author: SAWAYA C.J.

text:
    Gilbert ARAGON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2664.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      Victoria L. Bloomer of Escobar, Ramirez, & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA C.J.

Gilbert Aragon appeals his convictions and sentences for first-degree felony murder with a firearm, attempted second-degree murder with a firearm and attempted robbery with a firearm. Of the several issues Aragon raises in these proceedings, the two that merit discussion are: 1) whether Aragon is entitled to a new trial because the trial court erred in denying his motions to strike two jurors for cause; and 2) whether the trial court erred in denying Aragon’s motion to interview a juror. We affirm on these and all other issues raised by Aragon.

In order to resolve these two issues, it is not necessary to expound upon the events surrounding the criminal episode that led to Aragon’s convictions. Because the issues involve procedural matters surrounding the jury selection process and the polling of the jury subsequent to the verdict, we will proceed with our discussion of the issues in the order previously presented.

Denial of the Motions to Strike Jurors for Cause

Aragon strenuously argues that the trial court erred in denying his motions to strike two jurors for cause and, therefore, he is entitled to a new trial. In Barnhill v. State, 834 So.2d 836 (Fla.2002), cert. denied, — U.S. -, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003), the court explained the standard that applies to determine whether a juror is competent to serve:

The test for determining juror competency is whether the juror can set aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror incompetency. The decision to deny a challenge for cause will be upheld on appeal if there is competent record support for the decision. In reviewing a claim of error such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record. It is the trial court’s duty to determine whether a challenge for cause is proper.

Id. at 844 (citations omitted). Based on this standard, even if we assume that Ara-gon is correct that the trial court erred in denying his cause strikes, we are prohibited from reviewing this error because Ara-gon failed to properly preserve the error for review by this court.

In order to preserve for appellate review a trial court’s improper denial of a motion to strike a prospective juror for cause, the complaining party must establish that: 1) a motion to strike the juror for cause was timely made; 2) the trial court improperly denied the motion; 3) the complaining party exhausted all peremptory challenges; 4) a request for additional peremptory challenges was made; 5) the jurors to be stricken with the additional challenges were identified; 6) the request for additional challenges was denied; and 7) the objectionable jurors actually served on the jury. In addition, the error of refusing to strike for cause must be brought to the trial court’s attention once more before the jury is sworn.

The State contends that Aragon failed to properly preserve any error regarding the denial of Aragon’s motions to strike for cause because after he exhausted his peremptory challenges, he failed to request additional challenges. Aragon argues that he did make such a request when the following exchange took place between his counsel, Mr. Couture, and the trial court:

Mr. Couture: Your Honor, no, I do not have a challenge to Catalano; but just to make the record clear, we’ve exhausted our peremptory challenges.
The Court: Right.
Mr. Couture: And if we could — if some of our cause challenges would have been granted, we would have excused jury [sic] number 25, William Layman.
The Court: All right. Okay. Thank you. Bring the jury in please.

In Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002), review denied, 848 So.2d 1153 (Fla.2003), a case analogous to the instant case, after the defendant exhausted all of his peremptory challenges and the state accepted the jury, the court addressed defense counsel: “ ‘Those six jurors unless additional challenges from the defense, [defense counsel].’ ” Id. at 855. In response, defense counsel stated, “ ‘If — if there are others, I would challenge including Mr. Inman, and others, if you granted me more peremptories.’ ” Id. The court held that this statement “was neither a motion nor a request for additional peremptory challenges.” Id. at 856. Here, Aragon’s counsel stated that “[a]nd if we could — if some of our cause challenges would have been granted, we would have excused jury [sic] number 25, William Layman.” If the statement made by defense counsel in Carratelli is not a request for additional peremptory challenges, the statement made by Aragon’s counsel in the instant case certainly is not. Therefore, Aragon failed to properly preserve any error the trial judge may have made in denying his motions to strike for cause.

Denial of the Motion for Juror Interview

In order to be entitled to a juror interview, a defendant must present “sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings.” Johnson v. State, 804 So.2d 1218, 1225 (Fla.2001). If the defendant meets this burden, he “must establish actual juror misconduct [via] the juror interview.” Baptist Hosp. of Miami, Inc. v. Moler, 579 So.2d 97, 100 n. 1 (Fla.1991); Miles v. State, 839 So.2d 814, 818 (Fla. 4th DCA 2003). If this burden is met, the defendant will be entitled to a new trial unless the state can show that the misconduct was harmless. Baptist Hosp.; Miles.

A juror interview is not permitted regarding inquiry into any matter that inheres in the verdict and relates to the jury’s deliberations. § 90.607(2)(b), Fla. Stat. (2001) (“Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.”); Marshall v. State, 854 So.2d 1235, 1240, n. 5, 2003 WL 21354775 (Fla. June 12, 2003); Reaves v. State, 826 So.2d 932 (Fla.2002); Johnson v. State, 593 So.2d 206, 210 (Fla.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992); Mitchell v. State, 527 So.2d 179, 181 (Fla.), cert. denied, 488 U.S. 960, 109 S.Ct. 404, 102 L.Ed.2d 392 (1988); State v. Goldwire, 762 So.2d 996 (Fla. 5th DCA 2000), review denied, 786 So.2d 1185 (Fla.2001).

In order to preserve the sanctity of jury deliberations, when determining whether a matter inheres in the verdict, the courts distinguish between external sources and internal sources that influence a jury’s verdict. Marshall. The courts consistently agree that a jury interview may be granted regarding allegations of influence upon the jurors’ deliberations arising from an overt prejudicial act or external sources, such as two or more jurors agreeing to disregard their .oaths and instructions from the court; a juror receiving prejudicial information from outside the courtroom; a juror improperly approached by a party, his agent, or attorney; or a verdict determined by aggregation and average or by lot, game of chance, or other improper manner. Marshall; Reaves; Devoney v. State, 717 So.2d 501 (Fla.1998). On the other hand, inquiry may not be made regarding matters that inhere in the verdict such as the juror “ ‘did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.’ ” Marks v. State Rd. Dep’t, 69 So.2d 771, 774-75 (Fla.1954) (quoting Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210 (1866)); see also Marshall; Devoney; Goldwire. As the court summarized in Marshall, “A juror is not competent to testify about matters inhering in the verdict, such as jurors’ emotions, mental processes, or mistaken beliefs.” Marshall, 854 So.2d at 1240.

In the instant case, Aragon alleges that when the jury was polled, one juror mentioned that she did not feel qualified to be there and that it was very difficult. Aragon also asserts that this juror “teared up.” However, this contention does not imply that the jury was influenced by external sources or improper material, nor does it involve any agreement among the other jurors to disregard their oaths and ignore the law. Aragon’s assertion, which involves a juror’s feeling of inadequacy in making a very difficult decision in a serious case, relates to the juror’s “emotions, mental processes, or mistaken beliefs,” which are matters that inhere in the verdict. Hence a juror interview is impermissible. Because Aragon has failed to properly make allegations of influence upon the jurors’ deliberations arising from an overt prejudicial act or external sources, the trial court did not err in denying Aragon’s request for a jury interview.

Aragon asserts that rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar provides him the avenue to interview the juror without filing a motion and obtaining an order from the court. Rule 4 — 3.5(d)(4) prohibits a lawyer connected with the trial from initiating communication with any juror, except to determine whether the verdict may be subject to legal challenge. The rule specifically states that the lawyer “may not interview the jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist.” Id. Although the Florida Supreme Court has not specifically addressed the issue regarding the propriety of interviews under this rule, the court seems to have given tacit approval of such interviews in cases involving postconviction relief proceedings, provided the procedure outlined in the rule is followed. See Arbelaez v. State, 775 So.2d 909, 920 (Fla.2000); see also Vining v. State, 827 So.2d 201 (Fla.2002); Johnson v. State, 804 So.2d 1218 (Fla.2001).

In Defrancisco v. State, 880 So.2d 131 (Fla. 2d DCA 2002), the court specifically held that a juror interview may be conducted under the rule if the movant’s counsel provides sufficient notice under the rule and “had ‘reason to believe’ the verdict might be subject to a legal challenge based on juror misconduct.” Id. at 134. Here, Aragon’s reason to believe that the verdict may be subject to a legal challenge is based on the juror’s statement that she felt unqualified to make a difficult decision in a serious case and that she cried during the polling procedure. This is not misconduct by the juror and it does not form the basis of a reasQnable belief that the verdict may be subject to legal challenge. See Bullard v. State, 324 So.2d 652, 654 (Fla. 1st DCA 1975) (indicating that in order to have a reason to believe that a verdict is subject to a legal challenge, there should be a “reason to believe that one or more of the jurors had violated their oath and disregarded the instructions of the court.”), cert. denied, 336 So.2d 1180 (Fla.1976). Moreover, a juror crying during the polling process is not a reasonable ground to believe that the verdict may be subject to a legal challenge. Murray v. State, 356 So.2d 71 (Fla. 1st DCA 1978).

