author: COPE, C.J. COPE, C.J.

text:
    Willie Earl LUTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2956.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2006.
    Opinion Granting Clarification Aug. 9, 2006.
    Rehearing Denied Aug. 9, 2006.

      Bennett H. Brummer, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and CORTINAS, JJ.
   COPE, C.J.

Willie Earl Luton appeals his convictions and sentences for the offenses of aggravated battery and attempted robbery with a deadly weapon. We affirm.

Defendant-appellant Luton contends that the trial court erred in admitting into evidence a pocket knife which was in the defendant’s possession at the time of his arrest. We affirm on authority of Dias v. State, 812 So.2d 487, 493 (Fla. 4th DCA 2002); see also Thornton v. State, 767 So.2d 1286 (Fla. 5th DCA 2000); Council v. State, 691 So.2d 1192 (Fla. 4th DCA 1997). We affirm the denial of the motion for a new trial which was predicated on the theory that the knife had been erroneously admitted into evidence.

The defendant argues that the victim’s in-court identification of the defendant was the product of leading questions. The defense acknowledges, however, that there were no objections to any of the questions which the State asked the victim. We reject the defendant’s claim that the in-court identification constituted fundamental error.

The defendant argues that his sentencing as a habitual violent felony offender (HVFO) must be set aside. The defendant contends that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), certain of the facts which determine whether a defendant qualifies as an HVFO must be decided by a jury, rather than the trial court. The Blakely decision states, “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

To qualify as an HVFO, the defendant must have previously been convicted of an enumerated felony. See § 775.084(1)(b)l., Fla. Stat. (2002). The defendant acknowledges that under Blakely, the trial judge (rather than a jury) may determine whether the defendant has a prior conviction' for a qualifying offense.

The defendant points out, however, that in determining whether a defendant qualifies as an HVFO, it must also be established that the defendant committed the current offense during, or within five years after completion of, the defendant’s incarceration or supervision on the qualifying offense. See § 775.084(1)(b)2.a., b., Fla. Stat. (2002). The court must also determine that the defendant has not received a pardon on the ground of innocence for the qualifying offense, and that a conviction on the qualifying offense has not been set aside in any postconviction proceeding. See id. § 775.084(1)(b)3., 4. The defendant argues that the just-mentioned findings—the timing of the prior conviction in relation to the current offense, and the question whether the qualifying offense has been pardoned or set aside—are facts that the jury must find and cannot be found by the trial judge. We reject the defendant’s argument.

First, the defendant made no objection in the trial court that the jury, rather than the judge, must determine whether the defendant qualified as a HVFO. Since there was no timely objection to the trial court sitting as the trier of fact on the habitualization issue, the point is not properly preserved for appellate review. See McGregor v. State, 789 So.2d 976, 977 (Fla.2001).

Assuming arguendo that the point had been preserved for appellate review, it would be without merit. Under Blakely, the trial judge may determine “ ‘the fact of a prior conviction....’” Blakely, 542 U.S. at 301, 124 S.Ct. 2531. The defendant concedes that the trial judge may make the factual finding that the defendant has the qualifying prior offense or offenses for habitualization.

The determination that a prior conviction exists necessarily includes the question whether that conviction has been pardoned or set aside. The determination that a prior conviction exists also includes the relevant historical facts about the conviction: the date of the prior conviction, the sentence punishment imposed, and the date of the defendant’s end of sentence or release from supervision. The Blakely decision does not require that such findings be made by the jury. See Tillman v. State, 900 So.2d 633 (Fla. 2d DCA 2005); Frumenti v. State, 885 So.2d 924 (Fla. 5th DCA 2004); see also Kepner v. State, 911 So.2d 1256 (Fla. 4th DCA 2005).

Affirmed.

On Motion for Rehearing or Clarification or Certification

COPE, C.J.

By motion for rehearing or clarification or certification, defendant-appellant Luton takes issue with that part of the opinion which indicates that the defendant’s argument under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was not properly preserved for appellate review. The defendant explains that after the appeal had been initiated, he filed a motion to correct sentencing error pending appeal under Florida Rule of Criminal Procedure 3.800(b)(2). In that motion he argued that he was entitled to a jury determination whether he qualified as a habitual violent felony offender (“HVFO”). The trial court denied the Rule 3.800(b)(2) motion and the defendant included the issue in his brief as one of the points on appeal.

We adhere to the view that the defendant did not timely raise this issue below. If a defendant believes that he is entitled to a jury trial on the question whether he qualifies for habitualization, logically he must raise that issue before, not after, the sentencing proceeding. The defendant neither requested a jury nor objected to the trial judge sitting as the trier of fact for purposes of habitual offender sentencing.

The defendant may be arguing that he could not have made a Blakely argument at the time of his sentencing because Blakely had not been decided at that time. The Blakely decision was announced after this appeal had commenced. That fact makes no difference. To raise the issue timely, and thus preserve the point for appellate review, the defendant needed to request a jury trial on sentencing, or object to the trial judge sitting as the trier of fact, prior to the sentencing hearing. As stated in an analogous case, “To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.” See Smith v. State, 598 So.2d 1063,1066 (Fla.1992) (citation omitted).

Since the point was not timely raised in the trial court, it is not properly preserved for appellate review. See § 924.051(l)(b), (3), Fla. Stat. Accordingly, we grant clarification to the extent of this opinion, but deny rehearing and certification.

Clarification granted; rehearing and certification denied.

      . According to the information, the crime date was May 27, 2002.

      . The statutory findings referred to by the defendant are:
      2. The felony for which the defendant is to be sentenced was committed:
      a. While the defendant was serving a prison sentence or other sentence, or court-ordered or lawfully imposed supervision that is imposed as a result of a prior conviction for an enumerated felony; or
      b. Within 5 years of the date of the conviction of the last prior enumerated felony, or within 5 years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or court-ordered or lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later.
      3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this paragraph.
      4. • A conviction of a crime necessary to the operation of this paragraph has not been , set aside in any postconviction proceeding.

        Id. § 775.084(1)(b)2.


source: Caselaw Access Project

author: CORTIÑAS, Judge.

license: Public Domain

text:
    Norwin GUZMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3085.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2006.
    Rehearing Denied July 26, 2006.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before WELLS and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The defendant, Norwin Guzman (“Guzman”), appeals from his convictions and sentences. We affirm.

On March 1, 2003 Guzman was charged by information with attempted second, degree murder of a law enforcement officer, armed robbery, armed carjacking, armed kidnapping of a law enforcement officer, escape, depriving an officer of her means of protection/communication, and use of false identification. The jury found Guzman guilty of: (1) battery, as a lesser included offense of attempted second degree murder; (2) battery, as a lesser included offense of armed kidnapping; (3) robbery with a firearm; (4) carjacking with a firearm; (5) escape; (6) depriving an officer of her means of protection/communication; and (7) unlawful possession of identification.

