text:
    Douglas CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4898.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Douglas Castillo, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Douglas Castillo, convicted of one count of DUI manslaughter and one count of DUI with great bodily harm, appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850 (2006), in which he raised six grounds claiming his trial counsel was ineffective. We agree that an evidentiary hearing is necessary on three of the grounds raised in the postconviction motion, and reverse the summary denial as to these grounds, but as to these grounds only.

The trial court initially considered the appellant’s postconviction motion and ordered an evidentiary hearing on one of the grounds. For unexplained reasons, this hearing never took place, and the trial court later rescinded its order for the evi-dentiary hearing and summarily denied the final ground, too. The question originally set for hearing was whether trial counsel was ineffective for failing to pursue evidence that the appellant was not intoxicated at the time of the accident, but that alcohol he drank near the time of the accident accounted for the blood alcohol content of a sample taken two hours after the accident, which indicated intoxication at that time.

We agree with the trial court’s initial determination that the appellant stated a facially sufficient claim that counsel was ineffective on this ground and is entitled to an evidentiary hearing on this issue, absent refutation by additional record attachments. See Fla. R.Crim. P. 3.850(d) (2006). See also Parker v. State, 904 So.2d 370, 376 (Fla.2005) (“As a general proposition, a defendant is entitled to an eviden-tiary hearing on any well-pled allegations in a motion for postconviction relief unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.”). The trial court found that the claim was refuted by the record because this argument would have been contrary to his defense at trial, which was that he had not been drinking at all. Contrary to the trial court’s assertion, however, nothing in the five pages of trial transcript attached to the denial of the postconviction motion conclusively refutes the appellant’s claim. The appellant’s claim is that a different defense theory should have been presented, and that this theory would have been consistent with other evidence presented at trial. Thus, insofar as the order under review and its attachments reveal, an evi-dentiary hearing is necessary to determine whether trial counsel was ineffective for failing to pursue this alternative defense theory.

The trial court also rejected the appellant’s claim that counsel was ineffective for failing to object to testimony given and medical records made by a nurse, who was not qualified as an expert, that the appellant exhibited “Horizontal Gaze Nystagmus” (HGN), a condition evidencing intoxication. The appellant is correct that such opinion testimony requires an expert witness. See State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996) (“The HGN test results should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence. Thus, although the evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the jury requires the exclusion of the HGN test evidence unless the traditional predicates of scientific evidence are satisfied. If the state cannot present evidence to demonstrate compliance with [the predicates for the introduction of scientific evidence], then the HGN test evidence should be excluded.”). There is nothing in the attached record to indicate that the nurse in this case was an expert qualified to testify as to the HGN. In addition, although medical records are admissible under the business records exception to the hearsay rule, see Love v. Garcia, 634 So.2d 158, 159-60 (Fla.1994), a judge should exclude these records when it is shown that the records are not trustworthy. Id. The appellant contends that trial counsel should have objected to the admission of the nurse’s records on grounds they were untrustworthy, and argued that the nurse was not an expert qualified to give her opinion as to whether the appellant was intoxicated based on the result of the HGN test.

The trial court concluded that other evidence of intoxication, chiefly the blood alcohol content test, was dispositive, making admission of the nurse’s testimony and the medical records containing her opinions nonprejudicial. Absent record refutation, an evidentiary hearing on these issues may be necessary, however, because trial counsel did not pursue the theory that alcohol consumption after the accident accounted for the blood alcohol content at the time of testing. Without an evidentiary hearing or record refutation, it would be inappropriate, given appellant’s theory of ineffective assistance set out above, to rely on evidence of his blood alcohol content two hours after the accident to find that the nurse’s lay opinion regarding HGN was not prejudicial.

Accordingly, summary denial of the postconviction motion is reversed, and the case is remanded for the trial court to hold an evidentiary hearing on these claims, or attach portions of the record that conclusively refute the claims.

REVERSED and REMANDED.

BROWNING, C.J., BENTON, and LEWIS, JJ., concur.

       For example, there was testimony by witnesses who smelled alcohol on the appellant’s breath and testimony that he was drinking while in the car (which could account for his blood alcohol level when tested without his being intoxicated at the time of the accident, as he claims).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel Mojica ANTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5822.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Jack Behr, Public Defender, and Karl Labertew, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Manuel Mo-jica Anton is hereby afforded a belated appeal from judgment and sentence in case number 06-1631CFA and 06-1825CFA in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    Jennifer Rose BAGGETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0887.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Jack Behr, Public Defender, and Isaac Bruce Koran, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner is hereby afforded a belated appeal from judgment and sentence in case number 2003CF005856-A in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if she qualifies for such an appointment.

PETITION GRANTED.

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    Charles R. NORRIS, Appellant, v. CITY OF KISSIMMEE and Preferred Governmental Claim Solutions, Appellee.
    No. 1D06-4147.
    District Court of Appeal of Florida, First District.
    May 22, 2007.
    Todd J. Sanders and Paul A. Kelley of Bichler & Kelley, P.A., Winter Park, for Appellant.
    Barbara A. Eagan of Broussard, Cullen, DeGailler & Eagan, P.A., Orlando, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See City of Port Orange and PGCS v. Sedacca, 953 So.2d 727 (Fla. 1st DCA, 2007).

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    Michael Ray ENGLISH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4368.
    District Court of Appeal of Florida, Fifth District.
    May 22, 2007.
    Michael R. English, Sanderson, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Lindsey, 560 So.2d 406 (Fla. 5th DCA 1990).

PALMER, ORFINGER and TORPY, JJ., concur.


author: STONE, J. POLEN, J.,

text:
    Corey Terrell STUDEMIRE, Appellant, v. STATE of Florida, Appellee.
    No, 4D05-4019.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and Lindsay Hanson, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Studemire’s motion for rehearing, but withdraw the previous opinion of April 11, 2007, and replace it with the following:

Studemire was convicted of possession of a firearm by a felon. He challenges an order denying his motion to suppress his statement to the police and the denial of his motion for judgment of acquittal. We affirm.

On New Year’s Day, after 1:00 a.m., Officer MacVane, while patrolling within the city limits, heard gunshots being fired and proceeded to an area from which he believed the shots originated, where he found Studemire and another man, Chap-pelle. They were standing in a driveway by a vehicle. There were bullet casings and shotgun shells on the ground. Chap-pelle admitted to MacVane that he was the person who fired the shots and produced a shotgun. Chappelle also acknowledged having other guns on the premises and consented to the officer’s search of the house, where the officer found two more guns.

Additional police officers arrived at the scene. One asked for Studemire’s identification, to which he replied he had none. When the officer inquired as to his name, Studemire gave him a false name. MacVane then asked him to identify himself, and, again, Studemire gave a false name. After MacVane confronted him, Studemire gave a second name, an alias under which he had been previously convicted. MacVane decided to detain Stude-mire, handcuffed him, and placed him in the back of his patrol car. The record is silent as to whether MacVane conducted a pat-down of Studemire.

While this was going on, the other officers found an automatic handgun lying in plain view on top of the passenger side front tire of the vehicle. MacVane asked if the handgun had been discharged by Stu-demire. Studemire, who had been read Miranda rights, replied in the affirmative and also admitted that he was a convicted felon. Studemire later signed a written confession admitting that he and other persons fired the guns.

During trial, Studemire moved to suppress all statements made after he was handcuffed and placed in the patrol car.

Clearly, MacVane had the requisite reasonable suspicion to conduct a Terry stop. The question in this case is whether MacVane’s actions in placing Studemire in handcuffs and placing him in the back of the car escalated the detention to a de facto arrest, for which probable cause is necessary.

The use of handcuffs does not automatically turn an investigatory stop into a de facto arrest. Reynolds v. State, 592 So.2d 1082, 1084 (Fla.1992) (citations omitted)(emphasis added) (“Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.”); Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000) (“officer may detain the individual even at gunpoint and/or by handcuffs for the officer’s safety without converting the Terry stop into a formal arrest”).

We conclude, based on the totality of the circumstances, that Studemire was lawfully detained and that the temporary detention was not converted into a de facto arrest by handcuffing him and holding him in the police car. We note that Officer MacVane testified that part of the reason Studemire was handcuffed was because

it would have, been better, for officer safety, to make sure that he was handcuffed. Had he been an escaped prisoner from some other jurisdiction and wanted to run somewhere else on the property and grab a gun and shoot us; we were detaining him for our safety, and to also conduct his — to conduct our investigation as to his identity and this investigation in this whole shooting.