A trial represents the expenditure of valuable public and private resources. Jurors, as private citizens, are called upon to invest their time and energy in judicial proceedings for little financial remuneration with the expectation that fulfillment of their civic duty will be sufficient reward for their service. Summoned as they are from all walks of life, most jurors are not trained in the judicial process and many find it difficult when confronted for the first time with the niceties of the law and its array of procedures. The jurors hear the evidence and the legal instructions and then struggle to sort through it all as they search for the truth. Often times they must make extraordinarily difficult decisions in cases that have very serious consequences for all of the participants. To allow inquiry into the jurors’ emotions and feelings of inadequacy as they go through this often difficult process is to expect something closer to perfection than they and our judicial system can legitimately be expected to give. Although there will always be disappointed litigants in search of a reason to undo what a jury has done, to allow improper inquiry of individual jurors in furtherance of that effort poorly serves the ends of justice, obstructs finality in judicial proceedings, and cheapens the investment made by those who are willing to search for the truth, through the judicial process and proclaim it through their verdict.

Conclusion

After Aragon exhausted his allotted peremptory challenges, he did not request additional challenges and, therefore, he failed to preserve any error the trial judge may have made in denying his motions to strike for cause. As to the second issue, Aragon has failed to establish that he was entitled to a juror interview. Accordingly we affirm.

AFFIRMED.

SHARP, W. and PALMER, JJ„ concur.

      . Mendoza v. State, 700 So.2d 670, 674-75 (Fla.1997) (citing Trotter v. State, 576 So.2d 691, 692-93 (Fla.1990); Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989)), cert. denied, 525 U.S. 839, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998); see also Kearse v. State, 662 So.2d 677 (Fla.1995); Hill v. State, 477 So.2d 553 (Fla.1985); Jenkins v. State, 824 So.2d 977 (Fla. 4th DCA 2002), review denied, 842 So.2d 844 (Fla.2003); Chattin v. State, 779 So.2d 415 (Fla. 2d DCA 2000).

      . Rimmer v. State, 825 So.2d 304 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002); Rodas v. State, 821 So.2d 1150, 1153-54 (Fla. 4th DCA 2002) ("The error must then be 'called to the trial court’s attention once more prior to the swearing of the jury, so that the court will be made aware that the objecting party is insisting on the objection, and so that the court will have a last clear chance to take corrective action if needed.’ ”) (quoting Milstein v. Mut. Sec. Life Ins. Co., 705 So.2d 639, 640 (Fla. 3d DCA 1998) (relying on Joiner v. State, 618 So.2d 174 (Fla.1993))), review denied, 839 So.2d 700 (Fla.2003); Martin v. State, 816 So.2d 187, 188 (Fla. 5th DCA 2002) ("Jury selection issues are deemed waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objections [sic].”); see also Berry v. State, 792 So.2d 611 (Fla. 4th DCA 2001); Gootee v. Clevinger, 778 So.2d 1005 (Fla. 5th DCA 2000), review denied, 794 So.2d 603 (Fla.2001); Barnette v. State, 768 So.2d 1246 (Fla. 5th DCA 2000).

      . Aragon does not allege that he has reason to believe that the juror was statutorily disqualified under section 40.013(1), Florida Statutes (2001), from serving on the jury.

      . The rule requires that prior to conducting an interview, the lawyer must file a notice of intention to interview containing the names of the jurors to be interviewed. R. Regulating Fla. Bar 4-3.5(d)(4). A copy of the notice must be furnished to opposing counsel and the trial judge a reasonable time before the interview. Id. If an objection is made by the opposing party, the trial court is required to hear the objection to determine whether the moving party has reason to believe that grounds exist for a legal challenge to the verdict. Defrancisco v. State, 830 So.2d 131 (Fla. 2d DCA 2002). If the court overrules the objection, the movant may conduct the interview and, if it leads to additional information that would support a legal challenge to the verdict, counsel may then file an appropriate motion and supporting affidavits for the court to conduct a formal interview. Id.


source: Caselaw Access Project

author: PER CURIAM. SAWAYA, C.J.,

license: Public Domain

text:
    Henry L. FILLYAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-923.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The three-year minimum mandatory provision imposed in connection with the defendant’s sentence for aggravated assault on a law enforcement officer is affirmed on the authority of Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Accord Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002), Jones v. State, 27 Fla. L. Weekly D2377, — So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

We additionally note the erroneous reference on the sentencing order to section 775.087(2), Florida Statutes. We remand the cause to the trial court for correction of this scrivener’s error to reference section 784.07(2)(c), Florida Statutes. See Solomon v. State, 705 So.2d 144 (Fla. 4th DCA 1998) (holding where scrivener’s error is apparent from record, cause should be remanded for correction of sentencing order).

AFFIRMED; CONFLICT CERTIFIED; CAUSE REMANDED.

PLEUS and MONACO, JJ., concur.

SAWAYA, C.J., concurs specially, with opinion.

SAWAYA, C.J.,

concurring specially.

Although I concur in the majority’s decision to affirm, I do so with the utmost reluctance and write to express my reservations and the reasons for my concurrence. In my view, Chapter 02-209, Laws of Florida, which provides for the imposition of a minimum mandatory sentence for the offense of aggravated assault on a law enforcement officer, should not be applied retroactively. However, decisions from this court, which I very respectfully suggest were wrongly decided, say that the statute may be applied retroactively. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing); see also Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002). Hence the reason for my reservations and my reluctant concurrence.

Chapter 02-209, Laws of Florida, has its genesis in the unconstitutional enactment of Chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain offenses. Specifically, section 4 of chapter 99-188 purported to amend section 784.07(2)(c), Florida Statutes (1997), to require imposition of mandatory minimum prison terms for the offense of aggravated assault on a law enforcement officer. However, in Hersey, this court agreed with the holding in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), that chapter 99-188 was unconstitutional because it violated the single subject rule of the Florida Constitution. Had this been the end of things, there would have been no question but that Fillyaw’s sentence for aggravated assault on a law enforcement officer could not include a mandatory minimum provision. However, it was not.

As observed by the court in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), the Legislature responded in 2002 to Hersey and Taylor by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, to reenact the provisions originally contained in chapter 99-188, but in such a way as not to run afoul of the single subject rule. The 2002 enactments were expressly made retroactive to July 1, 1999. Of specific importance to the instant case is Chapter 02-209, section 2’s reenactment of section 4 of Chapter 99-188, which amended section 784.07(2)(e) to require imposition of mandatory minimum prison terms for the offense of aggravated assault on a law enforcement officer. Because of the retroactive application of the reenactment, a mandatory minimum provision was included on Fillyaw’s sentence for aggravated assault on a law enforcement officer. In my view, the retroactive application of Chapter 02-209 is an impermissible violation of the Ex Post Facto Clauses of the federal and Florida constitutions that would entitle Fillyaw to the relief he requests but for prior case law out of this court, although I acknowledge that there is a split of authority among the district courts on this issue.

To say there is a lack of consistency in Florida law regarding whether chapter 99-188 was unconstitutional and whether the subsequent legislative reenactments may be applied retroactively is, perhaps, a gross understatement. As to the issue whether Chapter 99-188 violates the single subject requirement, the First and Third District Courts say it does not. Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). The Second and the Fifth District Courts, on the other hand, say that it does. Hersey; Taylor. Moreover, among those courts that say it does, there is disagreement whether the reenactment legislation may be applied retroactively. The Second District Court says it may not. Green (holding that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions). This court says it may be retroactively applied. Hersey; Carlson. The Fourth District has followed this court. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002) (citing Hersey).

If not for this court’s decisions in Hersey, Carlson, and their progeny, I would hold that Fillyaw’s sentence should be reversed and this ease remanded for resen-tencing pursuant to section 784.07(2)(e), Florida Statutes (1997), which does not provide for imposition of a mandatory minimum prison sentence. In Hersey, this court held in accordance with the decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), that “the enactment of chapter 02-210, Laws of Florida, cured chapter 99-188’s constitutional infirmity” and “applie[d] retroactively.” Hersey, 831 So.2d at 680. Subsequently, in Jones v. State, 828 So.2d 410 (Fla. 5th DCA 2002), this court, on the basis of the unconstitutionality of Chapter 99-188, reversed and remanded for resen-tencing a sentence that included a three-year mandatory minimum term that had been imposed in accordance with section 784.07(2)(e). However, that opinion was withdrawn and, on the authority of Hersey, another opinion was rendered that affirmed the sentence. Jones v. State, 27 Fla. L. Weekly D2377, — So.2d -, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002) (Jones II). I respectfully disagree that chapter 02-209, Laws of Florida, should be applied retroactively because to do so violates the Ex Post Facto Clauses of the federal and Florida constitutions. In my view, Hersey, Carlson, and Jones II were wrongly decided.

This court’s rationale in Hersey for applying the decision in Dobbert to justify the retroactive application of chapter 02-210, Laws of Florida, was more fully explained in Carlson:

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the United States Supreme Court held that the “operative fact” that a statute existed, even if such statute was subsequently determined to be unconstitutional, was sufficient to put appellant on notice of what the State intended to do under the circumstances. The fact that the State ultimately corrected the defect in the legislation to require exactly that which it had invalidly required earlier and then mandated a retroactive application of the amendment does not, according to Dobbert, violate the ex post facto provision of the United States Constitution.

Carlson, 27 Fla. L. Weekly at D2162-63, — So.2d at ——.

The problem I have with application of Dobbert to justify retroactive application of the reenacted legislation stems from the Florida Supreme Court’s pronouncement in Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000), that a single subject violation by the Legislature renders an enactment void. Like the court in Green, I have a very difficult time accepting the notion that the Dobbert “operative fact” rationale, which essentially provides that the very existence of an unconstitutional statute provides notice to the defendant of the penalties that the State would seek to impose upon conviction, applies to a void enactment such as chapter 99-188, Laws of Florida. Moreover, chapter 99-188 effected a substantive change in the law whereas in Dobbert, the court was concerned with retroactive application of a statute that effected a procedural change. For these reasons, I agree with the rationale adopted by the court in Green that retroactive application of the legislative reenactments of the provisions of chapter 99-188, which include chapter 02-209, could not occur without violating the Ex Post Facto Clauses of the federal and Florida constitutions.

