text:
    Michael A. MIULLI, Appellant, v. Jennifer Lynn MIULLI, Appellee.
    No. 2D00-4743.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      Virginia R. Vetter of Vetter & Hunter and Joseph M. Davis, Tampa, for Appellant.
    James P. Knox of Knox & Givens, P.A., Tampa, for Appellee.
   WHATLEY, Judge.

The Husband, Michael A. Miulli, appeals the final judgment of dissolution of marriage. The primary issues at the final hearing were the valuation and distribution of marital property and marital debts. We affirm the trial court on all issues except two.

Both issues concern the trial court’s award of lump sum alimony to the Wife, Jennifer Lynn Miulli. “Lump sum alimony may be awarded as either support or equitable distribution.” Young v. Young, 677 So.2d 1301, 1304 (Fla. 5th DCA 1996). The trial court awarded the Wife lump sum alimony for the purpose of achieving equitable distribution. To the extent that the lump sum alimony award in this case was for support, it was error.

The Wife’s counsel concedes the trial court erred in ordering life insurance to be maintained by the Husband as security for the lump sum alimony obligation. This issue was neither pleaded nor litigated by consent. See Lowe v. Lowe, 789 So.2d 1202 (Fla. 4th DCA 2001). In addition, there was no evidence or findings as to the Husband’s insurability, the cost of the proposed insurance, or the Husband’s ability to afford such insurance. See Scalabroni v. Scalabroni, 807 So.2d 793 (Fla. 2d DCA 2002).

Accordingly, the lump sum alimony award is affirmed as a vehicle to achieve equitable distribution but not as support. In addition, the provision directing the Husband to secure the lump sum alimony award with life insurance is reversed. All other matters raised but not addressed in this opinion are affirmed.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

ALTENBERND and COVINGTON, JJ., concur.

      . Support alimony was not appropriate as the length of the marriage was only three years.


source: Caselaw Access Project

author: BLUE, Chief Judge.

license: Public Domain

text:
    Jerry Daniel ABBOTT, Appellant, v. Deborah ABBOTT, Appellee.
    No. 2D00-5340.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      Michael P. McDaniel of C. Ray McDaniel, P.A., Bartow, for Appellant.
    John A. Naser, Lakeland, for Appellee.
   BLUE, Chief Judge.

Jerry Daniel Abbott, the former husband, appeals the final judgment dissolving his twenty-three-year marriage to Deborah Abbott, the former wife. He argues that the trial court erred by imputing income to him, setting alimony, and distributing a $12,000 debt without sufficient evidence that it was a marital liability. We affirm the distribution of marital debt without discussion, but we reverse the award of alimony.

After almost twenty-one years of marriage that produced three children, the parties separated in September 1997. The Former Husband testified that he had earned from $20,000 to $27,000 per year throughout the marriage. He worked as a truck driver and attempted several small business ventures. In early 1997, the Former Husband began driving trucks with a new company. In 1997 and 1998, he earned approximately $44,000 per year. In 1999, he earned almost $27,000, and he expected to earn a similar amount in 2000. The Former Husband testified that he increased his earnings in 1997 and 1998 by working around the clock, which was not legally permissible due to regulations restricting the number of hours per day that a trucker is allowed to drive. He increased his earnings at that time because he had multiple households to support when the children moved out of the family home, apparently due to conflicts with their mother.

Since February 1999, the Former Husband has worked with a new codriver, who became his girlfriend. According to the testimony, when two people drive as a team, the truck’s earnings are split 50-50. The pay is apportioned by the trucking company, not by the whim of the driver. The Former Husband added a codriver because he was concerned about his health, a concern that the Former Wife was able to partially validate. The Former Husband testified that there are advantages to driving as a team because teams go first when the freight is slow and teams make more money because they can run longer hours and are paid more per mile. He also testified, however, that he and his girlfriend are driving illegally because she should drive only with the Former Husband’s supervision, and this supervision time counts as part of the hours he can legally operate on the road.

The trial court awarded the Former Wife $950 a month in permanent alimony based on the following findings:

Wife is presently earning at or near her potential earnings capacity, with a net income of $1,036.00 per month.... Husband is well able to earn at least $40,000.00 annually. There is no reasonable basis for Husband to share his compensation for hours and miles driven with his co-driver. Husband’s co-driver is not licensed to drive without supervision.

The problem is that the Former Husband has not legally earned an income of $40,000. Because the undisputed evidence shows that the trial court imputed a level of income to the Former Husband that he had reached only by operating his truck illegally, we reverse on this point. See Haas v. Haas, 552 So.2d 221, 224 (Fla. 2d DCA 1989) (reversing alimony because it appeared “that the trial court may have imputed income based upon a party’s prior extraordinary efforts rather than upon the best efforts which reasonably should be expected over an extended time”). Where the only evidence showed that the Former Husband had earned a salary in the range of $20,000 to $27,000 during the marriage and was currently earning a salary in this range, we conclude that the trial court erred by imputing to him an income of $40,000. See DeSanto v. DeSanto, 621 So.2d 560 (Fla. 2d DCA 1993) (reversing alimony, child support, and award of attorney’s fees when trial court’s determination of husband’s ability to pay was not supported , by substantial, competent evidence). On remand, the trial court should impute only a level of income to the Former Husband that he can earn by working legally.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ„ concur.


author: COVINGTON, Judge.

text:
    John SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3144.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

John Shirley appeals the sentences that were imposed after this court remanded his case for resentencing. See Shirley v. State, 775 So.2d 366 (Fla. 2d DCA 2000). Shirley contends that the trial court improperly resentenced him using the 1995 sentencing guidelines even though the offenses occurred or began during the window period set forth in Heggs v. State, 759 So.2d 620 (Fla.2000), and Trapp v. State, 760 So.2d 924 (Fla.2000). The State properly confesses error. Shirley’s sentences are therefore reversed, and this cause is remanded for resentencing under the guidelines that were valid on the dates of Shirley’s offenses. See Trapp, 760 So.2d at 928.

Reversed and remanded.

BLUE, C.J, and DAVIS, J., Concur.


author: PALMER, J.

text:
    Jeremiah TINDLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-342.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      James B. Gibson, Public Defender and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee and Angela D. McCravy,' Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Jeremiah Tindle appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of aggravated assault with a firearm. Given the State’s concession that the prosecutor’s closing argument and the trial court’s instructions to the jury were erroneous, we reverse and remand for a new trial.

Tindle was charged with one count of aggravated assault with a deadly weapon. The information charged that he committed the unlawful act against Charmaine Mixon “and/or” Corey Williams. The incident which led to Tindle’s arrest arose out of a domestic violence incident. Specifically, the trial evidence established that while Charmaine Mixon and her stepfather, Corey Williams, were attempting to move furniture out of a home shared by Tindle and Mixon, Tindle threatened that he had a gun in his car and then left the house and retrieved the gun. Mixon testified that she was in fear when she saw the gun. Williams testified he had no fear about his own safety, but he was fearful about Mix-on’s safety.

During closing argument, the prosecutor argued that the statutory requirement of a well-founded fear that violence was about to take place did not require the State to prove that Williams feared for his own safety, but rather merely that he had a well-founded fear that violence was about to take place. Defense counsel objected to the prosecutor’s closing statement arguing that it was a misstatement of the law, but the court overruled the objection. Thereafter, the trial court instructed the jury that the three elements which define assault included that Tindle’s acts created, in the mind of Mixon and/or Williams, a well-founded fear that violence was about to take place.

Tindle was found guilty as charged and now challenges his conviction arguing that the prosecutor’s closing argument was improper and that the trial court’s jury instruction was erroneous. Although not cited by defense counsel, the State commendably (and consistent with its ethical obligation) has cited this court to the case of James v. State, 706 So.2d 64 (Fla. 5th DCA 1998) as being directly on point. We agree.