We recognize that the officer’s testimony regarding his concern for safety would be, to some extent, impeached if he failed to frisk Studemire before entering the house. This fact, however, was taken into consideration by the trial court. Further, the determinative factor is not the officer’s belief, but what the objective facts present to a reasonable officer. The test for evaluating an officer’s acts based on concern for safety is not the officer’s subjective thoughts, but the rational inferences that a reasonably prudent person would draw under the circumstances. Snelling v. State, 591 So.2d 246 (Fla. 4th DCA 1991); Graham v. State, 495 So.2d 852 (Fla. 4th DCA 1986); United States v. Yeomans, 211 Fed.Appx. 753 (10th Cir.2007).

Notwithstanding the possibility that Officer MacVane failed to frisk Studemire, the objective circumstances at the scene presented valid and reasonable concern for officer safety. Guns were recently fired; there were multiple guns on the premises, some loaded; the other person at the scene acknowledged firing a shotgun; there were numerous, and a variety of, shell casings on the ground; at least one weapons offense had already occurred; and firearms matching the shell casings, other than the shotgun, had not yet been found. Patently, there was a realistic threat that other weapons were outside the house and the other officers were searching the area. Additionally, Studemire was uncooperative and had already given two false names.

Therefore, we conclude that the motion to suppress and the motion for judgment of acquittal were properly denied.

As to other issues raised, we find no reversible error or abuse of discretion.

STEVENSON, C.J., concurs.

POLEN, J., dissents with opinion.

POLEN, J.,

dissenting.

I dissent from the majority’s opinion in this case. While officer safety is always a concern, under the facts of this case I do not believe that Officer MacVane was under such fear for his safety that the use of handcuffs was justified.

Studemire moved to suppress the evidence against him at trial, and the trial court denied the motion. During the course of the trial, Studemire also moved for judgment of acquittal, arguing that the State had failed to establish corpus delicti. The trial court also denied this motion.

When reviewing a denial of a motion to suppress,

[Ajppellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and by extension, article I, section 9, of the Florida Constitution.

State v. Colitto, 929 So.2d 654, 662 (Fla. 4th DCA 2006) (quoting Connor v. State, 803 So.2d 598, 608 (Fla.2001)). I note that under the facts of the case, it is clear that MacVane had the requisite reasonable suspicion to conduct an investigatory stop of Studemire. This type of detention is also known as a Terry stop.

[T]he second level of a police encounter involves the Terry stop or the temporary investigative “stop and frisk”. A Terry stop is permissible if the detention is temporary and reasonable under the circumstances and only if the police officer has a well-founded suspicion that the individual detained has committed, is committing, or is about to commit a crime. This temporary detention is deemed to be a less intrusive invasion of privacy than a formal arrest and, therefore, may be constitutionally accomplished merely on articulable or founded suspicion of criminal activity. The founded suspicion needed to justify an investigatory stop is fact specific to each case, but it is to be based upon the totality of the circumstances as viewed by an experienced police officer ... Additionally, the officer may detain the individual even at gunpoint and/or by handcuffs for the officer’s safety without converting the Terry stop into a formal arrest.

Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000). The question in this case is whether MacVane’s actions in placing Stu-demire in handcuffs and putting him in the back of the car escalated the detention to a de facto arrest, for which probable cause is necessary.

The use of handcuffs does not automatically turn an investigatory stop into a de facto arrest. “Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officer’s safety or to thwart a suspect’s attempt to flee.” Reynolds v. State, 592 So.2d 1082, 1084 (Fla.1992). However, “absent other threatening circumstances ... the handcuffs should be removed.” Id. at 1085. “While handcuffs do not in and of themselves signify an arrest, they heighten the degree of intrusion.” Cocke v. State, 889 So.2d 132, 134 (Fla. 4th DCA 2004).

Whether such action is appropriate depends on whether it is a reasonable response to the demands of the situation. Wfiien such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop. The methods employed must be the least intrusive means reasonably available to verify or dispel in a short period of time the officers’ suspicions that the suspect may be armed and dangerous. Absent other threatening circumstances, once the pat-down reveals the absence of weapons the handcuffs should be removed.

Id. (internal citations omitted). Once the suspect poses no risk to the officer, the detention by handcuffs turns into an arrest (a de facto arrest) that must be supported by probable cause. See Melendez v. Sheriff of Palm Beach County, 743 So.2d 1145, 1148 (Fla. 4th DCA 1999).

Under the facts of this case, I would find that the use of handcuffs was unjustified and transformed what was a justified detention into a de facto arrest. MacVane initially testified at the suppression hearing that he was not in fear for his safety. While MacVane later mentioned safety concerns, MacVane could give no reason why, if he was concerned for his safety, he would enter Chappelle’s residence to search for more guns while leaving Stude-mire unattended outside. Based on the officer’s initial testimony and his actions, I would hold that MacVane was not in fear for his safety, and there were no “other threatening circumstances” that would justify the detention. See Cocke, 889 So.2d at 134. While the presence of numerous shell casings on the property and the officer’s suspicion that there might be more guns in the vicinity could be viewed as “other threatening circumstances,” MacVane admitted that this was not the case.

Since Studemire’s detention amounted to a de facto arrest, unless MacVane had probable cause to arrest Studemire, the trial court should have granted Stude-mire’s motion to suppress. MacVane admitted at the suppression hearing that pri- or to Studemire’s confession that he was a felon, he did not have probable cause to arrest Studemire. The record does not reflect any probable cause to arrest the suspect, and therefore, the trial court should have granted the appellant’s motion to suppress. See Poey v. State, 562 So.2d 449, 450 (Fla. 3d DCA 1990).

At trial, Studemire also moved for judgment of acquittal, arguing that the State had not proven, independent of his confession, that he committed a crime, and hence, there was a lack of corpus delicti. “The standard of review for a court’s denial of a judgment of acquittal is de novo.” Sampson v. State, 863 So.2d 404, 405 (Fla. 4th DCA 2003).

If there is competent substantial evidence to support the jury’s verdict, the trial court’s denial of the motion will not be disturbed on appeal. In reviewing the trial court’s denial of the motion for judgment of acquittal, the appellate court must follow the well settled principle that a defendant, in moving for a judgment of acquittal, admits all facts adduced in evidence, and the court draws every conclusion favorable to the state which is fairly and reasonably in-ferable from that evidence.

Sapp v. State, 913 So.2d 1220, 1223 (Fla. 4th DCA 2005). In order to prove corpus delicti, the State must prove:

(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. In regard to the first part-that a crime was committed-each element of the relevant offense must be shown to exist. With respect to the second part-the criminal agency of another-the proof need not show the specific identity of the person who committed the crime. That is, it is not necessary to prove that the crime was committed by the defendant.

Garmon v. State, 772 So.2d 43, 46 (Fla. 4th DCA 2000). “The essential requirement appears to be that in order for the admission of the inculpatory statement there must be other evidence of the crime charged.” Id. The purpose of the corpus delicti rule is to ensure that no conviction is obtained “based on ‘derangement, mistake or official fabrication.’ ” Id. (quoting State v. Allen, 335 So.2d 823, 825 (Fla.1976)).

The State argues that there was sufficient evidence to show that a crime had been committed, i.e., a gun had been fired within the city limits. However, the State needed to present evidence that the crime actually charged took place, not just that any crime had taken place. See Garmon, 772 So.2d at 46.

To prove the crime of unlawful possession of a firearm by a convicted felon, the State needs to establish the following two elements beyond a reasonable doubt: 1) The defendant has been convicted of a felony; and 2) After the conviction, the defendant owned or had in his care, custody, possession, or control, a firearm.

Morris v. State, 869 So.2d 1264, 1267 n. 1 (Fla. 3d DCA 2004) (citing § 790.23, Fla. Stat. (2001)). In this case, while the State might not need to prove that Studemire was the felon in possession of a handgun, it needed to prove, independent of Stude-mire’s confession, that there was a felon in possession of the handgun. See Garmon v. State, 772 So.2d at 46. The State failed to do so. MacVane failed to determine that Studemire was a felon before his detention turned into a de facto arrest, thereby precluding independent confirmation of bis status as a felon. If MacVane had independently determined that Studemire was a felon, the proximity of the discovered gun to where he was standing would have been enough to establish corpus de-licti. This was not the situation in the instant case. Any evidence presented by the State that Studemire was a felon, independent of his confession, was obtained as a result of the confession, and was therefore insufficient to establish corpus delicti.

