continental Heritage Ins. Co. v. Orange County, 798 So.2d 837 (Fla. 5th DCA 2001).

      . Leon County v. Aloi-Williams Bonding Agency, 652 So.2d 464 (Fla. 1st DCA 1995); Accredited Surety and Casualty Co., Inc., v. State, 418 So.2d 378 (Fla. 5th DCA 1982); 8A Am. Jur.2d Bail and Recognizance § 125.

      . Compare, Accredited Surety & Casualty Co., Inc. v. Putnam County, Fla., 528 So.2d 430 (Fla. 5th DCA 1988).

        . See Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1872); Pinellas County v. Robertson, 490 So.2d 1041 (Fla. 2d DCA 1986); 98 N.M. 270, 648 P.2d 309, 33 A.L.R.4th 656; Bail: Effect on Surety’s Obligation Under Bail Bond of Principal’s Incarceration in Other Jurisdiction, 33 A.L.R.4th 663.

      . See Annotation Bail — Later Jailing, 35 A.L.R.4th 1192; 8A Am.Jur.2d 92 Arrest and Confinement of Accused; Same Offense; Extradition.

      . See Public Service Mutual Ins. Co. v. State, 135 So.2d 777, 779 (Fla. 1st DCA 1961); 8A Am Jur.2d Bail and Recognizance § 132.

      . See Public Service Mutual Ins. Co. v. State, 135 So.2d 777 (Fla. 1st DCA 1961).

      . See Dolly Bolding Bail Bonds v. State, 787 So.2d 73 (Fla. 2d DCA 2001).

      . Fla. R.App. P. 9.030(2)(A)(v).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carlton BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2596.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    Rehearing Denied Nov. 19, 2003.
    Carlton Brown, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Manning, 839 So.2d 849 (Fla. 5th DCA 2003).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Samuel D. GRANBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-54.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 2003.
    Rehearing Denied Nov. 20, 2003.

      James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hunter v. State, 687 So.2d 277 (Fla. 5th DCA 1997).

SHARP, W., ORFINGER and MONACO, JJ., concur.


text:
    Carl E. KNAPP, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2688.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2003.
    Rehearing Denied Nov. 20, 2003.
    Carl E. Knapp, Sanderson, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Kreehowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Whitney v. State, 845 So.2d 1011, 1011-12 (Fla. 5th DCA 2003).

SHARP, W„ ORFINGER and TORPY, JJ., concur.


text:
    PONDELLA HALL FOR HIRE, INC., n/k/a Eight Hundred, Inc., Appellant, v. Lawson LAMAR, State Attorney, etc., Appellee.
    No. 5D02-1732.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Rehearing Denied Nov. 25, 2003.
    Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, and George Waas, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pondella Hall for Hire, Inc. (Pondella) appeals a summary judgment entered in favor of Lawson Lamar, State Attorney on Pondella’s complaint for replevin and damages.

The underlying facts and procedural aspects of this case are recited in Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So.2d 510 (Fla. 5th DCA 2003) (Pondella I) and Pondella Hall for Hire, Inc. v. Croft, 844 So.2d 696 (Fla. 5th DCA 2003) (Pondella II).

We affirm the summary judgment because Pondella sought the wrong remedy in the incorrect court for return of its property or any damages it has allegedly incurred as explained in Pondella I and II.

AFFIRMED.

PETERSON, PALMER and TORPY, JJ., concur.


author: PLEUS, J.

text:
    Randall FOTI and Deborah Foti, etc., Petitioners, v. CITRUS COUNTY, Florida, etc., et al., Respondents.
    No. 5D03-2216.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2003.
    Clarification Denied Nov. 21, 2003.
    Clark A. Stillwell of Brannen, Stillwell & Perrin, P.A., Inverness, for Petitioners.
    Michele L. Slingerland, Assistant County Attorney, Inverness, for Respondents.
   PLEUS, J.

The instant petition for writ of certiorari is denied because it seeks a second appeal and because the petitioners have failed to establish that the trial court departed from the essential requirements of law or applied the wrong law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003).

PETITION DENIED.

THOMPSON and PALMER, JJ., concur.


text:
    John Michael FERENC, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3025.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    Rehearing Denied Nov. 5, 2003.
    John Michael Ferenc, Defunick Springs, pro se.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Mathis v. State, 720 So.2d 1116 (Fla. 5th DCA 1998).

SAWAYA, C.J., SHARP, W., and ORFINGER, JJ., concur.


text:
    George M. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3605.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2003.
    Rehearing Denied Dec. 3, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 10, 2003, the Court has determined that the notice of appeal was not timely filed because the motion for rehearing was not filed within 'fifteen days of the date of service of the trial court’s order. Accordingly, the appeal is hereby dismissed.

DISMISSED.

ALLEN, DAVIS and BENTON, JJ, concur.


author: I KIMBALL, J. h KNOLL, Justice, hWEIMER, J.,

text:
    GREATER NEW ORLEANS EXPRESSWAY COMMISSION v. Honorable Rebecca M. OLIVIER, Judge, First Parish Court, Division "A" and Honorable George W. Giacobbe, Judge, First Parish Court, Division "B".
    No. 2002-CA-2795.
    Supreme Court of Louisiana.
    Nov. 18, 2003.
    Thomas P. Anzelmo, Sr., Kyle P. Kirsch, Geoffrey J. Orr, Burgess E. McCranie, Jr., Metairie, for Applicant.
    Richard C. Stanley, Jennifer Thornton, Stanley, Flanagan & Reuter, New Orleans, for Respondent.
   I KIMBALL, J.

This case involves a direct appeal to this court pursuant to La. Const, art. V, § 5(D) from a judgment of the district court denying plaintiffs petition for writ of mandamus. We find that this court lacks appellate jurisdiction and transfer the case to the appropriate court of appeal.

Facts and Procedural History

The Greater New Orleans Expressway Commission (“GNOEC”) polices the Huey P. Long Bridge and operates, polices, and maintains the Lake Pontchartrain Causeway Bridge. Pursuant to La. R.S. 32:57(G)(1), an additional five dollar cost is imposed on “any person who is found guilty, pleads guilty, or pleads nolo conten-dere to any motor vehicle offense when the citation was issued for a violation on the Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge or approaches to and Lfrom such bridges by police employed by” the GNOEC. La. R.S. 32:57(G)(2) requires that the proceeds generated by this additional cost be deposited into the state treasury, then credited to a special fund that shall be used by the GNOEC to supplement the salaries of P.O.S.T. certified officers and for the acquisition and upkeep of police equipment.

Judges Rebecca Olivier and George Gia-cobbe of the First Parish Court for the Parish of Jefferson have declined to collect the additional five dollar cost in cases _bpising in their jurisdiction on the ground that Da. 32:57(G) is unconstitutional. December 6, 2001, the GNOEC filed a petition for writ of mandamus against Judges Olivier and Giacobbe in their capacities as public officers, seeking the issuance of a writ of mandamus directing the judges to comply with the provisions of La. R.S. 32:57(G)(1). In answer to the GNOEC’s petition, defendants alleged La. R.S. 32:57 is unconstitutional on several grounds.

The district court denied the GNOEC’s petition for writ of mandamus. In written reasons for judgment, the district court found that defendants had sufficient interest to question the constitutionality of La. R.S. 32:57(G) and determined that La. R.S. 32:57(G) is unconstitutional on several grounds.