On appeal, Guzman claims that the trial court erred in refusing to grant a challenge for cause against prospective juror Thies. During jury selection, Thies indicated that his son had been a police officer in Florida, but that his son later worked in the computer industry in Colorado and currently serves as a reserve officer. During voir dire, the following exchange took place:

THE COURT: — knowing in this case as I’ve already told you that the victim is a law enforcement officer, do you think you might not be able to be fair and impartial in this case?
MR. THIES: I think I can be fair.
THE COURT: Okay. We’re also going to be hearing testimony from police officers, do you think you might give them more credibility than anybody else because of your relationship with your son as a police officer?
MR. THIES: I would listen to the judgment of a police officer because they are supposed to be, you know, truthful in the matter. I wouldn’t say that I would always give the [sic] credibility because, you know, he’s at a different angle. For instance, with a situation you’ll always see things different from that standpoint. I think I can be fair.
THE COURT: Would you treat them differently simply because he’s a police officer, he’s going to come up here wearing a police uniform, would you treat him differently than anybody else because of that?
MR. THIES: The only thing I can say is that I would do the best I could.
THE COURT: Okay. Well, can you do it?
MR. THIES: I think so.
[PROSECUTOR]: Mr. Thies, some of the people who testify in this case may be police officers, and they may be testifying about what they do as police officers, what their work is. My question to you and to everyone, same question, because I know that you have some contact with law enforcement, other people do as well.
If a witness sits in that chair and says I make my living as a cop, I’m a police officer, would you tend to believe whatever that person says just because they are a police officer and your son was an officer and maybe they remind you a little of your son. Will you do that?
MR. THIES: I’ll say that I would try to be impartial but I have a tendency to be for the law.
[PROSECUTOR]: Would you give more attention to the testimony of somebody who was a police officer and think that you would believe what they say more than someone else?
MR. THIES: That is difficult.
[PROSECUTOR]: It is. It’s difficult being a juror ..., but it is a job that has to be done fairly—
MR. THIES: Yes.
[PROSECUTOR]: — fairly, so that’s why [I] ask you over and over again—
MR. THIES: Okay.
[PROSECUTOR]: — can you do this? MR. THIES: If there is another police officer or another one on hand and his story was similar to the one that you had here on the stand, yes, I would give quite a bit of prejudice to it.
[PROSECUTOR]: So you’re looking for what we might call corroboration?
MR. THIES: Corroboration.
[PROSECUTOR]: That the testimony of one person would agree with another person and that that testimony agree with the evidence, that would help you decide that person was believable?
MR. THIES: Yes.
[PROSECUTOR]: Let’s get down to the very bottom of the equation though.
MR. THIES: Okay.
[PROSECUTOR]: Let’s assume you’re just listening to what somebody is saying, are you going to believe a police officer more than someone who’s not a police officer?
MR. THIES: Not necessarily. As I said I believe earlier, it depends on perhaps there was another police officer that saw things from another angle.
[PROSECUTOR]: Okay. Mr. Thies, do you think that this part of the trial process, jury selection, where the lawyers and the Judge are asking questions, do you think that’s important?
MR. THIES: I think it’s very important to be able to find the people that are impartial in this case.

(emphasis added).

Thereafter, defense counsel began questioning Thies to determine whether he was competent to serve as a juror. The following exchange took place:

[DEFENSE COUNSEL]: Sure. And when two of your sons came to you and were pointing the finger at each other saying he started it; no, he started it. Would you normally want to hear from both of them, hear their version?
MR. THIES: I would also like to hear from somebody else who saw it.
[DEFENSE COUNSEL]: Okay. But you would expect to hear from both of them telling you what happened?
MR. THIES: Yes, I would. Fes, I would.
[DEFENSE COUNSEL]: Okay. Would everyone agree that’s a natural tendency to want to hear from both sides, hear from both people?
PROSPECTIVE JURORS: Yes. (Collectively.)
[DEFENSE COUNSEL]: How would you feel if Mr. Guzman didn’t testify; would it — might it influence your decision?
MR. THIES: Not necessarily, but if he did testify and there were things that came out that he could collaborate, maybe it would shift the case in his favor.
[DEFENSE COUNSEL]: Okay. Would you go in the jury room if he didn’t testify and say, if he was innocent, why didn’t he get up on the stand and say so, what’s he’s [sic] hiding, chances are, you know, he’s probably guilty?
MR. THIES: I would still have to base it upon the evidence that was presented.
[DEFENSE COUNSEL]: [H]ow [do] you feel about police officers versus civilians, do you think that police officers are less likely to lie under oath than civilians?
Can you still look at them and scrutinize their testimony but all things being equal, a police officer because they’re police officers are less likely to lie than civilian?
MR. THIES: To me that’s a difficult question because I would have to look at collaboration between the stories.
[DEFENSE COUNSEL]: Do you think that [a police officer taking an oath to swear to tell the truth is] less likely to lie; not be mistaken, but out and out lie. Do you think a police officer could do that?
MR. THIES: I think if he is a veteran on the force and he’s had a good record I would say he would be less likely to lie.
[DEFENSE COUNSEL]: Than a civilian?
MR. THIES: I couldn’t say that because I know there’s a difference in people.
[DEFENSE COUNSEL]: Okay.
MR. THIES: And I mean I really— this is the best answer that I could give.
[DEFENSE COUNSEL]: All right.
MR. THIES: Because everyone is different.
[DEFENSE COUNSEL]: That’s true. What if you hear from two people that are both saying opposite things and only one person is being truthful, the other person is lying. They both seem believable, the only difference that you can find is that one is a police officer and one of them isn’t.
Would you be more likely to think that that person who is a police officer is telling the truth?
MR. THIES: If the evidence is on his side I would say yes.
[DEFENSE COUNSEL]: Well, let’s say they’re both — you can’t tell, they both seem believable. The only difference is one of them is a police officer and one of them isn’t. Would you tend to give the one who is a police officer a little bit more credibility because he is a police officer?
MR. THIES: I could not really honestly say, I really can’t.

(emphasis added).

Defense counsel attempted to challenge Thies for cause, claiming that Thies repeatedly expressed a bias in favor of police credibility, and that he never indicated unequivocally that he could set aside this bias. The State opposed the challenge for cause claiming that Thies repeatedly stated that police officers were no more likely to tell the truth than civilians, and that he would have to hear the evidence and testimony before determining whom to believe. The trial court denied defense counsel’s motion to strike Thies for cause. Defense counsel exercised its last peremptory challenge on Thies. Defense counsel requested an extra peremptory challenge for juror Samson-Mojares, identifying Samson-Mo-jares as an objectionable juror. The trial court denied the request for an extra peremptory challenge and Samson-Mojares sat on the jury.

It is within the trial court’s province to determine whether a challenge for cause should be granted based on a juror’s competency, and such a determination will not be disturbed on appeal absent manifest error. Busby v. State, 894 So.2d 88, 95 (Fla.2004)(quoting Fernandez v. State, 730 So.2d 277, 281 (Fla.1999)); Morrison v. State, 818 So.2d 432, 442 (Fla.2002); State v. Williams, 465 So.2d 1229, 1231 (Fla. 1985); Mills v. State, 462 So.2d 1075, 1079 (Fla.1985). “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.” Busby, 894 So.2d at 95 (citing Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984)).