On the basis of this analysis, I would find that the trial court erred in denying Studemire’s motion to suppress and in denying his subsequent motion for judgment of acquittal. I would reverse Studemire’s conviction.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    In re Craig W. MARKS.
    No. 2007-B-0350.
    Supreme Court of Louisiana.
    May 15, 2007.
   ORDER

On October 12, 2004, respondent pleaded no contest to one felony count of indecent behavior with a juvenile, a violation of La. R.S. 14:81, arising out of his intimate relationship with a fourteen-year old girl. In 2005, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent arising out of his conviction. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Craig W. Marks, Louisiana Bar Roll number 8923, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Craig W. Marks for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Craig W. Marks shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 07-B-0350 be dismissed as moot.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re Craig W. MARKS.
    No. 2007-OB-0930.
    Supreme Court of Louisiana.
    May 15, 2007.
   ORDER

On October 12, 2004, respondent pleaded no contest to one felony count of indecent behavior with a juvenile, a violation of La. R.S. 14:81, arising out of his intimate relationship with a fourteen-year old girl. In 2005, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent arising out of his conviction. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Craig W. Marks, Louisiana Bar Roll number 8923, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Craig W. Marks for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Craig W. Marks shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 07-B-0B50 be dismissed as moot.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    In re: CONFIDENTIAL PARTY.
    No. 2007-OB-0997.
    Supreme Court of Louisiana.
    May 16, 2007.
   ORDER

Considering the Petition for Reinstatement from Disability Inactive Status and the Petition for Immediate Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the Petition for Reinstatement from Disability Inactive Status be and hereby is denied. The ODC has not produced clear and convincing evidence that the requirements of Supreme Court Rule XIX, § 22(G) have been satisfied. However, the ODC may reurge its motion upon a proper showing.

IT IS FURTHER ORDERED that the ODC is expressly authorized to conduct an investigation into the allegations that respondent has engaged in the unauthorized practice of law following his transfer to disability inactive status.

IT IS FURTHER ORDERED that in light of our decision maintaining respondent on disability inactive status, the Petition for Immediate Interim Suspension for Threat of Harm be and hereby is denied as moot.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana

TRAYLOR, J., would reinstate.


text:
    In re: CONFIDENTIAL PARTY.
    No. 2007-B-0998.
    Supreme Court of Louisiana.
    May 16, 2007.
   ORDER

Considering the Petition for Reinstatement from Disability Inactive Status and the Petition for Immediate Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the Petition for Reinstatement from Disability Inactive Status be and hereby is denied. The ODC has not produced clear and convincing evidence that the requirements of Supreme Court Rule XIX, § 22(G) have been satisfied. However, the ODC may reurge its motion upon a proper showing.

IT IS FURTHER ORDERED that the ODC is expressly authorized to conduct an investigation into the allegations that respondent has engaged in the unauthorized practice of law following his transfer to disability inactive status.

IT IS FURTHER ORDERED that in light of our decision maintaining respondent on disability inactive status, the Petition for Immediate Interim Suspension for Threat of Harm be and hereby is denied as moot.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana

TRAYLOR, J., would grant interim suspension.


text:
    STATE of Louisiana v. Leonard SMALLWOOD.
    No. 2006-KP-2363.
    Supreme Court of Louisiana.
    May 18, 2007.
   PER CURIAM.

1 granted. The decision of the Second Circuit is reversed, and respondent’s guilty plea and sentence are reinstated.

A majority on the court of appeal panel found that the trial judge’s statement informing respondent that the state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state’s witnesses at a trial did not suffice as an advisement to relator of his right to confront his accusers. The majority opinion set aside the guilty plea on that basis. State v. Smallwood, 41,763 (La.App. 2nd Cir. 9/14/06)(Brown, C.J., dissenting). In doing so, the majority relied on the court of appeal’s prior decision in State v. Mendenhall, 40,986 (La.App.2d Cir. 5/19/06, 930 So.2d 1196 (Brown, C.J., dissenting). However, in the interim, this Court reversed Mendenhall in a per curiam opinion. State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560. We thereby reaffirmed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor the Court’s implementation of Boykin in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a “ ‘magic word formula’ ” which may “ ‘serve as a technical trap for conscientious trial judges who | ¡.conduct a thorough inquiry into the validity of the plea....’” Mendenhall, 06-1407 at 1, 944 So.2d at 560 (quoting State v. Bowick, 403 So.2d 673, 675 (La.1981)). We also reaffirmed that with respect to the Confrontation Clause of the Sixth Amendment, “ ‘[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” Mendenhall, 06-1407 at 1, 944 So.2d at 560 (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)(internal quotation marks and citation omitted; emphasis deleted) and approving of State v. Anderson, 34,491, p. 3 (La.App.2d Cir.4/4/01), 784 So.2d 749, 751 (“In common usage, the phrases confront and cross-examine always connote adversarial activities.”), writ denied, 01-1431 (La.4/12/02), 812 So.2d 666)).

Applying these precepts to the instant case, the language used by the trial judge appears sufficiently tailored to inform a 39-year-old defendant, who was educated through the twelfth grade, that because he was waiving his right to have counsel cross-examine the witnesses against him he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial. See State v. Martin, 382 So.2d 933, 935 (La.1980)(purpose underlying the Boykin and Jackson rules “is to ensure the defendant’s receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary.... [Tjhis information may successfully be conveyed in words tailored to a particular individual’s vocabulary and comprehension)”, overruled in part on other grounds, State v. Williams, 392 So.2d 448 (La.1980).

Accordingly, we again agree with the dissenting views of Chief Judge Brown that the circumstances in the record reflect a knowing and voluntary waiver of respondent’s rights and compliance with the constitutional requirements for the taking of voluntary guilty pleas in Louisiana.


text:
    In re James Charles HARRIS, III.
    No. 2006-OB-1761.
    Supreme Court of Louisiana.
    May 18, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, James Charles Harris, III, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

JOHNSON, J., recused.


author: CALOGERO, Chief Justice,

text:
    Matthew BIANCHINI v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-CC-0522.
    Supreme Court of Louisiana.
    May 18, 2007.
    CALOGERO, C.J., additionally concurs and assigns reasons.
    KIMBALL, J., would deny the application.
   CALOGERO, Chief Justice,

additionally concurs and assigns reasons.

Ill concur in the court’s action remanding this matter to the trial court for reconsideration of its ruling in light of Palacios v. Louisiana and Delta Railroad Inc., 98-2932 (La.7/2/99), 740 So.2d 95. However, I write additionally to point out that, as we made clear in Palacios, not all documents and information in the state’s possession will always be privileged under 23 U.S.C. Sect. 409. 98-2392, pp. 12-13 (La.7/2/99), 740 So.2d 95, 102. In Palacios, we concluded “only that records amassed pursuant to the federal safety evaluation programs described in 23 U.S.C. Sections 130, 144 or 152, or for the purpose of developing other highway safety improvement projects which may be federally funded, are protected. The plaintiff is at liberty to investigate, examine and present other relevant evidence, so long as such evidence was not compiled or collected for purposes of federal highway improvement programs.” Id. at 13, 740 So.2d at 102.


text:
    David Andre’ VINCENT, et al. v. AFTCO ENTERPRISES, INC., et al. Wanda Lafleur, et al. v. AFTCO Enterprises, Inc., et al. William John Pinch and Roberta Pinch v. AFTCO Enterprises, Inc., et al. Charles E. Walker v. AFTCO Enterprises, Inc., et al.
    No. 2007-CC-0935.
    Supreme Court of Louisiana.
    May 4, 2007.
   In re Harco National Ins. Co.; Southern County Mutual Ins. Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, Nos. 2004-0523, 2004-2050, 2004-0274, 2004-0848; to the Court of Appeal, Third Circuit, No. CW 07-00505.