The GNOEC appealed the district court’s judgment directly to this court, claiming we have jurisdiction pursuant to La. Const, art. V, § 5(D).

Discussion

La. Const. art. V, § 5(D) provides, in pertinent part, that “a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional .... ” In the instant case, the district court’s judgment simply denied the petition for writ of mandamus filed by the GNOEC; it did not declare La. R.S. 32:57(G) unconstitutional. It is only in written reasons for judgment that the district court opined the statute is unconstitutional. A judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Appeals are taken from the judgment, not the written reasons for judgment. See La. C.C.P. arts.2082, 2083; Fisher v. Rollins, 231 La. 252, 260, 91 So.2d 28, 31 (1956); Huang v. Louisiana State Bd. of Trustees for State Colleges and Universities, 99-2805, p. 5 (La.App. 1 Cir. 12/22/00), 781 So.2d 1, 6; McCalmont v. Jefferson Parish Sheriff’s Office, 99-940, p. 6 (La.App. 5 Cir. 1/12/00), 748 So.2d 1286, 1290, writ denied, 00-0679 (La.L4/20/00), 760 So.2d 1160. Because the district court’s judgment did not declare La. R.S. 32:57(G) unconstitutional, we do not have appellate jurisdiction pursuant to the provisions of La. Const, art. V, § 5(D). Accordingly, this case is transferred to the court of appeal.

Decree

For the reasons assigned, we find this court does not have appellate jurisdiction over this case pursuant to the provisions of La. Const, art. V, § 5(D). This case is transferred to the Fifth Circuit Court of Appeal.

Case transferred to Fifth Circuit Court of Appeal.

KNOLL and WEIMER, JJ., dissent and assign reasons.

VICTORY J., dissents for the reasons assigned by KNOLL and WEIMER, JJ.

h KNOLL, Justice,

dissenting.

In my view, the instant matter should not be transferred to the court of appeal. Rather, this court should render an opinion pursuant to its general supervisory jurisdiction over all other courts. See La. CoNst. Art. V, § 5(A). “If an appeal is taken to this court when such remedy is not available, the court may in its discretion treat such appeal as an application for supervisory or other writs.” La. Sup.Ct. Rule I, § 11.

The Louisiana Supreme Court has been granted supervisory powers since the constitution of 1879. Albert Tate, Jr., Supervisory Powers of the Louisiana Couris of Appeal, 38 Tul. L.Rev. 429, 430 (1964). The constitutional grant of supervisory authority to this court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court. State v. Galliano, 02-2849, p. 3 (La.1/10/03), 839 So.2d 932, 935 (Calogero, C.J., dissenting); Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 2 (La.4/23/98), 711 So.2d 675, 678 n. 3; State Bond Comm’n v. All Taxpayers, Prop. Owners and Citizens of State, 510 So.2d 662, 663 (La.1987); State v. Wimberly, 414 So.2d 666, 670 (La.1982); Loeb v. Collier, 131 La. 377, 59 So. 816 (1912); State ex rel. Union Sawmill Co. v. Summit Lumber Co., 117 La. 643, 42 So. 195 (1906); Tate, 38 Tul. L.Rev. at 430; Comment, Supervisory Powers of the Supreme Court of Louisiana Over Inferior Courts, 34 Tul. L.Rev. 165 (1959). The court can at all times intervene under its own plenary supervisory powers, whether or not an intermediate court has acted on the matter. Tate, 38 Tul. L.Rev. at 430. This court has a long history of exercising its supervisory jurisdiction when, in its wisdom, it deems it necessary.

That is not to say that this court exercises its supervisory jurisdiction lightly. In practice, certain limitations upon the use of this power are recognized by this court out of respect for the independence of other courts in the determination of questions confided to their judicial discretion, and to avoid usurping merely appellate jurisdiction not conferred upon us by the constitution. Wimberly, 414 So.2d at 670 (citing Tate, 38 Tul. L.Rev. at 431; Comment, 34 Tul. L.Rev. at 168). However, there are instances in which writs have been granted even though the relator did not exhaust his remedies in the lower court. Comment, 34 Tul. L.Rev. at 171. The flexibility and extraordinary nature of supervisory writs render it extremely difficult to formulate any general rules as to when they will or will not issue. Id.

In Louisiana Associated Gen. Contractors, Inc. v. New Orleans Aviation Bd., we granted writs according to our supervisory jurisdiction under La. Const. ART. V, § 5(A), even though relator did not have a right of direct appeal to this court under La. Const. Aet. V, § 5(D). There we granted writs in order to avoid further delay in the disposition of the matter which had previously been remanded to the trial court. General Contractors, p. 3, 764 So.2d at 33. Other instances of this court exercising its supervisory authority though relator had not exhausted its remedies in the lower courts include Progressive Sec. Ins. Co. v. Foster, supra, p. 2, 711 So.2d at 678 n. 3; State Bond Comm’n, supra, 510 So.2d at 663; State v. Peacock, 461 So.2d 1040, 1041 (La.1984)(“since this case has already been briefed and argued in this court, judicial economy will best be served by exercising our supervisory jurisdiction”); Hainkel v. Henry, 313 So.2d 577, 578 (La.1975).

In my view, judicial economy will best be served by exercising our supervisory jurisdiction in this matter before us. Although the district court failed to include a declaration of unconstitutionality in the judgment, the extensive written reasons for judgment show that the district court denied GNOEC’s petition for mandamus based upon its determination that La.Rev. Stat. 32:57(G) is unconstitutional on several grounds. This matter has been thoroughly briefed and argued before this court. Additionally, this case presents the issue of whether in a mandamus action asserting violations of ministerial duties, judges may challenge the constitutionality of the statute imposing such ministerial duty as a defense. This is a significant unresolved issue of law which should be resolved by this court, as this court has a duty to provide an authoritative voice on questions of importance to the legal system. Because of the important public interest in this matter, the length of time in which it has been pending, and in the interest of judicial economy, I believe this court should exercise its supervisory jurisdiction rather than remand this case to the court of appeal. For these reasons, I respectfully dissent.

hWEIMER, J.,

dissenting.

I respectfully disagree with the majority’s decision to remand this case to the court of appeal.

I agree we do not have appellate jurisdiction pursuant to the provisions of La. Const, art. Y, § 5(D) because the judgment itself does not declare LSA-R.S. 32:57(G) unconstitutional. However, the written reasons clearly reflect the district court’s determination that the statute is unconstitutional. As I have previously acknowledged, a judgment and reasons for judgment are two separate and distinct documents. Becker v. Dean, 03-2493, p. 4 (La.9/18/03), 854 So.2d 864, 875 n. 5, Weirner, J., dissenting; Cenac v. Public Access Water Rights Association, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023 n. 6, Weimer, J., dissenting in part. Appeals are taken from the judgment, not the written reasons for judgment. Id.

Nevertheless, the determination that this court does not have appellate jurisdiction over this matter does not preclude the court from exercising its supervisory jurisdiction pursuant to La. Const, art. V, § 5(A) to consider the issues raised, briefed and argued extensively by the parties. As Chief Justice Calogero points out in his concurring opinion in City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311:

| ¡/‘The distinction between supervisory and appellate jurisdiction [in the 1974 Constitution] is a continuation of existing terminology, ‘supervisory’ referring to the court’s discretionary jurisdiction under which it has the power to select the cases it will hear, and ‘appellate’ contemplating cases in which a 'party as a matter of right can demand that the court hear a case.” [Emphasis in original.]

