text:
    In re H. Edward ELLZEY, Jr.
    No. 2009-B-0238.
    Supreme Court of Louisiana.
    May 22, 2009.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, H. Edward Ellzey, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Ellzey, 07-0729 (La.4/12/07), 953 So.2d 813.

FORMAL CHARGES

Count I — The Ruffin Matter

On July 2, 2004, respondent conducted a real estate closing involving Sheila Ruffin as the seller and Keith Carter as the buyer. At the closing, respondent presented Ms. Ruffin with a HUD-1 settlement statement that reported the buyer as Mr. Carter, a contract sales price of $118,100, and net sales proceeds to Ms. Ruffin of $6,542.11. Ms. Ruffin executed the settlement statement, which also was purportedly signed by Mr. Carter. The funds were to be disbursed on July 7, 2004, but Ms. Ruffin never received the $6,542.11.

In September 2004, Ms. Ruffin filed a disciplinary complaint against respondent with the ODC. In response to the complaint, respondent produced a second HUD-1 settlement statement that reported Elite Solutions as the buyer, a | ^contract sales price of $101,697.89, and no net sales proceeds to Ms. Ruffin. This second settlement statement was purportedly signed by Olando Cormier, on behalf of Elite Solutions, and Ms. Ruffin. However, Ms. Ruffin claims that Mr. Cormier was not present at the closing and claims that her signature on the second settlement statement is a forgery.

Furthermore, even though neither settlement statement reported any funds owed to Elite Solutions, on July 6, 2004, respondent issued a check from his Ellzey Title Agency, LLC escrow account payable to Elite Solutions in the amount of $5,928.10, which amount does not match any figures on either settlement statement.

The ODC personally served respondent with a subpoena to take his sworn statement on September 8, 2005. However, the sworn statement was canceled due to Hurricane Katrina. In September 2006, the ODC sent respondent a certified letter requesting that he contact the ODC, which letter respondent signed for and received. Respondent failed to respond, and the ODC has had no communication with respondent since Katrina.

Count II — The Commonwealth Matter

Respondent worked as a title agent for Commonwealth Land Title Insurance Company (“Commonwealth”). In or around 2005, respondent was involved in ten loan closings wherein Commonwealth issued insured closing letters to various lenders. Instead of using the funds received at the closings to pay off outstanding mortgages and other debt, respondent converted the funds to his own use. In total, respondent converted approximately $895,000 to his own use. As a result, Commonwealth was forced to make good on these payments.

|sFrom January 1, 2005 through November 30, 2005, respondent’s escrow account revealed multiple overdrafts and non-sufficient funds (“NSF”) charges. One example of respondent’s misuse of his escrow account occurred on September 7, 2005 when the balance of the account fell to negative $93,847.01.

In November 2005, Commonwealth filed a disciplinary complaint against respondent with the ODC. In September 2006, the ODC sent respondent a certified letter notifying him of the complaint, which letter respondent signed for and received. Respondent failed to respond.

Count III — The Lloyd Matter

By way of background, Gwendolyn Lloyd agreed to sell her house to Ronald Lewis under the following conditions: 1) Mr. Lewis was to pay Ms. Lloyd $10,000 at closing; 2) Ms. Lloyd would lease the house back from Mr. Lewis for one year at $1,800 per month; 3) During that year, Mr. Lewis would make repairs and additions to the house; and 4) Ms. Lloyd would repurchase the house from Mr. Lewis at the end of the year. Ms. Lloyd and Mr. Lewis executed a lease purchase agreement setting forth the above conditions.

Respondent was retained to handle the closing, which occurred on December 30, 2004. Deborah King accompanied Mr. Lewis to the closing. Although Ms. Lloyd did not have an agreement with Ms. King, respondent structured the closing with Ms. Lloyd selling the property to Ms. King, not Mr. Lewis. According to the HUD-1 settlement statement, Ms. Lloyd was to receive $91,374 in net sales proceeds. However, despite what respondent reported on the settlement statement, Ms. Lloyd did not receive these proceeds. Pursuant to Ms. Lloyd’s agreement with Mr. Lewis, Mr. Lewis paid Ms. Lloyd $10,000.

^Respondent failed to properly disburse the loan proceeds and/or failed to pay off Ms. Lloyd’s outstanding mortgage. Consequently, foreclosure proceedings were instituted against Ms. Lloyd with respect to the house she purportedly sold to Ms. King. The property was sold at a sheriffs sale on June 9, 2005 with Mr. Lewis as the winning bidder. However, Mr. Lewis’ check in the amount of $155,161 in payment of the balance of the sheriffs sale purchase price was dishonored for insufficient funds. On December 9, 2005, the sheriffs sale was set aside and all outstanding liens on the property were reinstated.

Apparently, Mr. Lewis and/or Ms. King committed fraud against Ms. Lloyd. Respondent was either directly involved in the fraud or facilitated the fraud as evidenced by the erroneous information listed on the settlement statement. Respondent is believed to have absconded with the loan proceeds and/or converted a portion of the funds to his own use.

DISCIPLINARY PROCEEDINGS

In August 2007, the ODC filed three counts of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.15(d) (safekeeping property of clients or third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) .

Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity 15to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the facts alleged in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on those deemed admitted facts, the committee made the following findings: In the Ruffin matter, respondent entered false information on two separate HUD-1 settlement statements, mishandled the sale proceeds, and deprived Ms. Ruffin of funds owed to her pursuant to the original settlement statement. Respondent also failed to cooperate with the ODC in its investigation. In the Commonwealth matter, respondent is believed to have absconded with and/or converted to his own use approximately $895,000. Commonwealth had to pay claims resulting from the ten loan closings of approximately $800,000 and is investigating another claim of more than $100,000. Respondent also failed to cooperate with the ODC in its investigation and failed to timely remit funds owed to third parties. In the Lloyd matter, respondent failed to disburse the loan proceeds and/or failed to pay off Ms. Lloyd’s outstanding mortgage, which led to foreclosure proceedings against Ms. Lloyd. It also appears that Mr. Lewis and Ms. King committed fraud against Ms. Lloyd. Respondent was either directly involved in or facilitated the fraud as evidenced by the erroneous information listed on the HUD-1 settlement statement.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. He intentionally | (¡violated duties owed to his clients, the public, and the legal profession, causing actual and substantial harm to his clients and third parties. Based on the ABA’s Standards for Imposing Lawyer Sanctions and the court’s prior jurisprudence, the committee determined that the baseline sanction is disbarment. The committee found the aggravating factors of prior disciplinary offenses and substantial experience in the practice of law (admitted 1968). The committee did not find any mitigating factors.

Considering the magnitude of the harm caused by respondent to clients and third parties, and the absence of mitigating factors, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also determined that the committee properly applied the Rules of Professional Conduct and adopted the rule violations found by the committee.