Stay denied. Writ denied.


text:
    Christy STRICKLAND, et al. v. COMMUNITY HEALTH SYSTEMS, INC., et al.
    No. 2007-CC-0948.
    Supreme Court of Louisiana.
    May 4, 2007.
   In re National Healthcare of Leesville, Inc. d/b/a; Byrd Regional Hospital; Community Health Systems Inc. et al.; Community Health Systems Professional Services Corporation; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 75,186; to the Court of Appeal, Third Circuit, No. CW 07-00389.

Stay denied. Writ denied.


text:
    STATE of Louisiana in the Interest of G.P.
    No. 2007-CJ-0940.
    Supreme Court of Louisiana.
    May 7, 2007.
   In re Wattigney, Dale; Wattigney, Edle-na; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, City Court of Hammond, Seventh Ward Juvenile Court, No. 22,765; to the Court of Appeal, First Circuit, No. 2007 CW 0519.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Dana ABBOUD.
    No. 2007-KK-0901.
    Supreme Court of Louisiana.
    May 9, 2007.
   In re Abboud, Dana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 07-1340; to the Court of Appeal, Fifth Circuit, No. 07-K-214.

Writ granted. Before and during a trial, a person shall be bailable except when he is charged with a capital offense, a crime of violence or with production, manufacture, distribution, or dispensing or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance. La. Const. art. I, Section 18. The defendant is charged with 22 counts of theft over five hundred dollars. The judgment of the court of appeal is reversed and the commissioner’s judgment setting bond is reinstated.


text:
    STATE of Louisiana v. Sean Vincent GILLIS.
    No. 2007-KD-0578.
    Supreme Court of Louisiana.
    May 9, 2007.
   In re Gillis, Sean Vincent; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. CR-05-2577.

Stay recalled. Writ denied.


text:
    J. Gerald DUPONT v. METAIRIE ENERGY, INC., et al.
    No. 2007-CC-0936.
    Supreme Court of Louisiana.
    May 9, 2007.
   In re Exxon Mobil Corporation; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 62,687; to the Court of Appeal, First Circuit, No. 2007 CW 0841.

Stay recalled; writ denied.


text:
    STATE of Louisiana v. Byron DAVIS In re Raechelle M. Vix.
    No. 2007-OK-0974.
    Supreme Court of Louisiana.
    May 9, 2007.
   In re Davis, Byron; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 02-5841; to the Court of Appeal, Fifth Circuit, No. 07-K-253.

Denied premature.


text:
    STATE of Louisiana v. Manolo Anton BAKER.
    No. 2006-K-2175.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Baker, Monolo Anton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 214,819; to the Court of Appeal, Second Circuit, No. 40,997-KA.

Granted.


text:
    STATE of Louisiana v. Jason MATTHIS.
    No. 2007-KP-0691.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 405-829; to the Court of Appeal, Fourth Circuit, No. 2006-K-1555.

Granted.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Shedrick VICTORAN.
    No. 2007-KH-0867.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Victoran, Shedrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, Nos. 18077, 18076.

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:
    Jay WEST, as Trustee for the Louisiana Land Trust, C.G. Koehl Trust and Corin Koehl Trust v. KOEHL & ASSOCIATES, INC., Dale Koehl, Robert Koehl, Timothy Koehl, Jonette Franks Koehl, and Clarence Koehl.
    No. 2007-CC-0664.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Feingerts, Bruce L.; Feingerts & Kelly APLC; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 534-791; to the Court of Appeal, Fifth Circuit, No. 06-C-962.

Remanded to Court of Appeal for briefing, argument and full opinion.


text:
    STATE ex rel. Tyrone JACKSON v. STATE of Louisiana.
    No. 2006-KH-2137.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Jackson, Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 01-5916; to the Court of Appeal, Fifth Circuit, No. 06-KH-515.

Writ granted in part; otherwise denied. If it has not done so already, the district court is ordered to supply relator with a copy of relator’s court minutes and bill of information. State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094. In all other respects, the application is denied. State ex rel. Bernard v. Cr. D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    In re Hersy JONES, Jr.
    No. 2006-B-2702.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Hersy Jones, Jr., applying for Rehearing of this Court’s Order dated March 30, 2007; Office of Disciplinary Board, Nos. 04-DB-064, 05-DB-065.

Denied.


text:
    STATE ex rel. Michael LOTT v. STATE of Louisiana.
    No. 2006-KH-1543.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Michael Lott, applying for Reconsideration of this Court’s Order dated March 16, 2007, Parish of Jefferson, 24th Judicial District Court, Division P, No. 97-229; Court of Appeal Fifth Circuit, No. 06-KH-199.

Reconsideration denied.


text:
    STATE ex rel. James O. SMITH v. STATE of Louisiana.
    No. 2007-KH-0321.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Smith, James O.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 446-140; to the Court of Appeal, Fourth Circuit, No. 2006-K-1669.

Application dismissed at relator’s request.


text:
    Rodney HAMILTON v. Arcenious F. ARMOND, Jr.
    No. 2006-CP-1573.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Hamilton, Rodney; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 565-546; to the Court of Appeal, Fifth Circuit, No. 06-KH-285.

Denied.


text:
    STATE ex rel. Johnny PORTER, Jr. v. STATE of Louisiana.
    No. 2006-KH-2019.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Porter, Johnny Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, Nos. 332-640, 418-976; to the Court of Appeal, Fourth Circuit, No. 2006-K-0902.

Denied.


text:
    STATE of Louisiana v. George LEE.
    No. 2006-KP-2105.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 414-519; to the Court of Appeal, Fourth Circuit, No. 2006-K-0855.

Denied.


text:
    STATE ex rel. Daniel C. WILKERSON, Sr. v. STATE of Louisiana.
    No. 2006-KH-2116.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Wilkerson, Daniel C. Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, No. 392246; to the Court of Appeal, First Circuit, No. 2006 KW 0178.

Denied.


text:
    STATE ex rel. Bruce DUPLANTIS v. STATE of Louisiana.
    No. 2006-KH-2117.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Duplantis, Bruce; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 385-799; to the Court of Appeal, First Circuit, No. 2006 KW 0845.

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. James TELL v. STATE of Louisiana.
    No. 2006-KH-2127.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Tell, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 36,993; to the Court of Appeal, Second Circuit, No. 41,455-CW.

Denied. 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. 351.

JOHNSON, J., would grant for reasons assigned in State v. Wesley Dick [06-2223 (La. 1/26/07), 951 So.2d 124].


text:
    STATE ex rel. Irving STERLING v. STATE of Louisiana.
    No. 2006-KH-2128.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Sterling, Irving; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 251-467.

Denied.


text:
    STATE ex rel. Woodrow RUCKS v. STATE of Louisiana.
    No. 2006-KH-2129.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Rucks, Woodrow; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 04-F0314; to the Court of Appeal, Second Circuit, No. 41585-KH.

Denied.


text:
    STATE ex rel. Bobby LEWIS v. STATE of Louisiana.
    No. 2006-KH-2130.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Lewis, Bobby; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 397-585; to the Court of Appeal, Fourth Circuit, No. 2005-K-1459.

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


text:
    STATE ex rel. Leo KEARNS, Jr. v. STATE of Louisiana.
    No. 2006-KH-2131.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Kearns, Leo, Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 441-574; to the Court of Appeal, Fourth Circuit, No. 2006-K-0923.

Denied. La.C.Cr.P. art. 930.2.


text:
    STATE ex rel. Joe D. COCHRAN v. STATE of Louisiana.
    No. 2006-KH-2132.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Cochran, Joe D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 2-01-325; to the Court of Appeal, First Circuit, No. 2006 KW 0259.

Denied.


text:
    STATE ex rel. Oscar TUESNO v. STATE of Louisiana.
    No. 2006-KH-2134.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Tuesno, Oscar; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 338-479; to the Court of Appeal, Fourth Circuit, No. 2006-K-0914.

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:
    John O. SHILLING v. STATE of Louisiana, aka Jefferson Parish Clerk of Court; Jefferson Parish Sheriffs Department.
    No. 2006-CI-2135.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Shilling, John O.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 81-665; to the Court of Appeal, Fifth Circuit, No. 06-KH-501.

Denied.


text:
    STATE ex rel. Anthony BASCLE v. STATE of Louisiana.
    No. 2006-KH-2140.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Básele, Anthony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 95-5111; to the Court of Appeal, Fifth Circuit, No. 06-KH-310.