City of Baton Rouge v. Ross, 94-0695, pp. 1-2 (La.4/28/95), 654 So.2d 1311, 1327, Calogero, Chief Justice concurring, quoting Lee Hargrave, The Judiciary Article of the Louisiana Constitution of 197k, 37 La. L.Rev. 765, 795 (1977). By virtue of its supervisory jurisdiction, this court can hear any case that it chooses that arises in the Louisiana court system. Id. quoting State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts, August 15, 1973 at 51. As we have frequently noted, “[t]he constitutional grant of supervisory authority to this court is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court.” Progressive Security Insurance Company v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, 678 n. 3, quoting State Bond Com’n v. All Taxpayers, Property Owners, and Citizens of State, 510 So.2d 662, 663 (La.1987).

In the exercise of its discretion, this court has traditionally and justifiably been reluctant to exercise its supervisory jurisdiction until all mechanisms of judicial review available in lower courts are exhausted. See, State v. Wimberly, 414 So.2d 666, 670 (La.1982) (on rehearing), quoting State ex rel. City of New Orleans v. The Judge of the Sixth District Court, 32 La. Ann. 549 (La.1880). Nevertheless, under exceptional circumstances involving questions of significant public import and in the interest of judicial efficiency, this court has elected to exercise its supervisory jurisdiction to resolve issues arising in cases in which the right of direct review via appeal is not available. Louisiana Associated General Contractors, Inc. v. New Orleans Aviation Board, 99-0025 (La.7/7/99), 764 So.2d 31, 33 (“Upon review, we find that ... the LAGC did not have a right of direct appeal to this court. However, |3we decide to grant this case according to our supervisory jurisdiction under La. Const. Art. V, § 5(A) in order to avoid further delay in the disposition of this matter.”). See also, Progressive Security Insurance Company, 97-2985 at 1, 711 So.2d at 678 n. 3; State v. Jones, 94-0459 (La.7/5/94), 639 So.2d 1144, 1147; State v. Peacock, 461 So.2d 1040, 1041 (La.1984).

This case presents the exceptional circumstance warranting the exercise of our supervisory jurisdiction to resolve the issues raised now, rather than following a remand to the court of appeal and the additional delays entailed therein. Several considerations warrant this conclusion. First, this court is only deprived of appellate jurisdiction in this instance by virtue of an oversight on the part of the district court in fading to incorporate the declaration of unconstitutionality into its final judgment. The extensive reasons for judgment assigned by the district court leave no doubt that the basis for the judgment denying the petition for mandamus is the court’s conclusion that the provisions of LSA-R.S. 32:57(G) are constitutionally infirm. In addition, the issues raised in this case have been exhaustively briefed and argued by the parties. A remand to the court of appeal leaves that court in the unenviable position of having to determine what disposition can be made of the case in its present posture, necessitating further delay in a matter that has been pending for quite some time. Finally, the threshold issue that is presented in this case requires a determination of the right or interest of a judge to challenge the constitutionality of a law imposing what is alleged to be a ministerial duty in defense of a mandamus action brought to compel the judge to perform his or her duty. This issue, which essentially tests the scope of judicial authority, is an issue of significant public interest, the final resolution of which rests particularly within the province and | ¿responsibility of this court. Thus, while the majority is to be commended for its caution and restraint, a concern in which I would ordinarily share, I beliéve that the efficient use of judicial resources and the significance of the underlying issue in this case justify this court’s exercise of its supervisory jurisdiction pursuant to La. Const, art. V, § 5(A) to resolve this case now. Therefore, I respectfully dissent from the majority’s decision to remand this case to the court of appeal.

      . Specifically, La. R.S. 32:57(G) provides in its entirely:
      (1) Notwithstanding any provision of law to the contrary, any person who is found guilty, pleads guilty, or pleads nolo conten-dere to any motor vehicle offense when the citation was issued for a violation on the Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge or approaches to and from such bridges by police employed by the Greater New Orleans Expressway Commission shall pay an additional cost of five dollars.
      (2) All proceeds generated by this additional cost shall be deposited into the state treasury. After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited as required in this Subsection shall be credited to a special fund hereby created in the state treasury to be known as the Greater New Orleans Expressway Commission Additional Cost Fund. The monies in this fund shall be appropriated by the legislature to the Greater New Orleans Expressway Commission and shall be used by the commission to supplement the salaries of P.O.S.T. certified officers and for the acquisition or upkeep of police equipment. All unexpended and unencumbered monies in this fund at the end of the fiscal year shall remain in such fund. The monies in this fund shall be invested by the state- treasurer in the same manner as monies in the state general fund and interest earned on the investment of monies shall be credited to this fund, again, following compliance with the requirements of Article VII, Section 9(B) of the Constitution, relative to the Bond Security and Redemption Fund. The monies appropriated by the legislature pursuant to this Paragraph shall not displace, replace, or supplant appropriations otherwise made from the general fund for the Greater New Orleans Expressway Commission.

      . 99-0025 (La.7/7/99), 764 So.2d 31.

      . If, pursuant to the consent of the parties, the matter is ultimately remanded to the trial court for modification of the judgment to conform to the written reasons, then it will once again return to this court for resolution under our appellate jurisdiction at some date in the future.


author: 1,THOMAS F. DALEY, Judge.

text:
    Rudy BROWN d/b/a L.A. Homes, Inc. v. Gina Plaisance CONNOR, Wife of/and Michael Patrick Connor.
    No. 03-CA-282.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Jacob J. Amato and Gary J. Raphael, Gretna, Louisiana, for Plaintiff/Appellant.
    Donald L. Hyatt, II, Donald L. Hyatt, APLC and Ralph Capitelli, Capitelli & Wicker, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD, and THOMAS F. DALEY.
   1,THOMAS F. DALEY, Judge.

The plaintiff, Rudy Brown d/b/a L.A. Homes, Inc. (L.A.Homes), has appealed the trial court’s judgment in favor of the defendants, Gina and Michael Connor (Connors). The plaintiff filed suit against the defendants for defamation asserting that a sign placed in front of defendant’s home and pointing to the new home constructed next door, which read, “BEFORE YOU BUY THIS HOUSE, PROM L.A. HOMES. COME TALK TO U.S. FIRST. BAD COMPANY.”, was defamatory. Following a trial on the merits, the trial court found the plaintiff failed to prove his case by a preponderance of the evidence. For the reasons that follow, we affirm.

FACTS:

Gina and Michael Connor purchased a home located at 77 Dunlieth Court in Plantation Estates Subdivision on March 31, 1995. Clayton Miller (Miller) was the general contractor who built the home. L.A. Homes financed the construction, shared responsibility for warranty work on the home, and shared with Miller in the profit from the sale.

