text:
    ADVANCED POOL SERVICES, INC., George Turey, Sundook Advanced Pools, LLC, and Gail Sundook, Petitioners, v. Donald B. MIELE, Respondent.
    No. 4D11-3814.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Larry A. Karns of Spink & Associates, P.A., Cooper City, for petitioners.
    William M. Layton, Lake Worth, for respondent.
   PER CURIAM.

Petitioners seek certiorari review of a discovery order on the ground that they have been ordered to produce trade secrets and confidential business information. We grant the petition because the trial court departed from the essential requirements of law in ordering the production without first conducting the requisite in camera inspection or evidentiary hearing, resulting in irreparable harm. See Summitbridge Nat’l Invs. LLC v. 1221 Palm Harbor, L.L.C., 67 So.3d 448 (Fla. 2d DCA 2011); Docutek Imaging Solutions, Inc. v. Copyco, Inc., 869 So.2d 1291 (Fla. 4th DCA 2004); Premiere Lab Supply, Inc. v. Chemplex Indus., Inc., 791 So.2d 1190, 1190 (Fla. 4th DCA 2001); Am. Express Travel Related Servs., Inc. v. Cruz, 761 So.2d 1206, 1208-09 (Fla. 4th DCA 2000).

Accordingly, we grant the petition and quash the circuit court’s order.

STEVENSON, LEVINE and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Douglas SCHOTT, Appellant, v. Mary HOUCEK, Appellee.
    No. 4D10-4971.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Douglas Schott, Eustis, pro se.
    Nichole Sauvola, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); § 38.05, Fla. Stat. (2009).

MAY, C.J., STEVENSON and GROSS, JJ., concur.


text:
    Petia Dimitrova KNOWLES, Appellant, v. William Roger KNOWLES, Appellee.
    No. 4D11-714.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Petia Dimitrova Knowles, Cooper City, pro se.
    No appearance for appellee.
   PER CURIAM.

We affirm, but remand for the trial court to enter a written order denying the former wife’s motion for contempt.

Affirmed; Remanded.

POLEN, STEVENSON and TAYLOR, JJ., concur.


author: DAMOORGIAN, J.

text:
    Frank M. MONTE, III, Appellant, v. CYPRESS BEND CONDOMINIUM VII ASSOCIATION, INC., a Florida Corporation Not for Profit, Appellee.
    No. 4D10-5128.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Frank M. Monte, III, Ft. Lauderdale, pro se.
    No appearance for appellee.
   DAMOORGIAN, J.

Frank M. Monte, III, timely appeals the trial court’s final judgment of foreclosure on the grounds that he was never served with process. Monte never obtained a ruling from the trial court on his claim that service was improper. See Johnston v. Hudlett, 32 So.3d 700, 705 (Fla. 4th DCA 2010). Absent a ruling from the trial court and accompanying record evidence to support Monte’s contention, this Court has no ability to review Monte’s claim. Accordingly, we affirm the final judgment without prejudice for Monte to seek to set aside the final judgment. See H & F Tires, L.P. v. D. Gladis Co., 981 So.2d 647, 651 (Fla. 4th DCA 2008) (“ ‘[A] judgment entered without service of process on the defendant is void and may be attacked at any time.’ ”) (quoting M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1080 (Fla. 4th DCA 2000)).

Affirmed.

MAY, C.J., and HAZOURI, J., concur.


text:
    Shane P. McENANY, Petitioner, v. Robert RYAN, Respondent.
    No. 4D11-3165.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Elana B. Goodman and Adam R. Schlossberg of Mitrani, Rynor & Adamsky, P.A., Weston, for petitioner.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Milton Blaut and Michael A. Weiss of Green-spoon Marder, Fort Lauderdale, for respondent.
   PER CURIAM.

In McEnany v. Ryan, 44 So.3d 245 (Fla. 4th DCA 2010), we granted a writ of cer-tiorari and quashed an order requiring production of medical and pharmacy records of the petitioner, the defendant in a personal injury action in the circuit court. On remand, the circuit court conducted an in camera inspection of the records and ordered production of twelve pages of petitioner’s records.

We grant the petition as to all records except Dr. Zaret’s April 23, 2008 and May 1, 2009 records. Whether petitioner had a current prescription for Ritalin as of the date of the December 17, 2008 automobile accident was relevant to the issue of petitioner’s impairment on the date of the accident. See McEnany, 44 So.3d at 247. The records other than the two referenced above are so attenuated from the date of the accident that their disclosure would impinge on petitioner’s constitutional right of privacy in medical records. Id.

We grant the petition in part and quash the order except insofar as it requires production of the April 23, 2008 and May 1, 2009 records.

WARNER, GROSS and CIKLIN, JJ., concur.


author: WELLS, Chief Judge.

text:
    WESTERN HAY COMPANY, INC., Appellant, v. LAUREN FINANCIAL INVESTMENTS, LTD., d/b/a Lauren Associates, and Ronald Rubin, Appellees.
    No. 3D10-1071.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.

      Zimmerman Kiser Sutcliffe, J. Timothy Schulte, Kevin P. Robinson, and Keef F. Owens, Orlando, for appellant.
    Jay A. Gayoso, Aventura, for appellees.
    Before WELLS, C.J., and CORTIÑAS, and EMAS, JJ.
   ON MOTION FOR REHEARING AND CERTIFICATION

WELLS, Chief Judge.

We deny appellant’s motion for rehearing and certification; however, we withdraw our opinion issued on May 4, 2011, and substitute the following in its place.

The final judgment under review is summarily affirmed.


text:
    Anand K. DWARKANAUTH, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Oerther Foods, Inc., McDonald’s, Appellees.
    No. 1D11-4466.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2012.
    Anand K. Dwarkanauth, pro se, Appellant.
    A. Robert Whaley, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: GERBER, J.

text:
    LAKE CHARLESTON HOMEOWNERS ASSOCIATION, INC., Appellant, v. Curtis L. HASWELL, Appellee.
    No. 4D10-4974.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.

      Ryan M. Aboud of Backer Law Firm, P.A., Boca Raton, for appellant.
    Jennifer J. Kramer of Jennifer J. Kramer, LLC, Boca Raton, for appellee.
   GERBER, J.

The plaintiff association appeals the circuit court’s order granting the defendant’s motion for relief from a final judgment of foreclosure. The court granted the defendant’s motion on the basis that the association, which is actually named “Lake Charleston Maintenance Association, Inc.,” misnamed itself in the affidavit in support of its motion for summary judgment as “Lake Charleston Homeowners Association, Inc.” The association argues that the misnomer did not entitle the defendant to relief. We agree with the association and reverse.

The defendant brought his motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(3) (2010). Rule 1.540(b)(3) provides, in sum, that a court may relieve a party from a final judgment based on fraud, misrepresentation, or other misconduct of an adverse party. The defendant’s motion alleged that the association’s counsel committed fraud and misconduct because he “should have been aware that [he] named the wrong entity.” The motion further alleged that “this is not the first time” the association’s counsel named the wrong entity.

In response to the motion, the association filed a motion to correct misnomer pursuant to Florida Rule of Civil Procedure 1.540(a) (2010). Rule 1.540(a) provides, in sum, that clerical mistakes in judgments or other parts of the record arising from oversight may be corrected by the court at any time on its own initiative or on the motion of any party. The association alleged that the misnomer was a clerical error. The association further alleged that, notwithstanding the clerical error, the claim of lien attached to the complaint contained the association’s correct name. The association requested the court to enter an order correcting the misnomer and identifying the association in the proceedings as “Lake Charleston Maintenance Association, Inc.”

The circuit court first held a hearing on the association’s motion to correct misnomer. The court entered an order denying the motion without any written explanation. The association has not provided us with a transcript which might shed light on the court’s reasoning.

However, the circuit court later held an evidentiary hearing on the defendant’s motion for relief from judgment. The association has provided us with a transcript of that hearing. At the end of the hearing, the court made the following findings:

The summary judgment is based upon a false affidavit. I don’t suspect that there was any intent to defraud. It’s simply an error because it’s the wrong organization, but the affidavit is wrong.
We now know that it should have been the Lake Charleston Maintenance Association, Inc. The affidavit itself is erroneous, and that was the basis for the summary judgment. So for no other reason — again, I’m not suggesting there was an intent to defraud, but it is a false affidavit that supported the summary judgment, and the motion for relief from judgment is granted.

(emphasis added). The court then entered a written order granting the defendant’s motion for relief from judgment.