The board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, and the legal profession. He caused actual substantial harm to several parties. The board agreed with the committee that the baseline sanction is disbarment.

In aggravation, the board found prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the 17victims, substantial experience in the practice of law, and indifference to making restitution. The board found no mitigating factors.

Citing Guideline 1 of the permanent disbarment guidelines (repeated or multiple instances of intentional conversion of client funds with substantial harm), the board determined that respondent’s conduct warrants permanent disbarment. In further support of permanent disbarment, the board cited several cases in which this court has permanently disbarred attorneys who converted substantial amounts of client funds.

Under these circumstances, the board recommended that respondent be permanently disbarred. The board further recommended that respondent pay restitution.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations | ¡¡contained in the formal charges after those charges have been deemed admitted. . However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts reveal that respondent has engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, has converted client and third party funds in the approximate amount of $895,000, and has failed to cooperate with the ODC in its investigation. The record supports the rule violations as found by the hearing committee and the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports a finding that respondent engaged in intentional misconduct. He violated duties owed to his clients, the public, and the legal profession, causing substantial actual harm. The applicable baseline sanction is clearly disbarment under both the ABA’s Standards for Imposing Lawyer Sanctions |9and our pri- or jurisprudence. See Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986). Therefore, the only issue presented for our consideration is whether respondent’s misconduct is so egregious as to warrant permanent disbarment.

Supreme Court Rule XIX, Appendix E depicts conduct that may warrant permanent disbarment. We agree with the hearing committee and the disciplinary board that Guideline 1 (“[r]epeated or multiple instances of intentional conversion of client funds with substantial harm”) is applicable in this matter. Respondent intentionally converted $895,000 in funds from real estate transactions in which he acted as the closing attorney. Restitution has not been made to any of his victims. These actions reveal a fundamental lack of moral character and fitness to practice law.

We can conceive of no circumstance under which we would ever grant readmission to respondent. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that the name of H. Edward Ellzey, Jr., Louisiana Bar Roll number 5339, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this State. It is further ordered that respondent make full restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Elite Solutions was connected to Cormier Cares, a non-profit organization owned by Olando Cormier, which offers assistance to those in financial need. Ms. Ruffin contacted Cormier Cares because she was in danger of losing her home through foreclosure.

      . In 2003, this court accepted a petition for consent discipline and publicly reprimanded respondent for performing notarial functions while he was ineligible to practice law. In re: Ellzey, 03-2981 (La. 11/26/03), 860 So.2d 1112.

      . See In re: Labat, 08-1926 (La. 11/14/08), 995 So.2d 625; In re: Fleming, 07-0843 (La. 12/14/07), 970 So.2d 970; In re: Aubrey, 06-0004 (La.4/28/06), 928 So.2d 524; In re: Bradley, 05-1188 (La.11/29/05), 917 So.2d 1068; and In re: Martin, 04-0444 (La.9/3/04), 883 So.2d 392.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. In the Interest of C.J.
    No. 2008-CK-2346.
    Supreme Court of Louisiana.
    May 22, 2009.
   PER CURIAM.

| granted. Although a trial court “may reassess a determination of indigency at any time,” State v. Frank, 99-0553, p. 5 (La.1/17/01), 803 So.2d 1, 8, see La.R.S. 15:175(A)(l)(d), in the present ease the juvenile court abused its discretion by finding, on the basis of testimony from defendant’s mother that she once worked with her brother cutting grass although she now receives public assistance and is on medication for her nerves, that defendant was not entitled to the presumption of indigency as a matter of La.R.S. 15:175(A)(l)(b) because his mother is “voluntarily unemployed.” Even assuming, arguendo, that the presumptions of indigency set forth in R.S. 15:175(A)(l)(b) are rebuttable, the juvenile court made no finding that, in fact, because of other resources or assets available to her, defendant’s mother can afford the cost of transcribing the adjudication hearing for purposes of appeal. Cf. State v. Adams, 369 So.2d 1327, 1329 (La.l979)(“To make the light to assistance of court appointed counsel a reality ... the court must not confine itself to a determination of whether the [2accused ought to be able to retain counsel but must decide whether in fact he is able to do so.”) (citations omitted). The juvenile court’s judgment is vacated and the court is directed to grant the motion for an appeal, to set a return date for the appeal, and to order the adjudication hearing transcribed for purposes of the record on appeal at no cost to defendant.


text:
    In re Michael O’KEEFE, Jr.
    No. 2009-B-1059.
    Supreme Court of Louisiana.
    May 27, 2009.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Michael O’Keefe, Jr., Louisiana Bar Roll number 2029, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

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

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


text:
    In re Edward HEBERT, II.
    No. 2008-B-2785.
    Supreme Court of Louisiana.
    May 29, 2009.
   11ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edward Hebert, II, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

On April 4, 2003, Dantrell Bolling hired respondent to represent him in a personal injury matter. On March 29, 2004, respondent filed a lawsuit on behalf of Mr. Bolling. However, he withheld service of the lawsuit on the defendants, and none of the defendants were ever served. Respondent also provided Mr. Bolling with false information regarding settlement negotiations and a settlement offer.

In his May 12, 2005 written response to Mr. Bolling’s disciplinary complaint, respondent falsely stated that the lawsuit was proceeding to trial and Mr. Bolling was aware of the status of the lawsuit. In actuality, the lawsuit had not been served and was not proceeding to trial. On March 3, 2006, respondent gave a sworn statement to the ODC in which he falsely stated that he had engaged in settlement negotiations with Entergy, one of the defendants in the case, and that Entergy had made a settlement offer of approximately $5,400 in August 2005. In actuality, En-tergy had |2no record of Mr. Bolling’s claim or lawsuit and, thus, had made no settlement offer. Furthermore, there was no record of respondent having any contact with any Entergy representative.

During respondent’s sworn statement, he agreed to provide the ODC with the name of the Entergy representative with whom he claimed to have been negotiating. Respondent also agreed to provide the ODC with a copy of the proof of claim in Entergy’s bankruptcy that he planned to file. However, respondent failed to provide this information to the ODC or correct the misapprehension created by his false claims.

DISCIPLINARY PROCEEDINGS

In April 2007, the ODC filed three counts of formal charges against respondent, alleging that his conduct as set forth above violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(b) (a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent initially failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Thereafter, respondent filed an answer, stating that “the allegation against me is true, but only in | apart.” He described this matter as “a matter of an overlooked file” and indicated that he “knew nothing of this case except the client’s name” because it was his policy “to farm out personal injury cases” to another lawyer to handle. Finally, respondent stated his regret for the statements he made during his sworn statement but indicated that this occurred “after experiencing a loss of everything I owned including my home to Hurricane Katrina.”