In James, the information charged a single count of aggravated assault with a firearm against either of two people. On appeal the defendant argued that fundamental error occurred when the trial court issued jury instructions which were framed so as to allow the jury to return a guilty verdict based on a finding that by threatening one person the defendant created fear in another:

Lumping alleged victims together in a single count of aggravated assault and permitting the jury to return a verdict of “guilty as charged” creates serious due process problems. As asserted by the defendant here, the jury, based upon the instructions given could have found the defendant guilty finding that the defendant threatened Barber and that Hickson (but not Barber) was frightened by the threat. However, such a scenario would not constitute the crime of aggravated assault. See § 784.011, Fla. Stat. (defining criminal assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”). It was reversible error for the court to deny the defendant’s motion to dismiss the amended information and fundamental error to instruct the jury in a way which would permit the jury to find that one alleged victim was threatened while the other had a well founded fear that violence was imminent.

Id. at 65.

Applying this case law to the instant facts, the evidence presented at trial would be sufficient to support a jury finding that Tindle committed an aggravated assault against Mixon but not Williams, since Mix-on testified that Tindle’s actions caused her to be afraid, but Williams testified he was only afraid for Mixon’s safety. Accordingly, Tindle’s judgment and sentence are vacated and the case is remanded to the trial court with instructions to dismiss the charge of aggravated assault against Tindle as to Williams, but hold a new trial on the charge of aggravated assault as to Mixon.

REVERSED and REMANDED.

THOMPSON, C.J., and PETERSON, J„ concur.

      . § 784.021(l)(a), Fla. Stat. (2000).


author: WHATLEY, Judge.

text:
    Earl ENMUND, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-304.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
   WHATLEY, Judge.

Earl Enmund appeals an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On September 30, 1975, Enmund was found guilty of two counts of first-degree murder and one count of armed robbery. Although En-mund was originally sentenced to the death penalty, his sentence was later reduced to life in prison with a twenty-five-year minimum mandatory. In his motion for postconviction relief, Enmund claims that he has newly discovered evidence. Attached to Enmund’s motion is the witness affidavit of Johnny Foster, which alleges that Foster saw three people running from the murder scene and that Enmund was not present. The trial court denied Enmund’s claim, finding that Enmund “abandoned or dismissed his claim of independent evidence regarding Johnny Foster.” However, the trial court failed to attach anything to its order supporting such finding. We note that Enmund’s motion for postconviction relief was filed on October 2, 1998, and pleadings may have been entered in the record which would support the trial court’s finding. However, we do not have such in the record on appeal. Accordingly, we reverse the denial of Enmund’s postconviction motion and remand with directions that the trial court either attach portions of the record refuting Enmund’s claim or hold an evidentiary hearing on the matter.

Reversed and remanded.

ALTENBERND and STRINGER, JJ., Concur.


text:
    Shelby NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1568.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    Terence S. Moore, 'Tampa (withdrew after briefing), for Appellant.
    Shelby Norris, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Shelby Norris appeals the summary denial of his third amended postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the third amended motion as successive because Norris had failed to show why he had not included his new allegations in the previous postconviction motion. Because the previous motion was still pending in the trial court and because the third amended motion was filed within the two-year time limit under rule 3.850, we reverse and remand for the trial court to consider the third amended motion on its merits.

Norris was convicted of multiple crimes in 1998. His case was affirmed on appeal, and the mandate was issued on March 2, 2000. Norris v. State, 754 So.2d 38 (Fla. 2d DCA 2000) (table). Norris originally filed a postconviction motion and an amended postconviction motion that the trial court dismissed without prejudice because the motions did not contain properly sworn oaths. Norris then filed a second amended motion that contained thirty-five allegations. On January 18, 2002, the trial court rendered an order denying thirty-two of the claims and ordering the State to respond to the remaining three claims. On January 28, 2002, Norris filed a third amended posteonviction motion which the trial court denied without addressing the merits of the claims.

A defendant may amend a rule 3.850 motion if the trial court has not yet ruled on the motion and the amendment is filed within the two-year time limit. Beard v. State, 827 So.2d 1021, 1021 (Fla. 2d DCA 2002). Even amendments filed after an evidentiary hearing should be addressed if the trial court has not entered a dispositive order and the amendment is filed within the two-year time limit. Lang v. State, 826 So.2d 433, 435 (Fla. 2d DCA 2002).

Norris’ third amended posteonviction motion was filed within the two-year limit under rule 3.850 and was filed prior to the entry of a dispositive order by the trial court. Thus, the trial court should not have denied the motion as successive. We reverse and remand for the trial court to address the merits of Norris’ third amended posteonviction motion.

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.


author: SHARP, W., J.

text:
    Joe R. SNOW, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1121.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.
    Joe R. Snow, Bowling Green, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Snow appeals from the trial court’s summary denial of his habeas corpus petition filed February 26, 2002. He claims his attorney was ineffective in prosecuting his motion filed February 2, 2000, which sought collateral relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging newly discovered evidence.

Ineffective assistance of post-conviction counsel is not a cognizable claim. See Hammett v. State, 804 So.2d 522 (Fla. 5th DCA 2001). See also Waterhouse v. State, 792 So.2d 1176, 1193 (Fla.2001);

AFFIRMED.

COBB and PLEUS, JJ., concur.

      . Snow s direct appeal was denied in 1992 without opinion. Snow v. State, 557 So.2d 879 (Fla. 5th DCA 1990). Subsequently, he filed a Rule 3.850 motion alleging ineffective assistance of counsel. The motion was denied by the Circuit Court, and this court affirmed the trial court on appeal without an opinion. Snow v. State, 604 So.2d 493 (Fla. 5th DCA 1992). He then filed a petition for a writ of habeas corpus in this court, which was summarily denied on February 7, 1992.
      On February 2, 2000, Snow filed another Rule 3.850 motion in the circuit court, alleging newly discovered evidence. An evidentia-ry hearing was held on July 14, 2000. On July 21, 2000, the circuit court denied the motion, entering a written order dated July 21, 2000. This order was appealed to this court, and affirmed on June 5, 2001.


author: CASANUEVA, Judge.

text:
    Donald Wayne LOCKE, Appellant, v. Denise M. LOCKE, Appellee.
    No. 2D02-581.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    Robert Fraser, Brandon, for Appellant.
    Shea T. Moxon, Tampa, for Appellee.
   CASANUEVA, Judge.

Donald Wayne Locke (the Husband) contends in this postdissolution case that the trial court erroneously calculated equitable distribution in favor of Denise M. Locke (the Wife). Because the order on review — denying the Husband’s motions for rehearing and to vacate the supplemental final judgment — fails to address his contentions fully, we reverse.

The amended final judgment in this case, which decided the equitable distribution scheme, was entered one full year after the dissolution hearing. The delay was attributable in large measure to the failure of the attorneys to agree on an order. Nevertheless, it was the trial judge’s responsibility to ensure that the supplemental final judgment was entered in a timely fashion. See Fla. R. Jud. Admin. 2.050(f). As our court has previously pointed out, “unreasonable delays cause litigants and their counsel needless anxiety and expense and undermine confidence in the judicial system.” McDaniel v. McDaniel, 780 So.2d 227, 228 (Fla. 2d DCA 2001) (citing McCartney v. McCartney, 725 So.2d 1201 (Fla. 2d DCA 1999)).