Denied.


text:
    STATE ex rel. Terrence BENOIT v. STATE of Louisiana.
    No. 2006-KH-2142.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Benoit, Terrence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 05-949; to the Court of Appeal, Third Circuit, No. KH 06-00758.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Terrence BENOIT v. STATE of Louisiana.
    No. 2006-KH-2143.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Benoit, Terrence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 04-1005; to the Court of Appeal, Third Circuit, No. KH 06-00757.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Norbert CAMP v. STATE of Louisiana.
    No. 2006-KH-2170.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Camp, Norbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 324-853; to the Court of Appeal, Fourth Circuit, No. 2005-K-1205.

Denied.


text:
    STATE ex rel. Ronald DUGAS v. STATE of Louisiana.
    No. 2006-KH-2180.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Dugas, Ronald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 82,120; to the Court of Appeal, Third Circuit, No. KH 06-00433.

Denied.


text:
    STATE ex rel. Alex HENNIS v. STATE of Louisiana.
    No. 2006-KH-2181.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Hennis, Alex; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, Nos. 06-96-0330, 04-95-0545; to the Court of Appeal, First Circuit, No. 2006 KW 0628.

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

WEIMER, J., recused.


text:
    STATE ex rel. Christopher VAN SALES v. STATE of Louisiana.
    No. 2006-KH-2182.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Sales, Christopher Van; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B, No. 106,263; to the Court of Appeal, Second Circuit, No. 41607-KH.

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


text:
    STATE of Louisiana v. Lee Roy JENKINS.
    No. 2006-KP-2228.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Jenkins, Lee Roy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. B-10,742; to the Court of Appeal, First Circuit, No. 2006 KW 0709.

Denied.


text:
    STATE of Louisiana v. Danny Ray LEE.
    No. 2006-KP-2234.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Lee, Danny Ray; — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 94-140,004; to the Court of Appeal, First Circuit, No. 2006 KW 1109.

Denied.


text:
    STATE ex rel. Charles R. SPEARS v. STATE of Louisiana.
    No. 2006-KH-2246.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Spears, Charles R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 41918; to the Court of Appeal, First Circuit, No. 2006 KW 0981.

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 of Louisiana v. Prentiss Burns CHANDLER.
    No. 2006-K-2554.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Chandler, Prentiss Burns; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 221,852; to the Court of Appeal, Second Circuit, No. 41,063-KA.

Denied.


text:
    STATE of Louisiana v. James TURNER.
    No. 2006-KO-2566.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Turner, James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 06-04-0844; to the Court of Appeal, First Circuit, No. 2005 KA 2531.

Denied.


text:
    STATE of Louisiana v. Francis WINCHESTER.
    No. 2006-KO-2569.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Winchester, Francis; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 157,877; to .the Court of Appeal, First Circuit, No. 2006 KA 0154.

Denied.


text:
    STATE of Louisiana v. Trent Anthony MILLER.
    No. 2006-K-2577.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Miller, Trent Anthony; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Sabine, 11th Judicial District Court Div. B, No. 59197; to the Court of Appeal, Third Circuit, No. 06-595.

Denied.


text:
    STATE of Louisiana v. Dianna BROWN.
    No. 2006-K-2579.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Brown, Dianna; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 380993; to the Court of Appeal, First Circuit, No. 2006 KA 0251.

Denied.


text:
    Michael ISABELLE v. BAYLINER MARINE CORPORATION; Brunswick Corporation; Cummins Mid-South, L.L.C.; and Boater’s Landing, Inc. of FT. Myers.
    No. 2007-C-0174.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Brunswick Family Boat Co.; Brunswick Corp.; Boater’s Landing Inc. of Ft. Myers; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2002-12568; to the Court of Appeal, First Circuit, No. 2005 CA 2593.

Denied.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    STATE ex rel. Terrence BENOIT v. STATE of Louisiana.
    No. 2007-KH-0258.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Benoit, Terrence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. CR04-1005; to the Court of Appeal, Third Circuit, No. KH 06-01214.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    Dorothy SANSONI v. Thomas DELAHAYE, Individually and in his Official Capacity as Member, Iberville Parish School Board.
    No. 2007-CC-0417.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Delahaye, Thomas; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 63,599; to the Court of Appeal, First Circuit, No. 2006 CW 2232.

Denied.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Herman FALLS v. METROPOLITAN LIFE INSURANCE COMPANY, et al.
    No. 2007-CC-0590.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Diefenthal, James R.; Diefenthal, Edward' L.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 01-1855; to the Court of Appeal, Fourth Circuit, No. 2006-C-1413.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    Angie Rodriguez, Wife of/and Jorge R. CINTRON v. CONTINENTAL CASUALTY INSURANCE COMPANY, Allstate Insurance Co., Jared Collins, and Michael Adams.
    No. 2007-CC-0632.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Continental Casualty Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. H, No. 113618; to the Court of Appeal, First Circuit, No. 2006 CW 2074.

Denied. Adequate remedy on appeal.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    John P. STOSHAK v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2007-C-0633.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re East Baton Rouge Parish School Board; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton -Rouge, 19th Judicial District Court Div. F, No. 532733; to the Court of Appeal, First Circuit, No. 2006 CA 0852.

Denied.


text:
    COASTAL BRIDGE COMPANY, L.L.C. v. FIREMAN’S FUND INSURANCE COMPANY and Fireman’s Fund Insurance Company of Louisiana.
    No. 2007-CC-0635.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Fireman’s Fund Insurance Company; Fireman’s Fund Insurance Company of Louisiana; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 532,109; to the Court of Appeal, First Circuit, No. 2006 CW 2501.

Denied.


text:
    George ADAMS and Michelle Adams, Individually and on Behalf of Their Minor Children, Janelle Adams and Jamal Adams v. HARRAH’S BOSSIER CITY INVESTMENT COMPANY, L.L.C.
    No. 2007-CC-0639.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Adams, Michelle; Adams, George et al.; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 485,332; to the Court of Appeal, Second Circuit, No. 41,468-CW.

Denied.


text:
    Leon D. FUSSELL v. NORTH LOUISIANA CRIMINALISTICS LABORATORIES, et al. Leon D. Fussell v. Joseph R. Kutch Leon D. Fussell v. I.C. Turnley, Jr., M.D., et al.
    No. 2007-CP-0642.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Fussell, Leon D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div. 0, Nos. 35031, 35030, 35,-029; to the Court of Appeal, Third Circuit, No(s). CW 06-01526, CW 06-01525, CW 06-01511.

Denied.


text:
    TOWN OF HOMER, d/b/a Homer Memorial Hospital, Individually and as Assignee of Linda Tuggle, et al. v. UNITED HEALTHCARE OF LOUISIANA, INC.
    No. 2007-CC-0649.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Homer, Town of d/b/a Homer Memorial Hospital; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 36816; to the Court of Appeal, Second Circuit, No. 41,512-CW.

Denied.


text:
    Gilbert DOUGLASS v. Dr. James H. EASTON & the Lafayette Parish School Board.
    No. 2007-C-0650.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Lafayette Parish School Board;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 2004-3605-G; to the Court of Appeal, Third Circuit, No. 06-1404.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Darleen M. JACOBS, A Professional Law Corporation and Darleen Jacobs Levy v. UNITED STATES FIDELITY AND GUARANTY COMPANY, the St. Paul Travelers Insurance Companies, Inc. and Eagan Insurance Agency, Inc.
    No. 2007-CC-0652.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re St. Paul Travelers Insurance Companies, Inc.; United States Fidelity and Guaranty Company; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2006-7762; to the Court of Appeal, Fourth Circuit, No. 2006-C-1639.

Denied.

JOHNSON, J., recused.

VICTORY, J., would grant.


text:
    NORTHEAST REALTY, L.L.C. v. MISTY BAYOU, L.L.C., et al.
    No. 2007-C-0657.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Antonini, Alfred J.; L.A. Investment Properties Inc.; Antonini, Alva J.;-— Other(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. E, No. 02-3612; to the Court of Appeal, Second Circuit, No. 41,873-CA.

Denied.


text:
    Dennis J. MCINERNEY v. Christopher GREGUS, St. Bernard Parish, and St. Bernard Parish Department of Public Works.
    No. 2007-C-0658.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re McInerney, Dennis J.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 101-613; to the Court of Appeal, Fourth Circuit, No. 2006-CA-0957.

Denied.