The hearing committee chair then ordered that the matter proceed to a formal hearing on the merits. However, during a subsequent telephone conference, respondent waived his right to a full evidentiary hearing and requested a hearing in mitigation.

Healing Committee Report

After considering the testimony and evidence presented at the hearing in mitigation, the hearing committee made the following factual findings:

Respondent was retained by Mr. Bolling on or about April 4, 2003 to represent him in a personal injury matter, which stemmed from an automobile accident that occurred in Orleans Parish on March 31, 2003. Suit was filed on March 29, 2004, and respondent requested that service be withheld. Mr. Bolling had difficulty reaching respondent regarding the status of his claim and filed a complaint with the ODC. When respondent did communicate with Mr. Bolling, he knowingly provided his client with false information regarding settlement negotiations that never occurred.

Respondent submitted a written response and provided a sworn statement in response to Mr. Bolling’s complaint. In both, he represented that the case was progressing. In his sworn statement, respondent indicated that he had engaged in ^negotiations with Entergy, which culminated in an offer of $5,400 from Enter-gy. Respondent acknowledged that En-tergy never filed an answer to the lawsuit given that service was withheld. Even though the time period has elapsed for the suit to be considered abandoned, respondent attested that he continued to negotiate with Entergy. In fact, Entergy has no record of Mr. Bolling’s claim and has never engaged in negotiations with respondent. Mr. Bolling’s lawsuit was legally abandoned and subject to dismissal due to respondent’s failure to serve En-tergy, pursuant to the Louisiana Code of Civil Procedure. Eventually, Entergy sought bankruptcy protection. Respondent attested that he was preparing to file a proof of claim in Entergy’s bankruptcy proceeding but he had not done so as of the date of the hearing. Respondent also related problems with obtaining file materials following Hurricane Katrina. Although he promised the ODC that he would provide those materials, he failed to do so. Respondent’s initial written response to the ODC and subsequent sworn testimony contained numerous knowing and intentional misrepresentations.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. He negligently violated a duty owed to his client. He knowingly and intentionally violated duties owed to the legal system and the legal profession. His conduct caused, at the very least, modest harm.

In aggravation, the committee found a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and submission of false evidence, false statements, or other deceptive practices during the disciplinary process. In mitigation, |sthe committee found the following factors: absence of a prior disciplinary record, personal or emotional problems, and remorse.

Turning to the issue of an appropriate sanction, the committee considered In re: Waltzer, 04-1032 (La.10/8/04), 883 So.2d 973. In Waltzer, the attorney neglected three legal matters, failed to communicate with three clients, failed to properly terminate the representation of her clients, failed to appear in response to subpoenas from the ODC, and provided false and misleading information to the ODC. The attorney also had a prior disciplinary record. For this misconduct, Ms. Waltzer was suspended for two years.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for two years, with all but one year and one day deferred. The committee further recommended that respondent attend Ethics School and receive monthly monitoring during the deferred portion of the suspension.

The ODC filed an objection to the hearing committee’s recommendation, arguing that no portion of the suspension should be deferred.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s findings of fact are not manifestly erroneous. The board found that respondent violated the Rules of Professional Conduct as charged. The board adopted the committee’s findings regarding respondent’s mental state, the duties violated, the amount of harm caused by respondent’s conduct, and the aggravating and mitigating factors present. However, the board declined to place extra emphasis on the [ ^mitigating factor of personal or emotional problems, as the committee did, because much of respondent’s misconduct occurred before Hurricane Katrina. Thus, the board determined that the aggravating and mitigating factors balance out. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

Citing Waltzer, supra, the board recommended that respondent be suspended for two years and be ordered to attend Ethics School.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on April 22, 2009, this court ordered briefing addressing the issue of an appropriate sanction. Both respondent and the ODC filed briefs in response to the court’s order.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the hearing committee’s factual findings that respondent neglected Mr. Bolling’s legal matter, failed to communicate with his client, made false statements of material fact to his client and the ODC, and failed to cooperate |7with the ODC in its investigation. He violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

From the record, it appears that respondent’s conduct was negligent and intentional. He violated duties owed to his client, the legal system, and the legal profession. The aggravating and mitigating factors found by the hearing committee are supported by the record.

We recently suspended a lawyer for one year and one day for knowingly making false statements of material fact during a disciplinary investigation. In re: Parks, 08-3006 (La.4/24/09), 9 So.3d 106. We find a similar sanction is appropriate in the instant case. Accordingly, we will impose a one year and one day suspension, which will necessitate an application for reinstatement.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Edward Hebert, II, Louisiana Bar Roll number 25086, be and he | shereby is suspended from the practice of law for a period of one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

VICTORY, J., dissents and would impose greater sanction.

VICTORY, J.,

dissents.

Ill would impose a two-year suspension as recommended by the disciplinary board.

      . Respondent has been ineligible to practice law in Louisiana since July 27, 2006 for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failure to pay his bar dues and the disciplinary assessment.

      . Respondent suffered the loss of his physical property and his residence as a result of Hurricane Katrina. He was uninsured and received no recovery funds. Since then, he has been homeless at times and has survived on temporary, non-legal work such as picking up trash. He also has undergone therapy for depression. Furthermore, he has been taking care of his minor child by himself since 2003 after the child's mother was accused of child abuse.


text:
    In re Rebecca I. GUMAER.
    No. 2009-B-0697.
    Supreme Court of Louisiana.
    May 29, 2009.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Rebecca I. Gumaer, an attorney licensed to practice law in the States of Louisiana and Colorado, based upon discipline imposed by the Supreme Court of Colorado.

UNDERLYING FACTS

On March 4, 2009, the Supreme Court of Colorado issued an order suspending respondent’s license to practice law for one year and one day, all stayed upon respondent’s successful completion of a thirty-month period of probation subject to numerous conditions. In its order, the Colorado court accepted the parties’ 12stipulation, agreement, and affidavit containing respondent’s conditional admission of misconduct. The filing indicates that, on November 2, 2007, respondent drank excessively. Without her estranged boyfriend’s knowledge or permission, she went to and entered his home through an unlocked back door. While she was retrieving her possessions from the home, she intentionally broke ketchup and barbeque sauce bottles, wine glasses, pottery, and a pair of her boyfriend’s sunglasses. She also broke the passenger side window of her boyfriend’s truck with a wine bottle. On June 23, 2008, respondent pled guilty to second degree burglary and criminal mischief in Jefferson County, Colorado. Respondent began treatment for alcohol abuse in November 2007 and is in supervised recovery.