RMrs. Connor testified that after she and her husband moved into the home, they experienced several problems with the house, including doors that did not close, an electrical outlet that did not work, an air conditioner that did not cool, two roof leaks, an inadequate paint job, and carpet that faded and matted prematurely. Mr. Connor testified that Mr. Brown told him at the act of sale that he would get the warranties together and give them to the Connors, but they never received the written warranties. Mr. Connor testified that he was not satisfied with the warranty work performed by Clayton Miller or L.A. Homes. Despite his complaints he was told by Mrs. Brown that L.A. Homes had met their requirements as a contractor and would have nothing further to do with the house. Mr. Connor acknowledged placing the sign at issue in his front yard. He testified he placed the sign there to alert potential purchasers of the home next door of the warranty problem he experienced and to advise potential purchasers to be sure to get the warranty papers on their home prior to the act of sale. Mrs. Con-nor admitted speaking to Mr. and Mrs. Cantrelle, who signed a purchase agreement on 73 Dunlieth Court, about problems he experienced with L.A. Homes.

Plaintiff contends that L.A. Homes performed all of the repairs on the Connor home except the carpet problem, which plaintiff contends was due to normal wear and tear.

L.A. Homes had a pending sale on 73 Dunlieth Court to Mr. and Mrs. Cantrelle, who had signed a purchase agreement on September 19, 1997. On September 22, 1997, L.A. Homes and the Cantrelles’, in writing, mutually agreed to terminate the purchase agreement. The document indicates that the reason for the withdrawal was, “After hearing and seeing the sign next to 73 Dunlieth and hearing and knowing the builder’s reputation we have many reservations about purchasing this home.” After the sale to the Cantrelles fell through L.A. Homes removed the “for sale” sign from 73 Dunlieth and rented the home. Contrary to the | ^withdrawal document, Helen Cantrelles testified at trial that she and her husband decided to withdraw the purchase agreement with L.A. Homes on 73 Dunlieth Court for financial reasons. She testified that the purchase agreement was predicated on the sale of her existing home before November 25, 1997 and that she did not sell her home until December 1997.

The home in question did not sell until July 7, 2000, resulting in a loss to L.A. Homes. In addition, because of the damage the sign did to the reputation of his business, Mr. Brown claims he was not able to build any other homes in Plantation Estates, which caused him additional economic injury.

At the conclusion of trial, the trial judge took the matter under advisement. A short time later the trial court ruled in favor of defendants finding that “plaintiff has failed to prove his case by a preponderance of the evidence” without giving detailed reasons or findings of fact.

DISCUSSION:

On appeal, plaintiff argues the trial court erred in finding plaintiff failed to prove his case by a preponderance of the evidence. Plaintiff argues that Mr. Con-nor’s sign was “an unprivileged publication to a third party of a false and defamatory statement concerning another.” Plaintiff contends if it were true that he was a bad builder, he would not have been in business for so many years. Plaintiff further contends that the intent of the sign was to discourage potential buyers from purchasing the home next door. He argues that the fact that the Cantrelles withdrew their offer shows actual malice and fault on the part of the Connors. Finally, plaintiff argues that the house had to be taken off of the market for two year's because of the sign and that he proved damages as a result of the defamation.

| Jn order to prevail in a suit for defamation, plaintiff has the burden of proving by a preponderance of the evidence five essential elements: defamatory words, publication, falsity, malice and resulting injury. Sommer v. State, Dept. of Transp. and Dev., 97-1929 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 939, writ denied, 2000-1759 (La.10/27/00), 772 So.2d 122. The cause of action fails if plaintiff fails to prove even one of these elements. Id. Defamatory words have been defined as words that “tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him.” Id. at 939. These words must be communicated or published to someone other than the plaintiff. Id. Words are considered defamatory per se if by their nature, they tend to injure one’s personal or professional reputation. Id. If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed, although they may be rebutted by the defendant. Id. To rebut this presumption, defendants have the burden of proving a reasonable belief in the truth of the statements. Id. An action in defamation does not lie from a statement of opinion based on the speaker or writer’s subjective view and that does not state or imply underlying facts. Mashburn v. Collin, 355 So.2d 879 (La.1977); Bussie v. Lowenthal, 535 So.2d 378 (La.1988). The test for determination of whether a statement is fact or opinion is whether “ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” Mashbum at 885. Whether a statement is an expression of opinion or a fact is determined according to the specific facts and circumstances of each case. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706.

Plaintiff alleges that the words on the sign “BEFORE YOU BUY THIS HOUSE, FROM L.A. HOMES. COME TALK TO U.S. FIRST. BAD COMPANY.” is a “communication of defamatory allegations which are known to |7be false by defendants and which have caused immediate and irreparable damage to the plaintiffs.”

Plaintiff first contends that the statement on the sign was false because L.A. Homes did not build Mr. and Mrs. Connors home. Plaintiff suggests that since L.A. Homes was not the contractor who built the Connors home, any defects in workmanship could not be attributed to LA. Homes. The evidence presented at trial, however, clearly establishes that although L.A. Homes was not the contractor, L.A. Homes and Mr. Miller, the contractor, shared warranty responsibility. Based on the shared warranty responsibility publication of information concerning the quality of the warranty work on the house was not falsely attributed to L.A. Homes.

Secondly, plaintiff claimed that the statement was false because all legitimate warranty problems were resolved. Defendants argue that the truth of the statement that L.A. Homes is a bad company is supported by their testimony and that of Hugh Bailleos, another customer of L.A. Homes who experienced warranty problems. The Connors testified that the purpose of putting the sign up was to warn potential buyers to get the warranty papers prior to going to the act of sale so they would not encounter problems in having warranty work performed. The testimony of Mr. and Mrs. Connor combined with the testimony of Mr. Bailleos establishes that defendants believed and had a good faith basis to believe that L.A. Homes is a bad company because L.A. Homes did not fulfill its warranty commitments.

Defendant’s public sign publicizing their opinion that L.A. Homes is a bad company does not constitute actionable defamation because the warranty dispute between the parties had a basis in fact. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.


author: I «JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Dustin McLELLAND.
    No. 03-KA-498.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Margaret S. Sollars, Thibodaux, Louisiana, for Appellant.
    Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Juliet Clark, Counsel of Record on Appeal, Kia Habisreitinger, Trial Counsel, Martin Belanger, Assistant District Attorneys, Gretna, Louisiana, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   I «JAMES L. CANNELLA, Judge.

The Defendant, Dustin McLelland, appeals from his conviction of attempted aggravated rape and sentence of 45 years imprisonment at hard labor, and from his conviction of attempted aggravated crime against nature and sentence of five years imprisonment at hard labor. We affirm and remand.

On December 20, 2001, the Defendant was indicted by a grand jury for aggravated rape of a juvenile, a violation of La. R.S.14:42, and aggravated crime against nature against a juvenile, a violation of La.R.S. 14:89.1. A sanity hearing was conducted and the Defendant was found competent to stand trial. On November 18, 2002, the Defendant was tried by a 12 person jury and found guilty of attempted aggravated rape and attempted aggravated crime against nature. On December 5, 2002, the trial judge sentenced the Defendant to 45 years imprisonment at hard labor on the attempted aggravated rape conviction, |3and five years imprisonment at hard labor on the attempted crime against nature conviction.

For five years prior to the date of this incident, Estelle Watts (Watts) and M.N., the victim’s mother, were friends. Watts is the mother of three minor children, including the Defendant, Dustin McLel-land, who was 17 years old at the time of this incident. The Defendant dropped out of high school and helped his mother by working around the house and babysitting. The Defendant babysat with his younger siblings (ages eight and three) and with J.B., M.N.’s five-year-old daughter.