The trial court should excuse a juror for cause “if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Id. (citing Bryant v. State, 656 So.2d 426, 428 (Fla.1995); Hill v. State, 477 So.2d 553, 556 (Fla.1985)). A cause challenge should not be granted if the juror declares, and the court determines, that the juror “can render an impartial verdict according to the evidence.”. § 913.03(10), Florida Statutes (2003). Moreover, a juror should not be excused for cause merely because he/she gives equivocal responses. Busby, 894 So.2d at 96. Rather, the trial court should evaluate the questions posed to and the answers received from the juror to determine whether the juror’s' responses are “equivocal enough to generate a reasonable doubt” as to the juror’s fitness to serve. Id.

As long as there is support in the record for the trial court’s decision to deny a cause challenge, the decision will be upheld on appeal. Id. at 95 (citing Gore v. State, 706 So.2d 1328, 1332 (Fla.1997); Mendoza v. State, 700 So.2d 670, 675 (Fla.1997)). A trial judge has a unique vantage point from which to evaluate potential juror bias and make observations of the juror’s voir dire responses, which cannot be discerned by this court’s review of a cold appellate record. Morrison, 818 So.2d at 442; Mendoza, 700 So.2d at 675; Smith v. State, 699 So.2d 629, 635-36 (Fla.1997)(citing Taylor v. State, 638 So.2d 30, 32 (Fla.1994)). Furthermore, a trial judge has broad discretion regarding juror competency because “[t]he trial judge hears and sees the prospective juror and has the unique ability to make an assessment of the individual’s candor and the probable certainty of his answers to critical questions presented to him.” Williams, 465 So.2d at 1231.

Based on the record before us, we conclude that the trial court did not commit manifest error in determining that prospective juror Thies was competent to serve as a juror. See Williams, 465 So.2d at 1231. Viewing the voir dire questions and answers in their entirety, we conclude that Thies’ statements “reveal[] nothing more than an inclination toward law enforcement work and.upholding of the law.” See Skipper v. State, 400 So.2d 797, 798 (Fla. 1st DCA 1981), rev’d on other grounds, 420 So.2d 877 (Fla.1982); see also Peri v. State, 412 So.2d 367 (Fla. 3d DCA 1981)(holding that the trial court acted within its discretion in refusing a cause challenge against a prospective juror who indicated that he would give police testimony a little more credence and that his acquaintanceship with police officers would have “a little effect,” but who ultimately stated that he would keep an open mind and follow the instructions of law given by the court). The trial judge, who observed and evaluated Thies’ demeanor, was in the best position to determine whether or not it was necessary to disqualify Thies for cause. See Skipper, 400 So.2d at 798.

We note that Guzman’s reliance on Salgado v. State, 829 So.2d 342 (Fla. 3d DCA 2002) and Martinez v. State, 795 So.2d 279 (Fla. 3d DCA 2001) is misplaced as those cases are factually distinguishable. In Salgado, the prospective juror initially stated that, “all-things-' being equal,” he would give more weight to the testimony of a police officer than to the testimony of a civilian. Salgado, 829 So.2d at 343. After some discussion with the trial judge, the prospective juror indicated that there was probably no difference in the credibility of a police officer versus -a civilian. Id. Later, during questioning by defense counsel, the prospective juror indicated that if a police officer and a civilian are “looking at the same thing,” he would give more credence to the police officer because, from his experience, “the police officer may be a little more credible.” Id.

In Salgado, this court expressed concern about the prospective juror’s equivocal responses, which amounted to a “preconceived notion that a police officer’s testimony was automatically worthy of more credibility than a civilian witness.” Id. at 344-45 (emphasis added). We further stated that, “[e]ven when a prospective juror eventually states that he will follow the law, the court should grant a challenge for cause if it appears that the prospective juror is nevertheless not in the state of mind to do so.” Id. at 345.

Similarly, in Martinez, the prospective juror stated that the fact that his father had been a police officer for thirty years would affect how he viewed police officers. Martinez, 795 So.2d at 280. The prospective juror responded affirmatively when questioned whether he “might start off with the belief that” police officers are more credible. Id. The prospective juror later indicated that he could set aside his bias and follow the law. Id. at 280-81. Then, when questioned by defense counsel, the prospective juror repeatedly admitted that he would “usually try to give [police officers] the benefit of the doubt” and that, as an “impulse,” he would “straight out give them [the] benefit of the doubt” because of the nature of the job. Id. at 281. Subsequently, during a discussion with the trial judge, the prospective juror indicated that he would not believe a witness just because the witness was a police officer. Id. Yet the prospective juror went on the state that he would make his judgment based on the credibility of the witness “in lieu of the [witness’] job,” and that he may look at the witness’ “credentials on the force and whatnot.” Id.

The record in Martinez clearly established that, for every response given by the prospective juror that negated his bias, he gave another response that cast doubt on his ability to impartially evaluate police testimony. Id. at 282. The prospective juror gave contradictory answers that created a reasonable doubt as to his ability to set aside his preconceived notions and render an impartial verdict. Id. at 283.

The facts of the instant case do not rise to the level of potential juror bias that concerned this court in Salgado and Martinez. In the instant case, prospective juror Thies stated at the outset, “I wouldn’t say that I would always give [a police officer] credibility because, you know, he’s at a different angle.” Thies stated that he would be fair and that he would do the best he could. Throughout his voir dire responses, Thies consistently indicated that he would look for corroborative testimony and that he would expect to hear from both sides, but Thies stressed that he would ultimately base his decision “upon the evidence presented.” Thies also expressed the importance of juror impartiality. Moreover, when Thies’ responses are read in context and in their entirety, it is clear that Thies’ use of words such as “I think,” “I would try,” and “not necessarily,” do not establish that he was equivocal. Instead, a thorough reading of his record responses suggests that Thies used such terms when reasoning through his answers.

However, even assuming that Thies’ words tended to show equivocation, we conclude that the trial court did not commit manifest error in determining that Thies could render an impartial decision. See, e.g., Busby, 894 So.2d at 96 (holding that a juror need not be excused for cause merely because he gives equivocal responses). Again, we emphasize that the trial judge was in the best position to observe Thies’ demeanor, assess his candor, and determine whether Thies was impartial. After a thorough review of the record, we cannot find that the trial judge committed manifest error in determining that Thies was competent to serve as a juror. See, e.g., Morrison, 818 So.2d at 442 (holding that an appellate court must give deference to the trial judge’s determination of juror competency). Since we hold that Guzman failed to show manifest error, there is no basis for concluding that the trial judge erred in denying Guzman an extra peremptory challenge for juror Samson-Mojares. See Williams, 465 So.2d at 1281.

We affirm on all other issues raised on appeal.

Affirmed.


author: PER CURIAM.

text:
    James Howard STRAUSS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0115.
    District Court of Appeal of Florida, First District.
    April 5, 2006.
    Edwin S. Zeitlin, Pensacola, for petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence imposed on or about November 2, 2005, in Escambia County Circuit Court case number 05-350, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(B).

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Franklin Harrison ROTHAUSER, a/k/a Franklin Harrison Rothhauser, Appellee.
    No. 2D04-5515.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    Charles R. Mayer, Highland City, for Appellee.
   ALTENBERND, Judge.