DISCIPLINARY PROCEEDINGS

After receiving the Colorado order of discipline, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the petition was a certified copy of the order of the Supreme Court of Colorado. On April 1, 2009, this court rendered an order giving respondent thirty Isdays to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted and the reasons for that claim. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result ■ in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

|4In the instant case, respondent has made no showing of infirmities in the Colorado proceeding, nor dó we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from the sanction imposed by the Supreme Court of Colorado. We have held that “only under extraordinary circumstances. should there be a significant variance from the sanction imposed by the other jurisdiction.” In re: Aulston, 05-1546 (La.1/13/06), 918-So.2d 461. Considering that we share authority over respondent with Colorado, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose reciprocal discipline of a one year and one day suspension, fully deferred, subject to thirty months of probation, pursuant to Supreme Court Rule XIX,'§ 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Rebecca I. Gumaer, Louisiana Bar Roll number 29890, be and she hereby is. suspended from the practice of law in Louisiana for one year and one day. It is further ordered that this suspension shall be fully deferred, and respondent shall be placed on probation for thirty months, subject to the conditions set forth by the Supreme Court of Colorado in its order imposing discipline in The People of the State of Colorado v. Rebecca Irene Gumaer, No. 09PDJ013 on the docket of the Supreme Court of Colorado.

      .The conditions of probations are as follows:
      1. During the period of probation, respondent shall not engage in any further violation of the Colorado Rules of Professional Conduct;
      2. Respondent shall pay for, attend, and successfully pass ethics school sponsored by the Office of Attorney Regulation Counsel ("OARC");
      3. Respondent shall comply with all terms and conditions of her criminal sentence, which includes alcohol and drug testing. She shall advise the OARC of any changes to her substance testing in the criminal proceeding;
      4. During the term of this agreement, respondent shall abstain from the use of alcohol and any other mood-altering substance unless a duly licensed physician prescribes such substance;
      5. Respondent shall undergo random EtG urinalysis for alcohol not less than one time per month for the period of probation. A copy of the results shall be provided- to the OARC. A positive EtG test shall be deemed a violation of the terms and conditions of the stipulation. An abnormally low creatinine level, which may be indicative of an attempt to “flush" respondent's system to reduce or eliminate the level of any prohibited substances, may also be deemed a violation of the terms and conditions of the stipulation;
      6. If respondent anticipates out-of-state travel, she must arrange continued compliance with the stipulation by making prior arrangements with the OARC;
      7. Respondent shall attend Alcoholics Anonymous, or another equivalent recovery program, meeting on at least a weekly basis for the duration of the stipulation. She shall also attend peer support meetings with a metro county group, as approved by the OARC, on at least a weekly basis. She shall provide written confirmation of compliance with these terms and conditions on a monthly basis to the OARC;

        8. Respondent shall continue treatment with a licensed substance abuse counsel- or;
      9. Failure by respondent to pay all costs of evaluation, treatment, and supervision incurred as part of any condition of probation prior to termination of probation shall constitute a violation of probation;
      10. If the OARC receives information that any condition of probation may have been violated, the OARC may file a motion with the Supreme Court of Colorado seeking an order that requires respondent to show cause why the stay should not be lifted and the sanction activated; and
      11.Upon the expiration of the period of probation, respondent shall file an affidavit with the OARC stating that she has complied with all terms of probation. Respondent shall file with the Supreme Court of Colorado notice and a copy of the affidavit as well as an application for an order showing successful completion of the period of probation. Absent an objection from the OARC, the Colorado court shall issue an order showing that the period of probation was successfully completed.


text:
    The COUNCIL OF The CITY OF NEW ORLEANS, Jackie Clarkson, Arnie Fielltow, Cynthia Hedge-Morrell, Cynthia Willard-Lewis, Stacy Head, Shelly Midura and James Carter v. Tracie WASHINGTON, Tionne Simon and The Louisiana Justice Institute.
    No. 2009-CC-1067.
    Supreme Court of Louisiana.
    May 29, 2009.
   PER CURIAM.

liThe Council of the City of New Orleans and its seven individual members (collectively referred to hereafter as “Council”) seek review of a judgment of the court of appeal vacating a preliminary injunction issued by the district court. For the reasons that follow, we vacate the judgment of the court of appeal and remand the case to the court of appeal for further proceedings.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On or about December 3, 2008, attorney Tracie Washington, in her capacity as managing director of the Louisiana Justice Institute, made a public records request to the City of New Orleans though the City Attorney, seeking all e-mail communications of certain council members from July 1, 2006. In early March 2009, the Council became aware that copies of CDs containing Council e-mails were provided to Ms. Washington by Veronica White, the Director of Sanitation, without knowledge of the City Attorney.

|2On March 4, 2009, the Council filed a “Petition for Writ of Injunction” against Ms. Washington and the Louisiana Justice Institute. In its petition, the Council alleged that some of the documents produced to Ms. Washington are “privileged, personal and/or otherwise protected under the Public Records Act.” In support of its petition, the Council introduced affidavits of several individuals, including the current City Attorney, members of the Council, and attorneys employed by the Council to represent it in litigation, indicating that some of the communications contained privileged information.

Defendants opposed the Council’s request for injunctive relief, arguing that they made a proper public records request and received the e-mails in response to that request. Defendants did not raise any constitutional issues at the hearing.

On March 17, 2009, the district court granted the Council’s request for preliminary injunction. Among other things, the district court’s judgment enjoined defendants from transferring any documents received in response to the public records request to any other person or entity. The injunction further provided that “none of the documents produced in the document production shall be made public or placed, transferred or posted on the internet, nor in any way be made available or disseminated to any other persons.”

Defendants applied for supervisory review. In their application they argued, for the first time, that the district court’s judgment violated their rights under the First Amendment to the United States Constitution.

|:!A five-judge panel of the court of appeal vacated the preliminary injunction in a split ruling. Relying on New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the majority found that restricting defendants’ right to publish information received by them, regardless of whether it was received legally or illegally, would violate the First Amendment. In its opinion, the majority acknowledged that defendants had not raised the constitutional issue in the district court. Nonetheless, the majority found review was appropriate pursuant to La.Code Civ. P. art. 2164.

One judge concurred in the result, finding that the Council failed to demonstrate irreparable harm. Another judge dissented and would have denied the writ, finding the majority erred in reaching the constitutional issue when it was not raised by the parties in the district court.

The Council then applied to this court, seeking a stay order and expedited consideration. We granted the request for stay on May 13, 2009.