JOHNSON, J., would grant.


text:
    A & B BOLT & SUPPLY, INC. v. David S. DAWES, et al.
    No. 2007-C-0660.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Dawes, David S.; Whiteo Supply, L.L.C.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20033999 J; to the Court of Appeal, Third Circuit, No. CA 06-1003.

Denied.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Joseph GRECO, Jr.
    No. 2007-KK-0663.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Greco, Joseph Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 88-3383-F; to the Court of Appeal, Fourth Circuit, No. 2007-K-0219.

Denied.


text:
    Kevin B. MURRAY and Todd St. Cyr v. CITY OF HARAHAN.
    No. 2007-C-0665.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Murray, Kevin B. et al.; St. Cyr, Todd; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 575-416; to the Court of Appeal, Fifth Circuit, No. 2006-CA-737.

Denied.


text:
    Colby D’Andre MAYS, a Minor Appearing Through His Mother and Natural Tutrix, Sandra Mays DOWLES, and James Milton Penton v. SAFEWAY INSURANCE COMPANY, KLLM, Inc. and Vernon Sawyer, a Division of KLLM, Inc.
    No. 2007-C-0666.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Dowles, Sandra Mays, et al.; Pen-ton, James Milton; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. I, No. 04-346; to the Court of Appeal, Second Circuit, No. 41,911-CA.

Denied.

TRAYLOR, J., would grant.


text:
    OBJECT TECHNOLOGY INFORMATION SPECIALISTS CORPORATION v. SCIENCE AND ENGINEERING ASSOCIATES, INC., Sea Information Services, Inc., and Robert Savoie.
    No. 2007-CC-0667.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Object Technology Information Specialists Corporation; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2004-5212; to the Court of Appeal, Fourth Circuit, No. 2006-CA-0162.

Denied.


text:
    Norma HUGHES v. KMART CORPORATION and Lauricella Land Company, LLC.
    No. 2007-CC-0674.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Lauricella Land Company LLC;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 619-279; to the Court of Appeal, Fifth Circuit, No. 07-C-112.

Denied.


text:
    Fred L. HOUSTON v. SPRINGVILLE CEMETERY ASSOCIATION, INC.
    No. 2007-C-0688.
    Supreme Court of Louisiana.
    May 11, 2007.
   In re Houston, Fred L.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div. O, No. 33,795; to the Court of Appeal, Second Circuit, No. 41,-869-CA.

Denied.


author: THIBODEAUX, Chief Judge.

text:
    Michelle DETRAZ v. Victor LEE d/b/a Virgin Nails.
    No. 2004-988.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2007.
    Philip Stephen Aucoin, Jr., Stacy S. Lee, Lafayette, LA, for Defendants/Appellees— Bechin Huynh and Bechin Huynh, d/b/a Virgin Nails.
    Chris Paul Villemarette, Scott M. Hawkins, Hawkins, Garbín & Villemarette, LLC, Lafayette, LA, for Plaintiff/Appellant — Michelle Detraz.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

After concluding that the jury was correct in failing to find causation in this case, the Louisiana Supreme Court remanded this case so that we may “consider the plaintiffs remaining assignments of error.” Detraz v. Lee, d/b/a Virgin Nails, 05-1263, p. 12 (La.1/17/07), 950 So.2d 557.

The plaintiff entreats us to find that the trial court’s failure to bring the jury into the courtroom to review the alleged inconsistent testimony of Dr. Ronald Daigle was reversible error. We decline the plaintiffs invitation. While the trial court incorrectly refused to allow the jurors back into the courtroom, La.Code Civ.P. art. 1795 accords discretionary power to the trial court. Even if the jurors were brought into the courtroom, Section B of Article 1795 does not mandate that the trial judge must allow the reading of the requested testimony.

The plaintiff further complains that the alternate juror should have been discharged once the jury retired to begin deliberations. We agree. However, the record fails to disclose that the alternate juror participated in the deliberations. The alternate juror’s mere presence during jury deliberations was harmless.

CONCLUSION

Considering the foregoing, we affirm the judgment of the trial court.

AFFIRMED.


author: MOORE, J.

text:
    Charles L. SPENCER and Jayme Ruth Spencer, Plaintiff-Appellees v. Robert C. JAMES, Jr., Debra L. James and Linda G. Austin, Defendant-Appellants.
    No. 42,168-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Jones & Charles, by Charles D. Jones, for Appellants.

      Hebert, Spencer, Cusimano & Fry, by V. Charles Cusimano, Baton Rouge, for Appellees.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

11 This is an appeal from a default judgment nullifying a tax sale of immovable property and cancelling and erasing a recorded conveyance from the records of Union Parish. For the reasons below, we affirm.

FACTS

The property at issue is located in Farmerville, Louisiana, and belonged to Mrs. Lois Holdcraft Spencer, who was in very poor health for the last six years of her life. In June 1991, Mrs. Spencer gave general power of attorney to her son, Charles L. Spencer, who was responsible for handling his mother’s business affairs while she lived in an assisted living nursing care facility. On November 4, 1995, Mrs. Spencer died.

By tax sale deed dated June 28, 1995, and recorded in the conveyance records of Union Parish on August 1,1995, the Farm-erville property was sold at tax sale to Robert C. James, Jr. for the sum of $12.60. The tax deed essentially was a “fill in the blanks” form that stated in pertinent part:

BE IT REMEMBERED that on this 28 day of June, 1995, before me, a Notary Public in and for Union Parish, Louisiana, duly qualified and sworn and therein residing and acting, personally came and appeared Gay Nell McIntosh, Tax Collector of the Town of Farmer-ville, Union Parish, Louisiana, who declares and acknowledges that, after giving Tax Notice according to law, he (sic) did on the 25 day of May 1995 cause to be advertised in the Gazette, a newspaper published weekly in the Town of Farmerville, Louisiana, and the Official Journal of said Town, to sell on Wednesday, the 28 day of 2June, 1995, the following described property situated in the Town of Farmerville, Union Parish, Louisiana, to-wit:
BEGIN AT NW/C OF WILLIE G. DAWKINS LOT RUN S. 105 FT. FOR P.O.B., W. 479 FT., S. 100 FT., E. 479 FT., N. 100 FT., to P.O.B. LESS 1 LOT.
which stands on the Tax Roll of 19 9/ assessed to Spencer, Lois Holdcraft C/O Charlotte Hall, who is delinquent for taxes of 1994 ....

On June 20, 2000, Charles L. Spencer and Jayme Ruth Spencer, as the sole heirs of Lois Holdcraft Spencer, filed a petition to annul the tax sale. They asserted in their petition that the sale was defective because their mother was not given any actual notice whatsoever or notice required by law of the tax delinquency or of the forthcoming tax sale. They also asserted that they had never been dispossessed from the property and had remained in constant possession of the property since the sale. Additionally, they asserted that by deed dated February 1, 2000, Robert C. James, Jr., and Debra L. James purportedly sold to Linda G. Austin another parcel of property in Farmerville, Louisiana, that purportedly was transferred in the tax deed, but was in fact a parcel of property belonging to the petitioners that had never been conveyed to Robert C. James, Jr., and Debra L. James.

When the defendants failed to answer the petition, a judgment by default eventually was confirmed by the trial court. At the hearing for [¡¡confirmation of default, Charles Spencer testified that although he managed his mother’s affairs on a daily basis in the last years of her life pursuant to the power of attorney she had granted him, and he received her mail on a daily basis, he never received any notice that taxes for any real estate in Union Parish or in Farmerville were delinquent. He also testified that before his mother became ill, she took very good care of making sure that all her taxes were paid on her property. With respect to the property purportedly sold by the Jameses to Linda Austin, Spencer testified that although reference was made to assessment numbers on the original deed, the property description showed that the tract of land subject to that sale was not the tract of land sold at the tax sale. Mr. Spencer and his sister owned both tracts of land, and Mr. Spencer had no knowledge of how the mix-up occurred. In addition to Mr. Spencer’s testimony, the plaintiffs entered into evidence the general power of attorney given to Mr. Spencer, the tax deed to Mr. James, and the cash deed from the Jameses to Linda Austin. Additionally, plats of the two tracts were entered into evidence. After reviewing the evidence, the court granted judgment in favor of the plaintiffs declaring the tax deed to be a nullity, and declaring that the deed from the Jameses to Linda Austin was a cloud on the plaintiffs’ title that would be can-celled and erased from the public records of Union Parish. This appeal followed.