In addition to creating anxiety and expense, a delay in the entry of an order can cause inaccuracies to creep into the final judgment, warranting a new hearing. See Caswell v. Caswell, 674 So.2d 861, 862 (Fla. 2d DCA 1996). Here, the Husband appropriately raised in the trial court and on appeal the discrepancy between what the court ordered at the final hearing and what was actually reflected in the final judgment concerning the attribution of value of the parties’ Kemper fund and the liability of each party for various postdissolution obligations concerning the mortgage, household expenses, and taxes. The trial court dismissed the Husband’s contentions on the ground that they involved de minimis amounts, but we find that a difference of several thousand dollars should not have been dismissed without a more precise inquiry.

We regret that the court and the parties will be required to consider again the issues of liability attributable to the Kemper account as well as expenses related to presale upkeep of the marital home. A major factor in the delay stemmed from allowing attorneys to submit proposed final judgments, a practice that this court has cautioned is “fraught with danger, especially where, as here, there is a long delay between the final hearing and the rendition of the final judgment.” Struble v. Struble, 787 So.2d 48, 49 (Fla. 2d DCA 2001). We are confident that on remand this matter will be resolved efficiently and quickly.

Reversed and remanded for rehearing.

BLUE, C.J., and KELLY, J., concur.

      . The Wife's appellate attorney did not represent her in the trial court proceedings.


author: KLEIN, J. GUNTHER, J.,

text:
    Vincent BEATRICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-180.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Valentin Rodriguez, Jr. of Valentin Rodriguez, P.A., West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

KLEIN, J.

We withdraw our previously filed opinion dated July 24, 2002 and replace it with the following.

Appellant appeals two convictions of aggravated assault with a firearm and two convictions of kidnaping while in possession of a firearm. We affirm in all respects, addressing only the issue of whether the trial court erred in determining that it did not have the discretion to impose a youthful offender sentence because of the 10/20/Life statute.

Appellant was convicted of kidnaping, a first degree felony, section 787.01(2), and the jury found that he possessed a gun. Under our 10/20/Life statute, section 775.087, Florida Statutes (2000), a first degree felony in which a gun is used is reclassified as a life felony. § 775.087(1). Corbitt v. State, 697 So.2d 1310 (Fla. 4th DCA 1997).

Our youthful offender statute provides that no one who has been found guilty of a life felony can be sentenced as a youthful offender. § 958.04(l)(c). Because appellant was found guilty of a life felony the youthful offender statute is not applicable.

State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001) is distinguishable in that the court in Wooten was only addressing a mandatory minimum sentence under the 10/20/Life statute. The crimes in Wooten, after reclassification, were not life felonies, and it is the life felony aspect of this case which precludes a youthful offender sentence. We therefore affirm.

HAWLEY, ROBERT A., Associate Judge, concurs.

GUNTHER, J., dissents with opinion.

GUNTHER, J.,

dissenting.

I agree with the majority’s holding insofar that if the 10/20/Life reclassification were mandatory, then kidnaping with a firearm would become a life felony and the youthful offender sentence would be inapplicable. Compare § 958.04(l)(c), Fla. Stat. (2001) with § 775.087(l)(c), Fla. Stat. (2001). However, I believe that the plain language of the 10/20/Life statute supports that reclassification is not mandatory and that other laws, such as the Youthful Offender Act may supplant the reclassification.

The reclassification portion of the 10/20/ Life statute at issue in the instant case states:

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.

§ 775.087(l)(a), Fla. Stat. (1995)(emphasis added).

Further, youthful offender sentences are “in lieu of other criminal penalties authorized by law.” § 958.04(2), Fla. Stat. (2001); see also Porter v. State, 702 So.2d 257, 258 (Fla. 4th DCA 1997).

I believe that the permissive language emphasized above in both statutes would allow the youthful offender sentence to be given in lieu of the 10/20/life statute. Such a holding would.be in keeping with our previous holding that a youthful offender sentence can be given in lieu of other enhancement schemes. See Jones v. State, 588 So.2d 73 (Fla. 4th DCA 1991) (allowing a youthful offender sentence where otherwise a mandatory minimum of three years was required for a conviction of selling drugs within 1,000 feet of a school).

The Second District has concluded that a youthful offender sentence can be imposed where the mandatory mínimums under the 10/20/Life statute would normally apply. State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001). “Since we find that the 10/20/Life statute contains no language to supersede the youthful offender sentence and because prior cases have held that the minimum mandatory senteñcing is not applicable when one is sentenced as a youthful offender, we affirm the appellee’s sentence.” Id. at 409. See also State v. Krasky, 789 So.2d 1005 (Fla. 5th DCA 2001); Darrow v. State, 789 So.2d 552, 553 (Fla. 5th DCA 2001).

In conclusion, I do not believe that reclassification under the 10/20/Life statute is mandatory under the plain language of the statute. I would follow the logic of the second district in Wooten and reverse the sentence for the trial court to consider whether the Defendant should be sentenced as a youthful offender.

      . We cannot agree with the dissent that the "unless otherwise provided by law” language in the 10/20/Life statute permits the court to look to the youthful offender statute even when the conviction is for a life felony. That statute, by its own terms, does not apply to persons convicted of life felonies.


author: PER CURIAM.

text:
    Wendy GILLEY v. PARKVIEW BAPTIST SCHOOL.
    No. 2002-C-0623.
    Supreme Court of Louisiana.
    Oct. 25, 2002.
    Jack P. Harris, Baton Rouge, for Applicant.
    Kirk L. Landry, Baton Rouge, for Respondent.
   PER CURIAM.

Wendy Gilley filed a disputed claim for workers’ compensation benefits against Parkview Baptist School. Following a trial, the workers’ compensation hearing officer rendered judgment awarding claimant supplemental earnings benefits. On appeal, the court of appeal reversed, finding claimant presented no evidence proving she is unable to earn wages equal to 90 percent or more of her pre-injury wages. Gilley v. Parkview Baptist Sch., 00-1937 (La.App. 1st Cir.11/9/01), 804 So.2d 103. Upon claimant’s application, we granted certiorari to consider this ruling. Gilley v. Parkview Baptist Sch., 02-0623 (La.5/24/02), 816 So.2d 293.

After hearing oral arguments and reviewing the record, we conclude there is no error in the judgment of the court of appeal. Accordingly, we affirm that judgment.


text:
    LAMSON PETROLEUM CORPORATION v. HALLWOOD PETROLEUM, INC., et al.
    Nos. 2002-C-1338, 2002-C-1681, 2002-C-2419.
    Supreme Court of Louisiana.
    Oct. 25, 2002.
   PER CURIAM.

Granted in part. The cases are remanded to the Third Circuit Court of Appeal. The Third Circuit is ordered to hold an en banc hearing and determine whether their decisions in Lamson Petroleum Corporation v. Hailwood, Petroleum, Inc., et al., 2001-1156 (La.App. 3 Cir. 2/6/02), 814 So.2d 134 and Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2002-138 (La.App. 3 Cir. 7/10/02, 823 So.2d 431) are in conflict with their decision in Lamson Petroleum Corporation v. Hallwood Petroleum, Inc., et al., 2001-1201 (La.App. 3 Cir. 3/20/02, 814 So.2d 596), on the issue of whether or not defendants are good faith possessors after the filing of judicial demand, and if so, to determine which view is correct. Otherwise the writs are denied.

REMANDED.

VICTORY, J., would grand and docket No. 1690 and No. 1338.


text:
    In re Wade N. KELLY.
    No. 2002-OB-2441.
    Supreme Court of Louisiana.
    Nov. 1, 2002.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Wade N. Kelly, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On June 5, 1998, this court suspended petitioner from practice for three years. In re: Kelly, 98-0368 (La.6/5/98), 713 So.2d 458. The underlying disciplinary matter arose from petitioner’s diversion of more than $60,000 in legal fees from the law firm of which he was then a partner. After serving his suspension, petitioner filed an application for reinstatement, asserting that he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) initially indicated that it would take no position concerning petitioner’s reinstatement to the practice of law, and accordingly, the matter was referred for a formal hearing before a hearing committee.