In the fall of 2001, M.N. was preparing to take J.B. to the babysitter’s house and the child indicated that she did not want to go. M.N. found this strange because J.B. had loved being able to go to the babysitter’s house. When questioned, the child told her mother “Dustin hurt me, mommy, Dustin hurt me real bad.” The child indicated that Dustin hurt her “noogie” and “coochie” (i.e., vagina). J.B. told her mother that Dustin put his “peanut” (i.e., penis) there and in her mouth, hurting her. She also said that he put it by her butt and she screamed so he stopped, but that he then put her on the floor and made her do it.

M.N. did not immediately alert the police because she was friends with Watts and she contacted her to see if they could handle the matter. A month later, when no action was taken by Watts, M.N. contacted the police. After the police became involved, M.N. and J.B. went to the Jefferson Parish Detective’s Office where they met with Detective Kelly Jones, the Supervisor of the Personal Violence Unit of the Jefferson Parish Sheriffs Office (JPSO). Officer Jones found J.B. to be withdrawn and afraid during the interview. However, she reported that [4the Defendant hurt her in her “coochie” and her “butt.” The child thereafter explained by pointing to her vaginal and rectal areas.

On November 1, 2001, the Defendant was arrested by the JPSO. He was transported to the Detective Bureau following the arrest where he met with Detective Edward Klein who advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The Defendant gave an audio taped statement in which he admitted to engaging in sexual relations with the child about five to ten times over a two week period, approximately three months before the statement date. The Defendant indicated that he removed the child’s clothes and, while in the bathroom, he partially penetrated her anus twice. He also admitted to rubbing her vaginal area with his hand and the tip of his penis. Additionally, he admitted rubbing lotion on the victim’s legs and placing his penis between her legs before ejaculating onto the floor. The taped confession was submitted into evidence and played for the jury. They also received a transcription of the statement

On November 6, 2001, M.N. and J.B. met with Omalee Gordon, a forensic interviewer with the Gretna Police Department, at the Child Advocacy Center. J.B. agreed to the taped interview. She recounted the sexual abuse she had previously relayed to her mother and the investigating officer. The taped interview was later played at trial.

On November 20, 2001, M.N. and J.B. were seen by Dr. Scott Benton, an expert in Pediatric Forensic Medicine and the director of the Children’s Risk Evaluation Center. During the interview, J.B. told Dr. Benton that, when she went to the Defendant’s house, he took off his clothes and her clothes and made her lay down. According to J.B., the Defendant put his “peanut” in her “nookie” and her “butt” and stated that these actions hurt her. She said that the Defendant put lotion on his penis and that “white” came out of his penis. She also told Dr. Benton that | Bthe Defendant told her that he had “booga [sic] monsters.” According to Dr. Benton, the child denied being abused by anyone else.

Dr. Benton conducted a physical examination and found the child’s hymen intact and no other abnormal findings. Dr. Benton explained that the delay in reporting could explain the lack of physical findings. He noted that the vagina, mouth, and anus are mucosal tissue, and have excellent healing properties. He also testified that penetration into the vagina may occur without damage to the hymen, because of its doughnut shape and elasticity. He stated that the breaking of the hymen can depend on the force exerted. He added that the application of lubricant could have helped avoid damage during insertion.

Both the audio taped confession and the child’s taped interview were admitted into evidence and played for the jury. The jury also received a transcription of the Defendant’s statement.

On appeal, the Defendant contends that the trial judge erred by allowing the admission of his confession into evidence. He also asserts that the sentences imposed are excessive, and that his counsel was ineffective by failing to object or make a motion for reconsideration of the excessive sentences.

SUPPRESSION OF THE CONFESSION

The Defendant first contends that his custodial statement to police was inadmissible because it was not freely given. He contends that he was induced to give the statement because of police promises of leniency and restoration of his freedom.

At the hearing on the motion to suppress a statement or confession, the State bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. La.C.Cr.P. art. 703(C); State v. Hills, 354 So.2d 186, 188 (La.1977). Before the prosecutor may introduce a statement or confession into evidence, it must be shown that the statement or confession did not result from [¿fear, duress, intimidation, menace, threats, inducements or promises. La.R.S. 15:451; State v. Lucky, 96-1687, p. 16 (La.4/13/99), 755 So.2d 845, 855, reh’g denied, (La.9/17/99), 755 So.2d 861, cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000); State v. Blank, 01-564, p. 6 (La.App. 5th Cir.11/27/01), 804 So.2d 132, 136. If the accused is in custody, he must also have been first advised of his constitutional rights. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, Lucky, 96-1687 at 16, 755 So.2d at 855; Blank, 01-564 at p. 5, 804 So.2d at 136. A statement or confession obtained by direct or implied promises, however slight, or by the exertion of improper influence must be considered involuntary and thus, inadmissible. State v. Morvant, 384 So.2d 765, 770 (La.1980), quoting State v. Jackson, 381 So.2d 485, 487 (La.1980); State v. Holloway, 37,021, p. 10 (La.App. 2nd Cir.5/16/03), 847 So.2d 200, 208. However, a remark by a police officer telling the defendant that the officer will “help” or “do what he can or things will go easier” will not negate the voluntary nature of the confession. State v. Sepulvado, 93-2692, p. 4 (La.4/8/96), 672 So.2d 158, 163, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227, reh’g denied 519 U.S. 1035, 117 S.Ct. 600, 136 L.Ed.2d 527; Petterway, 403 So.2d 1157, 1160 (La.1981); Holloway, 37,021 at 10, 847 So.2d at 208. Such statements have been characterized by the Louisiana Supreme Court as “musing” and “not much beyond what the defendant might well have concluded for himself,” namely, that he should tell the truth. State v. Petterway, 403 So.2d at 1160. See also: Sepulvado, 93-2692 at 4, 672 So.2d at 163.

The determination of voluntariness is made on a case-by-case basis and such a determination rests upon the totality of the circumstances. Sepulvado, 93-2692 at 4, 672 So.2d at 163; Blank, 01-564 at p. 7, 804 So.2d at 137. The admissibility of a statement or confession is a determination for the trial judge and his conclusions regarding credibility and weight of the testimony concerning the voluntary nature |7of the statement or confession will not be overturned unless unsupported by the evidence. State v. Thibodeaux, 99-1673, p. 12 (La.9/8/99), 750 So.2d 916, 922, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Onezime, 01-1018, p. 17 (La.App. 5th Cir.2/26/02), 811 So.2d 1033, 1043, writ denied, 02-1099 (La.3/21/03), 840 So.2d 535. In reviewing the correctness of the trial court’s ruling on the motion to suppress, the appellate court is not limited to evidence adduced at the hearing on the motion, but may also consider pertinent evidence given at trial. Onezime, 01-1018, p. 17, 811 So.2d at 1043-1044.