DISCUSSION

This case actually involves two actions: one is the plaintiffs’ action to annul the tax sale, while the second is to remove the cloud from the title |4to the property created by Jameses’ alleged sale to Linda Austin. In both actions, the plaintiffs obtained a default judgment.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. LSA-C.C.P. art. 1702. A prima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if the allegations had been specifically denied. Louisiana Safety Ass’n of Timbermen-Self Insurers Fund v. Temlaco, Inc., 39,459 (La.App. 2 Cir. 4/28/05) 903 So.2d 492; Carroll v. Coleman, 27,861 (La.App.2d Cir.1/24/96), 666 So.2d 1264. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial. Louisiana Safety Ass’n of Timbermen-Self Insurers Fund, supra; Crump v. Bank One Corporation, 35,990 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187; Carroll, supra. In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Discover Bank v. Peters, 38,366 (La.App. 2 Cir. 4/14/04), 870 So.2d 602. On appellate review, there is a presumption that a default judgment is supported by sufficient evidence and is correct, but this presumption does not apply where, as in the present case, the testimony is transcribed and contained in the record. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment was based was sufficient and competent. Discover Bank, supra; Crump, supra.

1 /The Action for Annulment of the Tax Sale

The appellants assert that under the provisions of La. R.S. 47:2180, notice of tax delinquency is to be sent to a tax debtor by certified mail, return receipt requested, before property can be properly sold for unpaid taxes. The appellants then argue that where the tax debtor’s correct address in known and used, certified mail, return receipt requested, has repeatedly been held to be a reasonable method of notifying the debtor, and it is unnecessary that notice actually be received by the tax debtor to establish the validity of the sale. Appellants take the position that notice was served on Mrs. Lois Holdcraft Spencer through her identified agent, Charlotte Hall, as established by the tax deed, that tax sales are presumed valid, and that the party attacking the sale bears the burden of proving its alleged invalidity.

The appellants also assign error to the trial court for not allowing a correction of the property description in the tax sale deed. However, we note that this issue need not be addressed unless the tax sale was valid. For the following reasons, we find that the tax sale was invalid and that the trial court’s judgment should be affirmed.

Under the provisions of La. R.S. 47:2180, the tax collector is to give each taxpayer who has not paid all the taxes which have been assessed to him on immovable property a written notice specifying that the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. Of particular importance are the provisions of La. R.S. 47:2180(B), which state in pertinent part:

The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein.... |(;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 debtor’s property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of the delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation.... This proces verbal shall be received by the courts as evidence.

In addition to the above-quoted requirements for a proces verbal, the provisions of La. R.S. 47:2183 require each tax collector to execute and sign a deed of sale to purchasers for any real estate sold for taxes. The deed is required to state, among other things, a brief history of the proceedings, a description of the property, and the amount of the bid made for the property. Such a deed gives the purchaser the right to be placed in actual possession, but must also include a statement that the property is redeemable at any time for the space of three years beginning on the day when the tax deed is filed for record in the conveyance office of the parish in which the property is situated.

In Pardon v. Moore, 39,949 (La.App. 2 Cir. 8/17/05), 908 So.2d 1253, we affirmed the setting aside of a tax sale where pre-sale notice of the sale was not shown by clear and convincing evidence to have been served on the tax debtor, thus making the sale a nullity. When discussing sufficiency of the notice, we begin by pointing out that the United States Supreme Court, in Mennonite Board of Missions v. Adams, 462 U.S. 791, 7103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), recognized that the sale of property for non-payment of taxes is an action that affects a property right protected by the Due Process Clause of the XIV Amendment. Thus, as a minimum constitutional precondition to such a proceeding, notice must be sent by mail or other means certain to insure actual notice if the party’s name and address are reasonably ascertainable.

In Moore, we then discussed the notice requirements of La. R.S. 47:2180 requiring the tax collector to provide notice by sending the taxpayer a written or printed announcement via certified mail and requiring the tax collector to make out a proces verbal which, as previously noted, is to be filed in the office of the clerk of court for recording and preservation, and which shall be received by the courts as evidence. We stated that if a proces verbal is properly executed and filed, the burden of establishing that no notice was given rests on the tax debtor; however, in the absence of the proces verbal, the burden of proof is on the tax purchaser to show by clear and convincing evidence that the necessary notice was conveyed to the tax debtor.

In the instant case, although the record contains a copy of the tax deed, there is no proces verbal. By showing that a proces verbal was executed and recorded as required by law, the defendants could have placed the burden of proof on the plaintiffs to establish that no notice was given. However, in the absence of the proces verbal, the burden of proof was on the defendants who filed no answer and allowed a default judgment to be rendered against them. Thus, the defendants had the burden of proving by Rclear and convincing evidence that the necessary notice was conveyed to the tax debtor. This they did not do.

The defendants cannot rely on the copy of the form tax sale deed to show that proper notice was sent. That form deed merely states that notice was given “according to law,” but there are no copies of the notice itself showing that it was sent by certified mail, returned receipt requested, as required by law. Thus, the tax deed is insufficient proof, by clear and convincing evidence, that notice was sent by certified mail, that notice was addressed to the correct party, or that notice was sent to the correct address.

We also observe that the tax deed’s recitation that the property was assessed on the tax roll to Lois Holdcraft Spencer C/O Charlotte Hall does not constitute sufficient proof that Charlotte Hall was a proper person to whom notice of tax delinquency could be sent for purposes of satisfying the constitutional notice requirements. In Lewis v. Succession of Johnson, 05-1192 (La.4/4/06), 925 So.2d 1172, the plaintiff argued that notice to one co-owner was sufficient to give notice to the other co-owners because the one co-owner was “an authorized representative” of the other co-owners. The supreme court rejected this argument noting that the question was whether the one co-owner had been made a designated manda-tary by the other co-owners with regard to the property. The court noted that the existence of a mandate must be substantiated by evidence and that no evidence had been presented to show such a mandate in the case. Likewise, in the case before us, there is no evidence of who Charlotte Hall may be, much less that she was a manda-tary of Mrs. Spencer for purposes of | ¡¡receiving the tax notice required by law before a valid tax sale could occur.

Accordingly, we conclude that the trial court did not'err in confirming the default judgment annulling the tax sale.

The Action to Remove Cloud from Title

An action to remove cloud from title or to quiet title may be used by a person claiming ownership of immovable property or of a real right against another who has recorded an instrument which operates as a cloud on his title. Shell v. Greer, 171 So.2d 672 (La.App. 2 Cir.1965). Louisiana jurisprudence still recognizes the action to quiet title. Walmsley v. Pan American Petr. Corp., 244 La. 513, 153 So.2d 375 (1963); Parker v. Machen, 567 So.2d 739 (La.App. 2 Cir.1990); Harrison v. Alombro, 341 So.2d 1165 (La.App. 1 Cir.1976), writ denied, 343 So.2d 1063 (La.1977). Under this jurisprudence, a person who claims to be the owner of an immovable may bring an action to confirm his title. Parker, supra; Standard Homes, Inc. v. Prestridge, 193 So.2d 100 (La.App. 2 Cir.1966). The requirements of the action to quiet title are:

1. Claim of ownership;

2. Existence of clouds;

3. Description of property; and

4. Prayer for cancellation of the clouds.

Appellants do not raise an issue on appeal of whether the plaintiffs have made out a prima facie case to quiet title. However, the record demonstrates that the plaintiffs met the prima facie case requirements in this case. Plaintiffs claimed ownership and possession of the property allegedly |insold to Linda Austin by the Jameses in their petition. Additionally, they introduced into evidence judgments of possession from the respective successions of James T. Spencer and Lois Holdcraft Spencer. This uncontroverted evidence constitutes prima facie proof that the plaintiffs are the owners of the property. Harrison, supra. Plaintiffs further showed that there existed a cloud on their title by placing into evidence a certified copy of the cash deed from the Jameses to Austin containing the property description and showing that it was filed in the conveyance records of Union Parish. The plaintiffs prayed that the cloud from the title be cancelled and erased from the records of Union Parish. Accordingly, all the requirements established by the supreme court in Walmsley were met in this case.