Both the United States Constitution and the Florida Constitution prohibit enactment of laws that increase the punishment for a criminal offense after the crime has been committed. See U.S. Const, art. I, § 10 (“No State shall ... pass any ... ex post facto Law....”); Art. I, § 10, Fla. Const. (“No ... ex post facto law ... shall be passed”). In my view, the inquiry here should be whether the sentence imposed on Fillyaw via the retroactively applied enactment increases the punishment for the crime he committed. Fillyaw is charged with aggravated assault on a law enforcement officer in violation of section 784.07(2)(c). Pursuant to the retroactively applied reenactment, Fillyaw received a sentence that included a minimum mandatory prison sentence of three years that was not required under the prior version of the statute. Hence, Fillyaw did receive a more severe punishment under the reenacted statute in violation of the Ex Post Facto Clauses of both the Florida and federal constitutions. Therefore, I believe that Fillyaw is entitled to the relief he requested in his motion for postconviction relief. See Barber v. State, 849 So.2d 361, 862 (Fla. 2d DCA 2003) (“A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record.”); McCabe v. State, 844 So.2d 703 (Fla. 2d DCA 2003); Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Nevertheless, although I believe that Hersey, Carlson, and Jones II were wrongly decided and an ex post facto violation has occurred here, I must apply those decisions as binding precedent to the instant case. Therefore, I reluctantly vote to affirm.

The State contends that Fillyaw is not entitled to the relief he requested in his motion for postconviction relief because he entered a plea and received the sentence he bargained for. Although constitutional rights and protections may be waived pursuant to a plea agreement, a defendant cannot be bound by an agreement to accept an illegal sentence. Imposition of a minimum mandatory sentence that is not authorized by statute is an illegal sentence. Therefore, in my view the plea agreement does not form a basis for affir-mance.

      . Generally, a procedural change applied retroactively, such as a change in the roles of the court and jury in sentencing similar to that addressed in Dobbert, does not offend the Ex Post Facto Clause. See Weaver v. Graham, 450 U.S. 24, 32 n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Dobbert); see also Lynce v. Mathis, 519 U.S. 433, 447 n. 17, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

      . See Lebron v. State, 799 So.2d 997, 1019 (Fla.2001) ("While this Court has held that a defendant can waive ex post facto protections as part of an agreed-upon bargain by both parties ....”) (citing Bowles), cert. denied, 535 U.S. 1036, 122 S.Ct. 1794, 152 L.Ed.2d 652 (2002); Bowles v. Singletary, 698 So.2d 1201 (Fla.1997).

      . See Shelton v. State, 739 So.2d 1235 (Fla. 4th DCA 1999); Cheney v. State, 640 So.2d 103, 105 (Fla. 4th DCA 1994); Dyer v. State, 629 So.2d 285, 286 (Fla. 5th DCA 1993); Stephens v. State, 627 So.2d 543, 544 (Fla. 2d DCA 1993).

        .Kendrick v. State, 817 So.2d 951 (Fla. 2d DCA 2002); Williams v. State, 782 So.2d 980 (Fla. 1st DCA), review denied, 805 So.2d 811 (Fla.2001); Smith v. State, 654 So.2d 264 (Fla. 2d DCA 1995) (holding that there must be statutory authority for imposition of minimum mandatory sentence); see also Carter v. State, 786 So.2d 1173, 1181 (Fla.2001) ("[A] sentence is 'illegal' if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances' ....") (quoting Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999)).


author: THOMPSON, J.

text:
    Roger C. CASSIDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-913.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 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 Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Roger C. Cassidy appeals his convictions for robbery with a deadly weapon and tampering with evidence. We affirm.

Cassidy claims that the pocketknife he carried could not have been a deadly weapon. The jury was instructed that “[a] weapon is a ‘deadly weapon’ if it is used or threatened to be used in a way likely to produce death or great bodily harm.” Cassidy displayed the open pocketknife to the store clerk and threatened to cut her throat. Compare Durden v. State, 743 So.2d 77 (Fla. 1st DCA 1999) (affirming conviction for robbery with a deadly weapon where the defendant held the open blade of a pocketknife to the victim’s throat). We conclude that there was sufficient evidence to make it a jury question whether the pocketknife wielded by Cassi-dy was a deadly weapon. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (whether a particular weapon is in fact deadly is a jury question).

Cassidy was also convicted of tampering with evidence, and he claims that the court should have granted his motion for judgment of acquittal. We disagree. Cassidy was charged in one count with hiding a piece of crack, a bag of marijuana, and a soda can modified so that it could be used as a pipe. A police officer testified that he saw Cassidy put the bag of marijuana under the seat, the soda can between the seats, and what looked like a piece of crack into his mouth. The soda can had what appeared to be crack residue on it and the contents of the bag field tested to be marijuana. Although the object Cassi-dy put in his mouth was never recovered and the can was never tested, there was enough evidence for the jury to infer that Cassidy was tampering with evidence when he disposed of the crack-like object and hid the other two items.

AFFIRMED.

PALMER and TORPY, JJ., concur.


author: PLEUS, J.

text:
    Charles HAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4075.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      James B. Gibson, Public Defender, and Joseph A. Palmer, Assistant Public Defender, DeLand, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

Hagan appeals his conviction for indirect criminal contempt. Because we conclude that Hagan’s due process rights were violated, we reverse.

In June 2001 the circuit court entered an Amended Final Order for Protection Against Repeat Violence against Hagan. Among other things, the injunction prohibited Hagan from having any direct or indirect contact with his next door neighbor, Tera Viola. It also prohibited “[Hagan’s] conduct at any place where [Viola] frequents, including ... grocery stores.” On June 8, 2002, Volusia County Sheriffs deputy Charles Dowell filed an affidavit against Hagan alleging that he violated the injunction by walking past Viola in the grocery store and making eye contact with her. The circuit court issued an order commanding Hagan to show cause why he should not be held in contempt for violation of the injunction “by commission of the acts alleged in the attached affidavit.”

Hagan alleges that “a court reporter was not present and there is no transcript of the hearing.” The state conceded at oral argument that the hearing was not transcribed. The court minutes indicate that the court heard testimony from Viola, Hagan and Hagan’s mother. The court found Hagan in contempt and sentenced him to 30 days in jail, credit for eight days time served with the remaining time suspended. There is no written contempt order but the court action form, which states: “Found in contempt of court / adj guilty / 30 days jail w/ credit for time served / suspend balance / release from custody to PTS pending further review of misdemeanor charges by SAO / no contact w/ victim,” was signed by the judge.

Hagan filed a petition for belated appeal which this court granted. Attached to the petition is an affidavit by Hagan further’ alleging that he could not afford, was not offered, and did not have, an attorney at the contempt hearing nor was he advised of his right to appeal the conviction. On appeal, Hagan raises several due process arguments, four of which merit discussion below. Before reaching those arguments, we will dispose of the state’s mootness argument.

Mootness

Generally, an issue is moot when the “controversy has been so fully resolved that a judicial determination can have no actual effect.” Godwin v. State, 593 So.2d 211, 212 (Fla.1992). Florida courts recognize at least three instances in which an otherwise moot case will not be dismissed: (1) when the questions raised are of great public importance, or (2) are likely to recur; or (3) if collateral legal consequences that affect the rights of a party flow from the issue to be determined. Id.

The state cites cases in which appeals challenging the legality of a defendant’s sentence were dismissed as moot because he had completed that sentence. See Edwards v. State, 765 So.2d 222 (Fla. 2d DCA 2000). The instant case is distinguishable because Hagan is not challenging the legality of his sentence. Instead, he challenges the legality of his conviction based on due process grounds.

In Lamb v. State, 526 So.2d 998 (Fla. 1st DCA 1988), the defendant challenged the legality of his conviction, rather than his sentence. The appellate court held that the appeal was not moot even though the defendant had completed his sentence because the “possibility of removing the stigma of a conviction represents a significant practical purpose demonstrating the eon-'tinuing viability of the appeal.” Id. In Blalock v. Rice, 707 So.2d 738 (Fla. 2d DCA 1997), the defendant challenged her confinement for indirect criminal contempt by petition for writ of habeas corpus. After the appellate court ordered the state to respond to the petition, the lower court vacated its judgment and sentence and ordered the defendant to be released immediately. The appellate court rejected the state’s argument that the appeal had become moot due to the defendant’s release. It found that the numerous errors committed by the lower court, including an insufficient notice of arraignment, failure to have the contempt hearing transcribed and imposition of an excessive sentence, were capable of repetition and thus, not moot.

Similarly, in the instant case, Hagan attacks the legality of his conviction and has an interest in removing its stigma from his record. In addition, the alleged errors in this case are similar to those noted in Blalock, and are apparently capable of repetition. Therefore, his appeal is not moot.

The Sufficiency of the Affidavit

Hagan argues that the police affidavit was insufficient because it was not based upon personal knowledge. Florida Rule of Criminal Procedure 3.840(a) requires an affidavit of “any person having knowledge of the facts.” In the instant case, the affidavit is signed by the investigating officer, not Viola. There was no sworn victim statement attached to the police report. The affidavit does not allege that the officer personally observed the events alleged. It was hearsay. Such failure to strictly follow the dictates of Rule 3.840 constitutes fundamental, reversible error. Mix v. State, 827 So.2d 397 (Fla. 2d DCA 2002); Giles v. Renew, 639 So.2d 701, 702 (Fla. 2d DCA 1994).