Detective Kline was the sole witness to testify at the hearing on the motion to suppress. He testified that, on November 1, 2001, he received a call from the Third District to investigate the rape of a five-year-old female. Detective Kline proceeded to the Third District, where he met M.N. and J.B. M.N. reported to him that she was bringing her daughter to the babysitter and J.B. advised her that she did not want to go there because “Dustin hurts her private with his peanut.” The Detective spoke with the investigating officer, Officer Bianca Simmons, and then met with the Defendant at the Detective Bureau. Detective Kline advised the Defendant of his constitutional rights under Miranda prior to speaking with him. The Defendant indicated that he understood them and wanted to give the statement. Detective Kline stated that the Defendant was not coerced, threatened or given any promises for his agreement to give the statement, and specifically denied telling the Defendant that his consent to give a statement would help him or that he would receive a lesser charge or be released to go home if he cooperated, or that the Detective would help him out if he gave a statement.

At trial, Detective Kline reiterated his testimony from the hearing on the motion to suppress, and further testified that the Defendant appeared worried, but not afraid, at the time of the statement. At trial, the Detective added that he advised the Defendant that he was under arrest and charged with aggravated rape, |sbut did not advise him of the penalty for the charge. The Defendant did not ask to stop the interview at any time.

The Defendant testified at trial, contending that portions of his statement to Detective Kline were not true. The Defendant admitted at trial to putting lotion on J.B. and putting his penis between her legs, but not to the other statements in his confession or the other allegations made by the child. In an attempt to explain the discrepancy between his confession and trial testimony, the Defendant stated:

DEFENDANT:

The reason when I had made the statement with this detective, because he did promise me that he would help me out here, that I would be able to go back home to my family. And, when he told me that, my mind was all cluttered up, I was crying, I was worried, I was scared, and the first thing I thought of when he said “home,” is my mom and my little brothers, because I did not want to have them stuck out like they are.

Based on the totality of the circumstances in this case, we find that the trial judge did not err in finding that the Defendant’s statements were voluntary and admissible at trial. Detective Kline was the only witness at the hearing on the motion to suppress the confession. He testified that he twice advised the Defendant of his Miranda rights. Despite the warning that he was entitled to remain silent, the Defendant told him that he wanted to make a statement. Detective Kline stated that he did not tell the Defendant that he would help him or that the Defendant would be able to go home if he made a statement. Detective Kline testified that no one induced the confession by force, threats, or coercion of any kind. Furthermore, although the Defendant claimed at trial that he was induced by promises to confess to the crimes, the Defendant’s credibility was impugned during cross-examination when he stated that he lied to the investigator about the sexual acts in which he engaged with the victim. The trial judge weighed the testimony and credibility of the witnesses and his determination is supported by |3the evidence. Thus, we find no error in the ruling of the trial judge. See: Thibodeaux, 98-1673 at 12, 750 So.2d at 922.

EXCESSIVE SENTENCE

Next, the Defendant asserts that his sentence for attempted aggravated rape is excessive, so, his trial counsel was ineffective for failing to file a motion to reconsider the sentence.

The record reflects that the Defendant did not lodge an objection to the sentence and did not file a motion for reconsideration of sentence. However, we routinely review sentences for constitutional excessiveness when the defendant fails to lodge an objection to the sentence. See: State v. Ewens, 98-1096, p. 10 (La.App. 5th Cir.3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99) 750 So.2d 179; State v. Smothers, 02-277, p, 19 (La.App. 5th Cir.12/30/02), 836 So.2d 559, 571. Thus, we will perform a review for constitutional excessiveness of the sentence.

The Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. Id. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Smith, 01-2574 at 6, 839 So.2d at 4. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. Smith, 01-2574, at 6-7, 839 So.2d at 4.

|10In determining a sentence, the trial court is to consider the sentencing guidelines set forth by La.C.Cr.P. art. 894.1. In addition, the sentencing judge “shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” La. C.Cr.P. art. 894.1(C). However, when the trial judge fails to articulate every circumstance listed in La.C.Cr.P. art. 894.1, a remand is not necessary if there is an adequate factual basis for the sentence contained in the record. State v. Fairley, 02-168, p. 8 (La.App. 5th Cir.6/26/02), 822 So.2d 812, 817.

In support of his argument that this sentence is excessive, the Defendant urges consideration of his age, lack of criminal history, and that the incident was a “onetime occurrence.” Second, he contends that a maximum sentence should be reserved for the worst offenders and that the trial judge misconstrued the jury’s finding and the victim impact statements which somehow lead to the excessive sentence.

The sentencing range statutorily prescribed for the offense of attempted aggravated rape is imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for not less than ten, nor more than 50 years. La.R.S. 14:42 and R.S. 14:27. In this case, the trial court sentenced the Defendant to 45 years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, but with credit for time served. Thus, the sentence imposed was within statutory limits.

Prior to sentencing, the Defendant’s counsel pointed out that the Defendant had never been in trouble before, realized the impact of his actions, was very remorseful at trial, and was only 18 years of age.

The State called M.N. to testify as a victim-impact witness. She stated that, although the Defendant was only 18 years old J.B. was only four years old when the incident happened, and that the child has exhibited serious behavioral problems Insince the incident. The child has been setting fires, throwing temper tantrums, screaming, biting, kicking and fighting, as well as banging her head against doors. She has been asked to leave three kindergarten classes because of her behavior. M.N. further testified that the child shaved the top of her head, cut her clothing, cut her aunt’s hair, and cut M.N.’s hair while she was asleep. J.B. has set fires to toilet paper and plays with candles, lighters and heaters. According to M.N., “you have to keep a 24-hour watch on her” because “she cuts anything” and “she’ll burn anything.” M.N. also stated that, although she was a “normal,” “innocent” little girl before this incident, she now engages in inappropriate sexual behavior and seeks to dress “seductively.” M.N. testified that she and J.B. have suffered because of the Defendant’s actions, and that they both needed extensive counseling as a result of the Defendant’s sexual conduct with the child.

The child’s grandmother, R.H., testified that since this incident J.B. has been angry and hurt and does not know how to express it. R.H. stated that the child has been expressing these emotions in inappropriate ways, such as tearing up things and screaming at everyone. J.B. can not play harmoniously with other children and must be constantly supervised. R.H. noted that the child “already has a life sentence” because “she will live with that for the rest of her days.” R.H. felt that “defendant should get every day that he can get in prison so that he can never, ever, ever do this to anybody ... again.” She also testified the Defendant should never get out of jail or be allowed to be around children.