The association appealed only the order granting the defendant’s motion for relief from judgment. Generally, we review a circuit court’s order on a motion for relief from judgment for an abuse of discretion. See Freeman v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (“Because a trial court is accorded broad discretion in determining rule 1.540(b) motions ... the standard of review of an order on a rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court’s discretion.”). However, to the extent that a circuit court applies its findings of fact to the law in rendering an order, we review that application de novo. See Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 298 (Fla. 4th DCA 2011) (appellate court reviews de novo the circuit court’s application of facts to the law).

We conclude that the circuit court misapplied its findings of fact to the law in granting the defendant’s motion for relief from judgment. The court found that the association did not commit fraud, misrepresentation or other misconduct, but rather simply committed a clerical mistake. As such, under the plain language of rules 1.540(b)(3) and 1.540(a), the court should have denied the defendant’s motion for relief from judgment and should have granted the association’s motion to correct misnomer.

The defendant’s arguments seeking to defend the circuit court’s order for the other reasons raised in his motion for relief from final judgment and at the eviden-tiary hearing are without merit. We choose not to address those arguments in further detail. We remand with directions for the circuit court to reinstate the association’s final judgment and to correct the clerical mistake in the final judgment. See Fla. R. Civ. P. 1.540(a) (“During the pen-dency of an appeal such mistakes may be so corrected ... with leave of the appellate court.”).

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.


author: MORRIS, Judge.

text:
    Angel Luis LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2649.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.

      Angel Luis Lopez, pro se.
   MORRIS, Judge.

Angel Luis Lopez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied his sole claim of ineffective assistance of counsel as facially insufficient. Lopez argues, and we agree, that pursuant to Spera v. State, 971 So.2d 754, 761 (Fla.2007), he should have been provided with an opportunity to amend and cure the insufficiency, if he can do so in good faith. We therefore reverse and remand for the postconviction court to strike the motion with leave to amend within a reasonable time, not to exceed thirty days.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.


author: PER CURIAM. CASANUEVA, Judge,

text:
    Sean C. MARTINEAU, Petitioner, v. BANCO POPULAR NORTH AMERICA, Respondent.
    No. 2D11-3108.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.
    Virginia R. Vetter, Tampa, and Harold Lee Harkins, Jr., Tampa, for Petitioner.
    Jason A. Rosenthal and Jennifer L. Morando of The Rosenthal Law Firm, P.A., Orlando, for Respondent.
   PER CURIAM.

Dismissed as moot.

LaROSE and MORRIS, JJ., Concur.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring.

Sean C. Martineau seeks certiorari review of an order denying his motion for a protective order in which he sought to prevent Banco Popular North America (“Banco”) from conducting discovery and obtaining certain documents from Scot-trade, a nonparty. In the time since that order issued, Banco has successfully obtained those documents. Therefore, I concur in the dismissal of Mr. Martineau’s petition because the issue is moot. However, were this court able to reach the merits of this case, I would conclude that the trial court erred.

Banco obtained a judgment against Mr. Martineau, as the guarantor of a promissory note, in the amount of $1,107,581.26. Banco then undertook efforts to collect on its judgment. Mr. Martineau, as an individual, held a 95% interest in the Marti-neau Family Limited Partnership (“MFLP”). Mr. Martineau also held 100% of the stock of MFLPGP, Inc., a corporation which held a 1% interest in MFLP and was MFLP’s sole general partner. Banco first successfully obtained the surrender of Mr. Martineau’s entire interest in MFLPGP, resulting in the transfer of 100% of the MFLPGP stock. Then Banco secured a charging lien against Mr. Marti-neau’s individual 95% interest in MFLP.

Banco’s next move in collecting its judgment was to serve Scottrade with a subpoena duces tecum without deposition, requesting production of financial records relating to an account owned by MFLP. Mr. Martineau sought a protective order which the trial court denied.

Mr. Martineau’s Argument

Mr. Martineau argues that the trial court’s order is in direct violation of the plain language of section 620.1703, Florida Statutes (2010). This statute defines the limited rights that Banco obtained when it acquired Mr. Martineau’s individual interest in MFLP, a limited partnership: “[T]he court may charge the partnership interest of the partner ... with payment of the unsatisfied amount of the judgment with interest,” but “[t]o the extent so charged, the judgment creditor has only the rights of a transferee of the partnership interest.” § 620.1703(1).

The section also states “[tjhis section provides the exclusive remedy which a judgment creditor of a partner or transferee may use to satisfy a judgment out of the judgment debtor’s interest.” § 620.1703(3). “Other remedies, including ... a court order for directions, accounts, and inquiries that the debtor general or limited partner might have made, are not available to the judgment creditor attempting to satisfy the judgment out of the judgment debtor’s interest in the limited partnership and may not be ordered by a court.” Id. Under the clear language of this section, the trial court erred by allowing Banco to conduct such “inquiries” into the Scottrade accounts when inquiries are prohibited by statute.

Banco’s Alternative Theory

When Banco obtained MFLPGP, the remaining limited partners of MFLP dissociated MFLPGP as the general partner. Banco now offers this fact in an alternative argument to support the trial court’s ruling. It claims that the dissociation was a fraudulent action intended to prevent Ban-co from conducting discovery through its newly acquired interest in MFLPGP. But MFLPGP is not a party to this action, and we are not convinced that Banco has standing to raise this assertion on MFLPGP’s behalf.

Further, Banco did not present any evidence of fraud in the trial court. And even if Banco could have used MFLPGP as its conduit for obtaining information, the information available to it would have been restricted by section 620.1407, titled “Right of general partner and former general partner to information.” It is unlikely that the information Banco sought from Scottrade would fall under any of the provisions of this section.

Conclusion

For these reasons I conclude the trial court erred in denying the motion for protective order. But because the petition is moot, I must concur with my colleagues in the dismissal of the petition.

      . Banco sought this production as a judgment creditor. It did not use its ownership of MFLPGP as its stalking horse and MFLPGP was not a party to the action below or the petition filed here.


text:
    G.R., the mother, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D11-2560.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
    Karla Perkins, Appellate Counsel for The Department of Children and Families, appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on Appellee Department of Children and Families’ commendable and proper confession of error, we reverse the adjudication of dependency and remand with directions to the trial court to allow Appellee to proceed with a dependency trial. The record reflects the trial court entered an adjudication of dependency, based on constructive consent against Appellant, G.R., for her failure to appear for an adjudicatory hearing absent proper notice in accordance with section 39.506(3), Florida Statutes (2011), and Florida Rule of Juvenile Procedure 8.330(c).

Reversed and remanded for proceedings in compliance herewith.


author:
PER CURIAM.

      |T JOHNSON, J.,

text:
    STATE of Louisiana v. Michael DYER.
    No. 2011-KP-1758.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.
   PER CURIAM.

hln these consolidated applications, rela-tors seek review following denial in the district court of their motions to correct an illegal sentence and for relief from their terms of life imprisonment at hard labor following their convictions for aggravated rape, La.R.S. 14:42, a non-homicide crime, committed when they were all under the age of 18 years.

Relators contend that the United States Supreme Court’s recent decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for commission of a non-homicide offense, dictates setting aside their sentences of life imprisonment and resentencing. The sentences for relators Shaffer and Leason do not expressly preclude eligibility for parole, as does the sentence for relator Dyer. However, |2Shaffer and Leason argue that they, too, are ineligible for parole consideration by virtue of the proviso in La.R.S. 15:574.4(B), which has stated since 1968 La. Acts 191, that “[n]o prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993)(“[S]ince [R.S.] 15:574.4(33) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration would be withheld from the defendant, by operation of law, despite the fact that the applicable penalty provision did not include the words ‘without benefit of parole.’ ”)(citing State v. Wilson, 362 So.2d 536, 539 n. 3 (La.1978)). A similar commutation proviso controls access by inmates serving life sentences to the parole provisions in La.R.S. 15:574.4(A)(2), which otherwise state that: “[N]otwithstanding ... any other law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five.”

In light of these commutation provisos, and the difficulty of obtaining commutation of sentence in this state, La. Const, art. 4, § 5(E)(l)(“The governor ... upon favorable recommendation of the Board of Pardons, may commute sentences.... ”)(emphasis added), relators argue that even those life sentences which by express terms do not preclude parole eligibility for inmates who committed non-homicide crimes when they were juveniles are directly governed by Graham. Drawing on prior jurisprudence of this Court, they further argue that the appropriate remedy is to resentence them according to the penalties provided for the next lesser and included responsive verdict of attempted aggravated rape.