The State appeals an order dismissing the information that charged Franklin Harrison Rothauser with driving while his license was permanently revoked in violation of section 322.341, Florida Statutes (2004). The trial court dismissed the information on the belief that the statute was unconstitutional as a result of a single subject violation that occurred in the process of its enactment. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). Although the trial court would have been correct had the issue arisen in Illinois, Florida follows the “codification” rule under which a single subject violation during the enactment of a law is cured by the legislature’s later act of adopting the law as an official statute that is published in the Florida Statutes. Because Mr. Ro-thauser allegedly violated this law after it had become an official statute, we must reverse the trial court’s ruling and reinstate the information.

Section 322.341 was enacted by the legislature as section 13 of chapter 98-223 of the Laws of Florida. In 2002, the Fifth District held that this law was unconstitutional as a violation of the single subject requirement. Fla. Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002). The Fourth District ruled that the statute was constitutional, and this court agreed with the Fourth District. Srnvyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002); Dep’t of Highway Safety & Motor Vehicles v. Scinta, 828 So.2d 486 (Fla. 2d DCA 2002). Thereafter, the supreme court resolved the conflict by approving the Fifth District’s decision and holding the statute unconstitutional. Critchfield, 842 So.2d 782. Thus, Mr. Rothauser would be correct that section 322.341 was unconstitutional at the time of his offense unless the defect in the law had been cured prior to that time.

By amending sections 11.2421 and 11.2422, Florida Statutes, the legislature regularly repeals every statute and simultaneously enacts a general revision of the laws of Florida and adopts those laws as the published “official statute law of the state under the title of ‘Florida Statutes (date).’ ” Although this process has traditionally occurred biennially, the 1999 amendment contained qualifying language that did not result in a reenactment of section 322.341, see ch. 99-10, Laws of Fla., and no enactment of a general revision occurred in 2001. The legislature did, however, formally adopt and enact the official statutes of Florida in 2003, including section 322.341. Ch.2003-25, Laws of Fla.

It has long been established in Florida that this legislative act of statutory adoption or codification cures any constitutional defect concerning the title of a law. State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804 (1945). The court in Badgett theorized that such an act, unconstitutional only due to a defect in title, was “not dead, only dormant.” Id. at 806. By drawing a somewhat artificial distinction between a law and a statute, this reasoning permits a “dormant” law to be transformed into a valid statute by the legislative act of codification. The First District has already decided that another section of chapter 98-223 was legally activated by the passage of chapter 2003-25 in 2003. Dep’t of Highway Safety & Motor Vehicles v. Fountain, 883 So.2d 300 (Fla. 1st DCA 2004). We must concur with the First District that the enactment of a “law,” i.e. chapter 2003-25, transformed an earlier unconstitutional law, chapter 98-225, into a constitutional statute under the rule established in Badgett. Thus, section 322.341 became a valid statute on July 1, 2003, and was effective on the date of Mr. Rothauser’s offense, June 28, 2004.

Mr. Rothauser’s attorney, Charles R. Mayer, has properly and fully disclosed this controlling law to the court.. In his brief, he confesses that he “would dearly love to fulminate against” this rule of law, but that the supreme court’s precedent is binding. It is worth noting that Mr. Mayer has a point, and that at least one state supreme court agrees with him.

The single subject requirement in article III, section 6, of the Florida Constitution has three well-recognized purposes:

(1) to prevent hodge podge or “log rolling” legislation, i.e., putting two unrelated'matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the titles- gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon.

State ex rel. Flink v. Canova, 94 So.2d 181, 184 (Fla.1957) (citing Thomas M. Cooley, A Treatise on the Constitutional Limitations 141-46 (3d ed. 1874); see also State v. Thompson, 750 So.2d 643, 646 (Fla.1999) (citing Flink, 94 So.2d at 184)). Invariably, “logrolling” seems to be the first evil that courts and commentators rely upon in explaining the wisdom of this constitutional requirement, which is common in state constitutions. See State v. Johnson, 616 So.2d 1 (Fla.1993); State v. Lee, 356 So.2d 276 (Fla.1978); State v. Leavins, 599 So.2d 1326 (Fla. 1st DCA 1992); see also Tim Nelson, A Victory for Judicial Restraint, 40 Ariz. Att’y 36 (2004); John J. Kulewicz, The History of the One-Subject Rule of the Ohio Constitution, 45 Clev. St. L.Rev. 591 (1997).

“Codification” rules or exceptions, like the one adopted in Badgett, delay the effective enactment of a law and give the public more time to discover the law and abide by it. Thus, a codification rule can be seen as a remedy for the third purpose of the single subject rule as explained in the above-quoted language. Arguably, such a rule serves some remedial function for the second purpose. But the wholesale reenactment of the laws of Florida by amending section 11.2421 is undeniably the ultimate act of logrolling; thus, it cannot serve as a remedy to cure logrolling.

In 1999, the Supreme Court of Illinois was urged by the State in a criminal proceeding to adopt a codification rule comparable to the rule in Iowa and Florida. People v. Reedy, 186 Ill.2d 1, 237 Ill.Dec. 74, 708 N.E.2d 1114 (1999). After a lengthy analysis of the issue, the court refused to adopt the codification rule, explaining, “In our view, a codification rule would unjustifiably emasculate the single subject rule in Illinois, and we, therefore, reject such a proposition.” Id. at 1120.

Judicial remedies are often affected by the paradigm we use to make decisions. It is rare for lawyers or judges to envision a law or some other legal right or obligation as “dormant.” More often, we think of legal rights or obligations being “void” or “voidable.” If laws unconstitutionally enacted as a result of single subject violations were viewed as “void” from their inception, then it is obvious that they would need to be reenacted in a constitutional manner by a new bill with a single subject before they could ever be treated as constitutional. If they were viewed as “voidable,” then presumably any judicial determination voiding the law within an applicable period of time would require the legislature to reenact the law in a constitutional manner by a new bill with a single subject. Such reenactment has occasionally occurred in Florida. See Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991). On the other hand, so long as this constitutional violation is deemed to place the law into a dormant status, like a hibernating bear awaiting the spring, then the rule announced in Badgett has a degree of logic, even if it does not solve the primary evil intended to be addressed by the constitutional requirement of single-subject legislation. At this point, Florida law is controlled by the paradigm of dormancy, and we must reverse the trial court’s order of dismissal.

Reversed and remanded.

SALCINES, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . The disadvantage of viewing such unconstitutional laws as void from their inception is that a void law might logically be subject to challenge in court even years or decades after its enactment.

      . An interesting example results from our decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), where we held that chapter 99-188 violated the single subject requirement. Before the supreme court reversed Taylor, see Franklin v. State, 887 So.2d 1063 (Fla.2004) (holding that chapter 99-188 does not violate the single subject requirement), the legislature divided most of chapter 99-188 into five separate bills. Chs.2002-208, 2002-209, 2002-210, 2002-211, 2002-212, Laws of Fla.


author: WARNER, J.

text:
    Bruce HAY, Appellant, v. Renee HAY, Appellee.
    No. 4D04-4734.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Martha S. Eskuchen, Juno Beach, for appellant.
    James R. Quick and Jaime A. Quick, Jupiter, for appellee.
   WARNER, J.