DISCUSSION

The well-settled jurisprudence of this court establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the district court has not addressed. Johnson v. State, 02-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921; Geiger v. State ex rel. Department of Health and Hospital, 01-2206, p. 11 (La.4/12/02),4 815 So.2d 80, 86; Boudreaux v. State through Dept. of Transp. & Dev., 01-1329, p. 2 (La.2/26/02), 815 So.2d 7, 8-9; Coats v. American Tel. & Tel. Co., 95-2670, p. 6 (La.10/25/96), 681 So.2d 1243, 1246 n. 5; Segura v. Frank, 93-1271, p. 15 (La.1/14/94), 630 So.2d 714, 725; Krauss Co. v. Develle, 236 La. 1072, 110 So.2d 104, 105-06 (1959); Weingart v. Delgado, 204 La. 752, 16 So.2d 254, 256 (1943); Gaines v. Crichton, 187 La. 345, 174 So. 666, 668 (1937); Succession of Quinn, 183 La. 727, 164 So. 781, 784 (1935). The longstanding jurisprudential rule of law in Louisiana is that litigants must raise constitutional attacks in the trial court, not the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mosing v. Domas, 02-0012 (La.10/15/02), 830 So.2d 967; Vallo v. Gayle Oil Co., 94-1238 (La.11/30/94), 646 So.2d 859. The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. State v. Hatton, 07-2377, p. 14 (La.7/1/08), 985 So.2d 709, 719.

In the instant case, it is undisputed that defendants raised the constitutional issue for the first time in the court of appeal. No particularized constitutional claims were pleaded by defendants in the district court, nor was any record developed on this issue in the district court.

Under these circumstances, we find the court of appeal erred in reaching defendants’ constitutional arguments. Accordingly, without reaching the merits, we | svacate the judgment of the court of appeal, and remand the case to the court of appeal for consideration of any remaining issues presented by defendants’ application for supervisory writs.

DECREE

For the reasons assigned, the judgment of the court of appeal is vacated and set aside. The case is remanded to the court of appeal for further proceedings consistent with this opinion.

      . Also named as a defendant was Tionne Simon, who had also made a public records request for certain communications. At the time of the hearing on the injunction, the Council had not served Ms. Simon, and the district court indicated any relief it issued would not apply to her.

      . The judgment also required defendants to produce the e-mails for in camera inspection, and prohibited defendants from retaining “any copies whatsoever, electronically or otherwise.”

      . La.Code Civ. P. art. 2164 provides:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

      . The problems resulting from the failure to develop a proper record in the district court are readily apparent in this case, as the court of appeal’s holding is premised in large measure on unsubstantiated statements taken from defendants' brief. For example, the court of appeal makes a finding that Ms. Washington "discussed these records with numerous individuals and also discussed the records publicly." However, as the Council points out, Ms. Washington’s affidavit filed in the district court does not state that she disseminated the e-mails. Rather, for the first time in their appellate brief, defendants asserted Ms. Washington "shared copies of the public record e-mails with as many as dozens of other citizens.” It is clear that briefs and oral arguments of counsel are not evidence. Vice-domini v. Pelts & Skins, 01-2268 (La.App. 1 Cir. 2/15/02), 808 So.2d 867.

      . In its brief to this court, the Council suggests that Ms. Washington may have violated the injunction issued by the district court's order. Without passing on this issue, we note that nothing in our order of remand divests the district court of jurisdiction to consider the issue of contempt. See Cousin v. Cousin, 327 So.2d 138, 139 (La.App. 4 Cir.1976).


text:
    Michael BERCIER v. Monique BERCIER.
    No. 2009-CC-1166.
    Supreme Court of Louisiana.
    May 29, 2009.
   In re Bercier, Monique T.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2008-005064; to the Court of Appeal, Third Circuit, No. CW 09-00345.

Stay denied. Writ denied.

GUIDRY, J„ would grant.


text:
    STATE ex rel. Thomas L. PHILLIPS v. STATE of Louisiana.
    No. 2008-KH-2945.
    Supreme Court of Louisiana.
    June 2, 2009.
   In re Phillips, Thomas L.; — Plaintiff; Applying For Motion to Enforce, Parish of Orleans, Criminal District Court Div. C, No. 245-434.

Motion Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Norman NEWMAN State of Louisiana v. Russell Bentley.
    No. 2009-KK-1094.
    Supreme Court of Louisiana.
    June 3, 2009.
   In re Newman, Norman; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 466-914; to the Court of Appeal, Fourth Circuit, No. 2009-K-0421.

Denied.


text:
    STATE of Louisiana v. Kenneth JOHNSON.
    No. 2009-KK-1072.
    Supreme Court of Louisiana.
    June 3, 2009.
   In re State of Louisiana; Plaintiff; Applying for Reconsideration of this Court’s order dated May 20, 2009; Parish of Orleans, Criminal District Court, Div. C, No. 475-990, Court of Appeal, Fourth Circuit, No. 2009-K-0603.

Denied. An application for rehearing will not be considered when the Court has merely denied an application for a writ of certiorari, See La. Sup.Ct. Rule IX, Section 6.


text:
    Louis E. MADERE, et al. v. David and Renee CHRISTENSON, et al.
    No. 2009-CD-1142.
    Supreme Court of Louisiana.
    June 3, 2009.
   In re Christenson, David et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 08-604.

Denied.


text:
    David and Renee CHRISTENSON v. Louis MADERE, et al.
    No. 2009-OC-1192.
    Supreme Court of Louisiana.
    June 3, 2009.
   In re Christenson, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Divs. H, G, K, I, Nos. 2008-604, 2007-9243, 2008-5453, 2009-3409, 2009-5288, 2009-915.

Denied.


text:
    In re Jenna S. ARD.
    No. 2009-OB-1046.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Ard, Jenna S.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. In the event petitioner satisfactorily passes the examination, the Committee on Bar Admissions shall make a determination of whether she is entitled to be certified for admission to the bar.


text:
    STATE of Louisiana v. Robert Daniel WILKINS.
    No. 2009-KK-1124.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Wilkins, Robert Daniel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 19337-04; to the Court of Appeal, Third Circuit, No. KW 08-01461.

Writ granted. The Court of Appeal erred in attributing to the district court factual determinations that were not actually made by the district court and in substituting its own factual findings for those of the district court in the absence of any showing of abuse of discretion on the part of the district court. A review of the transcript of the recusal hearing and the evidence introduced in connection therewith demonstrates no abuse of discretion on the part of the district court in ruling that the State failed to meet its burden of proving that recusal is warranted because of alleged bias or prejudice on the part of the trial judge toward Detective Ramby Cormier, a law enforcement officer who will potentially appear as a witness. The ruling of the Court of Appeal is therefore reversed, and this matter is remanded to the Court of Appeal for consideration of the recusal grounds pretermitted in its original ruling.

VICTORY, J., would deny.

KNOLL, J., would deny.

GUIDRY, J., would deny.


text:
    STATE ex rel. Arthur LEWIS v. STATE of Louisiana.
    No. 2009-KH-1133.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lewis, Arthur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Palish of Orleans, Criminal District Court Div. C, No. 340-019; to the Court of Appeal, Fourth Circuit, Nos. 2009-K-0097, 2009-K-0357.