We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution. In Graham, the Supreme Court held |sthat “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. The Court specifically observed: “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. The Court noted that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983) (striking down a life sentence without parole for a habitual offender convicted of issuing a “no account” check, Court notes the difference between the availability of parole as a “regular part of the rehabilitative process” and commutation of sentence as “an ad hoc exercise of executive clemency”)). Graham reflects the Supreme Court’s determination that juveniles are a special class of offenders deserving of special protections otherwise not accorded adult offenders, and for purposes of the Eighth Amendment, a juvenile is a person under the age of 18 years at the time of the offense. Id., 560 U.S. at -, 130 S.Ct. at 2030 (“Because ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,’ those who were below that age when the offense was committed may not be sentenced to life without parole for a non-homicide crime.”)(quoting Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 1198, 161 L.Ed.2d 1 (2005)) (state may not impose capital punishment on offenders who were under the age of 18 years when their crimes were committed).

The decision in Graham does not require this Court to order the immediate release of relators from state supervision or to adopt a remedy that would guarantee immediate release by virtue of credit for time served. To this extent, the rulings below are affirmed. Graham does require that relators, and all other persons similarly situated, have a meaningful opportunity to secure release as a “regular part of the rehabilitative process.” We therefore hold, as we must under Graham, that the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody. The state thus may not enforce the commutation provisos in l4La.R.S. 15:574.4(A)(2) and 15:574.4(3) against rela-tors and all other similarly situated persons, and the former provisions offer objective criteria set by the legislature that may bring Louisiana into compliance with the Graham decision.

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). Access to the Board’s consideration will satisfy the mandate of Graham.

AFFIRMED WITH INSTRUCTIONS

JOHNSON, J., dissents and assigns reasons.

|T JOHNSON, J.,

dissents and assigns reasons.

The United States Supreme Court’s his-torie decision in Graham v. Florida, 560 U.S. -; 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) held that “for a juvenile offender who did not commit homicide, the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. Prior to Graham, the United States was the only nation in the world still adhering to the practice of sentencing juvenile offenders to life imprisonment without the possibility of parole for non-homicide offenses. In the United States, only a handful of jurisdictions still impose life sentences without parole on juvenile offenders. Louisiana is one of eleven jurisdictions wherein juveniles are currently serving life sentences without parole for non-homicide offenses. When Graham was decided, there were 129 juveniles in the United States serving sentences of life without parole for non-homicide offenses. Of | ?those, seventy-seven juveniles were serving sentences imposed in Florida. Of the remaining 53, who were imprisoned in just ten states, 17 were serving life sentences imposed in Louisiana for non-homicide offenses.

The Supreme Court in Graham relied heavily on its prior analysis in the landmark ruling of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which abolished the death penalty for juvenile offenders, finding a violation of the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that a life sentence without the possibility of parole overlooks important distinctions between adults and juveniles and provides no hope for rehabilitation. The Court explained that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency— the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983)). The Court in Roper concluded that since juveniles have reduced culpability, punishment for juveniles must reflect their lesser blameworthiness, and in light of these innate characteristics of youth, juveniles offenders cannot be subjected to the harshest penalty reserved for the most depraved offenders. Id. at 569, 125 S.Ct. 1183.

Relators herein were all convicted for non-homicide offenses committed when they were juveniles, and sentenced to life imprisonment at hard labor. Dyer was specifically sentenced to life imprisonment, without benefit of parole, probation, or suspended sentence. Shaffer and Leason, were each sentenced to life imprisonment at hard labor. While Shaffer’s and Lea-son’s sentences do not explicitly exclude the ^possibility of parole, under Louisiana’s statutory scheme, it does not matter, since La. R.S. 15:547 provides that Shaffer and Leason are not eligible for parole except when the governor exercises his prerogative to commute the life sentence to a fixed term of years. See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993) (“[S]ince [R.S.] 15:574(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration will be withheld from these defendants, by operation of law, despite the fact that the applicable penalty provision did not include the words ‘without benefit of parole.’ ”) (citing State v. Wilson, 362 So.2d 536, 539 n. 3 (La.1978)). Rela-tors contend they are entitled to relief under Graham, because the possibility of clemency does not constitute a meaningful, realistic, opportunity for release. I agree.

This Court has the opportunity to carry out the mandate of Graham. Graham makes clear that the ad hoc exercise of the executive’s power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary. The relief provided by the majority, amounts to no relief at all. The order states:

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the ^exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency,” La. R.S. 15:574.4.1(B), and access to the Board’s consideration will provide rela-tors with the “meaningful opportunity” for release that Graham requires.

The problem is that there is no way to calculate a parole eligibility date for a life sentence. This order does not sufficiently address the Graham directive to allow for the possibility of parole for juvenile non-homicide offenders. To satisfy the dictates of Graham, I would remand these three cases to the district court, and order that relators be re-sentenced to a fixed term of years, which can be used as the basis for calculating the eligibility date for parole.

      . Kimball, C.J., not participating.

      . In 1971, an East Baton Rouge Parish jury found relator Shaffer guilty of aggravated rape in violation of La.R.S. 14:42 and sentenced him to death. Shaffer committed the crime when he was 16 years old. This Court vacated the sentence and remanded to the district court for resentencing. State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971). The district court sentenced Shaffer to life imprisonment at hard labor. In 1965, relator Lea-son pleaded guilty in East Baton Rouge Parish to aggravated rape. He was 17 years old when he committed the offense. The court sentenced him to life imprisonment at hard labor. In 1981, an East Baton Rouge Parish jury found relator Dyer guilty of aggravated rape. Dyer was 17 years old at the time he committed the offense. The trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This Court affirmed the conviction and sentence. State v. Dyer, 420 So.2d 686 (La.1982).
      Under Louisiana law in effect at the time of their crimes, Leason and Dyer were considered adults, as they were over the age of 17 years. See, e.g., former La.C.J.P. art. 13(9) ("Child means a person less than seventeen years of age.”); former La.R.S. 13:1569(3)(same); compare La.Ch.C. art. 116(3)(" 'Child' means a person who has not attained the age of eighteen years....”) However, all three relators were under the age of 18 years when they committed their crimes and thus fall within the class of offenders considered as juveniles for purposes of the Eighth Amendment, as the decision in Graham makes clear. With respect to the ages of relator, no dispute exists over the question whether they were under the age of 18 years at the time the crimes were committed, as confirmed by the birth dates and the dates of the crimes reflected in the records maintained by the Department of Corrections.

      . Relators note that following the Supreme Court's decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which struck down Louisiana's then-mandatory death penalty for aggravated rape. this Court ordered inmates convicted of aggravated rape resentenced to the maximum term of imprisonment at the time of the offense for the next available responsive verdict, i.e. attempted aggravated rape. See, e.g., State v. Valentine, 364 So.2d 595, 596-97 (La.1978); State v. Bryant, 347 So.2d 227, 228 (La.1977); State v. Craig, 340 So.2d 191, 193-94 (La.1976). They argue that Graham requires a similar remedy in their cases. For relators Shaffer and Leason, resentencing in that manner would entail a sentence of 20 years at hard labor without any restriction on parole, probation, or suspension of sentence, Craig, 340 So.2d at 192, and result in their immediate release from state supervision. In the case of Dyer, resentencing would entail a sentence of 50 years imprisonment at hard labor, also without any restriction on parole, probation, or suspension of sentence. Valentine, 364 So.2d at 599.

      . In 2011 La. Acts 285, the legislature added a new subsection (A)(4) to La.R.S. 15:574.4, to provide that offenders sentenced to any term of imprisonment with or without benefit of parole for an offense which is not a crime of violence or a sex crime may become eligible for parole after serving 10 years of the sentence and reaching the age of 60 years, subject to several special conditions. It appears that this recent legislation addresses a class of offenders who are already in their late 40’s and early 50’s when they become subject to the custody of the Department of Corrections. Testifying before the Senate Committee on Judiciary B on June 14, 2011, in support of HB 138 which became Act 285, Warden Burl Cain observed that in addition to the costs savings anticipated from the new provisions, "we are going to replace their beds with a predator and predators should be in prison not dying old men.”

      . We note that in its supplemental memorandum filed in the district court following a hearing conducted on April 6, 2011, for rela-tors Shaffer and Leason, the state specifically referenced the provisions of La.R.S. 15:574.4(A)(2), in response to relator’s argument that the commutation provisos may not be severed from the parole provisions in the statute because there was no way of calculating a parole eligibility date at one-third or one-half of a life sentence, or at 85% of the term for crimes of violence. See La.R.S. 15:574.4(A)(1); 15:574.4(B). Referring to the provisions of La.R.S. 15:574.4(A)(2), the state argued below that severance of the commutation proviso "could afford petitioners parole eligibility without rendering the essence of parole meaningless.”