The trial judge gave the following extensive reasons prior to sentencing:

THE COURT:
The Court accepts as a factual basis the jury finding the Defendant guilty of the charge of attempted aggravated rape and the charge of attempted aggravated crime against nature. The Court is aware of the fact that the Defendant, in mitigation of certain circumstances, the Defendant did take the stand. He did not totally deny the incident. He did admit in the presence of the jury some inappropriate conduct, as he put it, with regard to the | ]2female victim.
And I also take into account the fact that he is 18 years old at this time. I understand he has no prior significant criminal history, either as a juvenile or as an adult. However, the Court must always be mindful, and must be mindful in this case of the fact that regardless of how young you were, I have to take into account, I have to consider that you should have known. You should have known that when you’re dealing with a five-year old child, that this is just not normal, it’s not natural, it’s not appropriate, it’s not right. A five-year old girl. That’s who you destroyed.
If they had their way, they think you should get a death penalty. That’s what they want. Because in all fairness, in all fairness to the victim in this case, you killed her. You essentially took her life away. You took her childhood away. Listen to what they’re saying. They’re saying that a four year old girl now acts like a provocative woman. Now she has no childhood. In other words, she doesn’t do things or play with things that little normal girls play with. Now she wants to go out and engage in improper touching or expose herself.
Now, unfortunately, we have to look at what’s going to happen to this poor child down the road; what happens to her down the road. That’s a result of conduct that you engaged in. She doesn’t know any better. She doesn’t know things like that are inappropriate at four and five years old. You do. Seventeen years old is certainly old enough to know that you don’t do those sorts of things with a four or a five year old child.
I have to also take into account that the State proved their case to this jury, in my opinion, beyond a reasonable doubt. This jury could have very well come back with the charge of aggravated rape, and I could sentence you to a life sentence.
I have to conclude that what the jury decided, what the jury told this Court, was that they did not want you to be sentenced for the balance of your natural life. That’s essentially the message they sent to me by finding you guilty of a lesser charge. Because there is no question that the State proved their ease. There’s no question that this was not an act which was, in fact, consummated, that is there was the contact between your genital organs and the genital organs of the child. So there is no question that the act was, in fact, consummated, and the jury gives you some consideration, simply because they want you not to serve a life sentence.
But I have to tell you, there can be very, very little consideration given in connection with this case, very, very little consideration. I am very, very sorry for these circumstances.
This is a tragic situation, because, unfortunately, because you ruined the life of a small child, I now have to take away a significant | ^portion of your life. I am very sorry for doing that. It’s a very difficult thing to do that to an 18-year old boy, because that’s all you are, is an 18-year old boy who made a colossal mistake, that you certainly should have known better about. You should have known better.

The trial judge considered both mitigating (i.e., defendant’s age and lack of a prior record) and aggravating factors (i.e., seriousness of the offense, the age of the victim, immediate and long term impact of the incident on the child and her family) in sentencing the Defendant, in compliance with La.C.Cr.P. art. 894.1. Although, the Defendant argues that this was a “onetime occurrence,” he admitted that he engaged the victim in sex five to ten times over a period of two weeks. Contrary to the Defendant’s assertions that the trial judge misconstrued the jury verdict and victim impact testimony, the trial judge’s extensive reasons indicate a full understanding of the jury’s findings in returning a lesser verdict than aggravated rape (which carries a mandatory life sentence). He was also fully aware, from the testimony of the relatives of the victim, that they wanted the Defendant to receive the harshest sentence possible. The trial judge then, complied with the sentencing provision of La.C.Cr.P. art. 894.1.

We find that the sentence is constitutional. The Defendant was the child’s babysitter and was in a trust relation with the five-year-old victim. By his own admission, he engaged in sexual relations with the child five to ten times over a two-week period. He also admitted that, on at least two of those occasions, he penetrated the child’s anus with his penis. He admitted engaging the child in oral sex. He also stated that he invited his eight year old brother to engage in sex with the child. In addition, the child testified that the Defendant engaged in vaginal intercourse with her and sought to secure her silence by threatening her. As evidenced by the impact statement of the child’s mother and grandmother, this incident has caused both | uimmediate and long-term psychological effects for this child. Therefore, considering the facts and circumstances of this case, we find that the sentencing judge did not abuse his wide discretion in sentencing the Defendant to imprisonment for 45 years for this offense.

Finally, the Defendant argues that maximum sentences are reserved for the worst criminal and, thus, he should have received a lesser sentence. However, the Defendant did not receive the maximum sentence. Hence, this argument has no basis in fact. The facts of this case support the sentence imposed and reflect the seriousness of the offense.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Defendant also argues that his counsel was ineffective for failing to ask the trial judge to reconsider the sentence. However, we have reviewed the sentence despite counsel’s failure to object to the sentence. Thus, the issue is moot. Furthermore, the Defendant has failed to show any prejudice, as required for a claim of ineffective assistance of counsel to succeed.

J^ERROR PATENT

The record was reviewed for patent errors, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. We find two patent errors.

The Defendant was convicted of two sex offenses, as defined in La.R.S. 15:541(14.1). La.R.S. 15:542 sets out registration procedures for sex offenders to follow and La.R.S. 15:543(A) requires the trial judge to provide written notification to a sex offender defendant of the registration requirement of La.R.S. 15:542. Here, the trial judge failed to provide the required written notice to the Defendant. Consequently, we will instruct the trial judge to inform the Defendant of the registration requirements of La. R.S. 15:542 by sending appropriate written notice to him within ten days of this opinion, and to file written proof in the record that the Defendant received such notice. See: State v. Stevenson, 00-1296 (La.App. 5th Cir.1/30/01), 778 So.2d 1165.

In addition, the trial judge failed to advise the Defendant of the two year prescriptive period for filing for post-conviction relief, in accordance with La. C.Cr.P. art. 930.8A. Thus, we will remand the case with an order for the trial judge to send written notice to the Defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, within ten days of the rendering of its opinion, then to file written proof in the record that the Defendant received the notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, the Defendant’s convictions and sentences are hereby affirmed. The case is remanded for the trial judge to send written notice to the Defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, and further for the trial h ¿judge to send written notice to the Defendant of the sexual offender registration requirements of La. R.S. 15:542. Both notices are to be sent within ten days of this opinion and written proof is to be filed in the record that the Defendant received such notices.

CONVICTIONS AND SENTENCES AFFIRMED; CASE REMANDED FOR NOTICE OF THE PRESCRIPTIVE PERIOD FOR POST-CONVICTION RELIEF AND FOR NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENTS.

      . Both sentences are without benefit of parole, probation, or suspension of sentence, with credit for time served

      . In accordance with La.R.S. 46:1844, in order to protect the identity of the victim, who is a minor, her name and that of her mother will be referred to by the use of initials.

      . Defendant does not allege that his sentence for attempted crime against nature is excessive.

      . A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffective assistance of counsel, the courts apply a two-pronged test. The defendant must show that (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5th Cir.4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious that it deprived the defendant of a fair trial, or "a trial whose result is reliable.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5th Cir.7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La. 12/16/94), 648 So.2d 388.
      In order to show prejudice, the defendant must demonstrate that the outcome of the trial would have been different, but for counsel's unprofessional conduct. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; Soler, 636 So.2d at 1075. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983). Because there is no precise definition of reasonably effective assistance of counsel, any inquiry into the effectiveness of counsel must be specific to the facts of the case. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Addison, 00-1730, p. 11 (La.App. 5th Cir.5/16/01), 788 So.2d 608, 615.
      Claims for ineffective assistance of counsel are most appropriately addressed through application for post-conviction relief, so as to afford the parties an adequate record for review. Peart, 621 So.2d at 787. However, the Court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal. State v. Hamilton, 92-2639, p. 4 (La.7/1/97), 699 So.2d 29, 31, cert. denied, 522 U.S. 1124, 118 S.Ct 1070, 140 L.Ed.2d 129 (1998); State v. Pendelton, 00-1211, p. 10 (La.App. 5th Cir.3/14/01), 783 So.2d 459, 465-466.

      . In Acts 2001, No. 1206, the legislature moved the definition of sex offender from R.S. 15:542(E) to R.S. 15:541(14.1).