Lack of Hearing Transcript

Hagan argues that the circuit court reversibly erred by failing to have the contempt hearing transcribed by a court reporter. Florida Rule of Judicial Administration 2.070(b) requires that all criminal proceedings shall be reported at public expense to provide for meaningful appellate review of convictions. Numerous cases hold that this rule requires trial courts to ensure that a record is made of criminal contempt proceedings. See Gidden v. State, 613 So.2d 457 (Fla.1993); Thomas v. State, 828 So.2d 456 (Fla. 4th DCA 2002); Cole v. State, 714 So.2d 479 (Fla. 2d DCA 1998); Blalock, 707 So.2d at 740. “While automatic reversal because of a lack of record may not be required in every instance, facially sufficient claims on plenary appeal from an adjudication of contempt ... which cannot be refuted by the record will invariably mandate vacation of the judgments.” Blalock at 740.

In the instant case, the circuit court’s failure to have the contempt hearing transcribed makes it impossible to refute Ha-gan’s other due process arguments. The state does not dispute Hagan’s factual allegations. Instead, it argues that Hagan has the burden of ensuring that the record is prepared and transmitted. In light of the authorities cited above, the state’s argument is meritless.

Lack of Arraignment

Hagan alleges that he was not arraigned or otherwise advised of the charges against him. Arraignment and notice of the charges are required in indirect criminal contempt proceedings. See Fla. R.Crim. P. 3.840(d); Gidden, 613 So.2d at 460. Although Hagan may be arraigned at the contempt hearing, it is impossible to determine if Hagan was arraigned in this case without a hearing transcript. Blalock.

Failure to Provide Counsel

Hagan alleges that he could not afford, and was neither offered nor provided counsel at the contempt hearing. As the state acknowledges, Hagan was entitled to be represented by counsel. See Fla. R.Crim. P. 3.840(d); Gidden at 460. It suggests that Hagan may have been offered counsel and declined the offer, but concedes that without a transcript of the hearing, it is impossible to determine what happened. Blalock.

Insufficient Order

Hagan argues that the lower court failed to enter a written order with fact findings as required by Rule 3.840(f). Although this rule requires “a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty,” a written order is not necessary if sufficient oral findings are made on the record. Gidden, 613 So.2d at 458.

In the instant case, there is no written order. There is a court action form signed by the judge but it does not contain fact findings. Because there is no hearing transcript, it is impossible to determine if the lower court made sufficient oral findings. See Blalock, 707 So.2d at 741.

Conclusion

We reverse Hagan’s conviction because the circuit court proceeded on an insufficient affidavit, failed to ensure an adequate record of the contempt hearing and failed to make sufficient fact findings. Our reversal is without prejudice to new proceedings being initiated in conformity with Rule 3.840. Mix v. State.

REVERSED AND REMANDED.

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


author: MONACO, J.

text:
    Annie JACKSON as Personal Representative, etc., Petitioner, v. YORK HANNOVER NURSING CENTERS, INC., et al., Respondents.
    No. 5D03-1328.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      C. Samuel Newman and Jennifer Beltz-McCamey of Beltz, Ruth, Magazine, Newman & Kohl, P.A., St. Petersburg, for Petitioner.
    Scott A. Mager and Elaine J. LaFlamme of Mager & Associates, P.A., Fort Lauder-dale, for Respondents.
   MONACO, J.

The petitioner and plaintiff below, Annie Jackson, as Personal Representative of the Estate of Annie Johnson, Deceased (the “Personal Representative”), petitions for a writ of certiorari to review an order of the lower court permitting post judgment depositions to be conducted in connection with a section 57.105(1), Florida Statutes (1997), request for attorney’s fees. We elect to treat the request for writ of certio-rari as a non-final appeal from a post judgment order pursuant to Rule 9.130(a)(4), Florida Rules of Appellate Procedure, and reverse part of the order.

In 2001, the Personal Representative filed a third amended complaint against York Hannover Nursing Centers (“York Hannover”), alleging that in March of 1999, Annie Johnson was admitted to the Brooksville Healthcare Center in Hernan-do County, Florida, for rehabilitation after having suffered a stroke. Ms. Johnson passed away on April 12, 1999. Count I of the complaint asserted a statutory deprivation and infringement of rights pursuant to section 46.021, Florida Statutes (1999). In this count the Personal Representative alleged that while in the nursing home, Ms. Johnson was dehydrated and developed several pressure sores, and further maintained that Ms. Johnson became malnourished and developed a urinary tract infection while in the care of York Hanover that resulted in an unnecessary hospitalization. In Counts II and III the Personal Representative alleged, respectively, that York Hanover was negligent and medically negligent in its care of Ms. Johnson. Finally, in Count IV the Personal Representative sought recovery for wrongful death.

On the day of trial, the Personal Representative voluntarily dismissed Counts II, III and IV of the third amended complaint. Count I went to trial and a verdict was entered in favor of the Personal Representative in the amount of $32,650.50. A final judgment was rendered on March 13, 2003, and a notice of appeal was timely filed.

York Hannover subsequently filed a motion for attorney’s fees and costs pursuant to section 57.105, as a result of the voluntary dismissal of the last three counts of the complaint. The trial court conducted a hearing on the motion, but reserved ruling. After the hearing, York Hannover sought to depose the attorneys for the Personal Representative, and in response the Personal Representative filed a motion for protective order. The Personal Representative maintained that the 1997 version of section 57.105, Florida Statutes, applied, not the post October 1999 amended version as argued by York Hannover. That version allows attorney’s, fees if the trial court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party. The Personal Representative posited that the statute that governed was the one in effect when the cause of action arose, not when the complaint was filed or when the voluntary dismissal was taken. See L. Ross Inc. v. R.W. Roberts Construction Co., Inc., 466 So.2d 1096 (Fla. 5th DCA 1985), approved, 481 So.2d 484 (Fla.1986). Accordingly, the Personal Representative argued that the court could only award 57.105 attorney’s fees where it found a complete absence of a justiciable issue of either law or fact raised by the complaint.

After a second hearing addressing this same subject, the trial court concluded that the 1997 version of section 57.105 applied to York Hannover’s pending motion for attorney’s fees, and that York Hannover was the “prevailing party” on Counts II, III and IV. No decision was made specifically with respect to entitlement to fees or the amount of fees, if any. The trial court did, however, authorize York Hannover to take the depositions of two of the attorneys for the Personal Representative, but limited the scope of the depositions to the factual basis for Counts II, III and IV. Finally, the trial court appointed a special master presumably to resolve any work-product controversies that might arise during the depositions. The Personal Representative thereafter filed her petition for certiorari.

The crux of the Personal Representative’s position is that allowing York Hann-over to depose her attorneys would open the door to possible discovery abuses involving the work product privilege. She argued more specifically that because there was a possibility that the case might be retried based on the plenary appeal of the final judgment, privileged information discovered during the depositions might be used against her on retrial. In addition, the Personal Representative maintained that according to the 1997 version of section 57.105, the depositions would be unnecessary as a matter of law. She pointed out that York Hannover was attempting to seek discovery on an issue that could readily be determined based on the facts contained within the record.

York Hannover responds by asserting that Jackson waived any claim that the older version of 57.105 applied since both parties argued in favor of the newer version at one of the hearings on the motion for attorney’s fees. York Hannover does concede, however, that the issue regarding which version of the statute applies was raised and argued by the Personal Representative at the later hearing, and before the trial court entered the order that is the basis for this non-final appeal. York Hannover simply discounts the court’s holding by suggesting that the finding might be “nothing more than an accident by the judge or a misapprehension of law that this court or the trial court will ultimately correct before final judgment issues.”

In her petition the Personal Representative does not dispute the court’s ruling regarding which version of section 57.105 applied. She points out, as well, that York Hanover has not challenged by appeal or petition the trial court’s conclusion that the 1997 version applies.

We agree that the trial court’s specific finding that the 1997 version of section 57.105 applies to the instant action was never appealed by York Hannover, nor was there any other challenge to that particular aspect of the court’s ruling. Thus, whether the lower court chose the correct version of 57.105 is not properly before us in this non-final appeal.

The Personal Representative also raises a matter that is not yet ripe for our determination. She argues that since one of the counts actually went to trial, and since she recovered a judgment on that count, an award of attorney’s fees pursuant to section 57.105(1) would not be appropriate. Her position is that a motion for attorney’s fees under the 1997 version of section 57.105 would be directed to the entire complaint, and not to individual counts. This, too, is an issue which should be raised in an appeal from the final order on attorney’s fees. It is premature at this point in light of the fact that the trial court has not yet determined whether York Hanover is entitled to attorney’s fees.

The issue that is squarely before this court is simply whether the ruling permitting the depositions of the Personal Representative’s attorneys is correct. We have determined based on the facts before us that it is not. To be entitled to an award of attorney’s fees under section 57.105(1), Florida Statutes (1997), the moving party must establish that the cause of action was so clearly untenable, or that its insufficiency was so manifest, that its frivolous character can be determined on a bare inspection of the record without argument or research. See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982). Thus, a trial court need only review the prejudgment record to determine whether there is a complete absence of a justiciable issue of either law or fact raised by the complaint. In any event, deposing the Personal Representative’s attorneys is unnecessary because a determination should be based on the face of the prejudgment record. A motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (1997), therefore, does not require additional discovery to determine whether a cause of action at its inception was completely untenable and frivolous.