After considering the evidence presented, the hearing committee recommended that the petition for reinstatement be granted. The ODC objected to the recommendation solely insofar as no period of supervised probation followed petitioner’s reinstatement.

| ¡/Thereafter, the disciplinary board recommended to this court that petitioner be reinstated to the practice of law. The board adopted the factual findings of the hearing committee, and agreed that petitioner proved by clear and convincing evidence that he satisfies the criteria for reinstatement. However, considering the circumstances, the board recommended that petitioner’s reinstatement be conditional, subject to a probationary period of eighteen months. During this period, the board recommended petitioner’s financial accounts, including any operating or trust accounts, be subject to monitoring on a quarterly basis at his expense. The board also recommended that petitioner be assessed with all costs and expenses of these proceedings.

Neither petitioner nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

Petitioner has served the three-year suspension imposed by this court in 1998, and no objections were received to his application for reinstatement. Petitioner has met the criteria for reinstatement set forth in Supreme Court Rule XIX, § 24(E). Accordingly, we will accept the disciplinary board’s recommendation and order that petitioner be conditionally reinstated to the practice of law in Louisiana, subject to a probationary period of eighteen months. During the period of probation, petitioner’s financial accounts, including any operating or client trust accounts, shall be monitored on at least a quarterly basis at his expense. Should petitioner fail to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

laDECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Wade N. Kelly be conditionally reinstated to the practice of law in Louisiana, subject to a probationary period of eighteen months. During this period, petitioner’s financial accounts, including any operating or client trust accounts, shall be subject to monitoring on at least a quarterly basis at his expense. Should petitioner fail to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

VICTORY and TRAYLOR, JJ, dissent.


author: HARRISON, Judge

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Carlos Dewayne WADE, Defendant-Appellant.
    No. 36,295-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 23, 2002.

      Peggy J. Sullivan, Monroe, Carlos Dewayne Wade, for Defendant-Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Edward M. Brossette, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge

Pro Tempore.

The defendant, Carlos Dewayne Wade, was found guilty of possession of a Schedule II controlled dangerous substance, cocaine, with the intent to distribute, La. R.S. 40:967 A(l), and of flight from an officer, La. R.S. 14:108.1 A. He was then adjudicated a third felony offender and sentenced to the mandatory life at hard labor without benefit of parole, probation or suspension of sentence, as provided by La. R.S. 15:529.1 A(l)(b)(ii) at the time of the offense. Wade now appeals, raising five assignments of error. We affirm.

Factual background

Shortly before 1:00 a.m. on July 7, 2000, Officer J.T. Redstone of the Shreveport Police Department was on tactical patrol on Youree Drive. He saw a white Lincoln Continental speeding north on Yourde, going well over the posted 50 mph limit. Redstone turned around and followed the Lincoln, which made a right on East 70th St. and headed east. Redstone was joined by officers W.W. Lindsey and Robert Mor-man, all of whom activated their lights and sirens; on East 70th, Redstone paced the Lincoln at 70 mph. The Lincoln did not stop, but crossed the Jimmy Davis bridge into Bossier Parish and turned south on U.S. Hwy. 71. All three officers saw the Lincoln pass a car on the bridge, cross the double yellow center line on Hwy. 71 several times, and force other vehicles off the road. After eight to 12 minutes of chase, the Lincoln pulled off the side of Hwy. 71. Officer Redstone removed the driver, Wade, from the car, advised him of his rights and handcuffed him. The entire chase was captured on videotape by |2cameras mounted in Redstone and Mor-man’s police cars.

Officer Redstone turned away to secure the Lincoln, which was rolling into the ditch. He was unable to stop the car. Meanwhile, Officer Lindsey patted down Wade and found in his front pocket a clear plastic Ziplok Baggie. This contained seven smaller green baggies, each of which held a large white rock that appeared to be crack cocaine. The officers could not recall if there was also a cell phone, pager or any cash on Wade’s person.

The substance field-tested positive for cocaine. Laboratory analysis confirmed that the substance was cocaine; a forensic chemist testified that the baggies and then-contents weighed 9.2 grams. Agent Michael Tong, supervisor for the midlevel narcotics unit, testified as an expert in the street level interdiction of cocaine. He explained that the difference between a user of crack cocaine and a distributor is the amount seized, and other paraphernalia. On the street level, crack is usually sold in “dime bags” that contain 0.10 g and sell for $10; the crack seized from Wade appeared to be packaged in $100 bags of about 1 g each, and worth about $1,000 total. He said this was “not a personal use amount of cocaine,” but would normally be cut into $10 rocks for distribution. Agent Tong further testified that the recent trend is for dealers to keep their money away from their cocaine, but he agreed that most dealers carry a cell phone or pager, and a weapon. He added that a user would normally be carrying a crack pipe.

The State charged Wade with possession of a Schedule II CDS, cocaine, with intent to distribute, and with aggravated flight from an officer. |3Wade filed a motion to suppress the evidence seized as a result of the stop; this was denied, and the ruling is not challenged on appeal. The matter proceeded to trial in late August 2001. During jury selection, the State raised a “reverse Batson” claim, urging that Wade had used his peremptory challenges to strike only white prospective jurors from the panel. The District Court found that the State made a prima facie case of discrimination and that Wade failed to provide race-neutral reasons for striking two of the jurors. Those two served on the jury-

At trial, the State’s witnesses testified as to the facts and expert opinions outlined above. The defense presented no evidence. The jury found Wade guilty as charged of possession of a Schedule II CDS, cocaine, with intent to distribute, and of flight from an officer.

The State then filed a habitual offender bill, charging Wade as a fourth felony offender. The bill listed Wade’s guilty pleas to possession of a firearm by a convicted felon in 1992, armed robbery in 1995, and possession of a Schedule II CDS in 1999. At the hearing, the State noted that R.S. 15:529.1 had been amended in June 2001, but urged the court to apply the version in effect at the time of the offense. The State offered the bills of information and minutes for the 1995 and 1999 convictions; an expert testified that the fingerprints in those records were Wade’s. The court adjudicated Wade a third felony offender.

At sentencing in December 2001, the court ruled that it would apply the version of the habitual offender statute in effect at the time of the offense. The court therefore imposed the mandatory life sentence at hard | ¿labor, without benefit of probation, parole or suspension of sentence. Wade filed a motion to reconsider, urging that he should receive the benefit of the more lenient version of R.S. 15:529.1 enacted in 2001. The court denied the motion, and this appeal followed.

Discussion: Sufficiency of the evidence

By his first assignment of error, Wade urges that the evidence was insufficient to convict him of possession of cocaine with the intent to distribute. He contends that applying the factors of State v. Hearold, 603 So.2d 731 (La.1992), a rational jury could find him guilty of only simple possession. The State maintains that the quantity of cocaine and the manner of packaging proves the intent to distribute beyond a reasonable doubt.

When issues are raised on appeal both as to the sufficiency of the evidence and other trial error, the reviewing court first determines the sufficiency of the evidence. This is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not «reasonably conclude that all elements of the offense were proved beyond a reasonable doubt. State v. Hearold, supra; State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard applies in cases involving both direct and circumstantial evidence. An appellate court reviewing the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the State. | BWhen the direct evidence is thus viewed, the facts established by the direct evidence and those inferred from the circumstances must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied 98-2723 (La.2/5/99), 737 So.2d 747.

Appellate review for sufficiency does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2 Cir.1984). The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27. Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writ denied 98-0282 (La.6/26/98), 719 So.2d 1048.