The application is transferred to the district court with instructions to the district judge to act on relator’s application for post-conviction relief filed via certified mail receipt on July 9, 2007. The district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    STATE ex rel. Paul E. STEWART, Sr. v. STATE of Louisiana.
    No. 2009-KH-1207.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Stewart Sr., Paul E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 467-293; to the Court of Appeal, Fourth Circuit, No. 2009-K-0420.

Relator represents that the district court has failed to act timely on a motion to correct an illegal and invalid sentence filed on or about February 23, 2009. If relator’s representation is correct, the district court is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    In re Appeals of DECISIONS OF the DISCIPLINARY BOARD NOS. 05-PDB-163 & 05-PDB-164.
    No. 2009-OB-0742.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lucas, Carolyn R.; — Plaintiff; Applying For Appeal of Decision of Office of the Disciplinary Board, No's. 05-PDB-163, 05-PDB-164.

Leave to appeal denied.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 08-PDB-102.
    No. 2009-OB-0779.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Pendleton, Raymond A.; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 08-PDB-102.

Leave to appeal denied.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 08-PDB-116.
    No. 2009-OB-0805.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Crow, Reba W.; — Plaintiff; Applying For Appeal of Decision of Office of the Disciplinary Board, No. 08-PDB-116.

Denied.

GUIDRY, J., recused.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 08-PBD-025.
    No. 2009-OB-0848.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Goodin, Thomas; — Plaintiff; Applying For Appeal of Decision of Disciplinary Board # 08-PBD-025 Office of Disciplinary Board, No. 08-PDB-025.

Leave to appeal denied.


text:
    STATE of Louisiana v. Terrance D. MITCHELL.
    No. 2008-K-2812.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Mitchell, Terrance D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. C, No. 0613770; to the Court of Appeal, Second Circuit, No. 43,460-KA.

Not considered. Not timely filed.


text:
    Jarad VINSON v. Bradley BONNETTE, et al.
    No. 2009-CC-0890.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Louisiana, State of; Office of the State Police; Public Safety & Corrections, Dept, of; Thomas, Trooper D.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2008-2127; to the Court of Appeal, Third Circuit, No. CW 08-01491.

Not considered; not timely filed. See State v. Crandell, 05-1060 (La.3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La.1/26/01), 781 So.2d 1220.


text:
    Steven and Deborah MCCONNELL v. CITY OF HARAHAN, and City of Harahan Board of Adjustments & Appeals.
    No. 2009-C-0943.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re McConnell, Deborah; McConnell, Steven et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 647-761; to the Court of Appeal, Fifth Circuit, No. 08-CA-802.

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


text:
    Celia M. LAUVE v. Richard M. LAUVE.
    No. 2009-C-0557.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lauve, Richard M.; — Defendant; Applying for Reconsideration of this Court’s action dated May 1, 2009; Parish of Orleans, Civil District Court, Div. K, No. 2000-8949; Court of Appeal Fourth Circuit, No. 2008-CA-0076.

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


text:
    Jesse James CASTON v. STATE of Louisiana.
    No. 2007-KH-1764.
    Supíneme Court of Louisiana.
    June 5, 2009.
   In re Caston, Jesse James; Plaintiff; Applying for Reconsideration of this Coui't’s order dated May 30, 2008; Parish of Madison, 6th Judicial District Court, Div. B, No. 108-550, Court of Appeal, Second Circuit, No. 42651-KH.

Reconsideration denied.


text:
    STATE ex rel. Jefferson KENNEDY v. STATE of Louisiana.
    No. 2008-KH-1380.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Kennedy, Jefferson' — Plaintiffs); Applying for Reconsideration of this Court’s order dated March 27, 2009; Parish of Jefferson, 24th Judicial District Court Div. L, No. 95-532; to the Court of Appeal, Fifth Circuit, No. 08-KH-242.

Reconsidei-ation denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Edmond BURKHALTER v. STATE of Louisiana.
    No. 2004-KH-2118.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Burkhalter, Edmond; — Plaintiff; Applying for Motion to Enforce this Court’s Order dated January 11, 2005; Parish of Orleans, Criminal District Court, Div. C, No. 271-378.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Pedro BACOT v. STATE of Louisiana.
    No. 2008-KH-1515.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Bacot, Pedro; — Plaintiff; Applying For Motion to Enforce this Court’s order dated October 3, 2008, Parish of Orleans, Criminal District Court Div. C, No. 309-833; to the Court of Appeal, Fourth Circuit, No. 2008-K-0166.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Gerald WILLIAMS v. STATE of Louisiana.
    No. 2008-KH-1600.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Williams, Gerald; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 13, 2009; Parish of Oua-chita, 4th Judicial District Court Div. E, No. 04-F-0512, to the Court of Appeal, Second Circuit, No. 43723-KH.

Reconsideration granted. Writ denied.


text:
    STATE of Louisiana v. Marilyn BUSH.
    No. 2008-KP-1713.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. B, No. 20,958; to the Court of Appeal, Second Circuit, No. 43764-KW.

Denied. Moot.


text:
    STATE ex rel. Travis RICHARDSON v. STATE of Louisiana.
    No. 2008-KH-1983.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Richardson, Travis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, No. 10-02-394; to the Court of Appeal, First Circuit, No. 2008 KW 0641.

Denied.


text:
    STATE ex rel. Travis J. RICHARDSON v. STATE of Louisiana.
    No. 2008-KH-1997.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Richardson, Travis J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge; 19th Judicial District Court Div. C, No. 10-02-0394; to the Court of Appeal, First Circuit, No. 2008 KW 0699.

Denied.


text:
    STATE ex rel. Richard John MIKKELSON, Jr. v. STATE of Louisiana.
    No. 2008-KH-2185.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Mikkelson, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 173-545.

Denied.


text:
    STATE ex rel. Garry ZEIGLER, Sr. v. STATE of Louisiana.
    No. 2008-KH-2187.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Zeigler, Garry Sr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 03-F-2288; to the Court of Appeal, Second Circuit, No. 43825-KH.

Denied.

JONES, J., recused.


text:
    STATE ex rel. Chakha Danny JAMES v. STATE of Louisiana.
    No. 2008-KH-2189.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re James, Chakha Danny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 240,893; to the Court of Appeal, Third Circuit, No. KH 08-00629.

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


text:
    STATE of Louisiana v. Everette OFFRAY.
    No. 2008-KP-2213.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 371-740; to the Court of Appeal, Fourth Circuit, No. 08-K-0901.

Denied.


text:
    STATE ex rel. Darrell A. MCDUFFEY v. STATE of Louisiana.
    No. 2008-KH-2268.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re McDuffey, Darrell A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 05-F-1505; to the Court of Appeal, Second Circuit, No. 43794-KH.