Accordingly, the order of March 26, 2008, is affirmed with respect to its determination that York Hannover is the prevailing party in Counts II, III and IV of the complaint, and in its holding that the 1997 version of section 57.105, applies to York Hannover’s pending motion for attorney’s fees. The order is reversed, however, to the extent it allows York Hannover to take the depositions of the attorneys for the Personal Representative.

AFFIRMED in part, REVERSED in part.

PETERSON and PLEUS, JJ., concur.

      . Rule 9.130(a)(4) states that non-final orders entered after final order on authorized motions are reviewable by this rule.

      . The appeal is unrelated to the instant proceeding.

      . Under the post October 1999 revision of section 57.105, attorney’s fees can now be awarded if a party or its counsel knew or should have known that any claim or defense asserted was not supported by material facts or by application of an existing law to those material facts. Generally, a revised statute cannot be applied retroactively to papers filed, actions taken or matters occurring prior to the effective date of the amendment. See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003).


author: SHARP, W., J.

text:
    Wilfred PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1496.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    Wilfred Parker, Blountstown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Parker appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Although two of the grounds asserted to establish ineffective assistance of counsel are without merit, we find his allegation that defense counsel failed to advise him of the maximum sentence, which resulted in his rejection of a plea offer of seven years, is sufficient to require a hearing below. See Cottle v. State, 733 So.2d 963 (Fla.1999); Young v. State, 608 So.2d 111 (Fla. 5th DCA 1992). The attachments to the order denying relief indicate Parker was aware of the maximum penalty at the time of his plea, but they do not refute his claim that he was not advised of the maximum penalty at the time he rejected the earlier plea offer of seven years. See Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000).

Accordingly, we reverse the trial court’s order denying relief and remand for the court to either attach portions of the record refuting the claim that Parker was not advised of the maximum sentence at the time he rejected a favorable plea offer, or to hold an evidentiary hearing on that issue.

REVERSED and REMANDED.

SAWAYA C.J., and PALMER, J., concur.


author: PER CURIAM. SHARP, W., J.,

text:
    Nathaniel HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2985.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    James B. Gibson, Public Defender and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SHARP, W., concurs specially with opinion.

SHARP, W., J.,

concurring specially.

I agree this Anders appeal should be affirmed. However, since it is an Anders case, I think our affirmance should expressly state it is without prejudice to seek an appropriate remedy for a sentencing error, which this court has discovered in reviewing the record. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Causey, 503 So.2d 321 (Fla.1987).

In this case, Henderson was convicted of various second and third degree felonies and received concurrent split sentences of 7 years incarceration followed by 10 years probation. Pursuant to Florida Rule of Criminal Procedure 3.800(b), Henderson filed a motion to correct a sentencing error pertaining to the third degree felonies because the 7 year sentence exceeded the statutory maximum penalty of 5 years incarceration for a third degree felony and also exceeded the lowest permissible sentence under the Criminal Punishment Code, which was 63.075 months imprisonment. The court granted the motion and resentenced Henderson to concurrent five-year prison sentences for each third degree felony, with no probation to follow.

However, there is a remaining sentencing error regarding the second degree felony sentences. The combined total of incarceration and probation (7 years plus 10 years on probation) exceeds the 15 year statutory maximum penalty for a second degree felony, and the lowest sentence under the Criminal Punishment Code does not exceed the statutory maximum penalty. See Fla. R.Crim. P. 3.704(d)(25); Fla. R.Crim. P. 3.704(d)(27)(B); Leduc v. State, 803 So.2d 898 (Fla. 5th DCA 2002). Therefore, the split sentences totaling 17 years are unlawful.

Henderson did not object to this sentencing error at sentencing or in his motion pursuant to rule 3.800(b). Thus we are barred from addressing this apparently fundamental sentencing error on appeal. See Maddox v. State, 760 So.2d 89 (Fla.2000); Hayden v. State, 833 So.2d 275 (Fla. 5th DCA 2002); Copre v. State, 773 So.2d 92 (Fla. 5th DCA 2000). Henderson may, however, seek relief by raising this issue in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. Whether this duplication of judicial effort furthers the purpose of State v. Causey and the Criminal Punishment Code is debatable. See Washington v. State, 814 So.2d 1187 (Fla. 5th DCA 2002), rev. dismissed, 831 So.2d 675 (Fla.2002).

THOMPSON and PALMER, JJ., concur.

      . Of course, the trial court could have achieved the same result lawfully, by imposing a term of probation on one conviction to follow sentences of incarceration on all the other convictions.

      . See Fla. R.Crim. P. 3.704.


author: PER CURIAM.

text:
    Lawrence TUCKER, Jr. Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-2545.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    Lawrence Tucker, Jr., Tampa, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Tucker petitions this court to issue a writ of habeas corpus to permit the late filing of his appeal in a criminal case. He alleges his trial counsel led him to believe an appeal had been timely filed, when in fact it had not been filed. This is a meritorious circumstance for which belated appeals in criminal cases are granted. However, Tucker’s petition is not sworn to as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F). Accordingly, we deny Tucker’s petition without prejudice to file a sworn petition in compliance with rule 9.141(c)(3)(F).

Petition for Belated Notice of Appeal DENIED Without Prejudice.

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


author: PLEUS, J. ORFINGER, J.,

text:
    Michael A. PERREAULT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1959.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      Michael A. Perreault, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Michael Perreault appeals an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant was found guilty of two counts of burglary of an occupied dwelling with an assault or battery with a firearm, kidnapping with a weapon, and possession of drug paraphernalia. He was sentenced on each of the felony counts to 12 years incarceration, with a ten year minimum mandatory term, each count to run consecutively. The consecutive ten year minimum mandatory terms were imposed pursuant to section 775.087(2)(a)l., Florida Statutes, known as “The 10-20-Life Law.” After trial, appellant pled to a charge of possession of a firearm by a convicted felon. He received a three year minimum mandatory sentence, running consecutive to the other sentences. Appellant argues that his firearm offenses were committed during a single criminal episode, and he did not point or shoot the firearm at any of the victims. See generally Cook v. State, 775 So.2d 425 (Fla. 5th DCA 2001). He argues that the sentences are illegal because the court cannot impose consecutive minimum mandatory terms for the firearm offenses committed during a single criminal episode.

If minimum mandatory terms for firearm offenses are appropriate under section 775.087(2), Florida Statutes (2002), and the offenses were tried together in the same prosecution, it is generally within the trial court’s discretion to impose either concurrent or consecutive minimum mandatory terms. See Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002). This general rule, however, is not applicable when firearm offenses are committed during the same criminal episode. It has long been held that the Legislature did not intend for minimum mandatory terms to run consecutive to each other when the firearm offenses all occurred during the same criminal episode. This precedent predates the “10-20-Life Law” in section 775.087(2)(a), Florida Statutes (2002). See Palmer v. State, 438 So.2d 1 (Fla.1983).

The Stafford case which was cited by the trial court in denying relief held that a sentencing court retains discretion to impose concurrent minimum mandatory terms under section 775.087(2) for firearm offenses included in the same prosecution. By implication, the trial court would also have discretion to impose consecutive minimum mandatory terms. However, in Stafford there is no discussion as to whether the counts in that particular case arose from a single criminal episode. Stafford adopted the reasoning of Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). In Mondesir, the Third District likewise did not make clear as to whether the multiple firearm offenses in that case arose out of a single episode. However, the same appellate court that issued Mondesir in a later case recognized the continued validity of Palmer v. State, and prohibited minimum mandatory terms under the 10-20-Life Law from being stacked when the firearm offenses arose out of the same criminal episode. See Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003). Accord Green v. State, 845 So.2d 895 (Fla. 3d DCA 2003). In Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003), the state conceded that it was error for the trial court to stack minimum mandatory terms for firearm offenses which occurred during the same criminal episode, and the trial court indicated that it would have corrected the sentences had the time for considering a Rule 3.800(b) motion not expired. This court therefore vacated the sentence and remanded for resentencing to reflect concurrent, rather than consecutive, minimum mandatory terms.

If it is clear from the record that a defendant received improper consecutive minimum mandatory terms for offenses which occurred during a single criminal episode, then Rule 3.800(a) relief is available to correct the sentencing error. We have held that Rule 3.800(a) provides a remedy when consecutive habitual offender sentences are imposed for offenses that arose out of a single episode. See, e.g., Spires v. State, 796 So.2d 1245 (Fla. 5th DCA 2001); West v. State, 790 So.2d 513 (Fla. 5th DCA 2001). The same would be true for consecutive minimum mandatory terms for firearm offenses, provided that it is clear on the record that the offenses were committed during a single criminal episode. In State v. Mancino, 714 So.2d 429 (Fla.1998), the supreme court clarified that the term “illegal sentence” as used in Florida Rule of Criminal Procedure 3.800(a) was not limited to only those sentences that exceed the statutory maximum. In Witherspoon v. State, 833 So.2d 790 (Fla. 3d DCA 2002), the Third District Court of Appeal reversed an order denying a Rule 3.800(a) motion where the state conceded that it was error for the trial court to impose consecutive minimum mandatory sentences for firearm offenses where the offenses occurred during a single criminal episode. See also Mack v. State, 805 So.2d 915 (Fla. 2d DCA 2001).