The husband appeals a final judgment which awarded the wife one-half of all of the assets titled in either the husband’s name or the parties’ names jointly. The court found that the husband has commingled his considerable wealth acquired prior to this four-year marriage into joint accounts with his wife. For the most part, we agree with the trial court that the premarital assets which flowed into joint accounts lost their non-marital character. Thus, we affirm the final order, except to the extent that the trial court is directed to reconsider its distribution of a few assets, as discussed more fully below.

The husband, age 70 at the time of dissolution, married the wife, age 45, in 2000 in Minneapolis, where the husband had considerable financial success. The parties had cohabited off and on since 1992. The wife was a hairdresser and quit her job when she married the husband. Together with her two children from a prior marriage, the parties moved to Florida. The husband had three children from his first marriage, all of whom were adults. The wife filed for divorce four years after the marriage.

The main issues on appeal in this case relate to the identification of marital assets and non-marital assets and the equitable distribution of the marital assets. The husband claimed that because all of the money used to purchase joint assets came from his pre-marital assets, everything owned by him or the parties jointly were non-marital assets. The wife, on the other hand, contended that his pre-marital assets became so commingled with their joint assets that they have lost their character as non-marital assets. The trial court agreed with the wife. Except for a few assets, which we will discuss, we agree.

The husband had considerable assets prior to marriage. In opening statement, the husband’s attorney stated that the husband came into the marriage with about $2,250,000 in assets. Unfortunately, a concise picture of his pre-marital assets was never revealed. We can glean from the testimony that his most significant asset was a mobile home park in Minnesota that he sold to his sons prior to retirement. He also owned a home in Minnesota, although there was some dispute whether this was also owned by the wife, as her name was on some of the title documents and they had cohabited there for several years. He owned a large motor home which he later sold to his sons. It is unclear what other assets were owned.

When the parties married, they moved to Florida. With the husband’s pre-marital funds they purchased a home in Jupiter and took title in the names of both husband and wife. The home was purchased and then improved. Section 61.075(5)(a)(5), Florida Statutes, provides that all real property held by tenants by the entireties is presumed to be a marital asset, and if a person claims a special equity in the property, the burden is on that party to prove the claim. The husband successfully showed that the money to purchase the property came from his non-marital funds. He also had to show that no gift was intended. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991). He testified that he did not intend a gift of the property to the wife. According to the husband, he placed the wife’s name on the deed merely to ensure that she could have the property if something happened to him. The husband testified that jointly titling the home would effectuate this goal without requiring him to place the property in a revocable trust which he had established for estate planning purposes. However, his testimony was countered by her testimony that he told her that, “This is our house,” and that he had purchased it for the two of them and her children. She denied that she understood that she only had a claim to the property if he died. This denial makes this case distinguishable from Hill v. Hill, 675 So.2d 168 (Fla. 5th DCA 1996), upon which the husband relies. There, both the wife and the husband testified to their understanding that the wife’s name was on the deed so that she would get the property in the event of the husband’s death.

In this case, the court listened to the wife and the husband testify at length regarding the acquisition of the home. The trial court is the judge of the facts and the credibility of the witnesses. Santiago v. State, 889 So.2d 200, 203-04 (Fla. 4th DCA 2004) (quoting Holden v. State, 877 So.2d 800, 801-02 (Fla. 5th DCA 2004)) (“[T]he role of the trial court is to weigh the credibility of witnesses and to resolve evi-dentiary conflicts, and on truly discretionary matters, the appellate court must recognize the trial court’s superior vantage point.”). We cannot conclude that the trial court abused its discretion in determining that the husband failed to carry his burden of proving no gift was intended. Therefore, the court acted within its discretion in concluding that the home was a marital asset.

About two years after the home was purchased, the parties signed a second mortgage line of credit on the home. The husband then used these monies, and others, to day trade in the stock market and to cover some household expenses. In addition to the day trading, part of these monies were used to purchase gold coins. Because the house was a marital asset, so too was the income received from the loan against the home. See § 61.075(5)(a)1., Fla. Stat. To the extent that these monies purchased other assets in the husband’s name alone, these too were properly characterized by the trial court as marital assets.

During the marriage, the husband received substantial amounts of money from the refinancing of the mobile home park in Minnesota, admittedly a non-marital asset. These monies were deposited in the parties’ joint account, from which they paid all of their living expenses. Most of the husband’s investment money went in and out of this account, as did monies from the line of credit on the marital home. At one point, the husband transferred nearly $500,000 into the joint account from the refinancing and then transferred $800,000 out to a Scott Trade account that also received infusions of money from the line of credit on the home. Thus, even though the trading account was in the husband’s name, it commingled marital funds from the line of credit as well as non-marital funds from the refinancing. The court did not err in determining that the funds were sufficiently commingled so as to lose their non-marital status. See Lakin v. Lakin, 901 So.2d 186 (Fla. 4th DCA 2005); Williams v. Williams, 686 So.2d 805 (Fla. 4th DCA 1997).

We do, however, believe that the court may have made a double award of the value of the Scott Trade account, because it also made an award of several specific stocks which, as we read the evidence, are simply the stocks in the Scott Trade account. We thus reverse and remand to reconsider the award of the stocks and Scott Trade account and for the trial court to delete the award of the stock or the trade account to the extent that they are the same assets.

We find no abuse of discretion in the trial court’s disposition as to the parties’ personal property, but we agree with the husband that the wife’s $3,000 IRA was a marital asset subject to equitable distribution. See § 61.075(5)(a)3., Fla. Stat. (2004).

We also agree with the husband that the trial court erred in its valuation of the parties’ joint Bank of America account where the wife admitted that she withdrew approximately $2,400 from this account on the day she filed for dissolution. Because this joint account was a marital asset, we direct the trial court on remand to treat the amount withdrawn as marital monies subject to equitable distribution.

We do not find any error in the remaining issues raised.

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

KLEIN, J., and BAILEY, JENNIFER D., Associate Judge, concur.

      . At the final hearing, the trial court refused to allow the testimony of the husband's adult children as to the husband’s intent regarding the marital home and the trust, sustaining the wife’s hearsay objections. On appeal, the husband now argues that the trial court erred by excluding the testimony because declarations of donative intent are admissible as hearsay exceptions under section 90.803(3)(a), Florida Statutes. We find that this issue was not properly preserved, as the husband did not raise this precise argument for admissibility below. Carabella v. State, 727 So.2d 270, 271 (Fla. 4th DCA 1999) ("Appellant argues that the trial court erroneously excluded certain testimony upon the state's hearsay objection. By not raising in the trial court those arguments for admissibility now raised on appeal, appellant failed to preserve his contention that the excluded statements were non-hearsay or that they fell within some exception to the hearsay rule.”).


author:
KNOLL, Justice.
     11 KNOLL, Justice,

text:
    Michael D. HAMILTON v. ROYAL INTERNATIONAL PETROLEUM CORPORATION and Elmer B. Litchfield, Sheriff and Tax Collector of the City of Baton Rouge.
    No. 2005-C-846.
    Supreme Court of Louisiana.
    Feb. 22, 2006.
    Rehearing Denied June 30, 2006.