      . This Court is aware that in the past session, the legislature addressed, but did not resolve, the Graham issue. 2011 House Bill 115 provided that an inmate serving life sentences for a non-homicide crime committed as a juvenile would become eligible for parole consideration after serving 35 years of his sentence, subject to a variety of special conditions. However, House Bill 115 failed final passage and the legislature has by concurrent resolution directed the Louisiana Law Institute to convene a task force to evaluate Louisiana law for compliance with Graham and to report back with its findings and recommendations by January 1, 2012. Thus, our decision in relators’ cases is an interim measure (based on the legislature's own criteria) pending the legislature's response to Graham. Cf. State v. Williams, 01-1650, pp. 32-33 (La.11/1/02), 831 So.2d 835, 861 (adopting as an interim measure procedures for determining whether a capital defendant is mentally retarded and so exempt from capital punishment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), pending the legislature's own response to the Atkins decision, see La.C.Cr.P. art. 905.5.1, 2003 La. Acts 698). We note that in Angel v. State, 281 Va. 248, 704 S.E.2d 386 (2011), the Virginia Supreme Court adopted a similar approach, in a state which has largely eliminated parole, by adverting to the provisions of Va.Code Ann. § 53.1-40.01, which state that any person sentenced for a felony offense, other than a Class 1 felony, who has served at least five years of his sentence and reached the age of 65 years, or has served at least 10 years of his sentence and reached the age of 60 years, may apply to the Parole Board for conditional release. The Virginia Supreme Court looked to that statutory provision as the state's Graham response in the first instance because, as the court noted, the Graham decision does not require states to release the offenders immediately or to "provide the opportunity for release at any particular time related to either the offender’s age or length of incarceration.” Angel, 704 S.E.2d at 402. The court concluded that the statutory regulation already in place "provides, as the Commonwealth argues, the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Id. (quoting Graham, 560 U.S. at -, 130 S.Ct. at 2030).

      . Connie de la Vega & Michelle Leighton, Sentencing our Children to Die in Prison, 42 U.S. F.L.Rev. 983, 989-1007 (2008).

      . The twelve U.S. jurisdictions which impose juvenile life sentences without parole for non-homicide crimes are: Florida, Louisiana, Mississippi, Virginia, Oklahoma, South Carolina, Iowa, California, Nebraska, Delaware, Nevada, and the federal jurisdiction.

      . Graham, supra. P.G. Annino, D.W. Rasmussen, & C.B. Rice, Juvenile Life without Parole for non-Homicide Offenses: Florida Compared to the Nation, Public Interest Law Center, College of Law, Florida State University (2009).

      . In 1981, Michael Dyer was found guilty by jury of aggravated rape, a crime committed when he was 17 years old. Dyer was sentenced to life imprisonment at hard labor (without benefit of parole, probation, or suspended sentence.) His sentence was affirmed by this Court. State v. Dyer, 420 So.2d 686 (La.1982).

        In 1971, Matthew Shaffer was found guilty of aggravated rape, a crime committed when he was 16 years old. The jury sentenced him to death. This Court vacated the sentence and remanded to the district court for resen-tencing. State v. Shaffer et al., 260 La. 605, 257 So.2d 121 (1971). The district court re-sentenced Shaffer to life imprisonment at hard labor.
      In 1965, Willie Leason pleaded guilty to aggravated rape. Leason committed the crime when he was 17 years old. The court sentenced him to life imprisonment at hard labor.


author:
      PER CURIAM.
     | j JOHNSON, J.,

text:
    STATE of Louisiana v. Willie LEASON.
    No. 2011-KP-1757.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.
   PER CURIAM.

Iiln these consolidated applications, rela-tors seek review following denial in the district court of their motions to correct an illegal sentence and for relief from their terms of life imprisonment at hard labor following their convictions for aggravated rape, La.R.S. 14:42, a non-homicide crime, committed when they were all under the age of 18 years.

Relators contend that the United States Supreme Court’s recent decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for commission of a non-homicide offense, dictates setting aside their sentences of life imprisonment and resentencing. The sentences for relators Shaffer and Leason do not expressly preclude eligibility for parole, as does the sentence for relator Dyer. However, 12Shaffer and Leason argue that they, too, are ineligible for parole consideration by virtue of the proviso in La.R.S. 15:574.4(B), which has stated since 1968 La. Acts 191, that “[n]o prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993)(“[S]ince [R.S.] 15:574.4(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration would be withheld from the defendant, by operation of law, despite the fact that the applicable penalty provision did not include the words ‘without benefit of parole.’ ”) (citing State v. Wilson, 362 So.2d 536, 539 n. 3 (La. 1978)). A similar commutation proviso controls access by inmates serving life sentences to the parole provisions in La.R.S. 15:574.4(A)(2), which otherwise state that: “[Notwithstanding ... any other law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five.”

In light of these commutation provisos, and the difficulty of obtaining commutation of sentence in this state, La. Const, art. 4, § 5(E)(l)(“The governor ... upon favorable recommendation of the Board of Pardons, may commute sentences.... ”)(emphasis added), relators argue that even those life sentences which by express terms do not preclude parole eligibility for inmates who committed non-homicide crimes when they were juveniles are directly governed by Graham. Drawing on prior jurisprudence of this Court, they further argue that the appropriate remedy is to resentence them according to the penalties provided for the next lesser and included responsive verdict of attempted aggravated rape.

We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution. In Graham, the Supreme Court held |3that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. The Court specifically observed: “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. The Court noted that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983) (striking down a life sentence without parole for a habitual offender convicted of issuing a “no account” check, Court notes the difference between the availability of parole as a “regular part of the rehabilitative process” and commutation of sentence as “an ad hoc exercise of executive clemency”)). Graham reflects the Supreme Court’s determination that juveniles are a special class of offenders deserving of special protections otherwise not accorded adult offenders, and for purposes of the Eighth Amendment, a juvenile is a person under the age of 18 years at the time of the offense. Id., 560 U.S. at -, 130 S.Ct. at 2030 (“Because ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,’ those who were below that age when the offense was committed may not be sentenced to life without parole for a non-homicide crime.”)(quoting Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 1198, 161 L.Ed.2d 1 (2005)) (state may not impose capital punishment on offenders who were under the age of 18 years when their crimes were committed).

The decision in Graham does not require this Court to order the immediate release of relators from state supervision or to adopt a remedy that would guarantee immediate release by virtue of credit for time served. To this extent, the rulings below are affirmed. Graham does require that relators, and all other persons similarly situated, have a meaningful opportunity to secure release as a “regular part of the rehabilitative process.” We therefore hold, as we must under Graham, that the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody. The state thus may not enforce the commutation provisos in |4La.R.S. 15:574.4(A)(2) and 15:574.4(B) against rela-tors and all other similarly situated persons, and the former provisions offer objective criteria set by the legislature that may bring Louisiana into compliance with the Graham decision.

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). Access to the Board’s consideration will satisfy the mandate of Graham.

AFFIRMED WITH INSTRUCTIONS

JOHNSON, J., dissents and assigns reasons.

| j JOHNSON, J.,

dissents and assigns reasons.

The United States Supreme Court’s historic decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) held that “for a juvenile offender who did not commit homicide, the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. Prior to Graham, the United States was the only nation in the world still adhering to the practice of sentencing juvenile offenders to life imprisonment without the possibility of parole for non-homicide offenses. In the United States, only a handful of jurisdictions still impose life sentences without parole on juvenile offenders. Louisiana is one of eleven jurisdictions wherein juveniles are currently serving life sentences without parole for non-homicide offenses. When Graham was decided, there were 129 juveniles in the United States serving sentences of life without parole for non-homicide offenses. Of Rthose, seventy-seven juveniles were serving sentences imposed in Florida. Of the remaining 53, who were imprisoned in just ten states, 17 were serving life sentences imposed in Louisiana for non-homicide offenses.

The Supreme Court in Graham relied heavily on its prior analysis in the landmark ruling of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which abolished the death penalty for juvenile offenders, finding a violation of the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that a life sentence without the possibility of parole overlooks important distinctions between adults and juveniles and provides no hope for rehabilitation. The Court explained that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency-the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983)). The Court in Roper concluded that since juveniles have reduced culpability, punishment for juveniles must reflect their lesser blameworthiness, and in light of these innate characteristics of youth, juveniles offenders cannot be subjected to the harshest penalty reserved for the most depraved offenders. Id. at 569, 125 S.Ct. 1183.