For these reasons, we conclude that the trial court correctly confirmed the default judgment quieting title for the plaintiffs.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed at appellants’ costs.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. TREMAIN Dixon P.
    No. 06-KA-438.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Frank A. Brindisi, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant, Tremain Dixon P., appeals from his guilty plea to one count of possession of heroin and one count of possession of cocaine, and his two concurrent five-year sentences. We affirm.

On November 10, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, in count one, with possession of heroin, a violation of La. R.S. 40:966 C; and in count two, with possession of cocaine, a violation of La. R.S. 40:967 C. Defendant was arraigned on November 12, 2004, and pled not guilty to both charges. On July 22, 2005, the State amended count one of the bill of information, increasing the charge to possession with intent to distribute heroin. Defendant was arraigned on the amended charge and pled not guilty.

1 ¡¿Defendant filed omnibus pre-trial motions. The trial court heard and denied his motion to suppress evidence on March 22, 2005. Defendant filed an application for writs to this Court from the trial court’s ruling, which was denied.

On February 6, 2006, the State amended count one of the bill of information again, reducing the charge to simple possession of heroin. On the same day, defendant withdrew his not guilty pleas and pled guilty as charged to both counts in the amended bill. The trial court sentenced defendant to five years at hard labor on each count, directing that the sentences be served concurrently with each other and with any other sentence defendant was serving. Defendant filed a timely Motion to Reconsider Sentence, which the trial court summarily denied. This timely appeal follows.

Since defendant’s convictions resulted from a guilty plea, the known facts in this case are derived from the suppression hearing testimony and are as follows. In the course of a traffic stop, the defendant was found by the arresting officer to be in possession of a bag containing eight smaller bags of marijuana, one small bag of cocaine, and thirteen foil packets of heroin.

In his sole assignment of error, defendant complains the trial court erred in denying his motion to reconsider sentence without a hearing. Defendant argues the sentences he received at the time of his guilty pleas were greater than those his attorney had negotiated with the State at an earlier time. Defendant moves this Court to remand this case to the trial court for a hearing on the motion to reconsider sentence.

The State responds there is no evidence in the record of a prior plea agreement; and if there was such an agreement at one time, it was no longer in effect at the time 14of defendant’s guilty pleas. The State argues the trial court did not err in denying defendant’s Motion to Reconsider Sentence because defendant entered his guilty pleas knowingly and voluntarily, after the trial court apprised him on the record of his constitutional rights and of the sentences that would be imposed. In any ease, the State argues, defendant cannot seek review of sentences imposed in conformity with a plea agreement.

We first note that the trial court did not err in denying defendant’s motion to reconsider sentence without first holding a hearing on the matter. La.C.Cr.P. art. 881.1 D provides, in pertinent part, “[t]he trial court may deny a motion to reconsider sentence without a hearing ... If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.” The record does not show that defendant objected to his sentences at the time they were imposed, or that he attempted to proffer any evidence below to show he had agreed to lower sentences as part of a prior plea bargain.

La.C.Cr.P. art. 881.4 C provides, “[i]f necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evidentiary hearing.” We find no basis for remanding for an evidentiary hearing on defendant’s motion. The record shows that on February 6, 2006, defendant signed a Waiver of Constitutional Rights Plea of Guilty form. By initialing and signing the form, defendant indicated that he understood and wished to waive his rights to trial by jury and confrontation, and his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The attorney representing defendant at the guilty plea hearing also signed the form. That form set forth defendant’s sentencing exposure and showed he would receive two five-year sentences if he pled guilty.

| ¡¿The guilty plea transcript shows the trial judge asked defendant if his attorney had fully explained the rights listed on the guilty plea form, and defendant responded affirmatively. The trial judge informed defendant of the sentencing ranges of the charged offenses, and informed defendant he would receive a sentence of five years on each count, to run concurrently with each other. Defendant acknowledged that he understood his rights, and the trial court accepted his guilty pleas and imposed the five-year sentences.

The sentencing function is solely within the province of the trial judge. See, State v. Prater, 337 So.2d 1107, 1108 (La. 1976). Even if, as defendant claims, his trial counsel negotiated a particular sentence with the prosecutor prior to defendant’s writ application, the trial court retained the discretion to reject such an agreement. State v. Collins, 359 So.2d 174, 176 (La.1978). We are mindful that a defendant may not be punished for seeking appellate redress. However, there is nothing in the record to show that the trial court ever offered defendant lesser sentences than those he eventually imposed.

Finally, we note that La.C.Cr.P. art. 881.2 A(2) provides a defendant may not appeal a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. Defendant’s five-year sentences were clearly agreed upon as part of a plea bargain. Therefore, he is not entitled to challenge them on appeal.

For the foregoing reasons, affirm defendant’s convictions and sentences.

AFFIRMED.

      . State v. Dixon, 05-K-442 (La.App. 5 Cir. 5/11/05). A subsequent application was also denied by the Louisiana Supreme Court. State v. Dixon, 05-KK-1551 (La. 12/16/05), 917 So.2d 1117

      . In his Motion to Reconsider Sentence, defendant noted that he had rejected the earlier plea offer because he “desired to see the outcome of his petition in the Louisiana Supreme Court first.”


author: EDWARDS, Judge.

text:
    Veronica JOHNSON v. KERRY BROWN, LLC, et al.
    No. 06-CA-925.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.

      C. Hunter King, The King Law Firm, Baton Rouge, Louisiana, for PlaintiffiAp-pellant.
    Richard J. Dodson, Kenneth H. Hooks, III, Angela R. Carlisle, Dodson & Hooks, APLC, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   EDWARDS, Judge.

| i>Plaintiff/appellant, Veronica Johnson (“Johnson”), appeals a judgment of the district court denying her Motion to Enforce Settlement and granting defendant/appellee’s, Kerry D. Brown L.L.C. and Kerry D. Brown (“Brown”), Motion for Security for Costs. For the following reasons, we dismiss this appeal reserving to Johnson her right to file an application for supervisory writs within thirty days of date of this opinion.

On February 7, 2006, Johnson filed suit in the Fortieth Judicial District Court, alleging an action against Brown. Specifically, Johnson urged that she had been the victim of a medical malpractice in 2004 and that she had retained Brown to represent her in that action. Johnson further alleged that Brown failed to investigate her claim and failed to file a lawsuit on her behalf within the applicable prescriptive period. Johnson asserted that, on June 22, 2005, Brown acknowledged his fault and attempted to remunerate her by entering into a settlement agreement with her and that he had breached that agreement. The petition requests damages against Brown for legal malpractice.

IrTwo months later, Johnson filed a Motion to Enforce Settlement, alleging that, in the June 2005 agreement, she and Brown had consented to settle the legal malpractice matter for $30,000, $5,000 of which had already been advanced by Brown. Johnson asked that the settlement agreement be enforced and also requested further damages resulting from Brown’s alleged failure to abide by the settlement. Brown brought a Motion for Security for Costs under LSA-R.S. 13:4522 and filed an Answer, Exceptions, and Reconventional Demand. In the re-convention, Brown averred that he paid Johnson $5,000 without admitting liability and had since learned that the facts alleged by Johnson constitute neither legal nor medical malpractice. There was no written agreement to settle, and Brown requested that Johnson return the $5,000.

The trial court heard the Motion to Enforce Settlement and the Motion for Security for Costs. Following the hearing, the court denied Johnson’s Motion to Enforce and granted Brown’s Motion for Security for Costs. From this judgment Johnson appeals.

A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841. A final judgment is appealable in all causes in which appeals are given by law. LSA-C.C.P. art. 2083. That article was recently amended to provide that an interlocutory judgment is ap-pealable only when expressly provided by law. According to C.C.P. art. 1915(B)(1)(2), in part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
|4(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

The judgment before us is not final. While it addresses a portion of Johnson’s claim, it does not address the merits of the original petition; that is, the alleged legal malpractice and, thus, does not dispose of all of the claims and issues in Johnson’s action. As a partial judgment, it has not been designated as final for purposes of appeal by the trial court. There is no express law allowing Johnson to appeal the denial of a Motion to Enforce Settlement.

The order of the court granting the Motion for Security for Costs is an interlocutory judgment. If, under LSA-R.S.13:4522, a party fails to pay security in accordance with a court order and his case is dismissed, then the matter would be final and appealable.

Accordingly, this appeal is dismissed. Johnson has thirty days from the date of this opinion within which to file an application for supervisory writs.

APPEAL DISMISSED.