To support the conviction for possession of CDS with the intent to distribute, the State must prove that the defendant knowingly and intentionally possessed the CDS and did so with the intent to distribute it. La. R.S. 40:967 A(l); State v. Smith, 94-1502 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078. Specific intent may be established by circumstances which give rise to a reasonable inference of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1981). Factors useful in this determination include whether the defendant ever distributed or attempted to distribute the drug, whether the drug was in a form usually associated with possession for 1 fidistribution to others, whether the amount of the drug created an inference of intent to distribute, whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only, and whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Hearold, supra; State v. House, 325 So.2d 222 (La.1975). Of course, quantity alone may be sufficient to establish the intent to distribute. State v. Hearold, supra; State v. Ratliff, 35,144 (La.App. 2 Cir. 9/26/01), 796 So.2d 101.

As noted, Wade was carrying in his front pocket seven individually wrapped rocks of crack cocaine with a total weight of 9.2 g. Agent Tong, an expert in street level interdiction, testified that this was not a “personal use amount,” and explained each $100 rock would likely be divided into dime bags. This testimony alone is sufficient to prove intent to distribute. Wade seeks to minimize Agent Tong’s testimony but offered no reason, at trial or on appeal, to reject his opinion. Wade also argues that no money, weapon, phone or pager was found on his person, and that the officers never had any reason to suspect him of drug dealing. Of course, Agent Tong stated that some dealers keep their cash away from their drugs, and that no money would be present if Wade had not yet made any sales. Agent Tong also conceded that while Wade was carrying no weapon or cell phone, he was also not carrying a crack pipe, which might have suggested personal use. • This testimony appears to be a cogent explanation of the facts.

In short,'the jury'was entitled to accept the expert opinion that Wade intended to distribute the cocaine seized from his pocket. Viewed in the 17light most favorable to the State, the evidence proves beyond a reasonable doubt that Wade knowingly and intentionally possessed crack cocaine with the intent of distributing it. This assignment of error lacks merit.

Peremptory challenges

By his second assignment, Wade urges the District Court erred in granting the State’s “reverse Batson ” challenge as to prospective jurors Carrie Johns and Kathy Mawhinney. He contends that both belonged to Broadmoor Baptist Church, which reflects “a certain socio-economic background and standard of living not comparable to that of most criminal defendants” and “perhaps more likely to give undue deference to police officers.” He also contends that, Ms. Johns was young and would be easily led, and that Ms. Mawhinney did not know much about the drug culture. The State contends that these reasons did not overcome the prima facie showing that the defense utilized peremptory challenges only to exclude whites from the jury.

The- United States constitution prohibits the State from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It also prohibits the defendant from engaging in the same conduct. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); State v. Knox, 609 So.2d 803 (La.1992). Louisiana law codifies this concept in La.C.Cr.P. art. 795 C, which provides:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting |sthat objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

In a McCollum situation, once the State establishes its prima facie case, the burden shifts to the defendant to come forward with a race-neutral explanation. The explanation need not be persuasive or even plausible; it will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory exception. State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939. The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. Id.; Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

On the first day of jury selection, the State raised a “reverse Batson ” claim and showed that the defense used seven peremptory challenges, all to excuse white jurors. The court accepted this prima fa-cie showing and asked defense counsel for race neutral reasons. As for Ms. Johns, counsel stated he was “very concerned about people who go to Broadmoor Baptist Church,” although this was “just a feeling.” Counsel also stated that Ms. Johns would be “easily led,” but admitted there was nothing in her voir dire examination to support this assumption. As for Ms. Ma-whinney, counsel noted that she “didn’t know much about drugs” and is also a member of Broadmoor Baptist Church. Counsel denied challenging her “because she’s a white female,” but “just my general feeling about her [is] that she was not the type of juror I wanted on this ease.” When the court remarked that this |nwas not a race-neutral reason, counsel replied, “I don’t think I can give a race-neutral reason.” Noting that Broadmoor Baptist was a predominantly white church, the court sustained the State’s challenge.

Wade now contends that the District Court was plainly wrong to find that his explanation for challenging these two potential jurors was a pretext for race-based exclusion. We perceive no manifest error. Religious affiliation apparently played no part in the defendant’s use of peremptory challenges until these he challenged these two jurors. It is not race-neutral. State v. Collier, 553 So.2d 815 (La.1989). Moreover, the comment that counsel has “a feeling” about a particular juror is not a sufficiently race-neutral explanation. State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293, and citations therein.

Wade further contends that Ms. Johns should have been excused because she would be “easily led.” In support he cites State v. Young, 613 So.2d 631 (La. App. 1 Cir.1992), writ denied 626 So.2d 1186 (1993). We agree that an inability to draw one’s own conclusions is a valid, race-neutral reason for challenging a potential juror. In voir dire, however, Ms. Johns disclosed that she was a member of the Society for Human Resource Managers and worked as a personnel manager for a department store; she also appeared to understand when the court asked about proof of intent. Unlike the contested juror in Young, there is nothing to suggest that Ms. Johns was “wishy washy” or easily persuaded by others. In short, the District Court did not err in sustaining the State’s McCollum claim. This assignment lacks merit.

h nHabitual offender adjudication

By his third assignment of error, Wade urges the evidence was insufficient to adjudicate him a third felony offender. He contends that the State failed to prove that when he pled guilty to the predicate offenses, he was either represented by counsel or validly waived his rights to counsel, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He specifically contends that the court minutes, which recite “only that the requirements of Boykin have been complied with,” are insufficient to prove the pleas were valid. In support he cites State v. Jeffers, 623 So.2d 882 (La.App. 2 Cir.1993).

The State’s burden of proof in habitual offender proceedings under R.S. 15:529.1 is stated in State v. Shelton, 621 So.2d 769 (La.1993):

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect”' transcript, for example, a guilty ,plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. 621 So.2d at 779 (footnotes omitted).

In the instant case, the State offered certified copies of the amended Inbill of information charging Wade with committing armed robbery on August 15, 1994,. and the bill of information charging him with possessing a Schedule II CDS, cocaine, on May 22, 1997. A fingerprint expert, Sgt. McConnell, confirmed that the fingerprints on both bills belonged to Wade. The State also offered certified copies of the court minutes of May 8, 1995, when he pled guilty to armed robbery, and of February 22, 1999, when he pled guilty to possession of a Schedule II CDS. Both sets of court minutes recited, “The court informed the defendant of his constitutional rights per Boykin v. Alabama (see court reporter’s transcript).” Wade did not object to the introduction of the court minutes, thus distinguishing the case from State v. Jeffers, supra. Instead, Wade offered no affirmative evidence showing any infringement of his rights or procedural irregularity. State v. O’Neal, 34,814 (La.App. 2 Cir. 10/12/01), 795 So.2d 1292. Thus the court was entitled to find that the State met the initial burden under State v. Shelton, supra, and that Wade failed to meet his.

The State proved, beyond a reasonable doubt, every essential element of the habitual offender bill under R.S. 15:529.1. State v. Shelton, supra; State v. O’Neal, supra. This assignment lacks merit.

Retroactivity of habitual offender amendment

By his fourth assignment of error, Wade urges that the District Court failed to apply amended version of R.S. 15:529.1 that was in effect at the time of the multiple offender bill and the sentencing. He concedes that Louisiana courts generally apply the penalty provision in effect at the time of the offense. State v. Paciera, 290 So.2d 681 (La.1974). However, he | ^contends that this is contrary to federal sentencing guidelines. 18 U.S.C. § 3553(a)(4). He also contends that under national jurisprudence, the defendant should receive the benefit of any ameliorative amendment enacted after the commission of the crime but before sentencing.

At the time of this offense, the penalty for being a third felony offender, if the third or either of the prior felonies was a violation of the CDS law punishable by imprisonment for more than five years, was life without benefit of parole, probation or suspension of sentence. La. R.S. 15:529.1 A(l)(b)(ii). Effective June 15, 2001, the penalty for being a third felony offender is a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. La. R.S. 15:529.1 A(l)(b)(i), as amended by 2001 La. Acts No. 403. In other words, Wade’s sentencing range would have been a minimum of 20 and a maximum of 60 years without benefit of probation or suspension of sentence. The amendment has prospective effect only. 2001 La. Acts No. 403, § 6.

Wade correctly argues that Louisiana applies the penalty set forth in the statute at the time of the offense. Contrary to Wade’s argument, however, the courts have repeatedly stood by this rule. See, e.g., State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518; State v. Clark, 391 So.2d 1174 (La.1980); State v. Keith, 35,644 (La.App. 2 Cir. 2/27/02), 811 So.2d 136. The fact that a statute is later amended to lessen the possible penalty does not extinguish liability for the offense committed under the former statute. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). Two appellate courts have explicitly held that the 2001 amendment to R.S. 15:529.1 is prospective only. State v. Houston, 02-0255 (La.App. 4 Cir. 4/24/02), 818 So.2d 253; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208. Despite Wade’s well-researched argument, we see no need to deviate from the uniform jurisprudence of Louisiana. This assignment lacks merit.

Excessive sentence

By his final assignment of error, Wade urges the District Court imposed an excessive sentence. He first contends that because the amended version of R.S. 15:529.1 applied, his sentencing range should have been 20 to 60 years, and the court erred in exceeding this maximum. However, for the reasons already discussed, we find no merit in this argument.

In the alternative, he contends that even if the prior version of R.S. 15:529.1 applied, the mandatory life sentence without benefits still violates his right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. He submits that the District Court failed to state a factual basis for his life sentence, as required by La.C.Cr.P. art. 894.1 and State v. Lanclos, 419 So.2d 475 (La.1982), and that a remand is necessary for compliance. He concludes that on remand, the District Court would take into account, as a factual consideration, the amendment to R.S. 15:529.1.

The definition of criminal conduct and the provision of penalties for such conduct is a purely legislative function. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Johnson, supra. Pursuant to this function, the legislature enacted the habitual offender statute, which has been held by the Supreme Court, on numerous occasions, to be constitutional. State v. Johnson, supra. Since that statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. Id.; State v. Gass, 31,816 (La.App. 2 Cir. 1/20/99), 728 So.2d 896. While the judiciary is not without authority to declare a mandatory minimum sentence under the habitual offender law excessive under the facts of a particular case, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. State v. Johnson, supra; State v. Randleston, 96-1646 (La.10/4/96), 681 So.2d 936. To merit a deviation below the mandatory minimum sentence, the defendant must show that he is “exceptional.” State v. Johnson, supra. Such downward departures should occur only in rare instances. Id.

Wade’s only contention at sentencing was that he should benefit from the amendment to R.S. 15:529.1. He did not show that he was exceptional, such that the mandatory sentence would not be “meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances |1fiof the crime.” State v. Johnson, 709 So.2d at 676. Under the circumstances, the court was not required to comply with art. 894.1. State v. Gay, 34,371 (LaApp. 2 Cir. 4/4/01), 784 So.2d 714; State v. Owens, 32,642 (La.App. 2 Cir. 10/27/99), 743 So.2d 890, writ denied 00-0438 (La.9/29/00), 769 So.2d 553. It would have been an exercise in futility for the court to elaborate on sentencing factors when the court lacked discretion in sentencing this defendant. State v. Johnson, 31,448 (La.App. 2 Cir. 3/31/99), 747 So.2d 61, writ denied 99-1689 (La.11/12/99), 749 So.2d 653, cert. denied 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

This assignment lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For the reasons expressed, Carlos Dewayne Wade’s conviction, habitual offender adjudication and sentence are affirmed.

CONVICTION, HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED.

      . See, e.g., People v. Nasalga, 12 Cal.4th 784, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (1996); State v. Morris, 131 Idaho 263, 954 P.2d 681 (Idaho App.1998); Ford v. State, 755 N.E.2d 1138 (Ind.App.2001); State v. Chrisman, 514 N.W.2d 57 (Iowa 1994); Daniels v. State, 742 So.2d 1140 (Miss.1999); People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990); State v. Coolidge, 282 N.W.2d 511 (Minn.1979); State v. Reams, 284 Mont. 448, 945 P.2d 52 (1997); State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), cert. denied 403 U.S. 909, 91 S.Ct. 2217, 29 L.Ed.2d 686 (1971); People v. Walker, 81 N.Y.2d 661, 603 N.Y.S.2d 280, 623 N.E.2d 1 (1993); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967); State v. Shafer-Imhoff, 632 N.W.2d 825, 2001 N.D. 146 (2001); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975); State v. Macarelli, 118 R.I. 693, 375 A.2d 944 (1977); State v. Flagg, 160 Vt. 141, 624 A.2d 864 (1993).

      . The recent case of State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, applied the penalty provision of the 2001 amendment to La. R.S. 14:98E (fourth-offense DWI) to an offense that occurred before the amendment. Mayeux, a plurality opinion, is based on a close statutory analysis of R.S. 14:98 that we find inapplicable to the instant case.


author: h STEVEN R. PLOTKIN, Judge. | ARMSTRONG, J., TOBIAS, J.,

text:
    Frankie Faulkner PELLERIN v. Jerome Joseph PELLERIN.
    No. 2001-CA-1877.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 2002.
    James A. Gray II, Gray & Gray, New Orleans, LA, for Plaintiff/Appellant.
    Frank P. Tranchina, Jr., Dutch & Tran-china, Metairie, LA, -and- Jerome J. Pelle-rin, New Orleans, LA, for Defendant/Ap-pellee.

      (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, and Judge MAX N. TOBIAS, JR.).
   ON APPLICATION FOR REHEARING

h STEVEN R. PLOTKIN, Judge.

Consideration of the issues raised by the motion for rehearing filed by defendant-appellee, Joseph Jerome Pellerin, convinces us that our previous decision in this case contained errors of both fact and law. Accordingly, we withdraw our previous opinion in this matter and issue the following opinion in its stead.

Mr. Pellerin and the plaintiff-appellant, Frankie Faulkner Pellerin, were divorced by judgment of August 15, 1997. During their marriage, the Pellerins had two sons: At issue in this appeal is whether Mr. Pellerin owes child support arrearages to Ms. Pellerin for the period of time from March 21, 1997 to January 20, 1999. By judgment of November 6, 2000, the trial court granted Mr. Pellerin’s exception of no cause of action, finding that Ms. Pelle-rin’s most recent rule for contempt was based on a child support judgment that had been modified by subsequent trial court judgments. For the following reasons, we affirm.

Facts

On October 28, 1996, the Pellerins entered into an interim order of support, requiring Mr. Pellerin to pay $1,000 per month for support of the two minor | gchildren. The consent order required Mr. Pellerin to pay the mortgage on the family home, then forward the difference between the mortgage payment and the interim child support amount to Ms. Pelle-rin.

On March 21,1997, the trial court issued a judgment awarding Ms. Pellerin child support of $1,879.35 per month retroactive to August 8,1996, the date Ms. Pellerin had filed for divorce. Mr. Pellerin appealed the March 21, 1997 judgment to this court. On June 17, 1998, this court affirmed the monthly child support award of $1,879.35, but modified the judgment, making it retroactive only to March 21, 1997. Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617. The Louisiana Supreme Court denied Mr. Pellerin’s writ application on October 30, 1998. Pellerin v. Pellerin, 98-1940 (La.10/30/98), 727 So.2d 1167.

Meanwhile, on July 7, 1997, another consent judgment was rendered, ordering Mr. Pellerin to pay the mortgage for February, March, and April of 1997.' Thereafter, Ms. Pellerin filed a number of rules for contempt, each of which resulted in a trial court judgment holding Mr. Pellerin in contempt and ordering him to pay certain amounts in order to purge himself of contempt, as further detailed below.

On August 4, 1997, Ms. Pellerin filed a motion for expedited hearing, citing the October 28, 1996 consent judgment, requesting the trial court to order Mr. Pelle-rin to pay the mortgage that had again become delinquent, to show why full payment of child support should not be tendered to her, and/or to find Mr. Pellerin in contempt for not complying with the October 28, 1996 consent judgment and the March 21,1997 judgment.

I «The trial court rendered judgment on October 1, 1997, finding Mr. Pellerin “guilty of contempt for failure to comply with court order, child support and mortgage payment.” The.trial court allowed Mr. Pellerin seven days “to purge himself of contempt by payment of all arrearages thru [sic] October 1, 1997.” At this time, the trial court also denied Mr. Pellerin’s motion to reduce child support based on issues concerning the children’s private school attendance.

Then, in December 1997 and February 1998, Ms. Pellerin filed two rules to show cause and for expedited hearing. In her motions, Ms. Pellerin requested the trial court to require Mr. Pellerin to bring the mortgage payments up to date, to hold Mr. Pellerin in contempt for not complying with the October 28, 1996 consent judgment, and to order Mr. Pellerin to pay all unpaid child support up to the date of the hearing on the matter. In response to the first of those motions, the trial court issued a judgment on December 22, 1997, finding Mr. Pellerin in contempt, but suspending his sentence if he paid the amount owed to the mortgage company by a set time.

The rule to show cause filed by Ms. Pellerin in February 1998 contained the same requests she made in December 1997, except that she added a request for a contempt finding based upon Mr. Pellerin’s failure to comply with the December 22, 1997 judgment. On February 26, 1998, the trial court issued a judgment, again finding Mr. Pellerin in contempt for his failure to comply with the October 28,1996 consent judgment and ordering him to make mortgage payments for January and February of 1998.

Thereafter, this court rendered its decision in Pellerin v. Pellerin, 97-2085 (La. App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167, affirming the increase in Mr. Pelle-riris child support obligation. On [4the same day this court’s judgment was issued, Ms. Pellerin filed yet another rule to show cause and for expedited hearing. Again, she asked that Mr. Pellerin be held in contempt for not complying with the terms of the October 1996 consent judgment and that he be ordered to pay all child support payments due as of the date of the hearing. The record contains no resolution of this rule; however, in his reasons for judgment in the matter before us, the trial judge stated that at the August 19, 1998 hearing, “[Ms.] Pellerin’s counsel informed the Court that following the hearing [Mr.] Pellerin would satisfy the support payment at the rate of $1,000.00 per month then due and payable. The Rule was voluntarily dismissed with prejudice.”

Although the record contains all of the rules for contempt filed by Ms. Pellerin, as well as the trial court judgments on those rules, the record does not contain any transcripts of the hearings on those motions. Moreover, the record contains no reasons for judgment relative to any of the judgments entered. Accordingly, this court is unable to determine the trial court’s intent in entering those judgments.

On January 20, 1999, Ms. Pellerin’s new counsel filed the rule for contempt that resulted in the judgment that is the subject of this appeal. In this rule, Ms. Pelle-rin asked the trial court to find Mr. Pelle-rin in contempt for failing to comply with the court’s March 21, 1997 judgment, as modified by this court on June 17, 1998. Essentially, Ms. Pellerin asked the trial court to assess child support payments against Mr. Pellerin at $1,897 per month from March 1997, with a credit for amounts he had paid.

In response to this rule, Mr. Pellerin filed a pleading entitled “Exception of No Cause of Action and No Right of Action,” asserting various theories regarding |sthe effect of the March 21, 1997, judgment as well as the effect of the several subsequent trial court judgments mentioned above (“the interim judgments”). Among other things, Mr. Pellerin argued that the trial court’s interim judgments on Ms. Pellerin’s contempt motions had a res judicata effect that prevented the court from awarding the relief requested by Ms. Pellerin.

The trial court héld a hearing on November 10, 1999, but did not issue a judgment on the exception until November 6, 2000. The trial court granted the exception, providing the following reasons for judgment:

[Ms.] Pellerin’s causes of action for arrearages, the same cause asserted herein, was heard and adjudicated on four separate occasions, with Judgments rendered pursuant to La. C.C.P. art. 3946, setting forth the amount of the arrearages and the collection of those arrearages made executory. When the judgment is in favor of the plaintiff, all causes of action that had been and/or could have been asserted are both extinguished and merged in the Judgment. [Ms.] Pellerin’s cause of action for a determination of and payment of past due support for any period arising on or after March 21, 1997 up through and including August 19, 1998 has already been adjudicated and resolved by the prior Judgments.
Further, the Judgment [of March 21, 1997] has been modified by operation of law. The Judgment was effective the date it was signed and terminated the Interim Order of Support as of that date. Each of the foregoing final Judgments individually and collectively modified the monthly rate of support as set forth in the Judgment. Each of the foregoing final Judgments represents] a determination of the rights of the parties and have [sic] acquired the authority of the thing adjudged....
The record reflects that as of this date, [Mr.] Pellerin continues to pay $1,000.00 per month for the care and maintenance of his two minor, children. The whole of this support has been tendered in payment of the mortgage on the community family home. The record also reflects that both of the minor children are enrolled in private school. It would appear that modification of the trial court’s Judgment has not interrupted the children’s maintenance or upbringing or otherwise worked to their detriment.
It is this Court’s position' that any cause for a determination of and payment of past due support for any period arising on or after March 21, 1997 up through and including August 19,1998 is extinguished and merged into each of the final judgments rendered during that period.
LThe trial court’s judgment has been modified by operation of law. [Mr.] Pellerin’s monthly child support obligation remains at $1,000.00 per month unless and/or until otherwise modified.

At issue in this appeal is whether the trial, court correctly determined that the doctrines of res judicata and modification of a judgment by operation of law prevented Ms. Pellerin from seeking additional support from Mr. Pellerin for the period covered by the interim judgments. Although Mr. Pellerin styled his pleading as an “Exception of No Cause of Action and No Right of Action,” it actually raised a number of issues. Under well-established Louisiana law, it is the substance rather than the caption of a pleading that determines its effect. Brown v. Harrel, 98-2931, p. 4 (La.App. 4 Cir. 8/23/00), 774 So.2d 225, 228. Thus, this court is not bound by the rules that prohibit the consideration of anything except the petition itself in deciding an exception of no .cause of action. Accordingly, this court will consider the doctrines upon which the trial court relied in reaching its decision — res judicata and modification of a judgment by operation of law.

The general principles governing res ju-dicata are contained in LSA-R.S. 13:4231:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor, of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

17Although LSA-R.S. 13:4232 contains an exception to the res judicata doctrine applicable in cases involving matters ancillary to divorce cases, the exception does not impact our decision in this case because the issue Ms. Pellerin wants adjudicated is precisely the matter actually litigated and finally adjudicated in the subsequent judgments. Ebey v. Harvill, 26-373 (La.App. 2 Cir. 12/7/94), 647 So.2d 461, 463.

Discussing the res judicata doctrine, this court in Berrigan v. Deutsch, Kerrigan & Stiles, LLP, 2001-0612 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, writ denied, 2002-0338, 2002-0341 (La.4/12/02), 813 So.2d 410, noted as follows:

[T]he formula derived in Louisiana jurisprudence states there must be identity in the two suits as to the thing demanded, the demand must be founded on the same cause of action, and the demand must be between the same parties. .. .A party urging an exception of res judicata carries the burden of proving the necessary elements listed above by a preponderance of the evidence. In fact, res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question. The res judicata doctrine must be strictly construed, and any doubt concerning its applicability is to be resolved against the mover.

Id. at p. 5, 806 So.2d at 167.

Ms. Pellerin’s only argument directed at the effect of the subsequent judgments is that the subsequent judgments did not determine the rights of the parties because the trial court did not calculate the total child support due in any of these judgments. The trial court, however, can only make a determination based upon the information and/or arguments supplied by the parties. In this case, the trial court’s rulings in the judgments subsequent to the March 1997 judgment clearly addressed the requests made by Ms. Pellerin in each of the motions she filed. Each time, the trial court basically awarded Ms. Pellerin what she sought.

|RBy submitting Ms. Pellerin’s various motions and the accompanying trial court judgments, Mr. Pellerin sufficiently proved that the elements of the doctrine of res judicata had been met in this case. The allegations regarding child support contained in Ms. Pellerin’s latest rule are mostly directed to a period of time for which the trial court had already determined the amount of child support due. Consequently, these allegations do not state a cause of action for child support because they are barred by res judicata. The trial court properly determined that the subsequent judgments precluded Ms. Pellerin’s claim for past due child support at least until August 1998.

In granting the exception of no cause of action, the trial court also determined that Ms. Pellerin did not state a cause of action for child support through January 1999, the date to which she claimed to be owed child support. Although the trial court’s reasons for judgment indicate that the modification of the March 1997 judgment to monthly payments of $1,000.00 is applicable until the date of the judgment being rendered — November 6, 2000 — we do not believe that the trial court may make this broad a ruling by merely granting an exception of no cause of action. Thus, if we determine that the trial court correctly concluded that the March 1997 judgment had been modified, the modification would only be effective until January 1999.

In his reasons for judgment, the trial judge determined that the subsequent judgments had been modified by operation of law. While we agree with Ms. Pellerin that the jurisprudence concerning whether a judgment is changed by “operation of law” refers to occurrences not applicable to this case, we nevertheless find a sufficient factual basis in the record for a finding that the March 1997 judgment had indeed been modified, though perhaps not “by operation of law.”

|flIn this appeal, Ms. Pellerin maintains that she and Mr. Pellerin did not agree to alter his child support obligation. In response, Mr. Pellerin claims not that an agreement was reached, but that subsequent orders of the same trial court should have the same effect as a bilateral agreement to modify the amount of support-that is, to alter the amount of support. None of the jurisprudence cited by the parties in any way involves the unique circumstances presented by this case.

As best as we can discern from the record, Ms. Pellerin did not explicitly agree to a change in support. However, the record shows that she nevertheless accepted a change in child support. Her former counsel continually sought compliance with the October 1996 consent judgment when, by law, Ms. Pellerin was entitled to payments under the March 1997 judgment even during the appeal of that judgment. In his reasons for judgment, the trial judge recognized that a judgment initially awarding child support is effective as of the date the judgment is signed and terminates the interim order of support as of that date. LSA-R.S. 9:315.21B(1). Also, an appeal from a judgment awarding support of a person shall not suspend execution of the judgment insofar as the judgment relates to support. La. C.C.P. art. 3943. Finally, when a payment of support under a judgment is in arrears, the party entitled to support may proceed by contradictory motion to have the amount of past due support determined and made execu-tory, and on the trial of the contradictory motion, the court shall render judgment for the amount of past due support. La. C.C.P. art. 3846. Ms. Pellerin’s theory that the trial court was required to make a finding that the amount of child support she actually received was in the best interest of the children is unsupported by law.

| ^Considering this law and having reviewed the record, we find that Ms. Pelle-rin’s continued acceptance of less child support than she was entitled to receive under the law was a tacit agreement to a modification in the March 1997 judgment. Because it is not our objective to practice law for the defendant, Lacour v. Lacour, 99-0913 (La.App. 4 Cir. 2/9/00), 763 So.2d 678, we must assume that some rationale supported Ms. Pellerin’s actions. Under the unique facts of this case, we find that the March 1997 judgment was modified, not by operation of law, but by Ms. Pelle-rin’s continued acceptance of the monthly mortgage payments.

Considering the record and the applicable law, the trial court correctly decided to dismiss Ms. Pellerin’s petition, and that ruling is hereby affirmed. Hence, Ms. Pellerin’s current calculations of the amount of child support due to her are invalid; any request for child support ar-rearages after January 20, 1999 must be directed to the trial court.

Accordingly, the trial court judgment granting Mr. Pellerin’s exception to Ms. Pellerin’s rule for contempt is hereby affirmed.

REHEARING GRANTED; PREVIOUS OPINION WITHDRAWN; TRIAL COURT JUDGMENT AFFIRMED.

ARMSTRONG, J., CONCURS.

| ARMSTRONG, J.,

concurs.

I respectfully concur in the decision to affirm the judgment of the trial court.

TOBIAS, J.,

CONCURS IN PART AND DISSENTS IN PART.

Although I concur in the determination that Mr. Pellerin’s “Exception of No Cause of Action and No Right of Action” is actually an exception of res judicata, I respectfully dissent from the remainder of the majority’s opinion because I find our original disposition of this case is correct.

First, Mr. Pellerin’s application for rehearing and supplement thereof raises nothing new that was not originally urged in this court. Although he does correctly point out in the application that we erred when we said that the trial judge who rendered' the judgment now at issue did not render earlier judgments respecting his nonpayment of the support obligation under the 28 October 1996 interim judgment of support and the 21 March 1997 judgment, such is of no moment.

The majority fails to place appropriate emphasis on the clear mandates of La. R.S. 13:4232, which in pertinent part provides:

B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contribution to a spouse’s education or training under Civil Code Article 121, and in an action for partition and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated. [Emphasis supplied.]
|2Civil Code article 105 provides:
In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables of immovables; or use of personal property.

The burden of proof was upon Mr. Pelle-rin to establish by a preponderance of the evidence at the 10 November 1999 hearing (commemorated by the 6 November 2000 judgment and reasons therefor) that Ms. Pellerin had abandoned her claims for past due and uncollected alimony pendente lite and unpaid child support. The record on appeal, and specifically the transcript of the 10 November 1999 hearing, is devoid of evidence supporting the trial court’s reasons given almost one year after the hearing. Although prior judgments of the court did not specifically address certain aspects of Ms. Pellerin’s rules, the record on appeal fails to affirmatively disclose that Ms. Pellerin was abandoning those claims. The record on appeal contains no transcripts of the prior hearings. The record, therefore, fails to reflect that the certain issues were “actually adjudicated” as required by La. R.S. 13:4232B. Rather, the record on appeal affirmatively indicates that Ms. Pellerin’s primary interest at the hearings of the rules was the payment of the mortgage on the family home so that she and the children of the marriage would be evicted from the family home in a foreclosure proceeding. I find nothing in the record in the form of evidence to support the position that either Ms. Pellerin waived her right to the remainder of the support payments or acquiesced in a modification of the formal definitive judgments for support.

Moreover, the majority decision now disregards this court’s lengthy per curiam opinion in Ventura v. Rubio, 2000-0682 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, and gives res judicata effect to matters for which no record exists. Although Ventura was decided by this court after Ms. Pelle-rin filed her motion, \jVentura merely recognized what was and has always been the law. Ventura mandates a full record of the proceedings in the trial court so that a reviewing court may ascertain what the parties intended and upon what basis the judgment was issued.

The majority decision deprives children of the support obligation to which they are entitled by a final judgment.

We were correct when we reversed and remanded.

      . This document is not included in the record. Information about the October 28, 1996, consent judgment was contained in this court’s opinion in Pellerin v. Pellerin, 97-2085 (La. App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167.

      . Also unclear from the record is why there was a one-year delay between the hearing in the trial court and the rendition of ruling on -Mr. Pellerin’s exception.