Relators herein were all convicted for non-homicide offenses committed when they were juveniles, and sentenced to life imprisonment at hard labor. Dyer was specifically sentenced to life imprisonment, without benefit of parole, probation, or suspended sentence. Shaffer and Leason, were each sentenced to life imprisonment at hard labor. While Shaffer’s and Lea-son’s sentences do not explicitly exclude the [.^possibility of parole, under Louisiana’s statutory scheme, it does not matter, since La. R.S. 15:547 provides that Shaffer and Leason are not eligible for parole except when the governor exercises his prerogative to commute the life sentence to a fixed term of years. See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993) (“[Sjince [R.S.] 15:574(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration will be withheld from these defendants, by operation of law, despite the fact that the applicable penalty provision did not include the words ‘without benefit of parole.’ ”)(citing State v. Wilson, 362 So.2d 536, 539 n. 3 (La.1978)). Rela-tors contend they are entitled to relief under Graham, because the possibility of clemency does not constitute a meaningful, realistic, opportunity for release. I agree.

This Court has the opportunity to carry out the mandate of Graham. Graham makes clear that the ad hoc exercise of the executive’s power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary. The relief provided by the majority, amounts to no relief at all. The order states:

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the |4exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency,” La. R.S. 15:574.4.1(B), and access to the Board’s consideration will provide rela-tors with the “meaningful opportunity” for release that Graham requires.

The problem is that there is no way to calculate a parole eligibility date for a life sentence. This order does not sufficiently address the Graham directive to allow for the possibility of parole for juvenile non-homicide offenders. To satisfy the dictates of Graham, I would remand these three cases to the district court, and order that relators be re-sentenced to a fixed term of years, which can be used as the basis for calculating the eligibility date for parole.

      . Kimball, C.J., not participating.

      . In 1971, an East Baton Rouge Parish jury found relator Shaffer guilty of aggravated rape in violation of La.R.S. 14:42 and sentenced him to death. Shaffer committed the crime when he was 16 years old. This Court vacated the sentence and remanded to the district court for resentencing. State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971). The district court sentenced Shaffer to life imprisonment at hard labor. In 1965, relator Lea-son pleaded guilty in East Baton Rouge Parish to aggravated rape. He was 17 years old when he committed the offense. The court sentenced him to life imprisonment at hard labor. In 1981, an East Baton Rouge Parish jury found relator Dyer guilty of aggravated rape. Dyer was 17 years old at the time he committed the offense. The trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This Court affirmed the conviction and sentence. State v. Dyer, 420 So.2d 686 (La.1982).
      Under Louisiana law in effect at the time of their crimes, Leason and Dyer were considered adults, as they were over the age of 17 years. See, e.g., former La.C.J.P. art. 13(9) ("Child means a person less than seventeen years of age."); former La.R.S. 13:1569(3)(same); compare La.Ch.C. art. 116(3)(" 'Child' means a person who has not attained the age of eighteen years....”) However, all three relators were under the age of 18 years when they committed their crimes and thus fall within the class of offenders considered as juveniles for purposes of the Eighth Amendment, as the decision in Graham makes clear. With respect to the ages of relator, no dispute exists over the question whether they were under the age of 18 years at the time the crimes were committed, as confirmed by the birth dates and the dates of the crimes reflected in the records maintained by the Department of Corrections.

      . Relators note that following the Supreme Court’s decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which struck down Louisiana's then-mandatory death penalty for aggravated rape, this Court ordered inmates convicted of aggravated rape resentenced to the maximum term of imprisonment at the time of the offense for the next available responsive verdict, i.e. attempted aggravated rape. See, e.g., State v. Valentine, 364 So.2d 595, 596-97 (La.1978); State v. Bryant, 347 So.2d 227, 228 (La.1977); State v. Craig, 340 So.2d 191, 193-94 (La.1976). They argue that Graham requires a similar remedy in their cases. For relators Shaffer and Leason, resentencing in that manner would entail a sentence of 20 years at hard labor without any restriction on parole, probation, or suspension of sentence, Craig, 340 So.2d at 192, and result in their immediate release from state supervision. In the case of Dyer, resentencing would entail a sentence of 50 years imprisonment at hard labor, also without any restriction on parole, probation, or suspension of sentence. Valentine, 364 So.2d at 599.

      . In 2011 La. Acts 285, the legislature added a new subsection (A)(4) to La.R.S. 15:574.4, to provide that offenders sentenced to any term of imprisonment with or without benefit of parole for an offense which is not a crime of violence or a sex crime may become eligible for parole after serving 10 years of the sentence and reaching the age of 60 years, subject to several special conditions. It appears that this recent legislation addresses a class of offenders who are already in their late 40’s and early 50's when they become subject to the custody of the Department of Corrections. Testifying before the Senate Committee on Judiciary B on June 14, 2011, in support of HB 138 which became Act 285, Warden Burl Cain observed that in addition to the costs savings anticipated from the new provisions, “we are going to replace their beds with a predator and predators should be in prison not dying old men.”

      . We note that in its supplemental memorandum filed in the district court following a hearing conducted on April 6, 2011, for rela-tors Shaffer and Leason, the state specifically referenced the provisions of La.R.S. 15:574.4(A)(2), in response to relator's argument that the commutation provisos may not be severed from the parole provisions in the statute because there was no way of calculating a parole eligibility date at one-third or one-half of a life sentence, or at 85% of the term for crimes of violence. See La.R.S. 15:574.4(A)(1); 15:574.4(B). Referring to the provisions of La.R.S. 15:574.4(A)(2), the state argued below that severance of the commutation proviso "could afford petitioners parole eligibility without rendering the essence of parole meaningless.”

      . This Court is aware that in the past session, the legislature addressed, but did not resolve, the Graham issue. 2011 House Bill 115 provided that an inmate serving life sentences for a nonhomicide crime committed as a juvenile would become eligible for parole consideration after serving 35 years of his sentence, subject to a variety of special conditions. However, House Bill 115 failed final passage and the legislature has by concurrent resolution directed the Louisiana Law Institute to convene a task force to evaluate Louisiana law for compliance with Graham and to report back with its findings and recommendations by January 1, 2012. Thus, our decision in relators’ cases is an interim measure (based on the legislature's own criteria) pending the legislature’s response to Graham. Cf. State v. Williams, 01-1650, pp. 32-33 (La.11/1/02), 831 So.2d 835, 861 (adopting as an interim measure procedures for determining whether a capital defendant is mentally retarded and so exempt from capital punishment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct 2242, 153 L.Ed.2d 335 (2002), pending the legislature’s own response to the Atkins decision, see La.C.Cr.P. art. 905.5.1, 2003 La. Acts 698). We note that in Angel v. State, 281 Va. 248, 704 S.E.2d 386 (2011), the Virginia Supreme Court adopted a similar approach, in a state which has largely eliminated parole, by adverting to the provisions of Va.Code Ann. § 53.1-40.01, which state that any person sentenced for a felony offense, other than a Class 1 felony, who has served at least five years of his sentence and reached the age of 65 years, or has served at least 10 years of his sentence and reached the age of 60 years, may apply to the Parole Board for conditional release. The Virginia Supreme Court looked to that statutory provision as the state’s Graham response in the first instance because, as the court noted, the Graham decision does not require states to- release the offenders immediately or to "provide the opportunity for release at any particular time related to either the offender’s age or length of incarceration.” Angel, 704 S.E.2d at 402. The court concluded that the statutory regulation already in place "provides, as the Commonwealth argues, the 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation' required by the Eighth Amendment.” Id. (quoting Graham, 560 U.S. at -, 130 S.Ct. at 2030).

      . Connie de la Vega & Michelle Leighton, Sentencing our Children to Die in Prison, 42 U.S. F.L.Rev. 983, 989-1007 (2008). '

      . The twelve U.S. jurisdictions which impose juvenile life sentences without parole for non-homicide crimes are: Florida, Louisiana, Mississippi, Virginia, Oklahoma, South Carolina, Iowa, California, Nebraska, Delaware, Nevada, and the federal jurisdiction.

      . Graham, supra. P.G. Annino, D.W. Ras-raussen, & C.B. Rice, Juvenile Life without Parole for non-Homicide Offenses: Florida Compared to the Nation, Public Merest Law Center, College of Law, Florida State University (2009).