As appellant in the instant case received a jury trial, it would likely be clear from the evidence presented at trial whether the offenses took place during the same criminal episode. Cf. Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000). However, if it is not clear on the face of the record, then Rule 3.800(a) would not be a proper remedy. See Burgess v. State, 831 So.2d 137 (Fla.2002).

The order denying relief in this case is reversed. This case is remanded for the trial court to either attach portions of the record showing that the offenses did not take place during the same criminal episode, or that the record is unclear as to this factual issue. The trial court should, re-sentence appellant if the record supports his argument. See Canavan v. State, 842 So.2d 306 (Fla. 5th DCA 2003); Whitfield v. State, 804 So.2d 1274 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

PETERSON, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, J.,

concurring specially.

Because of this court’s prior holding in Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003), I concur with the majority’s opinion. In Cunningham, following the State’s confession of error, we held that a defendant’s minimum mandatory sentences arising from a single criminal episode were required to be served concurrently, not consecutively. Accord Wilchcombe v. State, 842 So.2d 198 (Fla. 3d DCA 2003).

Cunningham and Wilchcombe are supported by the Florida Supreme Court’s ruling in Palmer v. State, 438 So.2d 1 (Fla.1983). In Palmer, the supreme court held that multiple minimum mandatory sentences arising out of a single criminal episode must be served concurrently and not consecutively. Palmer predates the enactment of the relevant revision to section 775.087(2)(d), Florida Statutes, and interpreted section 775.087 as it then existed. I believe that a reasonable argument can be made that section 775.087(2), in its current form, represents a legislative repudiation of the holding of Palmer. At the same time, I recognize that neither the statute nor the Legislature’s staff analysis of the bill revising section 775.087 expressly indicates the Legislature’s intent to nullify Palmer.

CS/SB 194, which became chapter 99-12, Laws of Florida, and created subsection 775.087(2), stated the intent of the Legislature in revising section 775.087(2). It provided in part:

WHEREAS, the Legislature intends to hold criminals more accountable for their crimes, and intends for criminals who use guns to commit violent crimes to receive greater criminal penalties than they do today, and
WHEREAS, the Legislature intends ... these criminals be sentenced to longer mandatory prison terms than provided in current law, so that these offenders cannot again endanger law enforcement officers and the public, and ... that will effectively incapacitate the offender ... [and]
WHEREAS, it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act, NOW, THEREFORE, ...
2(d) It is the intent of the Legislature that offenders who possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted.

Fla. CS for SB 194 (1999) (First Engrossed). Based on this language, section 775.087(2), as revised, clearly indicates to me that the Legislature intended offenders who possess, carry or use firearms be punished to the full extent of the law.

In Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002), we recognized that the trial court was not required to impose consecutive minimum mandatory sentences under section 775.087, but we did not hold that the court was not permitted to do so. However, the third district court did reach that conclusion in Wilchcombe, concluding that the supreme court’s decision in Palmer had not been legislatively nullified. Because, as Judge Schwartz observed in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), reasonable doubts should be resolved under the rule of lenity in favor of the defendant, see Rodriguez v. State, 773 So.2d 1222 (Fla. 3d DCA 2000), and the issue presented here is less than clear, I concur with the majority’s opinion. However, I believe that it is within the Legislature’s discretion to authorize consecutive minimum mandatory sentences, even for crimes arising out of a single incident, provided, of course that a defendant’s double jeopardy protections are not violated. If the Legislature intended to repudiate Palmer, it should clearly express its intention to do so.

      . Ch. 99-12, § 1, Laws of Fla.


text:
    Myron N. WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2510.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Myron N. Weaver, Caryville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Myron Weaver timely appeals the trial court’s order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant argues he is entitled to an additional 54 days credit for time served in jail on a warrant for violation of probation in case number 00-1283.

The trial court denied relief, concluding that he is not entitled to any additional credit, but the court did not attach any portions of the record to refute Appellant’s claim. Failure to provide record attachments refuting the movant’s claim is reversible error. Collins v. State, 805 So.2d 73, 74 (Fla. 4th DCA 2002).

We reverse and remand for the trial court to provide records that show Appellant is not entitled to the requested relief, or to award additional credit.

STONE, STEVENSON, and HAZOURI, JJ., concur.


text:
    William J. CONDREN, Appellant, v. Lowry J. BELL, Jr. and Diana Bell, Appellees.
    No. 4D02-3533.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Donna M. Greenspan of Edwards & An-gelí, LLP, West Palm Beach, for appellant.
    Jack S. Cox of Jack Schramm Cox, P.A., Palm Beach Gardens, for appellee.
   PER CURIAM.

ON MOTION FOR CLARIFICATION

We grant the appellee’s motion for clarification. The opinion issued on July 30, 2003, is hereby withdrawn and the following opinion is substituted in its place.

This is an appeal from a judgment for attorney’s fees and costs entered after a final judgment that enforced a settlement agreement. The appellant raises three issues. We find no error and affirm.

The parties entered into a settlement agreement following a dispute over improvements to an easement running between their respective properties. The trial court entered an order and final judgment enforcing the settlement agreement. This court affirmed. Condren v. Bell, 814 So.2d 1056 (Fla. 4th DCA 2002).

The appellees moved for attorney’s fees and costs in the trial court. After an evidentiary hearing, the trial court entered a final judgment of attorney’s fees and costs, making specific findings on all relevant factors. The court further found that “because the award of attorney’s fees and costs is a sanction” it should include those attorney’s fees incurred in determining .the amount of fees to be awarded. The court further awarded fees for the appellee’s expert witness.

Throughout the judgment, the trial court reiterated its intent to sanction the appellant for his conduct. We find no error in the court’s findings concerning the amount of time expended and the reasonable hourly rate. We further find that because the fees awarded for litigating the issue of fees was a sanction and supported by substantial competent evidence, the award does not run afoul of State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993), or this court’s decisions in Dawn to Dusk, Inc. v. Hillsboro-Lyons Investors, Ltd., 801 So.2d 283 (Fla. 4th DCA 2001), or Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505 (Fla. 4th DCA 2000). See also Citibank Fed. Sav. Bank v. Sandel, 766 So.2d 302, (Fla. 4th DCA 2000) (Farmer, J., concurring).

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Solomon MUSTOPHER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2215.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2003.
   PER CURIAM.

The order summarily denying appellant’s motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853 on grounds that it is facially insufficient is affirmed without prejudice to appellant’s filing a facially sufficient motion with the circuit court.

Affirmed without prejudice.

NORTHCUTT, DAVIS, and VILLANTI, JJ., concur.


text:
    Mercedes Arzu, Wife of/and H. Hugh WILSON v. Wendy Kornegay, Wife of/and Horace Perez ROWLEY, III.
    No. 2003-CC-2464.
    Supreme Court of Louisiana.
    Sept. 10, 2003.
   In Re Kornegay, Wendy et al.; Rowley, Horace Perez III; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 2001-14352; to the Court of Appeal, First Circuit, No. 2003 CW 1686.

Denied.


text:
    John R. NORRIS v. Martin W. GOULD, Jr. and Malise Prieto in Her Capacity as Clerk for the 22nd Judicial District, Parish of St. Tammany, State of Louisiana.
    No. 2003-C-2492.
    Supreme Court of Louisiana.
    Sept. 10, 2003.
   In re Norris, John R.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2003-14063; to the Court of Appeal, First Circuit, No. 2003 CE 1876.

Denied.


text:
    In re CHEMICAL RELEASE AT BOGALUSA.
    No. 2003-CC-2498.
    Supreme Court of Louisiana.
    Sept. 11, 2003.
   In re Plaintiffs Liason Committee;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. C, No. 73,341; to the Court of Appeal, First Circuit, No. 2003 CW 1848.

Denied.

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


text:
    Felton DOMINIQUE v. Henry Allen FAVORITE.
    No. 2003-C-2524.
    Supreme Court of Louisiana.
    Sept. 11, 2003.
   In re Favorite, Henry A.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. B, No. 59,732; to the Court of Appeal, First Circuit, No. 2003 CE 1894.

Denied.


text:
    Nancy Davis JUDSON, et al. v. Hall DAVIS, IV, President, Hall Mortuary, Inc.
    No. 2003-OC-2587.
    Supreme Court of Louisiana.
    Sept. 17, 2003.
   In re Judson, Nancy Davis, et al.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 32,738; to the Court of Appeal, First Circuit, No. 2003 CW 1811.

Request for stay denied. The Court of Appeal has represented to this Court that relator’s application will be considered pri- or to the September 19, 2003 hearing in the District Court.


text:
    Raymond SMITH v. Don Carnell LAWHORN, the Honorable Larry Cager, and the Honorable W. Fox McKeithen, in Their Official Capacities Only.
    No. 2003-CC-2591.
    Supreme Court of Louisiana.
    Sept. 17, 2003.
   In re Lawhorn, Don Carnell et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2003-13064; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-1610, 2003-CA-1615.

“Not considered. Not timely filed. See La. R.S. 18:1409(G); Supreme Court Rule X, Section 5(c).”


text:
    MURPHY OIL, U.S.A., INC. v. WALWORTH COMPANY, et al.
    No. 2003-CC-2032.
    Supreme Court of Louisiana.
    Sept. 17, 2003.
   In re Murphy Oil, U.S.A., Inc. et al.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 77132; to the Court of Appeal, Fourth Circuit, No. 2003-C-0996.