Denied.


text:
    STATE ex rel. Edward A. LOWERY, Jr. v. STATE of Louisiana.
    No. 2008-KH-2312.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lowery, Edward A., Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 354193; to the Court of Appeal, First Circuit, No. 2007 KW 1785.

Denied.


text:
    STATE ex rel. Gary COOPER v. STATE of Louisiana.
    No. 2008-KH-2313.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Cooper, Gary; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 363847; to the Court of Appeal, First Circuit, No. 2008 KW 0709.

Denied.


text:
    STATE ex rel. Joycelyn Renee SIMPSON v. STATE of Louisiana.
    No. 2008-KH-2320.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Simpson, Joycelyn Renee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 9-02-0297; to the Court of Appeal, First Circuit, No. 2008 KW 0672.

Denied.


text:
    STATE ex rel. Kelly HOLMES v. STATE of Louisiana.
    No. 2008-KH-2321.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Holmes, Kelly;- — -Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 389-900; to the Court of Appeal, Fourth Circuit, No. 2008-K-0846.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Edward A. LOWERY, Jr. v. STATE of Louisiana.
    No. 2008-KH-2391.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lowery, Edward A., Jr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 354193; to the Court of Appeal, First Circuit, No. 2008-KW-0762.

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 of Louisiana v. Roy Anthony JOHNSON.
    No. 2008-KO-2649.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Johnson, Roy Anthony; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 259-320; to the Court of Appeal, Fourth Circuit, No. 2007-KA-1040.

Denied.


text:
    STATE of Louisiana v. David S. SANTOS.
    No. 2008-KO-2698.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Santos, David S.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 466002; to the Court of Appeal, Fourth Circuit, No. 2008-KA-0198.

Denied.


text:
    STATE of Louisiana v. Melody D. MCGEE.
    No. 2008-K-2791.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re McGee, Melody D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 05-5391; to the Court of Appeal, Fifth Circuit, No. 08-KA-395.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Keri Lynne MAGEE.
    No. 2008-K-2801.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Magee, Keri Lynne; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. H, No. 06-CR7-94590; to the Court of Appeal, First Circuit, No. 2008 KA 0748.

Denied.


text:
    STATE of Louisiana in the Interest of J.W.
    No. 2008-CK-2803.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Confidential Party; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. J-15408; to the Court of Appeal, First Circuit, No. 2008 KW 2119.

Denied.


text:
    STATE of Louisiana v. Burnell LAWSON.
    No. 2008-K-2805.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Lawson, Burnell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, No. 437246; to the Court of Appeal, First Circuit, No. 2008 KA 0882.

Denied.


text:
    STATE of Louisiana v. Guy Joseph DICKINSON.
    No. 2008-K-2813.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. E, No. 20344; to the Court of Appeal, First Circuit, No. 2008 KA 0558.

Denied.


text:
    STATE of Louisiana v. Sean Vincent GILLIS.
    No. 2008-K-2818.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Gillis, Sean Vincent; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 05-2577; to the Court of Appeal, First Circuit, No. 2007 KA 2320.

Denied.


text:
    STATE of Louisiana v. Guy Joseph DICKINSON.
    No. 2008-K-2876.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Dickinson, Guy Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. E, No. 20344; to the Court of Appeal, First Circuit, No. 2008 KA 0558.

Denied.


text:
    BOH BROS. CONSTRUCTION CO., L.L.C. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2009-C-0856.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Louisiana State of; Transportation and Development Department of; — Defendant^); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 557-041; to the Court of Appeal, First Circuit, No. 2008 CA 1793.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    Eddy OLIVER, Oscarlene Nixon and Mildred Goodwin, et al. v. ORLEANS PARISH SCHOOL BOARD, et al.
    No. 2009-CC-0865.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Education Department of; Elementary & Secondary Education Bd. of; Louisiana State of; Recovery School District; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2005-12244; to the Court of Appeal, Fourth Circuit, No. 2009-C-0190.

Denied.


text:
    STATE of Louisiana v. Devin ALPHONSE.
    No. 2009-KK-0868.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Alphonse, Devin;- — Defendant; Applying For Supervisoiy and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 475-577; to the Court of Appeal, Fourth Circuit, No. 2009-K-0318.

Denied.


text:
    Kenneth SAAVEDRA v. DEALMAKER DEVELOPMENTS, LLC, Darren Zuppardo, Jerry L. Wallace, Jerry Wallace Developments, LLLP, Jerry Wallace Companies, LLLP, Jerry Wallace Dealmakers, LLC, Wallacetown Land Company, LLLP, Jerry L. Wallace Limited Partnership and Dealmakers Square, LLC.
    No. 2009-CC-0875.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Saavedra, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 110-827; to the Court of Appeal, Fourth Circuit, No. 2008-CA-1239.

Denied.

JOHNSON, J., would grant.


text:
    Amy L. FOX v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 2009-CC-0885.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Baquet, Bennett Todd M.D.; Louisiana Medical Mutual Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2007-1815; to the Court of Appeal, Third Circuit, No. CW 09-00018.

Denied.


text:
    Tammy ESSWEIN v. David A. WHITE, D.D.S. and Dental West, Inc. Deborah Painich v. David A. White, D.D.S. and Dental West, Inc.
    No. 2009-CC-0886.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Shelter Mutual Ins. Co.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, Nos. 01-4053, 01-4539; to the Court of Appeal, Second Circuit, Nos. 44,499-CW, 44,500-CW.

Denied.

JONES, J., recused.


text:
    M & R DRYWALL, INC. v. MAPP CONSTRUCTION, LLC, Travelers Casualty & Surety Company of America, Southgate Residential Towers, LLC, et al. Southgate Residential Towers, LLC, Southgate Penthouses, LLC v. MAPP Construction, Inc., MAPP Construction, LLC, Travelers Casualty and Surety Company of America, et al.
    No. 2009-CC-0888.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re MAPP Construction LLC; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, Nos. 529,351, 550,534; to the Court of Appeal, First Circuit, Nos. 2009 CW 0607, 2009 CW 0660.

Denied.


text:
    Donna Danete TYSON v. THOMPSON HOME HEALTH.
    No. 2009-C-0889.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Thompson Home Health; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 2, No. 07-00314; to the Court of Appeal, Third Circuit, No. 08-193.

Denied.


text:
    Michael YEE, Shun Chung, Thomas Yee, Norman Lew, Zi Ping Liang, and Madison Chun v. KWOK KIT WOND, Darryl E. Toy, on Leong Chinese Merchants Association, Paul Louie, Tang Ching Lee, Chin Heng Tong, M.K. Wong, King Chan, Chinese Merchants Association, a/k/a National on Leong Chinese Merchants Association, Kin P. (“Kenny”) NG, and Ricky Moy.
    No. 2009-C-0893.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Chung, Shun; Lew, Norman; Liang, Zi Ping; Yee, Michael et al.; Yee, Thomas; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 651-139; to the Court of Appeal, Fifth Circuit, No. 08-CA-814.