      Breazeale, Sachse & Wilson, Charles G. Blaize, Jr., Houma, for Applicant.
    Hebert, Spencer, Cusimano & Fry, V. Charles Cusimano, Greco & Greco, Leu Anne Greco, McGlynn, Glisson & Koch, Daniel J. McGlynn, Baton Rouge, for Respondent.
    Thomas Allen Usry, John Franklin Weeks, II, Craig Edmond Frosch, New Orleans, for Sheriffs’ Association Inc. Ami-cus Curiae.
    Jack Ashton Grant, Oldlen Charles Toups, Jr., Gretna, Martin E. Landrieu, Suzanne Karen Scalise, New Orleans, for Cox Communications Louisiana L.L.C. Amicus Curiae.
   KNOLL, Justice.

11 This case concerns whether a tax sale for delinquent taxes on immovable property should be annulled for failure of the Sheriff, as Ex Officio Tax Collector, to send a notice to the taxpayer informing him, inter alia, of the manner in which the property may be redeemed, as mandated by La.Rev.Stat. 47:2180 A(l)(b). While the tax sale was properly noticed and executed, the Legislature subsequently amended the law before the three year peremptive period had ended for plaintiff, Michael D. Hamilton, to redeem his property. This change in the law calls into question the validity of the tax sale. The trial court found the tax sale valid. The court of appeal reversed. For the following reasons we reverse the court of appeal, finding the failure to send plaintiff the post-tax sale notice mandated by La.Rev. Stat. 47:2180 A(l)(b) after the properly noticed tax sale and execution thereof does not violate due process, as he was afforded an opportunity to be heard at a meaningful time and in a meaningful manner before the tax sale and further, neither does the statute require annulling the tax sale as a penalty for failing to send such a notice.

| ¡.FACTS AND PROCEDURAL HISTORY

Plaintiff, Michael D. Hamilton, owned a residence in Baton Rouge, Louisiana that he had inherited from his father and lived in all of his life. A tax notice was sent to him for 1994 city/parish ad valorem taxes on the property, which he failed to pay. In April 1995, a notice of tax delinquency was sent to him by certified mail. Mr. Hamilton signed a return receipt indicating receipt of the notice. This notice advised plaintiff that if the delinquent taxes were not paid within twenty days from the date of the notice, the sheriff and tax collector would seize, advertise and sell sufficient property to pay the taxes together with all interest, penalties and costs. The taxes remained unpaid, and the property was advertised for sale. On June 12, 1995, the property was sold at a tax sale to Royal International Petroleum Corporation (RIPCO) for $71.68, consisting of $27.09 in unpaid taxes, interest of $1.59 and costs of $43.00. The sheriff executed a tax deed in RIPCO’s name, which was recorded on June 30, 1995. The record shows RIPCO paid the ad valorem taxes assessed for this property for the years of 1995,1996,1997,1998 and 1999.

During the three year peremptive period Mr. Hamilton could redeem his property, the Legislature changed the law to require notice during this period to inform the property owner of the manner in which the property could be redeemed. Prior to this change in 'the law, the tax collector was not constitutionally or legislatively required to send this post-tax sale notice. At the time of the tax sale, La.Rev.Stat. 47:2180 provided, in relevant part:

§ 2180 Immovable property, notice of delinquency
A. On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer Who has not paid |sall the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, ■ or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population over fifty thousand persons, the tax collector may either send this notice by certified mail or make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debt- or’s property in the advertising required for unknown owners in Subsection C of this Section....
C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all unknown owners of assessed immovable property situated in his parish, and to nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish', then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication, and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.

In Act 1997, No. 984, the Legislature amended this, statute, designating subsection A as subparagraph A(l)(a) and adding subparagraph A(l)(b) and paragraph A(2). The amendment added the following pertinent provision:

(b) On the second day of January of each year, or as soon thereafter as possible, in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph (a) herein, the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property a written notice in the manner provided herein. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. The notice shall be made each year until the property is no longer redeemable as provided in Article VII, Section' 25(B) of the Constitution of Louisiana. The cost of mailing the notice shall be considered cost for purposes of redemption.

Act 984 did not provide a specific effective date and thus, became effective on RAugust 15, 1997, the general effective date for acts of the 1997 Regular Session.

The three year peremptive period to redeem the property at issue expired on June 30, 1998. RIPCO’s agent, Irion Bordelon, telephoned Mr. Hamilton in 1998 and informed him RIPCO had purchased his property at tax sale. It was disputed at trial when this conversation occurred and whether Mr. Bordelon informed Mr. Hamilton of his right to redeem the property and the amount necessary to do so. After the three year period to redeem the property had prescribed, RIPCO offered to convey the property by quitclaim deed to Mr. Hamilton for $2,555.24. An invoice dated January 1, 1999, was sent to Mr. Hamilton from RIPCO for this amount. The offer was not accepted, and plaintiff filed suit to annul the tax sale.

After trial on the merits, the trial court rendered judgment in favor of the defendants, dismissing the suit with prejudice, at plaintiffs cost. In oral reasons for judgment, the court stated to retroactively apply La.Rev.Stat. 47:2180 A(l)(b) or to penalize RIPCO for the sheriffs failure to comply with La.Rev.Stat. 47:2180 A(l)(b) was not appropriate. The trial court seemed to have much sympathy for the plaintiff, but found it was compelled by the constitution and statutes to uphold the tax sale.

A majority of the First Circuit Court of Appeal, sitting en banc, reversed. The court held application of La.Rev.Stat. 47:2180 A(l)(b) did not operate retroactively because it neither evaluates the condition of a past act nor modifies or suppresses the | ^effects of a right already acquired. The court further held the tax collector’s failure to give the notice statutorily mandated in La.Rev.Stat. 47:2180 A(l)(b) rendered the tax sale a nullity. We granted Royal International Petroleum Corporation’s writ to further review this important issue. Hamilton v. Royal Int’l Petroleum Corp., 05-846 (La.6/3/05), 931 So.2d 1091.

DISCUSSION

The First Circuit Court of Appeal employed a two-step analysis in annulling the tax sale. The court of appeal first examined whether La.Rev.Stat. 47:2180 A(1)(b) was operating retroactively if applied to a tax sale that occurred prior to its enactment. Determining La.Rev. Stat. 47:2180 A(1\)(b) did not operate retroactively because it neither evaluates the condition of the legality of a past act nor modifies or suppresses the effects of a right already acquired, the court continued with the second step of the analysis. The second step of the analysis focused on whether the tax collector’s failure to perform its mandatory duty entitled the plaintiff to annulment of the tax sale. The majority of the court of appeal implicitly found Louisiana’s constitutional due process tolerated “nothing less than strict compliance with the procedures involved in divesting someone of his property.” Hamilton v. Royal Int’l Petroleum Corp., 03-2660, p. 8 (La.App. 1 Cir. 3/2/05), 906 So.2d 627, 633, quoting United Fin. Group, Inc. v. Davis, 481 So.2d 726, 729 (La.App. 1 Cir.1985). Finding no error in the court of appeal’s determination that this statute did not evaluate the conditions of the legality of a past act or disturb, modify or suppress any acquired or vested right and thus, was not operating retroactively, we pretermit discussion of this issue. However, we find the court of appeal erred in finding due process further requires this post-tax sale notice, when the plaintiff had already been afforded an opportunity to be heard at a meaningful time and in a meaningful manner before he | fiwas divested of his property. Thus, the tax sale should not have been annulled.