Denied.


text:
    STATE of Louisiana v. Joseph BISCHONE.
    No. 2003-KK-2538.
    Supreme Court of Louisiana.
    Sept. 17, 2003.
   In re Bischone, Joseph; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 03-503; to the Court of Appeal, Fifth Circuit, No. 03-K-909.

Denied.


text:
    Mary Jo DELAHAYE v. Michael T. DELAHAYE.
    No. 2003-CC-2582.
    Supreme Court of Louisiana.
    Sept. 17, 2003.
   In re Delahaye, Michael T.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Family Court for the Parish of East Baton Rouge, No. 131,983; to the Court of Appeal, First Circuit, No. 2003 CW 1953.

Denied.

VICTORY, J., would grant the writ.


text:
    Linda TENNEY v. BURLINGTON NORTHERN & SANTA FE RAILWAY CO., La & Delta Railroad Co., City of New Iberia, Parish of Iberia & the State of Louisiana Through the Department of Transportation and Development.
    No. 2003-C-1260.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Tenney, Linda; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. F, No. 97,025-F; to the Court of Appeal, Third Circuit, No. 02-1451.

Granted.


text:
    In re MEDICAL REVIEW PANEL OF Keisha CONERLY.
    No. 2002-C-3082.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Ochsner Medical Foundation; Ochsner Clinic L.L.C.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 518-765; to the Court of Appeal, Fifth Circuit, No. 02-CA-485.

Granted and remanded to court of appeal to reconsider in light of David v. Our Lady of the Lake.


text:
    In re MCDERMOTT INCORPORATED. McDermott Incorporated v. Records Storage, et al. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP v. Records Storage, et al. Lowe, Stein, etc. v. Records Storage, et al.
    No. 2003-CC-1389.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re McDermott Incorporated; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, Nos. 2002-5763, 2002-8749, 2002-8491, 2002-8573; to the Court of Appeal, Fourth Circuit, No. 2003-C-0467.

Granted. Judgment of the court of appeal is reversed. Judgment of the trial court is reinstated. See Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Case remanded to the trial court for further proceedings.

KNOLL, J., would deny.


text:
    STATE of Louisiana in the Interest of T.M.
    No. 2003-CC-2398.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Thibodeaux, Raymond; Thibo-deaux, Brenda; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. JC-2002-0619 A; to the Court of Appeal, Third Circuit, No. CW 03-00929.

Granted. The case is remanded to the court of appeal, which is instructed to convert relators’ application for supervisory writs to an appeal.

VICTORY, J., would deny the writ.

TRAYLOR, J., would deny the writ.

WEIMER, J., would deny the writ.


text:
    STATE ex rel. Larry ROBERTSON v. STATE of Louisiana.
    No. 2003-KH-2276.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Robertson, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 01 — 448; to the Court of Appeal, Fifth Circuit, No. 03-KH-805.

Granted for the sole purpose of transferring the pleading to the district court for an expedited hearing on relator’s claim that the state untimely instituted habitual offender proceedings against relator. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Claude COLLINS.
    No. 2003-KH-2469.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Collins, Claude; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 104,514;

Granted for the sole purpose of transferring the pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Freddie L. WALKER.
    No. 2003-KH-2472.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Walker, Freddie L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. I, No. 222,577;

Granted for the sole purpose of transferring the pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    Jacqueline LITTLE, et al. v. Dr. David G. POU, et al.
    No. 2003-CC-0623.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Chnstus Health Northern Louisiana d/b/a; Christus Schumpert Health System; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. A, No. M084-02002; to the Court of Appeal, Second Circuit, No. 87197-CW.

Remand to the trial court for reconsideration in light of Perritt v. Dona, 02-CC-2061 c/w 02-CC-2603 (La.7/2/03), 849 So.2d 56.


text:
    STATE ex rel. Franklin BROWN v. STATE of Louisiana.
    No. 2002-KH-2265.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Brown, Franklin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 1-27386-94; to the Court of Appeal, Fifth Circuit, No. 02-KH-554.

Granted for the sole purpose of transferring relator’s motion to recall his detainer to the Second Justice of the Peace Court in Jefferson Parish for its consideration. The Justice of the Peace Court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Terry HILL v. STATE of Louisiana.
    No. 2003-KH-1711.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Hill, Terry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 399-463; to the Court of Appeal, Fourth Circuit, No. 2003-K-0640.

Application dismissed at relator’s request.


text:
    Belinda LEVY, Corliss Aguilard, Laurie Alexander, Cheryl Beaver, Mary Lou Blakeman, Pamela Braud, Edward J. Domingue, Celeste Falconer, Dan Hahn, Shirley Knight, Roberta Land, Sandra Lawhon, Lynn Marzoni, David Monahan, Valerie S. Monahan, Dave Moore, Laura Morris, Marilyn Palmero, Merry Parker, Jackie Philips, Erin Powell, Tom Sealy, Rebecca M. Sendai, Kathleen Severs, Dianne Short, Starr Steckler, Karen Shipley, Glenda Thorne and Greta Woods v. ST. TAMMANY PARISH SCHOOL BOARD.
    No. 2003-C-1221.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In Re BELINDA LEVY, CORLISS AGUILARD, LAURIE ALEXANDER, CHERYL BEAVER, MARY LOU BLAKEMAN, PAMELA BRAUD, EDWARD J. DOMINGUE, CELESTE FALCONER, DAN HAHN, SHIRLEY KNIGHT, ROBERTA LAND, SANDRA LAWHON, LYNN MARZONI, DAVID MONAHAN, VALERIE S. MONAHAN, DAVE MOORE, LAURA MORRIS, MARILYN PALMERO, MERRY PARKER, JACKIE PHILIPS, ERIN POWELL. TOM SEALY, REBECCA M. SENCIAL, KATHLEEN SEVERS, DIANNE SHORT, STARR STECKLER, KAREN SHIPLEY, GLENDA THORNE AND GRETA WOODS; Applying for Reconsideration of this Court’s order dated, June 27, 2003; Parish of St. Tammany, 22nd Judicial District Court, Div. C, No. 89-15642; to the Court of Appeal, First Circuit, No.2002 CA 0781.

Reconsideration granted. Writ denied.


text:
    STATE of Louisiana v. Larry S. SHARP.
    No. 2002-KO-1736.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Sharp, Larry S.; — Defendant; Applying for Reconsideration of this Court’s order dated June 6, 2003, Parish of Caddo, 1st Judicial District Court Div. D, No. 207,-480; to the Court of Appeal, Second Circuit, No. 35,714-KA.

Reconsideration denied.


text:
    Diane BREAUX, Wife of and Joseph Breaux v. AVONDALE INDUSTRIES, INC. (Formerly Avondale Shipyards, Inc.) and Its Executive Officers, Steven Kennedy and Peter Terito; Texaco, Inc.; Eagle, Inc. (Formerly Eagle Asbestos & Packing Company); The Mccarty Corporation; Reilly-Benton, Inc.; et al.
    Nos. 2003-C-1009, 2003-C-1055, 2003-C-1064.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Reilly-Benton Company, Ine.; Kennedy, Steven, Territo, Peter; Westinghouse Electric Corporation; Avondale Industries, Inc.; Applying for Reconsideration of this Court’s action dated June 20, 2003; Parish of Orleans, Civil District Court. Division “A” No. 2001-5871; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1713.

Reconsideration denied.


text:
    STATE of Louisiana v. $11,000.00 U.S. CURRENCY and (5) Firearms Marcus B. and Cynthia Gordon.
    No. 2003-CP-0893.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   CYNTHIA GORDON; Applying for Reconsideration of this Court’s order dated May 16, 2003; Parish of Jefferson Davis, 31st. Judicial District Court, Div. O, No. 266-98; to the Court of Appeal, Third Circuit, No. 02-1118.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    Gerald HARRIS v. LAMBERT REDI-MIX, INC. and Paul Lambert.
    No. 2003-OC-1395.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Harris, Gerald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 382,911; to the Court of Appeal, First Circuit, No. 2002-CA-2557.

Not considered. Not timely filed.


text:
    J.B. ALLOY CORP., d/b/a Robinson Technical Products, S.W. v. CIGNA INSURANCE OF EUROPE, S.A.-N.V.
    No. 2003-CC-1983.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re J.B. Alloy Corp. d/b/a; Robinson Technical Products, S.W.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 30,892; to the Court of Appeal, First Circuit, No. 2002 CW 2196.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5.

KIMBALL, J., recused.


text:
    BANC ONE LEASING CORP., N.A. v. SCAT RECYCLING, L.L.C. and Anthony Tulli.
    No. 2003-CC-2111.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Scat Recycling L.L.C. et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 590-508; to the Court of Appeal, Fifth Circuit, No. 03-C-684.

Writ denied, stay denied.


text:
    Larry JONES v. B.W. COOPER APARTMENTS RESIDENT MANAGEMENTS, INC.
    No. 2003-CC-2180.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re B.W. Cooper Apartments Resident Managements Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 02-6234; to the Court of Appeal, Fourth Circuit, No. 2003-C-0933.

Stay denied. Writ denied.

JOHNSON, J., recused.


author: CALOGERO, C.J., JOHNSON, J.,

text:
    David Lynn ALEXANDER (Doc # 85828) and Harry Junius Granger (Doc # 85829) v. Burl CAIN, Warden Louisiana State Penitentiary Angola, Louisiana.
    No. 2001-KP-2919.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Alexander, David Lynn et al.; Granger, Henry Junius; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. D, No. 26,375.