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    L.V. MANUEL, as Provisional Tutor of the Minors, Jessica Marie Laborde and Christopher Jacob Laborde, v. NEW YORK LIFE INSURANCE and Annuity Corporation.
    No. 03-CA-458.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.

      Charles M. Lanier, Jr., John K. Nieset, Christovieh & Kearney, L.L.P., New Orleans, LA, for Jessica Marie Laborde, Individually and as Provisional Tutrix of her Brother, Christopher Jacob Laborde, Plaintiff-Appellant.
    Maura Z. Pelleteri, Krystil B. Cook, Krebs, Farley & Pelleteri, L.L.C., New Orleans, LA, for New York Life Insurance and Annuity Corporation, Defendant-Ap-pellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

Plaintiff, Jessica Marie Laborde, appeals from a summary judgment rendered in favor of defendant, New York Life Insurance and Annuity Corporation. For the reasons that follow, we vacate the summary judgment and remand the case to the trial court for further proceedings.

Facts and Procedural History

This action was brought by the surviving children of Chris LaBorde and Cynthia Manuel LaBorde to recover full death benefits under a life insurance policy. Chris Laborde purchased New York Life Insurance Policy No. 62 432 264 in July of 1986 and made timely monthly premium payments on this policy for over 11 years for a total cash value of $6,328.77. On February 2,1998, Chris Laborde submitted a surrender form to New York Life attempting to surrender the policy for its cash value.

On February 17, 1998, Chris Laborde fatally shot his wife and then committed suicide. The Labordes were survived by two minor children, Jessica and Christopher Laborde. Two days after Chris La-borde’s death, on February 19, 1998, New York Life sent a check for the cash value of the policy less the 13surrender penalty in the amount of $5474.77 made payable to the Estate of Chris Laborde. This check was not negotiated, and the instant petition seeking full death benefits under the subject policy was filed on February 17, 1999 on behalf of the minor children Jessica and Christopher Laborde.

On April 11, 2002, Jessica Laborde, who had attained the age of majority, was substituted as party plaintiff, individually and as provisional tutrix of her brother, Christopher Laborde. Thereafter, New York Life filed an Exception of No Right of Action, or Alternatively, Motion for Summary Judgment as to the claim brought by Christopher Laborde on the basis that Christopher Laborde was not a named beneficiary under the policy. Additionally, New York Life filed a motion to reset the motion for summary judgment against Jessica Laborde, individually and as provisional tutrix of her brother Christopher Laborde.

These matters were heard by the trial court on May 1, 2002. By judgment rendered on May 9, 2002, the trial court granted defendant’s exception of no right of action, or alternatively, motion for summary judgment as to the claim of Christopher Laborde, dismissing his claim with prejudice, but reserving his right to pursue claims against other persons or entities. The trial court also granted New York Life’s motion for summary judgment as to the claims of Jessica Laborde, dismissing those claims with prejudice. It is from this judgment that plaintiff, Jessica La-borde, now appeals.

By this appeal, Jessica Laborde contends that the trial court erred in granting summary judgment as there remain issues of material fact, specifically whether Chris Laborde lacked mental capacity to validly surrender his insurance policy. New York Life responds that the policy was surrendered according to its terms and |4coverage under the policy terminated pri- or to Laborde’s death. Thus, they argue, New York Life is entitled to judgment as a matter of law.

Statement of Applicable Law

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of an action. LSA-C.C.P. art. 966(B); Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. The procedure is favored and shall be construed to accomplish these ends. Id. The burden of proof lies with the movant. LSA C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported with affidavits made on personal knowledge which affirmatively show the affiant’s competency to testify, an adverse party may not rest on the mere allegations or denials of the pleadings. LSA C.C.P. art. 967; Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381, 384 (La. App. 1 Cir.1990), writ denied, 573 So.2d 1136 (La.1991). Rather, the adverse party must set forth specific facts showing that there is a genuine issue of material fact. If the party does not so respond, summary judgment, if appropriate, shall be rendered against it. Id.

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors, 591 So.2d 342 (La.1991). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988); Ekere v. Dupont Chemical Plant, 99-1027 (La.App. 5 Cir. 2/16/00), 757 So.2d 33, writ denied.

_J¿Discussion

The parties in this case dispute whether Chris Laborde’s mental capacity is a material fact which affects the validity of the form of surrender executed by him. Appellant contends that, according to La. C.C. art.1906, the act of surrender constitutes a contract as an obligation was modified or extinguished. Appellant argues that the contract is therefore governed by La.C.C. art.1926, which provides:

A contract made by a noninterdicted person deprived of reason at the time of contracting may be attacked after his death, on the ground of incapacity, only when the contract is gratuitous, or it evidences lack of understanding, or was made within thirty days of his death, or when application for interdiction was filed before his death.

Conversely, appellee contends that the only contract involved in this case was the agreement to purchase insurance made in 1986, that the act of surrender did not constitute a new contract, and the above cited article is therefore inapplicable. Ap-pellee instead relies on La. C.C. art. 403 to support its argument that the surrender of the policy executed by Chris Laborde cannot be attacked for lack of mental capacity. At the time of Chris Laborde’s death, La. C.C. art. 408 provided as follows:

After the death of a person, the validity of acts done by him cannot be contested for cause of insanity, unless his interdiction was pronounced or petitioned for previous to the death of such person, except in cases in which the mental alienation manifested itself within ten days previous to the decease, or in which the proof of the want of reason results from the act itself which is contested.

This article was repealed effective July 1, 2001, and was no longer in effect when this motion for summary judgment was urged or decided. In any event, appellant contends that this article allows her to contest the validity of the act of surrender because the proof of Chris Laborde’s mental incapacity results from the |fiact itself, i.e., the surrender of the insurance policy several days before the act of suicide.

In opposition to New York Life’s motion for summary judgment, Jessica Laborde submitted the affidavits of two personal friends of the deceased as well as two psychiatric witnesses who stated that Chris Laborde lacked the mental capacity to surrender his insurance policy on the subject date. Pursuant to the provisions of La. C.C. art.1926, a contract may be attacked after the death of a person deprived of reason under certain circumstances. In addition, La. C.C. art. 403 is not wholly irreconcilable with the provisions of article 1926. Under either article, whether the decedent in this case was deprived of reason is a material fact which affects the validity of the surrender in this case.

Under the circumstances presented in this case, we find that the issue of Chris Laborde’s mental capacity at the time of the surrender of the subject policy is a material fact as to the validity of the surrender. Appellant met her burden of proving the existence of a material fact by the submission of the affidavits in this case. We conclude that the trial court erred in failing to apply the legal principles contained in article 1926 to the facts of the case before us, and issues of fact remain as to whether appellant may recover under that article. Thus, we find that the summary judgment entered by the trial court was improperly granted.

Accordingly, the May 9, 2002 judgment of the trial court insofar as it grants summary judgment in favor of New York Life and dismisses the claims of Jessica La-borde is hereby vacated. The matter is remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      . The petition was originally filed by L.V. Manuel as the provisional tutor of the minor children, and on March 21, 2001, the trial court granted summary judgment in favor of New York Life and against Manuel dismissing the petition. This judgment was appealed, and a panel of this Court found that the judgment was null as L.V. Manuel died prior to the rendition of judgment and Jessica La-borde also attained the age of majority and had not been named as party. The Court remanded the matter to the trial court to allow substitution of parties.