We begin by noting that although the Legislature amended La.Rev.Stat. 47:2180 to require mandatory post-tax sale notice to the tax debtor, the Legislature did not provide a penalty if the required notice was not sent. Thus, in resolving whether we should annul this tax sale, we look to what due process is required during the three year peremptive period.

The Louisiana Constitution provides, in pertinent part:

(A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales....

La. Const. Art. VII, § 25(A)(1).

It is well settled the giving of notice of delinquency required by the Louisiana Constitution and La.Rev.Stat. 47:2180 is mandatory and failure to give this notice is constitutional grounds for the annulment of the sale. Childress v. Johnson, 387 So.2d 1217, 1219 (La.App. 1 Cir.1980), writ denied, 393 So.2d 744 (La.1980); Garry v. Zor, Inc., 181 So.2d 828, 832 (La.App. 4 Cir.1966); Doll v. Montgomery, 58 So.2d 573, 576 (La.App.Orleans 1952); Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818, 820-821 (1950), cert. denied sub nom. Cortinas v. Di Giovanni, 340 U.S. 801, 71 S.Ct. 46, 95 L.Ed. 589 (1950); Jones v. Curran, 156 La. 1055, 101 So. 415, 416 (1924).

Under both federal and state constitutional mandates, notice to a property owner of the potential loss of his property is a matter of due process. Giordano v. MacDonald, 98-2035, p. 6 (La. App. 4 Cir. 3/10/99), 729 So.2d 760, 762, unit denied, 99-0986 (La.6/18/99), 745 So.2d 22 (citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)). Although Mennonite concerned the due process rights of a mortgagee with respect to notice of a tax sale, its holding and ratio decidendi are applicable to the due process rights of the property owner. Prior to an action which will affect an interest in life, liberty or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide “notice reasonably calculated, under all circumstances, to apprise interested persons of the pendency of the action and afford them an opportunity to present their objections.” Mennonite, 462 U.S. at 795, 103 S.Ct. at 2709 (quoting Mulleme v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). The Court held:

Since a mortgagee has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale. Cf. Wiswall v. Sampson, 14 How. 52, 55 U.S. 52, 67, 14 L.Ed. 322 (1852). When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.
Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711.

Although the notice to the property owner informing him that his taxes are delinquent and his property will be sold if the taxes are not paid is clearly required by La. Const. Art. VII, § 25(A) and the Due Process Clauses of both the federal and state constitutions, it does not necessarily follow that subsequent post-tax sale notice, such as provided for in La.Rev.Stat. 47:2180 A(l)(b), is constitutionally mandated.

In the case sub judice, the court of appeal found the tax collector’s failure to provide the post-tax sale notice mandated in La.Rev.Stat. 47:2180 A(1)(b) resulted Lin a fatal defect in the proceedings such that the sale was a nullity. The court found its conclusion was supported by the holding in United Fin. Group, Inc. v. Davis, 481 So.2d 726 (La.App. 1 Cir.1985). That case concerned a tax collector’s failure to give a statutorily required post-adjudication notice to two tax debtors whose property was adjudicated to the state for unpaid taxes. It was undisputed the required notices of delinquency and impending sale were properly given by the tax collector prior to the property being offered at tax sale. The tax debtors sought to annul the tax sale because of the tax collector’s failure to notify them of the adjudication as mandated by La.Rev.Stat. 47:2186. In affirming the trial court’s judgment annulling the tax sale, the United court held La. Const, art. I, § 2 tolerates nothing less than strict compliance with the procedures involved in divesting someone of his property. United, 481 So.2d at 729.

After careful and studied review, we find the statutory requirement for post-tax sale notice specifying the property upon which the taxes were delinquent, the amount of taxes due and the manner in which the property may be redeemed is not necessary to satisfy due process. The United court provided no authority to support its extension of due process, and this was the sole authority the court of appeal relied upon to find the instant tax sale was a nullity for the tax collector’s failure to provide the notice mandated by La.Rev. Stat. 47:2180 A(l)(b). Although it is well established that proof of an inadequate property description, deficient advertisement, or improper notice of delinquency is sufficient to nullify a tax sale, United, 481 So.2d|flat 729, the strict compliance is with regard to the initial notification of delinquency and pending sale. See La. Const. Art. VII, § 25(A)(1); La.Rev.Stat. 47:2180 A(l)(a).

Under the Fourteenth Amendment to the United States Constitution and La. Const. Art. I, § 2, a person is protected against a deprivation of his life, liberty or property without “due process of law.” Fields v. State through Dep’t of Public Safety and Corrections, 98-611, p. 6 (La.7/8/98), 714 So.2d 1244, 1250. The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Attain v. Marico P’ship, 02-1796, p. 6 (La.5/23/03), 851 So.2d 974, 979; Fields, 98-611 at p. 6, 714 So.2d at 1250. Our Constitution, La. Const. Art. VII, § 25(A), and our statutes, La.Rev. Stat. 47:2180 A(1)(a), provide for notice, mandated by due process guarantees, to a property owner whose property will be sold at a tax sale to satisfy the debt of unpaid ad valorem taxes. Whether a tax collector has properly notified a delinquent taxpayer of the impending sale, fundamental to the person’s protection against deprivation of his property without due process of law, must be closely scrutinized by our courts should the notice be challenged. But we can find no authority to extend this due process right to a subsequent notice post-tax sale. The notice informing the property owner his taxes are delinquent and his property will be sold if the taxes are not paid protects the procedural due process rights of the property owner and affords him the opportunity to be heard at a meaningful time and in a meaningful manner prior to the sale of his property. The post-tax sale notice mandated by La. Rev.Stat. 47:2180 A(1)(b) does not concern an opportunity to be heard at a meaningful time and in a meaningful manner; that time was prior to the tax sale, before he was divested of his property.

It is undisputed the tax collector was in strict compliance in notifying Mr. ImHamilton of his delinquent property taxes and the pending sale if the delinquent taxes were not paid. The tax sale met all well established due process requirements. To now hold due process was not met because a post-tax sale notice was not sent would be adding requirements that are not fundamentally established to meet due process. The opportunity for Mr. Hamilton to be heard at a meaningful time and in a meaningful manner was before he became divested of his property. At the tax sale, Mr. Hamilton became divested of his property in strict compliance with his due process rights. We do not find fundamental due process is further required to inform him that, in his case, he may redeem his property for a period of less than one year. We are further buttressed in this finding by noting the Legislature did not require as a penalty that the tax sale be annulled if the post-tax sale notice is not sent and neither is it required in our constitution.

We now extend our discussion to determine whether any statutory remedy was supplied by the Legislature for the tax collector’s failure to comply with the mandated requirement of post-tax sale notice.

The starting point for the interpretation of any statute is the language of the statute itself. Richard v. Hall, OS-1488, p. 22 (La.4/23/04), 874 So.2d 131, 148; SWAT 21p Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See La. Civ.Code. Ann. art. 9; La.Rev.Stat. 1:4. Courts are not free to rewrite laws to effect a purpose that is not otherwise expressed. Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479, p. 4 (La.6/30/00), 764 So.2d 41, 44; White v. Wal-Mart Stores, Inc., 97-393, p. 4 (La.9/9/97), 699 So.2d 1081, 1084.