Denied.

CALOGERO, C.J.,

would grant in part and order the district court to hold a hearing. In all other respects, I would deny the writ application.

JOHNSON, J.,

would grant in part and order the district court to hold a hearing. In all other respects, I would deny the writ application.


text:
    Joseph W. HADWIN v. Richard STALDER, et al.
    No. 2002-CI-1307.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In Re Hadwin, Joseph W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, Nos. 483,-173, 422,240; to the Court of Appeal, First Circuit, No(s). 2001-CW-2353, 2001-CW-2406, 2001-CW-2846, 2001-CW-2847, 2001-CW-2980.

Denied.


text:
    Joseph W. HADWIN v. Kelly WARD, et al.
    No. 2002-CI-1696.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Hadwin, Joseph W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, Nos. 422,-240, 422,391, 422,392, 420,910, 424,339, 424,767; to the Court of Appeal, First Circuit, No(s). 2002-CW-0202, 2001-CW-3014, 2002-CW-0113, 2001-CW-2980.

Denied.


text:
    STATE ex rel. Bryan WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1938.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Williams, Bryan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 402,207; to the Court of Appeal, Fourth Circuit, No. 99 KA 1419.

Denied.


text:
    STATE of Louisiana v. Ronnie WILLIAMS, Jr.
    No. 2002-K-2024.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Williams, Ronnie Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 312912; to the Court of Appeal, First Circuit, No. 2001 KA 2009.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Gabriel D. LOGAN v. STATE of Louisiana.
    No. 2002-KH-2174.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Logan, Gabriel, D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 193,259; to the Court of Appeal, Second Circuit, No. 36,-042 KA.

Denied.


text:
    STATE ex rel. Nathan HYMES v. STATE of Louisiana.
    No. 2002-KH-2175.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Hymes, Nathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR 235-97; to the Court of Appeal, Third Circuit, No. KH 02-00140.

Denied.


text:
    STATE ex rel. Christopher BROCKEL v. STATE of Louisiana.
    No. 2002-KH-2178.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Brockel, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 96-0683; to the Court of Appeal, Fifth Circuit, No. 02 KH 814.

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


text:
    STATE ex rel. Raymond G. SHAW v. STATE of Louisiana.
    No. 2002-KH-2189.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Shaw, Raymond, G.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 98-5802; to the Court of Appeal, Fifth Circuit, No. 2002 KH 687.

Denied.


text:
    Gregory JOHNSON v. Richard STALDER, et al.
    No. 2002-CI-2221.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Johnson, Gregory; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 491,278; to the Court of Appeal, First Circuit, No. 2002 CW 1279.

Denied.


text:
    STATE ex rel. Joseph S. KING v. STATE of Louisiana.
    No. 2002-KH-2226.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re King, Joseph S.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 389-445; to the Court of Appeal, Fourth Circuit, No. 2002-K-0138.

Denied.


text:
    STATE ex rel. Kevin BREWER v. STATE of Louisiana.
    No. 2002-KH-2231.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Brewer, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Magistrate Court, No. 365980; Criminal District Court Div. I, No. 413-926; to the Court of Appeal, Fourth Circuit, No. 2002-K-0997.

Denied.


text:
    STATE ex rel. Malik Alqadr IHSAN v. STATE of Louisiana.
    No. 2002-KH-2234.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Ihsan, Malik Alqadr; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 12-98-62; to the Court of Appeal, First Circuit, No(s). 00-KA-0410, 2002-KW-0264.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Eddie L. TEXADA v. STATE of Louisiana.
    No. 2002-KH-2237.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Texada, Eddie L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 98K0700; to the Court of Appeal, Third Circuit, No. KH 02-00141.

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


text:
    STATE ex rel. Larry W. WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-2240.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Williams, Larry W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 00; to the Court of Appeal, First Circuit, No. 2002 KW 0877.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.

WEIMER, J., recused.


text:
    STATE ex rel. Gerald BROWN v. STATE of Louisiana.
    No. 2002-KH-2241.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Brown, Gerald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. 0, No. 296367; to the Court of Appeal, First Circuit, No. 2001 KW 2729.

Denied.


text:
    STATE ex rel. Vincent RUSSELL v. STATE of Louisiana.
    No. 2002-KH-2266.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Russell, Vincent; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 93-4970 & 97-7531; to the Court of Appeal, Fifth Circuit, No. 02-KH-620.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175; State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205.


text:
    STATE ex rel. Lester Charles BALL v. STATE of Louisiana.
    No. 2002-KH-2267.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Ball, Lester Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, Nos. 176,164, 176,164; to the Court of Appeal, Second Circuit, No(s). 36475-KH, 36364-KH.

Denied.


text:
    STATE ex rel. Lawrence CHAPMAN v. STATE of Louisiana.
    No. 2002-KH-2268.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Chapman, Lawrence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. IV, No. 2-97-648; to the Court of Appeal, First Circuit, No. 2002-KW-0547.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Michael COLLINS v. STATE of Louisiana.
    No. 2002-KH-2276.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Collins, Michael; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 10,618; to the Court of Appeal, First Circuit, No. 2002 KW 0091.

Denied.


text:
    STATE ex rel. Eugene WRIGHT v. STATE of Louisiana.
    No. 2002-KH-2277.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Wright, Eugene; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 57,585; to the Court of Appeal, Third Circuit, No. 01-250.

Denied. Repetitive. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Hilman LAWS, III v. STATE of Louisiana.
    No. 2002-KH-2278.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Laws, Hilman; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 99 K 1600 D; to the Court of Appeal, Third Circuit, No. KH 02-00283.

Denied.


text:
    STATE ex rel. Samuel Tyrone JEFFERS v. STATE of Louisiana.
    No. 2002-KH-2279.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Jeffers, Samuel Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 156667; to the Court of Appeal, Second Circuit, No. 02 KH 36446.

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


text:
    STATE ex rel. Lester J. GOMEZ v. STATE of Louisiana.
    No. 2002-KH-2280.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Gomez, Lester; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 01-330; to the Court of Appeal, Fifth Circuit, No. 02-KH-647.

Denied.


text:
    STATE ex rel. Christopher HILL v. STATE of Louisiana.
    No. 2002-KH-2281.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Hill, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-6339; to the Court of Appeal, Fifth Circuit, No. 02-KH-648.

Denied.


text:
    STATE ex rel. Edward WHITE v. STATE of Louisiana.
    No. 2002-KH-2282.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re White, Edward; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 409-448; to the Court of Appeal, Fourth Circuit, No. 2002-K-0832.

Denied.


text:
    STATE ex rel. Field CALHOUN v. STATE of Louisiana.
    No. 2002-KH-2332.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Calhoun, Field; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 136984; to the Court of Appeal, Second Circuit, No. 36592-KW.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Laymond WASHINGTON v. STATE of Louisiana.
    No. 2002-KH-2333.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Washington, Laymond; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 391-571; to the Court of Appeal, Fourth Circuit, No. 2002-K-1243.

Denied.


text:
    STATE ex rel. Alan MAISE v. STATE of Louisiana.
    No. 2002-KH-2334.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Maise, Alan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 98-3444; to the Court of Appeal, Fifth Circuit, No. 02-KH-763.

Denied.


text:
    STATE ex rel. George H. PONSELL, Jr. v. STATE of Louisiana.
    No. 2002-KH-2342.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Ponsell, George, H.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 97-F1456; to the Court of Appeal, Second Circuit, No. 36256 KH.

Denied.


text:
    STATE ex rel. Edward W. LEE v. STATE of Louisiana.
    No. 2002-KH-2345.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Lee, Edward, W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 417-748; to the Court of Appeal, Fourth Circuit, No. 2001 K 2160.

Denied.


text:
    STATE ex rel. Romallic NASH, Sr. v. STATE of Louisiana.
    No. 2002-KH-2346.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Nash, Romallic, Sr.;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 329,841.

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


text:
    STATE ex rel. Thomas DAVID v. STATE of Louisiana.
    No. 2002-KH-2352.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Davis, Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. 0, No. 88,363; to the Court of Appeal, Second Circuit, No. 35958-KH.

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


text:
    STATE ex rel. Christopher GILMORE v. STATE of Louisiana.
    No. 2002-KH-2353.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Gilmore, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 00-5067; to the Court of Appeal, Fifth Circuit, No. 02-KH-767.

Denied.


text:
    STATE ex rel. Michael PERKINS v. STATE of Louisiana.
    No. 2002-KH-2366.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Perkins, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. 0, No. CR2000-2950; to the Court of Appeal, Third Circuit, No. KH 02-00207.

Denied.


text:
    STATE ex rel. Tina EMERSON v. STATE of Louisiana.
    No. 2002-KH-2367.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Emerson, Tina; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 99-6708; to the Court of Appeal, Fifth Circuit, No. 02 KH 745.

Denied.


text:
    STATE ex rel. Bobby KNOX v. STATE of Louisiana.
    No. 2002-KH-2426.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Knox, Bobby; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, Nos. 96-1495, 96-1863; to the Court of Appeal, Fifth Circuit, No(s). 99-KH-1407, 00-KH-251.

Denied.


text:
    STATE of Louisiana v. Brian MATHERNE.
    No. 2002-KP-2468.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Matherne, Brian; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, Nos. 99-0421, 00-102, 00-103; to the Court of Appeal, Fifth Circuit, No. 02-KH-801.

Denied.