      . In 1981, Michael Dyer was found guilty by jury of aggravated rape, a crime committed when he was 17 years old. Dyer was sentenced to life imprisonment at hard labor (without benefit of parole, probation, or suspended sentence.) His sentence was affirmed by this Court. State v. Dyer, 420 So.2d 686 (La.1982).
      In 1971, Matthew Shaffer was found guilty of aggravated rape, a crime committed when he was 16 years old. The jury sentenced him to death. This Court vacated the sentence and remanded to the district court for resen-tencing. State v. Shaffer et al., 260 La. 605, 257 So.2d 121 (1971). The district court re-sentenced Shaffer to life imprisonment at hard labor.
      In 1965, Willie Leason pleaded guilty to aggravated rape. Leason committed the crime when he was 17 years old. The court sentenced him to life imprisonment at hard labor.


author:
      PER CURIAM.
     | JOHNSON, J.,

text:
    STATE of Louisiana v. Matthew SHAFFER.
    No. 2011-KP-1756.
    Supreme Court of Louisiana.
    Nov. 23, 2011.
    Rehearing Denied Jan. 11, 2012.
   PER CURIAM.

hln these consolidated applications, rela-tors seek review following denial in the district court of their motions to correct an illegal sentence and for relief from their terms of life imprisonment at hard labor following their convictions for aggravated rape, La.R.S. 14:42, a non-homicide crime, committed when they were all under the age of 18 years.

Relators contend that the United States Supreme Court’s recent decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for commission of a non-homicide offense, dictates setting aside their sentences of life imprisonment and resentencing. The sentences for relators Shaffer and Leason do not expressly preclude eligibility for parole, as does the sentence for relator Dyer. However, 12Shaffer and Leason argue that they, too, are ineligible for parole consideration by virtue of the proviso in La.R.S. 15:574.4(B), which has stated since 1968 La. Acts 191, that “[n]o prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993) (“[S]ince [R.S.] 15:574.4(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration would be withheld from the defendant, by operation of law, despite the fact that the applicable penalty provision did not include the words “without benefit of parole.’ ”) (citing State v. Wilson, 362 So.2d 536, 539 n. 3 (La.1978)). A similar commutation proviso controls access by inmates serving life sentences to the parole provisions in La.R.S. 15:574.4(A)(2), which otherwise state that: “[N]otwithstanding ... any other law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five.”

In light of these commutation provisos, and the difficulty of obtaining commutation of sentence in this state, La. Const, art. 4, § 5(E)(l)(“The governor ... upon favorable recommendation of the Board of Pardons, may commute sentences.... ”)(emphasis added), relators argue that even those life sentences which by express terms do not preclude parole eligibility for inmates who committed non-homicide crimes when they were juveniles are directly governed by Graham. Drawing on prior jurisprudence of this Court, they further argue that the appropriate remedy is to resentence them according to the penalties provided for the next lesser and included responsive verdict of attempted aggravated rape.

We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution. In Graham, the Supreme Court held |3that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. The Court specifically observed: “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. The Court noted that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983) (striking down a life sentence without parole for a habitual offender convicted of issuing a “no account” check, Court notes the difference between the availability of parole as a “regalar part of the rehabilitative process” and commutation of sentence as “an ad hoc exercise of executive clemency”)). Graham reflects the Supreme Court’s determination that juveniles are a special class of offenders deserving of special protections otherwise not accorded adult offenders, and for purposes of the Eighth Amendment, a juvenile is a person under the age of 18 years at the time of the offense. Id., 560 U.S. at -, 130 S.Ct. at 2030 (“Because ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,’ those who were below that age when the offense was committed may not be sentenced to life without parole for a non-homicide crime.”)(quoting Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 1198, 161 L.Ed.2d 1 (2005))(state may not impose capital punishment on offenders who were under the age of 18 years when their crimes were committed).

The decision in Graham does not require this Court to order the immediate release of relators from state supervision or to adopt a remedy that would guarantee immediate release by virtue of credit for time served. To this extent, the rulings below are affirmed. Graham does require that relators, and all other persons similarly situated, have a meaningful opportunity to secure release as a “regular part of the rehabilitative process.” We therefore hold, as we must under Graham, that the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody. The state thus may not enforce the commutation provisos in ^La.R.S. 15:574.4(A)(2) and 15:574.4(B) against rela-tors and all other similarly situated persons, and the former provisions offer objective criteria set by the legislature that may bring Louisiana into compliance with the Graham decision.

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). Access to the Board’s consideration will satisfy the mandate of Graham.

AFFIRMED WITH INSTRUCTIONS

JOHNSON, J., dissents and assigns reasons.

| JOHNSON, J.,

dissents and assigns reasons.

The United States Supreme Court’s historic decision in Graham v. Florida, 560 U.S. -, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010) held that “for a juvenile offender who did not commit homicide, the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. Prior to Graham, the United States was the only nation in the world still adhering to the practice of sentencing juvenile offenders to life imprisonment without the possibility of parole for non-homicide offenses. In the United States, only a handful of jurisdictions still impose life sentences without parole on juvenile offenders. Louisiana is one of eleven jurisdictions wherein juveniles are currently serving life sentences without parole for non-homicide offenses. When Graham was decided, there were 129 juveniles in the United States serving sentences of life without parole for non-homicide offenses. Of 1 ¡Those, seventy-seven juveniles were serving sentences imposed in Florida. Of the remaining 53, who were imprisoned in just ten states, 17 were serving life sentences imposed in Louisiana for non-homicide offenses.

The Supreme Court in Graham relied heavily on its prior analysis in the landmark ruling of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which abolished the death penalty for juvenile offenders, finding a violation of the Eighth Amendment’s ban on cruel and unusual punishment. The Court reasoned that a life sentence without the possibility of parole overlooks important distinctions between adults and juveniles and provides no hope for rehabilitation. The Court explained that a life sentence without parole “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency— the remote possibility of which does not mitigate the harshness of the sentence.” Id., 560 U.S. at -, 130 S.Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-301, 103 S.Ct. 3001, 3015, 77 L.Ed.2d 637 (1983)). The Court in Roper concluded that since juveniles have reduced culpability, punishment for juveniles must reflect their lesser blameworthiness, and in light of these innate characteristics of youth, juveniles offenders cannot be subjected to the harshest penalty reserved for the most depraved offenders. Id. at 569, 125 S.Ct. 1183.

Relators herein were all convicted for non-homicide offenses committed when they were juveniles, and sentenced to life imprisonment at hard labor. Dyer was specifically sentenced to life imprisonment, without benefit of parole, probation, or suspended sentence. Shaffer and Leason, were each sentenced to life imprisonment at hard labor. While Shaffer’s and Lea-son’s sentences do not explicitly exclude the ^possibility of parole, under Louisiana’s statutory scheme, it does not matter, since La. R.S. 15:547 provides that Shaffer and Leason are not eligible for parole except when the governor exercises his prerogative to commute the life sentence to a fixed term of years. See Bosworth v. Whitley, 627 So.2d 629, 635 (La.1993) (“[Sjince [R.S.] 15:574(B) provides unequivocally that no inmate serving a life sentence shall be eligible for parole, parole consideration will be withheld from these defendants, by operation of law, despite the fact that the applicable penalty provision did not include the words ‘without benefit of parole.’ ”) (citing State v. Wilson, 362 So.2d 586, 539 n. 3 (La.1978)). Rela-tors contend they are entitled to relief under Graham, because the possibility of clemency does not constitute a meaningful, realistic, opportunity for release. I agree.

This Court has the opportunity to carry out the mandate of Graham. Graham makes clear that the ad hoc exercise of the executive’s power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary. The relief provided by the majority, amounts to no relief at all. The order states:

We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility. The Department of Corrections is directed to revise relator Dyer’s prison master to reflect that his sentence is no longer without benefit of parole. Further, the Department is directed to revise relators’ prison masters according to the criteria in La.R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole. We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the | exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency,” La. R.S. 15:574.4.1(B), and access to the Board’s consideration will provide rela-tors with the “meaningful opportunity” for release that Graham requires.

The problem is that there is no way to calculate a parole eligibility date for a life sentence. This order does not sufficiently address the Graham directive to allow for the possibility of parole for juvenile non-homicide offenders. To satisfy the dictates of Graham, I would remand these three cases to the district court, and order that relators be re-sentenced to a fixed term of years, which can be used as the basis for calculating the eligibility date for parole.

      . Kimball, C.J., not participating.

      . In 1971, an East Baton Rouge Parish jury found relator Shaffer guilty of aggravated rape in violation of La.R.S. 14:42 and sentenced him to death. Shaffer committed the crime when he was 16 years old. This Court vacated the sentence and remanded to the district court for resentencing. State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971). The district court sentenced Shaffer to life imprisonment at hard labor. In 1965, relator Lea-son pleaded guilty in East Baton Rouge Parish to aggravated rape. He was 17 years old when he committed the offense. The court sentenced him to life imprisonment at hard labor. In 1981, an East Baton Rouge Parish jury found relator Dyer guilty of aggravated rape. Dyer was 17 years old at the time he committed the offense. The trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This Court affirmed the conviction and sentence. State v. Dyer, 420 So.2d 686 (La.1982).
      Under Louisiana law in effect at the time of their crimes, Leason and Dyer were considered adults, as they were over the age of 17 years. See, e.g., former La.C.J.P. art. 13(9) ("Child means a person less than seventeen years of age."); former La.R.S. 13:1569(3)(same); compare La.Ch.C. art. 116(3)(" 'Child' means a person who has not attained the age of eighteen years....”) However, all three relators were under the age of 18 years when they committed their crimes and thus fall within the class of offenders considered as juveniles for purposes of the Eighth Amendment, as the decision in Graham makes clear. With respect to the ages of relator, no dispute exists over the question whether they were under the age of 18 years at the time the crimes were committed, as confirmed by the birth dates and the dates of the crimes reflected in the records maintained by the Department of Corrections.

      . Relators note that following the Supreme Court's decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which struck down Louisiana’s then-mandatory death penalty for aggravated rape, this Court ordered inmates convicted of aggravated rape resentenced to the maximum term of imprisonment at the time of the offense for the next available responsive verdict, i.e. attempted aggravated rape. See, e.g., State v. Valentine, 364 So.2d 595, 596-97 (La.1978); State v. Bryant, 347 So.2d 227, 228 (La.1977); State v. Craig, 340 So.2d 191, 193-94 (La.1976). They argue that Graham requires a similar remedy in their cases. For relators Shaffer and Leason, resentencing in that manner would entail a sentence of 20 years at hard labor without any restriction on parole, probation, or suspension of sentence, Craig, 340 So.2d at 192, and result in their immediate release from state supervision. In the case of Dyer, resentencing would entail a sentence of 50 years imprisonment at hard labor, also without any restriction on parole, probation, or suspension of sentence. Valentine, 364 So.2d at 599.

      . In 2011 La. Acts 285, the legislature added a new subsection (A)(4) to La.R.S. 15:574.4, to provide that offenders sentenced to any term of imprisonment with or without benefit of parole for an offense which is not a crime of violence or a sex crime may become eligible for parole after serving 10 years of the sentence and reaching the age of 60 years, subject to several special conditions. It appears that this recent legislation addresses a class of offenders who are already in their late 40's and early 50's when they become subject to the custody of the Department of Corrections. Testifying before the Senate Committee on Judiciary B on June 14, 2011, in support of HB 138 which became Act 285, Warden Burl Cain observed that in addition to the costs savings anticipated from the new provisions, "we are going to replace their beds with a predator and predators should be in prison not dying old men.”

      . We note that in its supplemental memorandum filed in the district court following a hearing conducted on April 6, 2011, for rela-tors Shaffer and Leason, the state specifically referenced the provisions of La.R.S. 15:574.4(A)(2), in response to relator’s argument that the commutation provisos may not be severed from the parole provisions in the statute because there was no way of calculating a parole eligibility date at one-third or one-half of a life sentence, or at 85% of the term for crimes of violence. See La.R.S. 15:574.4(A)(1); 15:574.4(B). Referring to the provisions of La.R.S. 15:574.4(A)(2), the state argued below that severance of the commutation proviso "could afford petitioners parole eligibility without rendering the essence of parole meaningless.”

      . This Court is aware that in the past session, the legislature addressed, but did not resolve, the Graham issue. 2011 House Bill 115 provided that an inmate serving life sentences for a nonhomicide crime committed as a juvenile would become eligible for parole consideration after serving 35 years of his sentence, subject to a variety of special conditions. However, House Bill 115 failed final passage and the legislature has by concurrent resolution directed the Louisiana Law Institute to convene a task force to evaluate Louisiana law for compliance with Graham and to report back with its findings and recommendations by January 1, 2012. Thus, our decision in relators' cases is an interim measure (based on the legislature’s own criteria) pending the legislature's response to Graham. Cf. State v. Williams, 01-1650, pp. 32-33 (La.11/1/02), 831 So.2d 835, 861 (adopting as an interim measure procedures for determining whether a capital defendant is mentally retarded and so exempt from capital punishment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), pending the legislature’s own response to the Atkins decision, see La.C.Cr.P. art. 905.5.1, 2003 La. Acts 698). We note that in Angel v. State, 281 Va. 248, 704 S.E.2d 386 (2011), the Virginia Supreme Court adopted a similar approach, in a state which has largely eliminated parole, by adverting to the provisions of Va.Code Ann. § 53.1-40.01, which state that any person sentenced for a felony offense, other than a Class 1 felony, who has served at least five years of his sentence and reached the age of 65 years, or has served at least 10 years of his sentence and reached the age of 60 years, may apply to the Parole Board for conditional release. The Virginia Supreme Court looked to that statutory provision as the state’s Graham response in the first instance because, as the court noted, the Graham decision does not require states to release the offenders immediately or to "provide the opportunity for release at any particular time related to either the offender's age or length of incarceration.” Angel, 704 S.E.2d at 402. The court concluded that the statutory regulation already in place "provides, as the Commonwealth argues, the 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Id. (quoting Graham, 560 U.S. at -, 130 S.Ct. at 2030).

      . Connie de la Vega & Michelle Leighton, Sentencing our Children to Die in Prison, 42 U.S. F.L.Rev. 983, 989-1007 (2008).

      . The twelve U.S. jurisdictions which impose juvenile life sentences without parole for non-homicide crimes are: Florida, Louisiana, Mississippi, Virginia, Oklahoma, South Carolina, Iowa, California, Nebraska, Delaware, Nevada, and the federal jurisdiction.

      . Graham, supra. P.G. Annino, D.W. Rasmussen, & C.B. Rice, Juvenile Life without Parole for non-Homicide Offenses: Florida Compared to the Nation, Public Interest Law Center, College of Law, Florida State University (2009).

      . In 1981, Michael Dyer was found guilty by jury of aggravated rape, a crime committed when he was 17 years old. Dyer was sentenced to life imprisonment at hard labor (without benefit of parole, probation, or suspended sentence.) His sentence was affirmed by this Court. State v. Dyer, 420 So.2d 686 (La.1982).
      In 1971, Matthew Shaffer was found guilty of aggravated rape, a crime committed when he was 16 years old. The jury sentenced him to death. This Court vacated the sentence and remanded to the district court for resen-tencing. State v. Shaffer et al., 260 La. 605, 257 So.2d 121 (1971). The district court re-sentenced Shaffer to life imprisonment at hard labor.
      In 1965, Willie Leason pleaded guilty to aggravated rape. Leason committed the crime when he was 17 years old. The court sentenced him to life imprisonment at hard labor.


text:
    Christopher AUSTIN and Kim Austin v. Jerry JORDAN, et al. Margaret Michelle Forbes v. Jerry L. Jordan, et al. Ann McCrory and Thomas O. Doherty v. Jerry Jordan, et al.
    No. 2011-CC-2785.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   In re State of Louisiana;-Other; Applying For Supervisory and/o Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. C, Nos. 43,106, 43,130, 43,138; to the Court of Appeal, First Circuit, No. 2011 CW 2222.

Stay denied; writ denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Matrell LEE.
    No. 2011-KK-2850.
    Supreme Court of Louisiana.
    Dec. 29, 2011.
   In re Lee, Matrell;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 509-212; to the Court of Appeal, Fourth Circuit, No. 2011-K-1786.

The district court erred as a matter of law in failing to fix bond. The district court judges and the magistrate judge of the Orleans Parish Criminal District Court have concurrent jurisdiction to fix and modify bail. See State v. Neisler, 93-1942, p. 8-9 (La.2/28/94); 633 So.2d 1224, 1229-30. We remand this case to the district court with instructions to set bond.

VICTORY, J., concurs in result.


text:
    Chris BARRILLEAUX v. SEA SUPPORT SERVICES, L.L.C.
    No. 2011-CC-2407.
    Supreme Court of Louisiana.
    Jan. 10, 2012.
   In re Barrilleaux, Chris;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. O, No. 10-18050; to the Court of Appeal, Third Circuit, No. CW 11-01147.

Denied.


text:
    STATE of Louisiana v. Bobby Ray INGRAM, II.
    No. 2011-K-1630.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Ingram II, Bobby Ray;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 74,411; to the Court of Appeal, Second Circuit, No. 45,546-KA.

Denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Michael DYER.
    No. 2011-KP-1758.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Dyer, Michael;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 09-80-79.

Rehearing denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Willie LEASON.
    No. 2011-KP-1757.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Leason, Willie;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 52,512.

Rehearing denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Matthew SHAFFER.
    No. 2011-KP-1756.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Shaffer, Matthew;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 60,995.

Rehearing denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana in the Interest of R.R.
    No. 2011-CK-1300.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re R., R.;—Other; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 08-JU-913; to the Court of Appeal, Fifth Circuit, No. 11-KH-415.

Denied.

JOHNSON and KNOLL, JJ„ would grant.


text:
    In re Joseph B. LANDRENEAU.
    No. 2012-OB-0038.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Landreneau, Joseph B.;—Plaintiff; Applying For Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, Section 4(C).

JOHNSON, J., would grant.


text:
    In re Rusten A. MAY.
    No. 2012-OB-0026.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re May, Rusten A.;—Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    In re Robert A. LENOIR.
    No. 2011-OB-2836.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Lenoir, Robert A.;—Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. However, petitioner shall not be considered for admission to the bar until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of a recovery agreement with a lawyers assistance program.

VICTORY, GUIDRY and CLARK, JJ., would deny.


text:
    Heidi Beaven LAVESPERE; with her Minor Children, Jacob E. Lavespere, Madison E. Hopkins, and Vanessa E. Hopkins v. The Honorable Lisa Woodruff WHITE, Judge, the Family Court, Parish of East Baton Rouge; and or Attending Judicial Staff Members for the Honorable Judge Woodruff White; and Doug Welborne, Clerk for the 19th Judicial District Court, Parish of East Baton Rouge and or Attending Members of the Clerk; and Dean Lavespere.
    No. 2011-OC-2817.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   In re Hopkins, Heidi Beaven;—Plaintiff; Applying For Writ of Mandamus and/or Writ of Prohibition, Parish of E. Baton Rouge, East Baton Rouge Family Court, No. 146,058; to the Court of Appeal, First Circuit, No. 2010 CW 2356.

Denied.


text:
    STATE of Louisiana v. Timothy Dewayne CUMMINGS.
    No. 2011-KO-1611.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Cummings, Timothy Dewayne;—Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 5, No. 277,065; to the Court of Appeal, Second Circuit, No. 46,373-KA.

Denied.


text:
    STATE of Louisiana v. Carol Wayne CROOKS, Jr.
    No. 2011-K-1624.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Crooks Jr., Carol Wayne;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 300,820; to the Court of Appeal, Third Circuit, No. 10-1461.

Denied.


text:
    STATE of Louisiana v. David Carey SHOUPE.
    No. 2011-KO-1634.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Shoupe, David Carey;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 271,113; to the Court of Appeal, Second Circuit, No. 46,395-KA.

Denied.


text:
    STATE of Louisiana v. Clarence SMITH, Jr.
    No. 2011-KO-1646.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Smith Jr., Clarence;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. F, No. 09F0979; to the Court of Appeal, Second Circuit, No. 46,343-KA.

Denied.


text:
    STATE of Louisiana v. Steven L. ENTERKIN.
    No. 2011-KO-1647.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Enterkin, Steven L.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. C, No. 2009-161F; to the Court of Appeal, Second Circuit, No. 46,386-KA.

Denied.


text:
    STATE of Louisiana v. Ronald Lee POINDEXTER.
    No. 2011-KO-1526.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Poindexter, Ronald Lee;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, Nos. 556,-002, 544,292, 545,542, 556,947; to the Court of Appeal, First Circuit, No. 2010 KA 1516.

Denied.


text:
    STATE of Louisiana v. Troy BATISTE.
    No. 2011-KO-1527.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Batiste, Troy;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 338584; to the Court of Appeal, First Circuit, No. 2010 KA 2237.

Denied.


text:
    STATE of Louisiana v. Sean SMITH.
    No. 2011-KO-1529.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Smith, Sean;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 07-6660; to the Court of Appeal, Fifth Circuit, No. 10-KA-814.

Denied.


text:
    STATE of Louisiana v. Emanuel RANDALL.
    No. 2011-KO-1560.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Randall, Emanuel;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 467-770; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1027.

Denied.


text:
    STATE of Louisiana v. Jason Ray DAVIS.
    No. 2011-KO-1561.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Davis, Jason Ray;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. K, No. 09F1808; to the Court of Appeal, Second Circuit, No. 46,-267-KA.

Denied.


text:
    STATE of Louisiana v. Robert Lavar JENKINS.
    No. 2011-KO-1588.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Jenkins, Robert Lavar;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 483740; to the Court of Appeal, First Circuit, No. 2011 KA 0203.

Denied.


text:
    STATE of Louisiana v. Carol Wayne CROOKS, Jr.
    No. 2011-KO-1610.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Crooks Jr., Carol Wayne;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 300,820; to the Court of Appeal, Third Circuit, No. 10-1461.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2011-KP-0955.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Lee, Derrick Todd;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-0655.

Denied.


text:
    STATE of Louisiana v. Ronald SINGLETON.
    No. 2011-KP-1298.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Singleton, Ronald;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 96-6728; to the Court of Appeal, Fifth Circuit, No. 11-KH-430.

Denied. LaC.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.


text:
    STATE of Louisiana v. Jesse Wade LANGSTON.
    No. 2011-KP-1299.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Langston, Jesse Wade;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 155,287; to the Court of Appeal, Second Circuit, No. 46,570-KW.

Denied.


text:
    STATE of Louisiana v. Tyrone FLETCHER.
    No. 2011-KP-1331.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Fletcher, Tyrone;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 95-2442; to the Court of Appeal, Fifth Circuit, No. 11-WR-199.

Denied.


text:
    STATE of Louisiana v. Joseph S. HAMPTON.
    No. 2011-KO-1525.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Hampton, Joseph S.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 457456; to the Court of Appeal, First Circuit, No. 2010 KA 1354.

Denied.


text:
    STATE of Louisiana v. John CUNNINGHAM.
    No. 2011-KK-1924.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Cunningham, John;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 499-077; to the Court of Appeal, Fourth Circuit, No. 2011-K-0886.

Writ granted. The case is remanded to the court of appeal for briefing and argument to address the defendant’s motion to suppress.

JOHNSON and KNOLL, JJ., would deny.


text:
    STATE of Louisiana ex rel. Derrick LEE v. Burl CAIN, Warden.
    No. 2011-KP-1933.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Lee, Derrick;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-0655.

Denied.


text:
    STATE ex rel. Gregory SEARLS v. STATE of Louisiana.
    No. 2011-KH-0349.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Searls, Gregory;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 07-6493; to the Court of Appeal, Fifth Circuit, No. 11-KH-37.

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


text:
    STATE ex rel. Gary Lamond GIBSON v. STATE of Louisiana.
    No. 2011-KH-0449.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Gibson, Gary Lamond;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. A, No. 42069; to the Court of Appeal, Second Circuit, No. 46,375-KH.

Denied.


text:
    STATE ex rel. Ezekiel TOUSSAINT v. STATE of Louisiana.
    No. 2011-KH-0218.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Toussaint, Ezekiel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 00-0036; to the Court of Appeal, Fifth Circuit, No. 10-KH-968.

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. Graylin ROLLINS v. STATE of Louisiana.
    No. 2011-KH-0219.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Rollins, Graylin;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 03-1512; to the Court of Appeal, Fifth Circuit, No. 10-KH-1009.

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


text:
    STATE ex rel. Norris VESSELL v. STATE of Louisiana.
    No. 2011-KH-0228.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Vessell, Norris;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 497-906; to the Court of Appeal, Fourth Circuit, No. 2010-K-1702.

Denied.


text:
    STATE ex rel. Israel DUCRE v. STATE of Louisiana.
    No. 2011-KH-0233.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Ducre, Israel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 180-409; to the Court of Appeal, First Circuit, No. 2010-KW-1770.

Denied.


text:
    STATE ex rel. Lionel DUGAR v. STATE of Louisiana.
    No. 2011-KH-0234.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Dugar, Lionel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 354-015; to the Court of Appeal, Fourth Circuit, No. 2010-K-1752.

Denied. La.C.Cr.P. art. 980.4(D); 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. Corey CAMPFIELD v. STATE of Louisiana.
    No. 2011-KH-0249.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Campfield, Corey;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 459-056; to the Court of Appeal, Fourth Circuit, No. 2010-K-1701.

Denied.


text:
    STATE ex rel. Vincent STEWART v. STATE of Louisiana.
    No. 2011-KH-0188.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Stewart, Vincent;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 02-554; to the Court of Appeal, Fifth Circuit, No. 10-KH-1032.

Denied.


text:
    STATE ex rel. Jacob BROWN v. STATE of Louisiana.
    No. 2011-KH-0193.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Brown, Jacob;-Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 427-289; to the Court of Appeal, Fourth Circuit, No. 2010-K-1258.

Denied.