InA plain reading of La.Rev.Stat. 47:2180 does not provide any penalty or remedy should the tax collector fail to perform his mandatory duty to provide the post-tax sale notice. We are not unmindful that the word “shall”, for purposes of statutory construction, denotes a mandatory duty. La.Rev.Stat. 1:3, Ray v. South Central Bell Tel. Co., 315 So.2d 759, 761 (La.1975). However, statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done. Sanders v. Dep’t of Health & Human Resources, 388 So.2d 768, 770 (La.1980). Enacting La.Rev.Stat. 47:2180 A(1)(b), the Legislature has prescribed a mandatory duty for the tax collector, but has not prescribed a result of nullity of the tax sale if the tax collector fails to give the post-tax sale notice. In a recent opinion we observed it is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so. Carter v. Duke, 05-CC-390, p. 10 (La.1/19/06), 921 So.2d 963. Although the language of La.Rev.Stat. 47:2180 does not provide that a tax sale shall be annulled if the tax collector fails to give the mandatory notice of delinquency and impending sale, the resulting nullity for failure to provide that notice is mandated by well established due process requirements.

Further support for our determination can be found in an earlier pronouncement from this Court. Act No. 88 of 1888 and Act No. 170 of 1898 prohibited notaries from passing acts of sale of real estate unless proof was attached in the form of a receipt or certificate from the tax collector as evidence of the payment of the taxes. Act No. 170 of 1898 further provided the imposition of a fine on the recorder or notary who violated the prohibition. Plaintiff sought to annul two sales of property alleging, inter alia, that the notary failed, before passing the acts, to require proof of the payment of the taxes. Although this Court found that argument without merit, this |12Court noted “[i]f the lawmaker had intended, as an additional penalty, upon the parties thereto, that the sales should be stricken with nullity, he would, no doubt, have so written it in the law. As it is, the courts have no authority to supply it.” Putnam & Norman v. Cooper, 127 La. 498, 53 So. 731 (1910).

CONCLUSION

In conclusion, we find the court of appeal erred in annulling the tax sale for the failure of the tax collector to provide the post-tax sale notice mandated by La.Rev. Stat. 47:2180 A(1)(b). The Louisiana Constitution and the Due Process clauses of both the federal and state constitutions require notice be given to a property owner before his property is sold at a tax sale. It was undisputed that plaintiff herein received actual notice of the impending tax sale of his property. However, we decline to extend due process requirements to find that a post-tax sale notice is further required. Due process fundamentally requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before the state deprives the person of property, which was done in this case.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed and set aside. The district court judgment dismissing the suit, with prejudice, is reinstated.

REVERSED.

JOHNSON, J., dissents.

KNOLL, J., additionally concurs with reasons.

11 KNOLL, Justice,

additionally concurs.

I write separately to note that my dissent in Carter v. Duhe, 05-CC-390, (La.1/19/05), 921 So.2d 963, is distinguishable from the holding in Hamilton v. Royal Int'l Petroleum Corp., 05-C-846 (La.2/22/06). At issue in Carter was Louisiana’s New Home Warranty Act (“NHWA”), specifically, two mandatory provisions of that act that came into conflict. In my view, the two conflicting provisions of the NHWA required a search for their meaning by examining the context in which they occurred and the text of the law as a whole. The ease sub judice, however, does not concern the reconciliation of two mandatory provisions. Under both federal and state constitutional mandates, notice to a property owner of the potential loss of his property is a matter of due process. Therefore, failure of the tax collector to give the notice mandated by La.Rev.Stat. 47:2180 A(l)(a) must result in the nullity of the tax sale, as this notice is constitutionally required. Unlike the two mandatory provisions at issue in Carter, supra, the two mandatory provisions of La.Rev.Stat. 47:2180, notice of impending sale to the delinquent taxpayer and post-tax sale notice, do not come into conflict. The Legislature prescribed a mandatory duty for the tax collector to give a post-tax sale notice, but the Legislature 1?did not prescribe a result of nullity should the tax collector fail to give the post-tax sale notice. The courts have no authority to supply the penalty.

       Retired Judge Robert Klees assigned as Associate Justice ad hoc, sitting for Associate Justice Chet D. Traylor, recused.

      . The property was described in the tax notice and the tax deed as follows: Lot 12 Sq. 7 Roseland Terrace, 40 Ft., N. Side Cherokee St. X 120 Ft. Land, 1000 Imp. 1790. 1982 (P-40, 988), E. 10 Ft. Lot 13 Sq. 7 Roseland Terrace, 10 Ft. N. Side Cherokee X 120 Ft. Land 250

      . The invoice provides the following itemization:
      Taxes and Interest $1555.24
      Legal Fees $ 350.00
      Research of Conveyance & Mortgage Records $ 150.00
      Time and Expense for Tax Payment (4 years) $ 350.00
      Profit on Investment $ 150.00
      $2554.24

      . La. Const, art. VII, § 25(B)(1) provides:
      The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
      This three year period is peremptive and cannot be suspended or interrupted. Harris v. Estate of Fuller, 532 So.2d 1367, 1369 (La. 1988).

      . La.Rev.Stat. 47:2186 provides, in relevant part:
      ... The tax collector shall, immediately after adjudication to the state, or at as early a date thereafter as possible notify the tax debtor in writing whether by actual service in case of residents, by mail in case of nonresidents whose post office address is known, and by one publication in a newspaper of the parish wherein he exercises his function in case of unknown owners and nonresidents whose post office address is unknown, that within thirty days he will take actual corporeal possession of the property so adjudicated....


text:
    In re the Texas Matter of The Marriage of Vesta L. KUNTZ and Hal M. Kuntz and In the Interest of Vesta M. Kuntz, Minor Child.
    No. 2006-C-0487.
    Supreme Court of Louisiana.
    May 26, 2006.
   PER CURIAM.

Writ granted. The judgments of the trial court and the court of appeal are reversed. Because the Louisiana statutes on discovery, La.Code Civ. Proc. art. 1420 et seq., are derived from the federal rules and contain many similar provisions, Louisiana courts construing the Louisiana discovery provisions have frequently relied on federal jurisprudence under analogous federal provisions as persuasive authority. Hodges v. S. Farm, Bureau Cas. Co., 433 So.2d 125, 129 (La.1983). Once a party establishes the information sought is a trade secret and that its disclosure might be harmful, the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary. Centurion Indus., Inc. v. Warren Steurer and Associates, 665 F.2d 323, 325 (10th Cir.1981), Cmedia, L.L.C. v. Lifekey Healthcare, L.L.C., 216 F.R.D. 387, 390-391 (N.D.Tex.2003). This matter is remanded to the trial court for the trial court to make specific findings that the party seeking discovery of trade secrets has met her burden of showing the requested information is both relevant and necessary to her claim. The court is directed to make specific findings of relevance and necessity for each disputed discovery request. La.Code Civ. Proc. art 1422 (Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.).


text:
    In re Pamela Viney MATHEWS.
    No. 2005-OB-0214.
    Supreme Court of Louisiana.
    June 21, 2006.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Pamela Viney Mathews, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Pamela Viney Mathews, Louisiana Bar Roll number 20942, be and she hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana