author: EVANDER, J.

text:
    Victor LANGLEY, Appellant, v. Chris KNOWLES and Sandra Knowles, Appellees.
    Nos. 5D06-1722, 5D06-3312.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2007.

      Jamie B. Moses and R. Gavin Mac-Kinnon, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant.
    Douglas W. Ackerman and April A. Atkins, of Kirwin Norris, P.A., Winter Park, for Appellee.
   EVANDER, J.

Langley appeals a final summary judgment entered in favor of the Knowleses on Count I of his complaint — a count requesting enforcement of a construction lien. He also appeals a final judgment awarding the Knowleses attorney’s fees and costs. We find the trial court misapplied the “substantial performance” doctrine and reverse both final judgments.

Langley and the Knowleses entered into a written contract, whereby Langley agreed to perform certain masonry work toward the construction of a two-story garage/mother-in-law suite on the Knowleses’ property. The Knowleses agreed to pay Langley the sum of $11,235 for the project.

Early in the project, Langley realized he had made a mistake. He had constructed a concrete footer one foot shorter than the length specified in the plans. Langley informed the Knowleses of his error and proposed a method to resolve the problem. The Knowleses found Langley’s initial proposal to be unacceptable. There is a dispute as to what occurred next. The Knowleses allege Langley refused to comply with their directive to redo the work so as to ensure compliance with the plans. Langley contends the parties were negotiating a solution to correct the situation when the Knowleses wrongfully terminated the contract by employing a new contractor.

The Knowleses requested a final invoice from Langley. Langley delivered an invoice for $2,906.76. This figure purported to represent the value of his labor and materials less the cost of correcting his error. The Knowleses paid Langley $1,102.12 as the final payment.

Langley filed a lien against the Knowles-es’ property for $1,804.64 and subsequently filed a two-count complaint in the circuit court. Count I was for enforcement of the lien and Count II was for breach of contract. The Knowleses filed an answer denying that they owed Langley any monies. As affirmative defenses, the Knowleses alleged Langley had breached the contract, had failed to substantially perform the contract, and had filed a fraudulent lien. The Knowleses also filed a two-count counterclaim. Count I was for breach of contract and Count II alleged Langley had filed a fraudulent lien.

The Knowleses subsequently moved for summary judgment on all four counts in the action. As to Langley’s lien count, the Knowleses argued that because much of the contracted-for work had not been completed, Langley’s claim was barred by the “substantial performance” doctrine.

The parties consented to the motion for summary judgment being heard by a magistrate. The magistrate found that the existence of material issues of disputed fact precluded the entry of summary judgment as to Langley’s breach of contract count and the two counts pled in the counterclaim. However, the magistrate recommended summary judgment be entered in favor of the Knowleses on Langley’s lien count. The magistrate’s report included the following language:

There is no disputed issue of material fact that Langley failed to substantially perform the contract. Langley is not entitled to lien the Knowles[es]’ property ... because he did not substantially perform the contract.

The magistrate’s conclusion appears to be based on the fact that Langley had not substantially completed the contracted-for work prior to the time the contract was terminated.

Langley’s objections to the magistrate’s report were denied. The trial court entered a final judgment in favor of the Knowleses on Langley’s lien count. The trial court also determined that the Knowleses were the prevailing party on Langley’s lien claim and were entitled to an award of attorney’s fees and taxable costs. The balance of the case was transferred to county court. The trial court later entered a second final judgment awarding the Knowleses attorney’s fees and costs in excess of $20,000. Langley appealed both final judgments and this court consolidated the appeals.

On appeal, Langley contends the trial court misapplied the substantial performance doctrine to the facts and circumstances of this case. We agree.

It is undisputed that Langley did not substantially complete the project prior to the termination of the parties’ contract. However, there is a disputed issue of fact as to whether Langley’s failure to complete the contract was excused or waived by the Knowleses. The record contains evidence that would support a finding that the Knowleses wrongfully terminated the contract. The Knowleses contend Langley cannot prevail on his lien count regardless of whether the Knowleses wrongfully terminated the contract because Langley did not “substantially perform.” We reject this argument.

The substantial performance doctrine recognizes that a contractor who complies with all of the provisions of the contractor’s lien statute is entitled to enforce a lien if he has substantially, but not completely, performed his contractual obligations. See Grant v. Wester, 679 So.2d 1301 (Fla. 1st DCA 1996); Viking Comtys Corp. v. Peeler Constr. Co., 367 So.2d 737 (Fla. 4th DCA 1979). However, even when a contractor has failed to substantially complete the contract, he may enforce his lien rights if his performance has been excused or waived by the owner. Pitts v. Ahlswede, 139 So.2d 159, 160 (Fla. 1st DCA 1962). It is inconceivable that the Legislature intended that an owner could thwart a contractor’s lien rights by wrongfully terminating the contract before the contractor has had the opportunity to substantially complete the contracted-for work.

In the present case, a factual issue remains as to whether Langley’s failure to substantially complete the contract was excused or waived by the Knowleses. Accordingly, the trial court erred in granting the Knowleses’ motion for summary final judgment on Langley’s lien count. The trial court’s award of attorney’s fees and costs must also be reversed.

REVERSED and REMANDED.

MONACO, J., and ORFINGER, M., Senior Judge, concur.

      . §§ 713.05, 713.08, Fla. Stat. (2004).

      . § 713.31, Fla. Stat. (2004).

      . § 713.29, Fla. Stat. (2004).

      . After resolving the enforcement of lien count, the trial court determined it no longer had subject matter jurisdiction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Warren R. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5612.
    District Court of Appeal of Florida, First District.
    June 29, 2007.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox and Betty Cheramie, Assistant Attorneys General, Office of the Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

On this direct appeal from his conviction and sentence for second degree murder while armed with a firearm, appellant argues that the trial court erred by denying his motion for judgment of acquittal because the State failed to rebut appellant’s claim of self-defense beyond a reasonable doubt. Although the offense was committed in 2003, appellant argues that, for purposes of appellate review, this court should apply sections 776.012 and 776.013, Florida Statutes (2005), which, effective October 1, 2005, statutorily eliminated the duty to retreat from the common law on self-defense under certain circumstances. Contrary to appellant’s argument on appeal, the applicable law in this case is the law which existed at the time of the offense. See State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), approved by 32 Fla. L. Weekly S303, — So.2d —, 2007 WL 1628111 (Fla. June 7, 2007).

Because we conclude that a jury question was presented on the issue of self-defense, we affirm appellant’s conviction and sentence. See Hoffman v. State, 708 So.2d 962 (Fla. 5th DCA 1998); Hunter v. State, 687 So.2d 277 (Fla. 5th DCA 1997).

AFFIRMED.

ALLEN, WOLF, and POLSTON, JJ., concur.


text:
    Jason EARLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0508.
    District Court of Appeal of Florida, First District.
    June 29, 2007.
    Jason Earls, pro se, Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly denied the appellant’s motion as untimely, we reverse.

On August 25, 2004, pursuant to a plea of nolo contendere, the appellant was sentenced to ten years’ imprisonment followed by two years’ probation for armed robbery with a firearm. He did not file a direct appeal of his judgment and sentence. The certificate of service on the appellant’s motion for postconviction relief reflects that the motion was placed in the hands of prison officials for mailing on September 22, 2006. The trial court denied the motion as untimely.

The denial of the appellant’s motion as untimely was improper. The two-year time limitation for filing motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until appellate proceedings have concluded and the court issues a mandate or thirty days after the trial court enters its order if no direct appeal is filed. See Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Because the appellant did not file a direct appeal, his conviction and sentence became final and the two-year time limitation began to run on September 24, 2004. Under the mailbox rule, the date that a motion is placed into the hands of prison officials for filing is the date that the motion is considered filed. Thompson v. State, 761 So.2d 324 (Fla.2000). Accordingly, the appellant’s motion was timely filed on September 22, 2006.

We therefore reverse the trial court’s summary denial of the appellant’s motion for postconviction relief as untimely, and remand for the trial court to consider the motion on the merits.

REVERSED AND REMANDED.

BENTON, HAWKES, and THOMAS, JJ., concur.


text:
    COCKTAILS PLUS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION/DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 1D07-1514.
    District Court of Appeal of Florida, First District.
    June 29, 2007.
    John W. Bolanovich of Bogin, Munns & Munns, Orlando, for Appellant.
    Christy Ruth and Jennifer A. Tschetter, Division of Alcoholic Beverages and Tobacco, Tallahassee, for Appellee.
   ORDER

Having considered the appellant’s response to this Court’s order of April 16, 2007, the jurisdictional show cause order is hereby DISCHARGED.

The appellant’s notice of appeal, filed March 23, 2007, timely invoked this Court’s jurisdiction to review the Amended Final Order, rendered on March 9, 2007. The Final Order, which had been filed with the agency clerk on February 19, 2007, was not final and therefore did not start the time to file a notice of appeal. Cf. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003). Specifically, the Final Order did not consider, or make explicit rulings on, the exceptions to the recommended order that were filed by the appellant. See § 120.57(l)(k), Fla. Stat. (2006). An administrative order that does not bring the administrative adjudicative process to a close does not dispose of the case and is not final. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997).

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Andrew L. HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1484.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2007.
    Andrew L. Harden, Quincy, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Andrew L. Harden appeals the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motions and directing him to show cause why he should not be barred from filing further pro se proceedings. We affirm.

After a jury trial, Harden was convicted of attempted second-degree murder with a weapon and robbery with a deadly weapon. At his original sentencing, a dispute arose over whether points could properly be scored for legal constraint on his sentencing guidelines scoresheet. The trial court determined that the points could be assessed, and as a result, his scoresheet tally with the legal constraint points placed his sentence in a higher cell. The court then sentenced him to 27 years in prison with each count to be served concurrently.

On appeal, this court reversed Harden’s sentence and remanded for resentencing, determining that the trial court should not have assessed points for legal constraint because he was not under legal constraint for sentencing guidelines purposes. Harden v. State, 655 So.2d 187 (Fla. 5th DCA 1995). At resentencing, the trial court again imposed an aggregate prison sentence of 27 years. According to Harden, the court “achieved this result by going into the permitted range.” Harden appealed his resentencing to this court, claiming that the trial court abused its discretion, but this court upheld the resen-tencing. Harden v. State, 670 So.2d 963 (Fla. 5th DCA 1996). Before filing the instant motions, Harden had filed two pri- or rule 3.800(a) motions to correct an illegal sentence, but the trial court denied them, and this court affirmed in Harden v. State, 757 So.2d 511 (Fla. 5th DCA 2000), and Harden v. State, 937 So.2d 1114 (Fla. 5th DCA 2006).

In the instant motions, Harden again takes issue with the sentence he received upon resentencing. He even acknowledges that the claim he presently raises was previously raised in the appeal of his resentencing but rejected by this court. However, Harden nonetheless claims that he is entitled to relitigate the issue and be resentenced because otherwise a manifest injustice would result. For support, he cites to State v. McBride, 848 So.2d 287 (Fla.2003), which stated that collateral estoppel would not be invoked to bar relief when its application would result in a manifest injustice.

We reject Harden’s argument that he is entitled to relitigate the sentence he received at resentencing. In our view, he has failed to demonstrate that a miscarriage of justice somehow occurred in the instant case just because the trial court imposed the same sentence as before. At resentencing, there was nothing to bar the trial court from reimposing the same sentence because, as indicated, the 27-year-sentence was still within the permitted range of the guidelines, even without the legal constraint points. Accordingly, we warn Harden that if he again attempts to challenge his sentence, we will likely issue an order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), requiring him to show cause why he should not be barred from further pro se filings and for consideration of disciplinary action pursuant to section 944.279(1), Florida Statutes (2006).

AFFIRMED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

      . We reject the additional argument raised in Harden's amended motion as meritless without further discussion.


author: NORTHCUTT, Judge.

text:
    Terry Alton WEST, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4461.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.

      Byron P. Hileman, Winter Haven, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Terry Alton West appeals following his conviction for the lesser charged offense of attempted manslaughter. We find no merit in West’s claim that his speedy trial rights were violated. However, we agree with his assertion that the trial court erred by failing to inquire into West’s pro se request to discharge his attorney. We reverse and remand for a new trial.

West filed a pro se motion seeking to discharge his court-appointed attorney and to have new counsel appointed. In this motion, West stated that his attorney was “not doing anything” to help the case and had not done several things that West asked him to do. The motion then recited Supreme Court cases and their announced standards for effective legal representation and the potential for ineffective assistance of counsel, and it concluded with the statement that “this is the case” with West’s attorney. The trial court at no time inquired into this issue and never ruled on West’s pro se motion.

“Generally, a court’s failure to conduct a Nelson inquiry is reversible error if the defendant has clearly alleged attorney incompetence and has unequivocally stated he wishes to discharge his counsel.” Reid v. State, 826 So.2d 414, 415 (Fla. 2d DCA 2002) (referring to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973)). In Reid, the defendant’s pro se motion asserted that his attorney “wasn’t in compliance with the duty of a court-appointed attorney” and cited the rules of professional conduct governing lawyer competence, diligence, and communication. Id. This court found that the motion sufficiently alleged incompetence and the defendant’s desire to discharge counsel, and we reversed because “Reid was never given any opportunity to explain why his counsel was not competently representing him.” Id. Likewise in this case, West’s pro se motion unequivocally sought to discharge his attorney and asserted that his attorney was not providing effective assistance. Thus, the court erred in failing to inquire into the basis for this motion.

The State argues that a defendant has no right to hybrid representation and that West’s pro se motion was superseded by an earlier motion, filed not by his attorney of record but by a different attorney in the public defender’s office and requesting the court to appoint a conflict attorney on the sole issue of speedy trial. While pro se pleadings filed by a represented defendant are generally a nullity, a pro se motion to discharge counsel is an exception to this rule. Logan v. State, 846 So.2d 472, 476 (Fla.2003). Furthermore, we do not agree that the earlier motion, directed solely to a speedy trial issue, can be regarded as superseding a later motion that did not mention speedy trial.

The State also argues that West failed to adequately allege incompetence as the grounds to discharge his attorney. But we conclude that the assertions in the pro se motion were sufficient to require the trial court to make a preliminary Nelson inquiry. See Maxwell v. State, 892 So.2d 1100 (Fla. 2d DCA 2004) (explaining that court’s preliminary inquiry under Nelson must ascertain whether the defendant unequivocally seeks discharge of counsel and the reasons therefor). Accordingly, we reverse.

Reversed and remanded for a new trial.

SALCINES, J., and COBB, WARREN H., Associate Senior Judge, Concur.


text:
    Joseph CARMONA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3089.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Corrected Opinion

PER CURIAM.

The trial court determined that Joseph Carmona violated a condition of his sex offender probation forbidding him from having any unsupervised, unauthorized contact with a child under the age of eighteen. As a result, his probation was revoked and he was resentenced to five concurrent 20 year terms on the underlying charges. Carmona now appeals the revocation of his probation and challenges the legality of the sentence.

On the revocation itself, we find that there was sufficient evidence to support the lower court’s finding that the violation was willful and substantial. We therefore affirm as to that issue. As to the sentences, however, we reverse the sentences prescribed for counts III (attempted capital sexual battery on a child under the age of twelve) and IV (indecent assault on a child under the age of sixteen) finding that each sentence imposed exceeded the statutory maximum.

We accept the State’s concession of error on Counts III and IV.

We reverse the sentence as to Count III and remand with instructions to recalculate the sentence according to the limitations imposed by the 1994 guidelines which were in effect at the time of the offense.

The offense alleged in Count IV occurred in 1997, yet he was sentenced under the 1995 guidelines. Although Florida courts have long held that a defendant must be sentenced under the guidelines in effect at the time of the crime, because the 1997 amendments kept the 1995 sentencing point scheme essentially intact, we find the trial court’s use of the 1995 guidelines harmless. We find the issue to have been properly preserved in the Motion to Correct Sentencing Error and reverse this sentence with instructions that he be re-sentenced as a second degree felony pursuant to section 794.011(8)(b), Fla. Stat. (1997).

GUNTHER, STONE, and FARMER, JJ., concur.

      . State v. Miller, 512 So.2d 198, 198 (Fla.1987).

      . See State v. White, 762 So.2d 927, 929 (Fla. 2d DCA 2000) ("While the 1995 amendments made substantial changes in the guidelines, the 1997 amendments did not. In fact, the only change of any significance in 1997 was the removal of the mitigating factor addressing addiction. The sentencing point scheme from the 1995 revision remained essentially intact. We do not believe the 1997 amendments constituted a ‘revision’ under section 921.0014(3).”).


author: JOHNSON, Justice. KNOLL, Justice,

text:
    STATE of Louisiana v. Ricky Joseph LANGLEY.
    No. 06-KK-1041.
    Supreme Court of Louisiana.
    May 22, 2007.

      Clive A. Stafford Smith, Phyllis E Mann, Alexandria, Christine M. Lehmann, for Applicant.
    Charles C. Foti, Jr., Attorney General, John F. DeRosier, District Attorney, Carla S. Sigler, Cynthia S. Killingsworth, Sharon D. Wilson, Frederick W. Frey, Assistant District Attorneys, for Respondent.
    Ellis Paul Adams, Jr., for Louisiana District Attorneys Association, Amicus Curiae.
    Robert Stephen Glass and G. Benjamin Cohen, for Louisiana Association of Criminal Defense Lawyers, Amicus Curiae.
    John Howard Holdridge and Katherine Schwartzmann, for American Civil Liberties Union, Amicus Curiae.
   JOHNSON, Justice.

bWe granted certiorari in this capital murder case to determine whether the defendant, Ricky Joseph Langley, who was charged with first-degree murder, but was found guilty of the lesser-included offense of second degree murder, may be retried for first degree murder following reversal of his conviction.

PROCEDURAL HISTORY

Langley was indicted by a grand jury for first degree murder, in violation of LSA-14:30. He was convicted in 1994 of first degree murder and sentenced to death. On appeal, this Court affirmed his conviction and sentence, but on application for rehearing, remanded the case to the trial court for evidentiary proceedings concerning the validity of the grand jury indictment and Langley’s claim of intentional discrimination in the selection of grand jury foreperson. State v. Langley, 1995-1489 (La.4/14/98), 711 So.2d 651, reh’g granted in part (La.6/19/98). On remand, the trial court granted Langley’s motion to quash the indictment and vacated his conviction and sentence. This Court upheld that judgment on appeal by the state. State v. Langley, 1995-1489 (La.4/3/02), 813 So.2d 356 (“Langley I”).

Langley was re-indicted on a charge of first degree murder, to which he pleaded not guilty and not guilty by reason of insanity. Due to overwhelming pretrial publicity, the jury was selected from Orleans Parish, but the case was tried in |2Calcasieu Parish, where the sequestered jury was housed for the duration of the trial proceedings. After trial by jury, the jury rejected Langley’s insanity defense and convicted him of the lesser included offense of second degree murder, a violation of LSA-14:30.1. Langley was then given the mandatory sentence of life imprisonment at hard labor.

On appeal, Langley argued, inter alia, that the temporary absences of the trial judge from the courtroom during portions of the voir dire examination of prospective jurors, and during closing arguments of counsel, constituted a structural defect in the proceedings, exempt from harmless-error analysis, which required reversal of his conviction and sentence. The court of appeal agreed that “the errors committed by the trial judge, in absenting himself from the proceedings and failing to maintain decorum, were structural errors requiring reversal of the Defendant’s

conviction without a showing of actual prejudice.” State v. Langley, 2004-0269, p. 15 (La.App. 3 Cir. 12/29/04), 896 So.2d 200, 210 (“Langley II ”).

In Langley II, a majority of the panel further concluded that the structural defects not only constituted reversible error, but also rendered the jury’s verdict absolutely void, resulting in neither a conviction for second degree murder, nor an acquittal of first degree murder. The appellate opinion held that the state could exercise its plenary discretion over the subsequent conduct of the prosecution pursuant to LSA-C.Cr.P. art. 61, and could retry relator for capital murder, thereby exposing the Defendant once again to the prospect of the death penalty. Langley, 2004-0269 at 18-19, 896 So.2d at 211-12 (“[T]he verdict resulting from structural error [is] a nullity.... The necessary consequence of such a verdict is retrial, as though no verdict had been reached.”).

Chief Judge Thibodeaux dissented from that portion of the majority opinion, | ^considering the remarks about the nullity of the verdict both advisory and ill-advised, given that Langley had asked the court of appeal to review only his conviction of second degree murder for error, and not his acquittal of first degree murder. Langley, 2004-0269 at 1-2, 896 So.2d at 212-13 (Thibodeaux, C.J., dissenting in part and concurring in part) (“We must remember that it is the defendant who appealed. None of the fifteen assignments of error asserted by the defendant deal with the effect of an absolutely null verdict. ... [T]he majority’s opinion clearly states that: ‘[t]he question to be resolved is whether the trial judge’s conduct constitutes trial error, which is subject to review for harmless error, or structural error, which defines analysis by harmless error standards.’ ... Nothing more and nothing less.”).

After the state re-indicted Langley for first degree murder, he moved to quash the indictment. The trial court granted the motion, limiting the state to retrial of the defendant for second degree murder only. The court considered that retrial for first degree murder would violate Langley’s protections against double jeopardy and penalize him for his success on appeal by forcing him to endure another capital prosecution.

The state sought review. The court of appeal granted the state’s writ, holding that its earlier pronouncements in Langley II regarding the absolute nullity of the defendant’s prior conviction were not dicta, but were binding on the lower court as the “law of the case.” State v. Langley, 2005-1475 (La.App. 3 Cir. 4/5/06), 925 So.2d 778 (Table) (“Langley III ”). This court granted Langley’s writ to review the correctness of that decision.

LAW AND ANALYSIS

The defendant contends that the court of appeal’s ruling violated the federal Land state constitutional prohibitions against double jeopardy by allowing the state to proceed with a charge of first degree murder on retrial when the defendant has previously been acquitted of first degree murder. The defendant also contends that the court of appeal violated the right to appeal found in the Louisiana Constitution.

The state contends that the prohibitions against double jeopardy found in the federal and state constitutions do not prohibit retrial of Langley on a charge of first degree murder. The state argues that, because the defendant’s conviction of the lesser-included offense of second degree murder was set aside on the basis of a structural defect in Langley II, that trial was rendered void ab initio. The state asserts that the void trial is akin to one which is “illegally constituted” pursuant to La.C.Cr.P. art. 595, and that Langley cannot.be considered as having been previously placed in jeopardy such that double jeopardy principles are violated by his re-indictment on charges of first degree murder.

Law of the Case Doctrine

Although neither the state nor the defendant sought review of the court of appeal’s judgment in Langley II, this court is not prevented from reviewing the court of appeal’s prior reasoning, particularly when that reasoning results in subsequent consequences now before the court. In Langley II, the court of appeal found that structural error occurred in Langley’s trial, which error was not subject to an analysis for harmless error and which rendered his trial absolutely null. Although the appellate court found itself unable to revisit that reasoning in Langley III under the doctrine of “law of the case,” this court is not similarly constrained. The law of the case principle “is not applied to prevent a higher court from considering the correctness of a ruling by an intermediate appellate court.” Levine v. First Nat. Bank of Commerce, 2006-0394 p. 3, n. 4 (La.12/15/06), 948 So.2d 1051; Pumphrey v. City of New Orleans, 2005-0979 p. 7 (La.4/4/06), 925 So.2d 1202, 1207. Although this issue usually arises after this court has denied supervisory writs, and the case returns, there is no reason that the same principles of law would not be equally applicable in this case. As stated by Justice Tate in Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (La.1972), most recently cited in Pumphrey, supra:

... the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice. Further, the law-of-the-case principle is not applied so as to prevent a higher court from examining the correctness of the ruling of the previous court.

Although the fact of the reversal of Langley’s conviction for second degree murder is not before the court, the court of appeal’s reasoning which resulted in the reversal and remand must be reviewed in light of the double jeopardy implications of that trial.

We turn now to a review of the court of appeal’s reasoning which invalidated Langley’s conviction of second degree murder.

Analysis of Court of Appeal’s Reasoning

The principal question raised by Langley on the direct appeal of his conviction for second degree murder was whether the error he asserted, the absence of the trial judge from portions of his trial, rose to a level which would require reversal of his conviction.

In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court distinguished between structural defects in a criminal trial and all other errors committed during the course of the proceedings. The Court thereby sought to clarify when harmless-error analysis is appropriately conducted by an appellate court (for trial error) and when it is not (structural defect). As to the flatter class of error, “structural defects in the constitution of the trial mechanism ... defy analysis by ‘harmless-error’ standards ... [because they] affect the framework within which the trial proceeds, rather than simply [interject] an error in the trial process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265; see also Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717, 125 L.Ed.2d 353 (1993)(“The existence of such [structural] defects ... requires automatic reversal of the conviction because they infect the entire trial process.”).

Structural defects occur in only “a very limited class of cases,” and include the total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of the defendant’s race, deprivation of the right to self-representation at trial, the right to a public trial, and erroneous reasonable doubt instructions. Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 137 L.Ed.2d 718 (1997); Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 1833,144 L.Ed.2d 35 (1999); United States v. Stevens, 223 F.3d 239, 244 (3rd Cir.2000); see also State v. Ruiz, 2006-1755 p. 6 (La.4/11/07), 955 So.2d. 81.

In Langley II, the court of appeal found that the trial judge’s absences from the bench and his failure to maintain courtroom decorum were structural defects or errors requiring reversal of the defendant’s second degree murder conviction without the necessity of Langley showing that he was actually prejudiced. Langley, 2004-269 p. 15, 896 So.2d at 210. However, our review of the court of appeal’s reasoning, and the federal cases upon which it relied, show interpretive errors on the part of the court of appeal in its characterization of the trial judge’s absence as a structural defect.

Gomez v. United States

The court of appeal cited to Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) as authority for finding that the trial judge’s absence |7during voir dire was an error that “impinge[d] on the foundation of the trial, i.e. jury selection, and affect[ed] the framework on which the entire proceedings [were] built.” Langley, 2004-269 p. 13, 896 So.2d at 208.

In Gomez, the Supreme Court answered in the negative the question whether a federal magistrate presiding at the selection of a jury in a felony trial without the defendant’s consent was among the “additional duties” that district courts could assign to magistrates under the Federal Magistrates Act. The Supreme Court harbored “serious doubt” that a district judge could review a magistrate’s determinations on voir dire, acknowledging that a court must scrutinize not only the words spoken by prospective jurors but also their gestures and attitudes. Gomez, 490 U.S. at 874-875, 109 S.Ct. at 2247-2248.

The Gomez court found that specific prejudice need not be shown in a situation where a magistrate, and not a district judge, conducted the voir dire. The Supreme Court found that “among the basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” Gomez, 490 U.S. at 876, 109 S.Ct. at 2248 (internal citations omitted). The Supreme Court went on to conclude, applicable to the case before it, that “[e]qually basic is a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. Thus harmless-error analysis does not apply in a felony case in which, despite the defendant’s objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.” /¿(Emphasis added).

Far from standing for the proposition that a harmless-error analysis does not apply to a situation where a judge is absent for a part or all of voir dire, and that this is a structural error, Gomez stands for the proposition that a critical part of trial may 8not be conducted by a person without jurisdiction to preside. A conviction obtained in a court of improper jurisdiction is, without doubt, a null conviction. For example, if a capital trial was held in a mayor’s court, any resulting conviction would be absolutely null and void because the mayor’s court, and the mayor presiding, do not have jurisdiction over the matter.

The main holding in Gomez is inapplicable in this case, where trial was conducted by a judicial officer with proper jurisdiction. The fact that the trial judge was not present for a portion of the trial is a trial error which should have been reviewed to determine whether the error was harmless beyond a reasonable doubt.

U.S. v. Mortimer

With regard to the trial judge’s absence during closing arguments, the court of appeal relied on U.S. v. Mortimer, 161 F.3d 240 (3rd Cir.1998) to find that structural error occurred. Yet an examination of Mortimer shows that it cannot be relied on in this context, either. In Mortimer, the judge, who had been present during the prosecutor’s summation, was absent from the defense’s closing argument. The judge’s absence was noted when the prosecutor made an objection, only to withdraw it with the exclamation, “The judge is not here.” Id., 161 F.3d at 241. The judge gave no notice to counsel or the jury of his absence. He was back on the bench in time to thank defense counsel for her speech, and to call on the prosecutor for rebuttal.

The federal appellate court found that, under the facts presented, structural error occurred during trial. This definitive statement is footnoted, however, to note that one of the three judges deciding the case, Chief Judge Becker, believed that the preferable manner of deciding the case was under the harmless error standard. | ¡Although Chief Judge Becker was satisfied that the patent error involved here was clearly not harmless beyond a reasonable doubt, he believed that under the facts of this case, the label “structural” was not inappropriate. Mortimer, 161 F.3d at 241 fn. 1.

The federal appellate court then cited Gomez, with the same language relied upon by the court of appeal in this case:

A trial consists of a contest between litigants before a judge. When the judge is absent at a “critical stage” the forum is destroyed. Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). There is no trial. The structure has been removed. There is no way of repairing it. The framework “within which the trial proceeds” has been eliminated. See Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The verdict is a nullity. Gomez, 490 U.S. at 876, 109 S.Ct. 2237 (1989). Mortimer, 161 F.3d at 241.

From the facts of Gomez, discussed supra, we know that when the Supreme Court states that a trial is a contest between litigants before a judge, this means before a judge and not a magistrate. When a person other than a person with jurisdiction presides at a critical stage of trial, “the forum is destroyed,” “there is no trial,” and “the structure has been removed.” Gomez was speaking to jurisdictional deficiencies.

That the Mortimer court did not believe that a true structural error occurred can be seen in its subsequent language. The federal appellate court continued: “We cannot, of course, anticipate every circumstance under which the judge’s absence may destroy the structure.” Mortimer, 161 F.3d at 241. In other words, the federal court was conceding that there are circumstances in which a trial judge’s absence from the bench may be harmless. This is not the type of error, impacting the trial from beginning to end, that was contemplated as a “structural error” by the Supreme Court. Although Mortimer considers other cases where a judge’s absence was consented to by the parties and another where a trial judge’s absence was extremely brief, the | infederal appellate court held that prejudice did not need to be shown.

It is beyond doubt that the federal appellate panel believed the error committed in that case to have been very serious. But the same result, ie. reversal of the conviction and remand for a new trial, could have been achieved by finding the trial error to not be harmless beyond a reasonable doubt under a harmless error analysis. However, the federal appellate panel did acknowledge that the error there was not recognized by the Supreme Court as a structural error. The federal appellate court’s use of the term “structural” to describe the error, as noted in the footnote, and their reliance on the inapposite Gomez, serves instead to emphasize the court’s extreme disapproval of the trial judge’s conduct.

Riley v. Deeds

Finally, the court of appeal relied upon Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995). In Riley, the trial judge could not be located when, during jury deliberations, the jury requested that the victim’s testimony be read back to them. In the trial judge’s absence, court was conducted by his law clerk. The law clerk informed the jury that the victim’s testimony would be read to them and that the foreman should indicate at which point the jury had heard enough. After the victim’s direct examination was read, the jury foreman indicated the jury had heard enough. The Riley court found the trial judge’s absence to be an error of constitutional magnitude.

The federal appellate court found that the presence of a judge is at the “very core” of the constitutional guarantee of trial by an impartial jury and was a proposition “so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.” Riley, 56 F.3d at 1119 (citing Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585-586, 43 L.Ed. 873 (1898)). Once again, the only uncontested proposition in this context is that a person having jurisdiction to preside over a trial must do so, and not a person without jurisdiction. In Riley, the law clerk presided over part of the trial by making evidentiary rulings in the absence of the trial judge. Thus, a jurisdictional defect occurred which required reversal.

We find that, just as with Gomez, the court of appeal again relied improperly upon a case concerning jurisdictional defects to support its erroneous conclusion that a structural error occurred.

Structural Defect or Trial Error

As previously mentioned, the Supreme Court has recognized structural error in a very limited class of cases. These include (1) the total deprivation of the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) a biased trial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); (3) unlawful exclusion of grand jurors of defendant’s race, Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); (4) denial of self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); (5) denial of a public trial; Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and (6) a defective reasonable doubt instruction, Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). See Ruiz, 2006-1755, 955 So.2d at 85-86.

I^Other than in these six restricted classes of cases, the Supreme Court has failed to find structural error in the wide range of errors presented to it. When the Supreme Court speaks of a structural defect, it means that “the entire conduct of the trial from beginning to end is obviously affected by the [error].” Fulminante, 499 U.S. at 309-110, 111 S.Ct at 1265. The two examples used in Fulminante to illustrate this point were the total deprivation of the right to counsel, for which a defendant would be affected by the absence of counsel from the beginning to the end of the trial, or a biased trial judge, who would be presiding over the entire trial. From these examples, it is clear that when the Supreme Court speaks of structural error, the Court is referring to something which affects the entire framework of the trial and not something which may have differing degrees of impact, depending on other trial factors.

The court of appeal in this matter, however, concluded that:

“the determination of whether an error or combination of errors is structural defies a strict formulaic evaluation. Rather, the determination will turn on a case by case analysis of the egregiousness of the complained of conduct, the constitutional ramifications of the error, and the degree of damage caused to the framework of the proceedings. It may be that a single error is of sufficient gravity to destroy the forum and thus constitute structural error. Likewise, an accumulation of less serious errors, when taken as a whole, may so undermine the framework of the proceedings as to rise to the level of a structural error.” Langley, 2004-269 p. 12, 896 So.2d at 209-210.

Clearly, the court of appeal meant something very different from the Supreme Court’s interpretation when it described “structural error.” The court of appeal was looking to the effect of the error. In doing so, the court of appeal erred. An analysis of the “egregiousness of the conduct” or “degrees of damage” is, in reality, the type of harmless error review that a court would use to analyze a trial error. Conversely, a structural error, by its very nature, impacts the entire framework of the trial from | ^beginning to end, without reference to any other trial consideration.

As explained in Fulminante, most errors which occur are trial errors, even though they may impact a defendant’s constitutional rights. However, “constitutional error does not automatically require reversal of a conviction,” and indeed, “most constitutional errors can be harmless,” or reviewed for harmless error. Id., 499 U.S. at 306, 111 S.Ct. at 1263. The court of appeal’s opinion suggests that, in order to reverse the defendant’s conviction and sentence, it had to find that a structural error occurred. That is not so, as a trial error which is not harmless beyond a reasonable doubt would likewise result in the reversal of the defendant’s conviction and sentence.

The court of appeal found reversible error due to the judge’s absence from portions of the trial. But a judge’s absence from the bench for a few minutes would not necessarily, in the context of an entire trial, destroy the fundamental framework of the trial from beginning to end. Whether the conduct requires reversal of the conviction and sentence would depend upon what occurred during the judge’s absence. Because there are degrees of prejudice that could result from this error to the criminal defendant, this is clearly a trial error, which simply injected an error in the trial process itself, and not a structural error or defect which affected the framework within which the trial proceeded. Trial error occurs during the presentation of the case to the trier of fact and may be quantitatively assessed in the context of the other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 307-308, 111 S.Ct. at 1264; Ruiz, 2006-1755, 955 So.2d at 86.

It is unnecessary for us to make the further determination whether the trial error which occurred in Langley II was harmless beyond a reasonable doubt. Neither the | ustate nor the defendant sought writs from the court of appeal’s reversal of Langley’s conviction of second degree murder; thus, the correctness of that ruling is not presently at issue. The court of appeal’s reasoning with regard to the reversal of Langley’s conviction is before us only insofar as its determination that structural error occurred has implications to our present discussion.

Effect of Reversal Based on Trial Error

Langley contends that the jury verdict finding him guilty of second degree murder acted as an acquittal to the charged crime of first degree murder. Consequently, Langley argues that his re-indictment on first degree murder charges violates the prohibition against double jeopardy. The trial court agreed and quashed the indictment for first degree murder on Langley’s motion.

The state contends, and the court of appeal held, that the trial in Langley II was void ab initio. Holding that a structural error is akin to an illegally constituted court under the provisions of La. C.Cr.P. art. 595, the court of appeal reversed the trial court’s ruling on the motion to quash, finding that Langley should not be considered as having previously been in jeopardy.

The Fifth Amendment of the U.S. Constitution provides that “no person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” As its principal protection, this prohibition against double jeopardy prohibits the State from prosecuting a defendant twice for the same crime in cases in which the defendant has been acquitted in the first trial. Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). In Green, the Supreme Court held that when a | T sdefendant is convicted of a lesser included offense and that conviction is overturned on appeal, the conviction operates as an implied acquittal of the charged crime, prohibiting the State from retrying the defendant on the original charge. Id., 355 U.S. at 193, 78 S.Ct. at 226-227 (the prohibition against double jeopardy prohibits a defendant from having to “barter his constitutional protection against a second prosecution” for the charged crime “as the price of a successful appeal from an erroneous conviction” on the lesser offense). The Louisiana Constitution contains a similar guarantee in Article 1, § 15.

We have found that the reversible error which occurred in the retrial in Langley II was a trial error and not a structural defect. Consequently, where there was no structural error or jurisdictional defect, there is no basis whatsoever for concluding that the trial in Langley II should be given no effect in a double jeopardy analysis. Although Langley’s second degree murder conviction was reversed, the trial in which that conviction was obtained was not an absolute nullity.

All of the structural requirements were present in Langley II for its trial to be given effect for double jeopardy purposes. Once the state instituted prosecution by securing a new grand jury indictment against Langley, the district court acquired subject matter jurisdiction over the felony proceedings pursuant to La. Const, art. V, § 16, and the court otherwise had personal jurisdiction over Langley. See State v. Jackson, 2004-2863, p. 11 (La.11/29/05), 916 So.2d 1015, 1021 (“Prosecution was properly commenced by valid bill of information that informed the accused of the nature of the charges against him and therefore jurisdiction was proper.”). The trial 11ficourt then convened the correct 12-person jury forum to try the case and properly instructed jurors with regard to unanimity required to return any lawful verdict. La. Const, art. 1, § 17(A); La.C.Cr. P. art. 782(A). The instructions admonished jurors that if they were not convinced beyond a reasonable doubt “that the defendant is guilty of First Degree Murder, but you are convinced beyond a reasonable doubt that the defendant is guilty of second degree murder the form of your verdict should be guilty of Second Degree Murder.” Jurors then returned a lawful, unanimous verdict convicting Langley of second degree murder. Second degree murder is a crime under the laws of Louisiana and is a responsive verdict to a charge of first degree murder. LSA-R.S. 14:30.1; La.C.Cr P. art. 841(A). A unanimous verdict of a lesser included offense is a legal verdict in a capital prosecution. La. Const, art. 1, § 17(A); La. C.CrJP. art. 782(A).

Under these circumstance, and by operation of longstanding double jeopardy law, we hold that the unanimous verdict of guilty of second degree murder returned by Langley’s jury in Langley II implicitly acquitted him of first degree murder. The structure of the defendant’s trial was not destroyed by the trial judge’s error in absenting himself during portions of the trial. Even though the trial error requires a reversal of Langley’s conviction and sentence, the verdict rendered by the jury was a legal verdict and should be given effect pursuant to La.C.Cr.P. art. 598(A):

When a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial.

Consequently, the state is limited in any subsequent prosecution to re-indicting the defendant on a charge of second degree murder.

CONCLUSION

Accordingly, we find that the court of appeal erred in this matter in reversing 117the trial court’s ruling on the motion to quash. The trial judge’s absence during portions of the trial in Langley II is not recognized as one of the extremely limited, restrictively-defined errors regarded as a structural defect by the Supreme Court. Because there were no structural errors or jurisdictional defects in the trial at issue in Langley II, but only trial error, the court of appeal’s statements in Langley II and Langley III regarding the effect of an absolutely null verdict are dicta, inaccurate in the context of this case, and improper. The court of appeal’s reliance upon this reasoning as “law of the case” was error. The trial court therefore remained free to apply the correct law of the case-that Langley’s conviction for second degree murder acquitted him of the charged offense of first degree murder and that the state therefore may not retry him for that capital offense. The state, upon re-indictment of the defendant, is limited to charging the defendant with second degree murder. To the extent that the majority opinion in State v. Langley, 2004-0269 (La.App. 3 Cir. 12/29/04), 896 So.2d 200, differs from the views expressed herein, it is expressly disapproved.

DECREE

Accordingly, the order of the court of appeal is reversed, the judgment of the district court limiting the prosecution of Ricky Joseph Langley to a charge of second degree murder in violation of LSA-R.S. 14:30.1 is reinstated, and this case is remanded for further proceedings consistent with the views expressed herein.

REVERSED, JUDGMENT OF TRIAL COURT REINSTATED AND REMANDED.

KNOLL, J., dissents and assigns reasons.

KNOLL, Justice,

dissenting.

hi disagree with the majority’s resolution of this res nova double jeopardy issue. It defies logic that the absence of the trial judge from critical stages of the prosecution results in the rendition of no legal verdict, either of conviction or of acquittal, and yet the defendant can use the jury’s verdict of second-degree murder to bootstrap a plea of double jeopardy, and thus deny the State the opportunity to retry him for first-degree murder, the originally charged offense. No one is entitled to an illegally constituted trial that renders the conviction and sentence a nullity; nor is anyone entitled to claim the benefits from a trial that is considered not to be a trial, i.e., a nullity. My review of the law and jurisprudence convinces me defendant’s plea of double jeopardy is without merit.

La.CRIm.Code Ann. art. 595 specifically provides that “[a] person shall not be considered as having been in jeopardy in a trial in which ... [t]he court was illegally constituted or lacked jurisdiction;.... ” The phrase “was illegally constituted” encompasses a number of defects or irregularities not waived by defendant’s failure to object. La.CRIm.Code Ann. art. 595, Comment (c). In that light, this Court stated in State v. Kent, 262 La. 695, 264 So.2d 611, 614 (1972), “Article 595 is meant to be illustrative of non-jeopardy proceedings in trials, setting out examples of frequent bases for dismissal of a prior proceeding where the defendant has not been 1 ¡>placed in ‘danger.’ ” The basis for the requirement that, in order to support a plea of former jeopardy, the previous proceeding must be validly based is that the previous conviction might be upset at any time. See State v. Williams, 301 So.2d 587, 588 (La.1974).

In the present case, I find the trial judge’s absence during voir dire and closing arguments the equivalent of a “court [that] was illegally constituted.” When the judge is absent at a critical stage, the forum is destroyed. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); United States v. Mortimer, 161 F.3d 240 (3 Cir.1998). As the court held in Mortimer, when the trial judge absents himselfiherself during the trial, “[t]here is no trial.” Moreover, “[t]he verdict is a nullity.” Id. at 241, citing Gomez, 490 U.S. at 876, 109 S.Ct. 2237. In my view, the verdict was a nullity in the case sub judice; thus, I find it clear under the provisions of La.CRIm.Code Ann. art. 595 that the defendant’s interjection of a plea of double jeopardy is neither supported nor sustainable. Obviously, the defendant was not placed in jeopardy on his second trial because of the nullity of the verdict that the trial judge’s absence precipitated.

I further find no infringement of defendant’s constitutional right to appeal if the State is allowed to retry him for first-degree murder. “[T]he chilling [effect on] appeals does not in and of itself offend due procéss.” United States v. Henry, 709 F.2d 298, 316 n. 26 (5 Cir.1983). As this Court stated in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, “[D]ue process is not offended by all possibilities of increased punishment after appeal, only those which involve ‘actual retaliatory motivation’ or ‘pose a realistic likelihood of vindictiveness.’ ” Williams, 800 So.2d at 798-799, quoting Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The defendant exercised his appellate right, called the court’s attention to the egregious nature of the trial court’s conduct in his second trial, and obtained the relief he sought-the | «reversal of the jury verdict. In the present case, the State now seeks nothing that it did not already pursue.

For these reasons, I respectfully dissent.

      . State v. Langley, 2006-1041 (La.9/15/06), 936 So.2d 1251.

      . It is unnecessary for us to determine whether the trial error was harmless beyond a reasonable doubt, as the fact of the reversal of the defendant’s conviction is not now before this court.

      . As previously stated, “all constitutional errors are not structural and indeed, most are amendable to harmless error analysis.” State v. Jones, 2005-226 p. 4 (La.2/22/06), 922 So.2d 508, 511.

      . In Capital Traction Co., relied upon by Riley, the question was whether, in the District of Columbia, a justice of the peace could preside over a jury trial for a civil action to recover damages in the amount of $300 and whether that would constitute a “trial by jury." The Supreme Court held that a trial by a jury of twelve persons before a justice of the peace was not a trial by jury within the meaning of the common law and of the seventh amendment to the constitution. Consequently, a trial of facts by a jury before the justice of the peace would not prevent those facts from being reexamined de novo by a jury in the appellate court. Id., 174 U.S. at 45-46, 19 S.Ct. at 597.

      . La.C.Cr.P. art. 595 provides, in pertinent part, "[a] person shall not be considered as having been in jeopardy in a trial in which: (1) The court was illegally constituted or lacked jurisdiction; ...”.

      . La. Const, art. 1, § 15 provides in pertinent part: "... No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.”

      .We do not subscribe to the appellate court's broad view that structural errors or defects necessarily constitute the functional equivalent of jurisdictional defects which render the proceedings not merely voidable but absolutely null.


text:
    In re Craig Hunter KING.
    No. 2007-B-1079.
    Supreme Court of Louisiana.
    June 26, 2007.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Craig Hunter King, Louisiana Bar Roll number 19945, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    In re Gregory J. LEWIS, Jr.
    No. 2007-OB-0791.
    Supreme Court of Louisiana.
    June 28, 2007.
   PER CURIAM.

Upon review of the Motion to Withdraw Objection filed by the Committee on Bar Admissions, and considering the record of this matter, we conclude petitioner, Gregory J. Lewis, Jr., is immediately eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    In re Thomas Scott EDWARDS.
    No. 2006-OB-1408.
    Supreme Court of Louisiana.
    June 29, 2007.
    Richard Anthony Goins, Scott Thomas Whittaker, New Orleans, Schiff Law Corporation, Leslie J. Schiff, Opelousas, Thomas S. Edwards, for Applicant.
    Charles Bennett Plattsmier, Baton Rouge, for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| Petitioner, Thomas Scott Edwards, applied to sit for the Louisiana Bar Examination. On his application, petitioner disclosed arrests and citations for numerous alcohol-related criminal charges. After review of this information, the Committee on Bar Admissions (“Committee”) determined that it was appropriate to refer petitioner for a substance abuse evaluation. Following the evaluation, and petitioner’s completion of a six-week outpatient drug and alcohol treatment program, petitioner and the Committee filed a joint petition for conditional admission in this court. The parties proposed that petitioner be admitted to the bar on a conditional basis for a period of five years, subject to the requirement that he comply with all of the terms and conditions of his contract with the Lawyers Assistance Program. On June 14, 2006, we denied the petition for conditional admission on the showing made and appointed a commissioner to take evidence concerning petitioner’s character and fitness to practice law. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in January 2007, pursuant to Supreme Court Rule XVII, § 9(B). Following the hearing, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

| ¡After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E).

Accordingly, it is ordered that the application for admission be and hereby is denied.


text:
    STATE of Louisiana v. Anthony BELL.
    No. 2007-KK-1124.
    Supreme Court of Louisiana.
    June 29, 2007.
   PER CURIAM.

|!Writ granted. The trial court’s ruling denying defendant’s motion to suppress his recorded statement is reversed in part.

Although the interrogating officers recalled at the hearing on the motion to suppress that defendant used the tempering words, “I think,” or, “maybe I should,” the transcript of the audio-taped statement, which was played during the hearing, reveals that midway through the questioning, when it appeared that the police did not believe the exculpatory account he was providing them, defendant stated, “I’d rather wait until my mom get me a lawyer then. Because I’m telling you what I know, and you’re trying to make me tell you other.” Immediately thereafter, the police reinitiated conversation with the defendant in which the lead investigating officer urged him to refocus his attention, as he argued with the other officer present over a seemingly collateral point, and ultimately steered defendant into making additional statements about the subject matter of the investigation. Defendant finally brought the interview to an end by reiterating his desire to speak with “my lawyer,” i.e., the attorney that his mother would secure for him.

The record thus shows that when defendant stated he would have his mother secure counsel for him before responding to additional police questioning, he spoke with sufficient clarity that “a reasonable police officer in the circumstances would | ^understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). That defendant then responded to police-initiated conversations steering him toward additional statements about the subject matter of the investigation did not diminish the clarity of that request. Smith v. Illinois, 469 U.S. 91, 99, 105 S.Ct. 490, 495, 83 L.Ed.2d 488 (1984)(“[A]n accused’s post-request response to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request [for counsel] itself.”).

Once a suspect has “expressed his desire to deal with the police only through counsel,” all questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Accordingly, the trial court’s ruling is reversed to the extent that it would permit introduction at trial of the statements made by defendant in response to police-initiated questioning after he stated clearly and unequivocally that he preferred to wait for his mother to secure counsel for him. However, to the extent that the trial court properly ruled that all the statements made by defendant during the interview before he made his unequivocal request for counsel were also admissible, that part of its ruling is affirmed.

KIMBALL and KNOLL, JJ., would grant and docket.


author: PER CURIAM. CALOGERO, Chief Justice, WEIMER, J.,

text:
    STATE of Louisiana v. Dexter Leon DAVIS.
    No. 2006-K-1984.
    Supreme Court of Louisiana.
    June 29, 2007.
    Dexter Leon Davis, pro se.
    Charles C. Foti, Jr., Attorney General, James D. Caldwell, District Attorney, Kenneth Anderson Brister, Assistant District Attorney, for Respondent.
   PER CURIAM.

I,We granted defendant’s application for a writ of certiorari in this case on March 30, 2007. State v. Davis, 06-1984 (La.3/30/07), 953 So.2d 59. After hearing oral arguments on May 23, 2007, and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of March 30, 2007, as improvidently granted, and we deny defendant’s writ application.

CALOGERO, C.J., dissents from recall of this writ and assigns reasons.

WEIMER, J., dissents.

CALOGERO, Chief Justice,

dissenting.

hi dissent from the action of the court in recalling the writ as improvidently granted. The defendant’s pro se writ application was granted, the case briefed, and oral arguments made by the defendant pro se and the district attorney. At this juncture, the case should be decided on the merits. Furthermore, I believe the defendant is entitled to the relief he seeks.

The defendant contends in this court that he did not engage in any behavior that constituted resisting arrest and that he simply acted within his constitutional right to remain silent on behalf of himself and his son in refusing to make a statement or sign any police paperwork. While the evidence presented at trial revealed that the defendant assumed an adversarial relationship with the deputy and verbally opposed the deputy’s efforts to cooperate with the “juvenile arrest” of his son, the defendant, in my view, persuasively argues that his verbal refusals alone, while perhaps ill-advised, did not constitute the criminal offense of resisting arrest.

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)_[T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier j^of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

The trial judge, acting as the trier of fact in this case, indicated that he based his decision on Section A of La.' R.S. 14:108. This section provides as follows:

§ 108. Resisting an officer

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.

In State v. Daigle, 95-1260 (La.App. 3 Cir. 6/11/97), 701 So.2d 685, a St. Landry Parish Sheriffs Deputy attempted to serve a civil summons but was told by a hostile storekeeper that the intended recipient was not present, although the deputy saw her enter the store and run to the back room. Id., pp. 1-2, 701 So.2d at 685. Another deputy was summoned, and the defendant — storekeeper was arrested for interfering with the deputy’s attempt to serve the summons and subsequently convicted of resisting an officer, in violation of R.S. 14:108. Id., pp. 2-3, 701 So.2d at 686. The defendant challenged the sufficiency of the evidence and the court of appeal reversed the conviction, reasoning that:

[w]e cannot find defendant intentionally interfered with or obstructed the officer because of his “attitude” or Deputy Rivette’s “feeling” that defendant would physically attempt to stop him from going into the back area of the store. Defendant did not take any actual steps in furtherance of obstructing or interfering with Deputy Rivette’s attempt to serve Ms. Bertrand after he identified himself as a law enforcement officer.

Daigle, p. 7, 701 So.2d at 688.

The court further observed that the trial court had concluded that, although the defendant lied to the deputy, he “did not interfere with or obstruct him, in actual consequence, from serving [the intended recipient of the papers].” Id., p. 6, 701 So.2d at 687 (emphasis in original).

^Similarly, the lower courts have found Mr. Davis, who represented himself at trial, guilty of the offense charged simply because he was non-cooperative and failed to follow the officers’ customary procedure for handling juvenile “arrests” for minor offenses. At trial, Sheriff Shumate admitted that he arrested the defendant “because you were resisting an officer when you wouldn’t cooperate with [sic] investigation of your son.” The trial judge justified the conviction as follows:

The Sheriff was unsuccessful in getting [the defendant] to comply with what needed to be done for the children to be taken into custody and then released back to the parents. And so, there was an arrest made.

The court of appeal denied writs, with a reference to La.Ch.C. art. 814, which sets out the procedure for taking a child into custody without a court order. In the appellate panel’s view, the defendant’s arrest was justified:

[bjecause the officers could not obtain the cooperation of the parents and thus did not obtain the requirement written agreement to “bring the child to court” from the parents, their conduct also resulted in a full-custody arrest for the juveniles, which the statute seeks to avoid.

State v. Davis, 69,927 (La.App.2d Cir.7/13/06).

In my view, the lower courts’ reasoning is unsound, and the evidence presented by the state was insufficient to support the defendant’s conviction. As the Daigle court found, non-cooperation by itself, is not tantamount to a violation of La. R.S. 14:108. Specifically, the court noted:

La. R.S. 14:108(B)(l)(d) does not criminalize the refusal to move or facial displays of hostility when approached by a law enforcement officer unless he is actually obstructed or interfered with in performing his official duties in attempting to effect a lawful arrest, seizure, or 14service of process.

State v. Daigle, 95-1260, p. 6, 701 at 687 (citing State v. Huguet, 369 So.2d 1331 (La.1979), and Melancon v. Trahan, 94-0026 (La.App. 3d Cir.10/5/94), 645 So.2d 722, writ denied, 95-0087 (La.3/10/95); 650 So.2d 1183) (emphasis in original).

In the instance case, the defendant did not physically attempt to stop the deputy or the sheriff from approaching the two boys, who stood outside, within walking distance of the officers. Although the defendant made clear that he would not call his son over to speak with the officers, the deputy admitted that nothing prevented him from forcibly seizing the boys for an arrest as set out in La. Ch.C. art. 814(B)(2). The deputy further stated that he “made no attempt” to summon the boys himself and place them into custody, although he . admitted he could have “reached out and grabbed 'em.” In fact, the two boys were eventually taken into custody after the defendant failed to comply with the deputy’s initial request to summon his son to complete the necessary paperwork. However, it does not follow that the defendant’s refusal to participate in the process should also result in his arrest, particularly when he offered no resistance to his physical arrest or that of his son’s arrest. Like the deputy in Dai-gle, Deputy Hopkins and Sheriff Shumate were faced with nothing more than an uncooperative attitude but, in actual consequence, the officers were able to effectuate the arrests of all four family members without incident. Under these circumstances, I believe the state failed to show an actual obstruction of, or interference with, the “juvenile arrest” of the defendant’s son.

Accordingly, I believe the defendant’s conviction and sentence should be reversed.

WEIMER, J.,

dissenting.

Li would not recall the writ in this matter.

      . La.Ch.C. art. 814 provides in pertinent part:
      B. If a child is taken into custody without a court order or warrant, the officer shall have the responsibility to either:
      (1) Counsel and release the child to the care of his parents upon their written promise to bring the child to court at such time as may be fixed by the court.

        (2) Promptly escort the child to the appropriate facility in accordance with Article 815.


text:
    STATE of Louisiana v. Rachel McKee SMITH.
    No. 2007-KK-1125.
    Supreme Court of Louisiana.
    June 1, 2007.
   In re Smith, Rachel McKee; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 04-06-0068; to the Court of Appeal, First Circuit, No. 2007 KW 0592.

Denied.

TRAYLOR, J., would deny on the showing made.


text:
    George William WOLFE, II v. Jessica Rose HANSON.
    No. 2007-CJ-0907.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Wolfe, George William II; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 77,998; to the Court of Appeal, First Circuit, No. 2006 CU 1434.

Granted. The judgment of the court of appeal is vacated and set aside. The case is remanded to the court of appeal, which is directed to order the trial court to provide explicit reasons for its decision not to designate a domiciliary parent pursuant to La. R.S. 9:335. The court of appeal shall then reconsider the matter in light of the trial court’s reasons.

JOHNSON, J., would deny.

KNOLL, J., would deny.


text:
    STATE ex rel. Shedrick VICTORAN v. STATE of Louisiana.
    No. 2007-KH-1084.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Victoran, Shedrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, Nos. 18076, 18077; to the Court of Appeal, First Circuit, No. 2007 KW 0217.

Granted for the sole purpose of transferring the filing 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. David CLANTON.
    No. 2006-KP-1993.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Clanton, David; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 401451; to the Court of Appeal, First Circuit, No. 2006 KW 0627.

Writ granted in part; otherwise denied. The district court is directed to conform the minutes to the verdicts actually returned by the trial judge as reflected in the transcript and to reconcile the exact terms of the defendant’s sentence with respect to his eligibility for what was referred to in the minute entry as “eight-to-four” or early release. See State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Godejohn, 425 So.2d 750, 751 n. (La.1983).

JOHNSON, J., would deny.


text:
    STATE ex rel. Archie HARRISON v. STATE of Louisiana.
    No. 2006-KH-1782.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Harrison, Archie; — Plaintiff(s); Applying for Reconsideration of this Courts action dated April 5, 2007; Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 08-89-1318; to the Court of Appeal, First Circuit, No. 2006-KW-0336.

Reconsideration denied.


text:
    STATE of Louisiana v. Percy TAYLOR.
    No. 2006-KO-0859.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Taylor, Percy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 02-1290; to the Court of Appeal, Fifth Circuit, No. 05-KA-280.

Denied.


text:
    STATE ex rel. Melonie GUILLORY v. STATE of Louisiana.
    No. 2006-KH-1578.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Guillory, Melonie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. F, No. 64,198; to the Court of Appeal, Third Circuit, No. KH 05-01637.

Denied.


text:
    STATE of Louisiana v. Lester J. HEBERT, Jr.
    No. 2006-K-1887.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Hebert, Lester J. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 987-04; to the Court of Appeal, First Circuit, No. 2005 KA 1996.

Denied.


text:
    STATE ex rel. Sylvester HOWARD v. STATE of Louisiana.
    No. 2006-KH-2125.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Howard, Sylvester; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 345872; to the Court of Appeal, First Circuit, No. 2006 KW 0187.

Denied.


text:
    Kenneth Paul JONES v. J. LEVY DABADIE CORRECTIONAL CENTER, et al.
    No. 2006-CI-2328.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Jones, Kenneth Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 543,318; to the Court of Appeal, First Circuit, No. 2006 CW 1329.

Denied.


text:
    STATE ex rel. Willie PIER v. STATE of Louisiana.
    No. 2006-KH-2329.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Pier, Willie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 28rd Judicial District Court Div. D, No. 12,991; to the Court of Appeal, First Circuit, No. 2006 KW 0530.

Denied.


text:
    STATE ex rel. Darren MCKINNEY v. STATE of Louisiana.
    No. 2006-KH-2330.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re McKinney, Darren; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. 0, No. 332,065.

Denied.


text:
    STATE ex rel. Robert Charles FRANKLIN, Jr. v. STATE of Louisiana.
    No. 2006-KH-2332.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Franklin, Robert Charles Jr.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 226,780; to the Court of Appeal, Second Circuit, No. 41717-KH.

Denied.


text:
    STATE ex rel. Nathan WEBSTER v. STATE of Louisiana.
    No. 2006-KH-2333.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Webster, Nathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 371-320; to the Court of Appeal, Fourth Circuit, No. 2006-K-0481.

Denied.


text:
    STATE ex rel. Robert GRAHAM v. STATE of Louisiana.
    No. 2006-KH-2334.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Graham, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Carroll, 6th Judicial District Court Div. B, No. 22,984.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Jerail C. HARDY v. STATE of Louisiana.
    No. 2006-KH-2335.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Hardy, Jerail C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 245,143.

Denied.


text:
    STATE ex rel. John L. DEFFENBAUGH v. STATE of Louisiana.
    No. 2006-KH-2336.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Deffenbaugh, John L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 234,702; to the Court of Appeal, First Circuit, No. 2006 KW 0748.

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

WEIMER, J„ recused.


text:
    STATE ex rel. Deltra HENDERSON v. STATE of Louisiana.
    No. 2006-KH-2337.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Henderson, Deltra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. B, Nos. 37,571, 36,302; to the Court of Appeal, Second Circuit, No. 41727-KH.

Denied.


text:
    STATE ex rel. Dana M. COTLONE v. STATE of Louisiana.
    No. 2006-KH-2338.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Cotlone, Dana M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 21485-95; to the Court of Appeal, Third Circuit, No. KH 06-00023.

Denied.


text:
    STATE ex rel. Aaron STOGNER v. STATE of Louisiana.
    No. 2006-KH-2368.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Stogner, Aaron; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 99-K-4348; to the Court of Appeal, Third Circuit, No. KH 06-00009.

Denied.


text:
    STATE ex rel. Tyrone IVES v. STATE of Louisiana.
    No. 2006-KH-2369.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Ives, Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 97-6325; to the Court of Appeal, Fifth Circuit, No. 06-KH-368.

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


text:
    STATE ex rel. Bruce L. THOMAS v. STATE of Louisiana.
    No. 2006-KH-2370.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Thomas, Bruce L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 355,393; to the Court of Appeal, First Circuit, No. 2006 KW 1135.

Denied.


text:
    STATE ex rel. Ricky BANKS v. STATE of Louisiana.
    No. 2006-KH-2371.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Banks, Ricky; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. A, No. 97-460-F; to the Court of Appeal, Second Circuit, No. 41709-KH.

Denied.


text:
    STATE ex rel. James SKIPPER v. STATE of Louisiana.
    No. 2006-KH-2372.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Skipper, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, Nos. 01-2396, 01-2397; to the Court of Appeal, Third Circuit, No. KH 06-00344.

Denied.


text:
    STATE ex rel. Wilford SIMMONS v. STATE of Louisiana.
    No. 2006-KH-2373.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Simmons, Wilford; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 3552-00; to the Court of Appeal, Third Circuit, No. KH 06-00966.

Denied.


text:
    STATE ex rel. Jeffery C. ENGRUM, Jr. v. STATE of Louisiana.
    No. 2006-KH-2374.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Engrum, Jeffery Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-0390-2001; to the Court of Appeal, Third Circuit, No. KH 04-00256.

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. Gerald A. WORACHEK v. STATE of Louisiana.
    No. 2006-KH-2375.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Worachek, Gerald A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 2, No. 11-00-176; to the Court of Appeal, First Circuit, No. 2006 KW 1234.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Wendell BROOKS v. STATE of Louisiana.
    No. 2006-KH-2376.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Brooks, Wendell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 444-558; to the Court of Appeal, Fourth Circuit, No. 2006-K-0984.

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


text:
    STATE ex rel. Lloyd GRAY, Jr. v. STATE of Louisiana.
    No. 2006-KH-2377.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Gray, Lloyd, Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 277-791.

Denied.


text:
    STATE ex rel. Elliot J. SCOTT a/k/a Calvin Scott v. STATE of Louisiana.
    No. 2006-KH-2396.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Scott, Elliot J. a/k/a Scott, Calvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 387-788; to the Court of Appeal, Fourth Circuit, No. 2006-K-1042.

Denied.


text:
    STATE of Louisiana v. Richard BURNHAM.
    No. 2006-KO-2736.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Burnham, Richard; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. D, No. 226,803; to the Court of Appeal, Second Circuit, No. 41,146-KA.

Denied.


text:
    STATE of Louisiana v. Mark M. BOURNE.
    No. 2006-KP-2793.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Bourne, Mark W.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 378877; to the Court of Appeal, First Circuit, No. 2006 KW 1794.

Denied.


text:
    STATE of Louisiana v. Brendan DANIEL.
    No. 2006-KP-2794.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Daniel, Brendan; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 403936; to the Court of Appeal, First Circuit, No. 2006 KW 1636.

Denied.


text:
    STATE of Louisiana v. Barry L. MARX.
    No. 2006-KP-2801.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Marx, Barry L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 11-05-0472; to the Court of Appeal, First Circuit, No. 2006 KW 1525.

Denied.


text:
    Charles BUTLER v. Burl CAIN, Warden Louisiana State Penitentiary.
    No. 2006-KP-2825.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Butler, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 430-209; to the Court of Appeal, Fourth Circuit, No. 2006-K-1224.

Denied.


text:
    STATE of Louisiana v. Ernest Lee STOKES.
    No. 2006-KP-2836.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Stokes, Ernest Lee; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 83-459.

Denied.


text:
    STATE of Louisiana v. Burford Anthony DUPUY.
    No. 2006-KP-2980.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Dupuy, Burford Anthony; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 31,391-A; to the Court of Appeal, Third Circuit, No. KW06-1584.

Denied.

KNOLL, J., recused.


text:
    STATE of Louisiana v. Phillip SCHANE.
    No. 2006-KP-2995.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Schane, Phillip; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. B, No. 29973B; to the Court of Appeal, Third Circuit, No. KW06-1260.

Denied.


text:
    David DEFRANZA v. DIMITRI PILE DRIVING, INC. and Louisiana Workers’ Compensation Corporation.
    No. 2007-CC-0646.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Louisiana Workers’ Compensation Corporation; Dimitri Pile Driving, Inc.;— Defendant(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation Dist. #7, No. 06-04415; to the Court of Appeal, Fifth Circuit, No. 07-C-34.

Denied.

VICTORY, J., would grant.


text:
    Lance Hansen AYERS v. STATE of Louisiana, et al.
    No. 2007-CP-0762.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Ayers, Lance Hansen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 536,762; to the Court of Appeal, First Circuit, No. 2006 CA 1431.

Denied.


text:
    Jimmy VIDRINE, et al. v. CONSTRUCTORS, INC., et al.
    No. 2007-C-0821.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Eagle Pacific Insurance Company; — Other; Applying for Writ of Certio-rari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, Nos. 207,-105, 203,194; to the Court of Appeal, Third Circuit, No(s). 06-544, 06-545.

Denied.


text:
    KEVIN’S RESTAURANT, L.L.C. v. FIRE TECH, INC.
    No. 2007-C-0822.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Kevin’s Restaurant, L.L.C.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. C, No. 105,175; to the Court of Appeal, First Circuit, No. 2006 CA 299.

Denied.

VICTORY, J., would grant.

KNOLL, J., would grant.


text:
    M & H CAR RENTAL, LLC v. Cynthia BRIDGES, Secretary of the Louisiana Department of Revenue and Charles Foti, Attorney General of the State of Louisiana.
    No. 2007-C-0831.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re M & H Car Rental LLC; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 535— 549; to the Court of Appeal, First Circuit, No. 2005 CA 2574.

Denied.

VICTORY, J., would grant.


text:
    Brian DOYAL v. VERNON PARISH SCHOOL BOARD.
    No. 2007-C-0832.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Vernon Parish School Board;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Comp. Dist. 2, No. 04-05616; to the Court of Appeal, Third Circuit, No. 06-1088.

Denied.


text:
    Rose Ann WALTON v. AMERICAN RENT ALL INC., Bruce Lee and the Hanover Insurance Company.
    No. 2007-C-0833.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Galuszka, Paul J.; — Third Party; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 322-932; to the Court of Appeal, Fifth Circuit, No. 05-CA-773.

Denied.


text:
    Brandy ADAY v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-C-0834.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Louisiana State of; Transportation and Development Department of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 71576 A; to the Court of Appeal, Third Circuit, No. 06-1181.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Melinda Dawn MITCHELL v. STATE FARM LIFE INSURANCE COMPANY, et al.
    No. 2007-CC-0836.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Examone Worldwide Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 78,965; to the Court of Appeal, Third Circuit, No. CW 07-00273.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    Kaylem MATHERNE, Jimmy McGuire and William Hughes v. KELLOGG BROWN & ROOT, INC., et al.
    No. 2007-CC-0837.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Kellogg Brown & Root Inc.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 61,713; to the Court of Appeal, Fifth Circuit, No(s). 07-C-40, 07-C-46.

Denied.

VICTORY, J., would grant.


text:
    Rex A. RAYNER, et al. v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND, et al.
    No. 2007-CC-0838.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Cheng, Stephen S. Dr.; Tulane University Hospital and Clinic; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 04-5321; to the Court of Appeal; Fourth Circuit, No. 2006-C-1399.

Denied.

VICTORY, J., would grant.

KNOLL, J., would grant.


text:
    Toney DECLUES v. CARUBBA ENGINEERING, INC.
    No. 2007-C-0839.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Declues, Toney; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensátion, Dist. # 8, No. 04-00655; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1336.

Denied.


text:
    Mohssen AGHILI and Discount Express, Inc. v. Ira Gene STROTHER c/w Ira Gene Strother vs. Discount Express, Inc. and Mohssen Aghili.
    No. 2007-C-0841.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Discount Express Inc.; Aghili, Mohssen et ah; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, Nos. 82636, 82677; to the Court of Appeal, First Circuit, No(s). 2006 CA 1118, 2006 CA 1119.

Denied.


text:
    Gail TERREBONNE v. Joanne L. CHERAMIE and Dustin M. Cheramie.
    No. 2007-C-0842.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Terrebonne, Gail; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 553-899; to the Court of Appeal, Fifth Circuit, No. 06-CA-843.

Denied.


text:
    Joseph BALLARD v. Joseph L. WAITZ, Jr., District Attorney, 32nd Judicial District Court.
    No. 2007-CP-0846.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Ballard, Joseph; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 139,757; to the Court of Appeal, First Circuit, No. 2006 CA 0307.

Denied.


text:
    Jerrod A. WILSON v. Russell BORDELON, et al.
    No. 2007-CP-0847.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Wilson, Jerrod A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 17,558; to the Court of Appeal, First Circuit, No. 2005 CW 0209.

Writ denied. Motion denied.


text:
    Katherine RAMEY (Individually and on Behalf of the Estate of David F. Ramey, M.D., and on Behalf of Her Minor Children, Kristen Ramey and Brad Ramey) and Renee Ramey v. Michael DECAIRE (Administrative Director, Physicians’ Health Foundation of Louisiana), Martha Brown, (Medical Director, Physicians’ Health Foundation of Louisiana), Physicians’ Health Foundation of Louisiana (PHFL), Physicians’ Health Program (PHP), Physicians Health Committee (PHC), and Louisiana State Board of Medical Examiners.
    No. 2007-C-0848.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Physicians’ Health Foundation of Louisiana (PHFL); — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 491,751; to the Court of Appeal, First Circuit, No. 2006 CA 1129.

Denied.


text:
    Karen JOHNSON v. Mustafa MISIRCI and ABC Insurance Company.
    No. 2007-C-0849.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Landmark American Ins. Co.;— Defendant; Applying for Writ.of Certiora-ri and/or Review, Parish of Orleans, First City Court of New Orleans, No. 04-51465; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1136.

Denied.


text:
    In the Matter of the SUCCESSION OF William Anthony PEPE.
    No. 2007-C-0850.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Pepe, Mary; — Other; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 78764; to the Court of Appeal, First Circuit, No. 2006 CA 0861.

Denied.


text:
    KEVIN’S RESTAURANT, L.L.C. v. FIRE TECH, INC.
    No. 2007-C-0852.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Fire Tech, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. C, No. 105,175; to the Court of Appeal, First Circuit, No. 2006 CA 0299.

Denied.


text:
    STATE of Louisiana v. Robert DIGGS.
    No. 2007-KK-0853.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Diggs, Robert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 06-4217; to the Court of Appeal, Fifth Circuit, No. 07-K-269.

Denied.


text:
    CITY OF NATCHITOCHES v. CROSSTECH BOILER SERVICES, L.P., et al.
    No. 2007-CC-0864.
    Supreme Court of Louisiana.
    June 15, 2007.
   In re Cothern Graff & Smoak Engineering; Smoak, K. Randall; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 75,908-B; to the Court of Appeal, Third Circuit, No. CW 07-00154.

Denied.