Denied.

GUIDRY, J., recused.


text:
    STATE in the Interest of K.C.
    No. 2009-CJ-0897.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Community Services Office of; Louisiana State of; Social Services Dept, of; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 08-CC-001; to the Court of Appeal, Fifth Circuit, No. 09-C-215.

Denied.


text:
    Christian Delo REYES and Karen Serpas v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Clinton Poche, Ja mieson Poche and William T. Poche
    No. 2009-C-0898.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Liberty Mutual fire Insurance; Poche, Clinton; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 03-7716; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0769.

Denied.

WEIMER, J., would grant.


text:
    Gilbert REISSLAND v. ESSEX INSURANCE COMPANY et al.
    No. 2009-CC-0899.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Essex Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court for the Parish of Jefferson, No. 145-195; to the Court of Appeal, Fifth Circuit, No. 09-C-110.

Denied.


text:
    Herman CARRIER, et al. v. CITY OF AMITE, et al.
    No. 2009-C-0919.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Sears Roebuck & Co.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 2002-003772; to the Court of Appeal, First Circuit, No. 2008 CA 1092.

Denied.


text:
    SECURITY PLUS, INC. v. LOUISIANA STATE POLICE-GAMING LICENSE SECTION and State of Louisiana Gaming Control Board.
    No. 2009-C-0920.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Louisiana State Police-Gaming License Section; State of Louisiana Gaming Control Board; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 569,273; to the Court of Appeal, First Circuit, No. 2008 CA 2136.

Denied.


text:
    Letha H. Duncan, Wife of/and Lawrence E. DUNCAN v. JADE SERVICES LIMITED.
    No. 2009-C-0927.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Duncan, Lawrence E.; Duncan, Letha H. et al.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 03-15103; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0728.

Denied.


text:
    William F. SPENCER v. CHEVRON CORPORATION, Chevron U.S.A., Inc., d/b/a Chevron, Chevron Phillips Chemical Company, LP, Chevron Phillips Chemical Company, LLC, Chevron Chemical Company, LLC, Chevron Oronite Company, LLC, Dynamic Industries, Inc. and Meitec, Inc.
    No. 2009-CC-0930.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Meitec, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, Nos. 53-735, 54-098; to the Court of Appeal, Fourth Circuit, No. 2009-C-0106.

Denied.

VICTORY, J., would grant.


text:
    Richard F. PRICE, Jr., John V. Price, Linda P. Ellzey, James M. Foster, Robert P. Hosford, Karen R. Hosford, Patrick R. Neville, Barbara H. Wheeler, James Friederickson, Craig Smith, Haydee Marie Waters, William A. Waters, Jr., Mary Frances Waters Hand, Constance Rae Anderson, and Julia Heile Youmans v. PIONEER NATURAL RESOURCES USA, INC.
    No. 2009-C-0932.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Anderson, Constance Rae; Ellzey, Linda P.; Foster, James V.; Friederick-son, James; Hosford, Karen R.; Hosford, Robert P.; Neville, Patrick R.; Price Jr., Richard F. et ah; Price, John v.; Smith, Craig; Waters Jr., William A.; Waters, Haydee Marie; Waters, Mary Frances; Wheeler, Barbara H.; Youmans, Julia Heile; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court

Denied. Div. A, No. 52-535; to the Court of Appeal, Fourth Circuit, No. 2008-CA-1184.


text:
    Jerry BICKHAM, Ella Bickham, Candace Lajoce Bickham, and Jyra Thelmelia Bickham v. LOUISIANA EMERGENCY MEDICAL CONSULTANTS; Inphynet d/b/a Inphynet Medical Management/Med Partners; Riverside Medical Center; James Kerry, M.D.; and XYZ, ABC, and DEF Insurance Companies.
    No. 2009-C-0936.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Bickham, Candace Lajoce; Bick-ham, Ella; Bickham, Jerry et al.; Bick-ham, Jyra Thelmelia; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 81912; to the Court of Appeal, First Circuit, No. 2008 CA 1645.

Denied.


text:
    Quinn L. DUCOTE, et ux. v. UNION PACIFIC RAILROAD COMPANY, et al.
    No. 2009-C-0940.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Union Pacific Railroad Company et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rap-ides, 9th Judicial District Court Div. C, No. 218,842; to the Court of Appeal, Third Circuit, Nos. 08-1208, 08-1001.

Denied.

VICTORY, J., would grant.


text:
    TUBAN PETROLEUM, L.L.C. v. SIARC, INC., The Texas Company and Home Oil Co., L.L.C. and Motiva Enterprises, L.L.C.
    No. 2009-C-0945.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re Tuban Petroleum, L.L.C.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2007-7336; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0302.

Denied.


text:
    STATE of Louisiana in the Interest of D.G.
    No. 2009-CK-1086.
    Supreme Court of Louisiana.
    June 5, 2009.
   In re D.G., In Interest of; — Plaintiff; Applying For Writ of Certiorari and/or Review Orleans Parish Juvenile Court, No. 2008-045-03-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0938.

Denied.

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

JONES, J., would grant the writ.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. David SAMPOGNARO.
    No. 08-KA-371.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.
    Harry J. Morel, Jr., District Attorney, Kim McElwee, Assistant District Attorney, Hahnville, Louisiana, for Plaintiff/Appel-lee.
    Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for DefendanVAppellant.
    Panel composed of Judges CLARENCE E. McMANUS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

IsSTATEMENT OF THE CASE

A St. Charles Parish grand jury indicted defendant, David Sampognaro, and charged him with 21 counts of possession of pornography involving juveniles in violation of LSA-R.S. 14:81.1. He pled not guilty and filed several pre-trial motions. The State subsequently amended the' indictment to charge defendant with one count of attempted possession of child pornography in violation of LSA-R.S. 14:27 and 14:81.1. On the same day, defendant entered a nolo contendere plea to the amended charge.

Since Defendant’s conviction resulted from a guilty plea, little is known about the facts and circumstances surrounding the charged offense. During the plea colloquy, the State explained that a Cybercrime agent in Virginia located child pornography on defendant’s computer. As a result, local federal agents executed a search warrant and seized defendant’s computer from his house. A forensic examination of the computer revealed numerous video and pictures of pornography. It was determined that the children depicted were under the age of 17 and some were under the age of 12.

According to the State, defendant admitted knowledge of the child pornography on his computer to the federal agents. However, the federal government declined to prosecute. Thereafter, a St. Charles Parish detective obtained an arrest warrant for defendant and he was arrested.

|:iOn December 7, 2006, the trial court sentenced defendant to five years which was suspended in favor of five years active probation with numerous conditions, including that defendant comply with the registration requirements for sex offenders. Defendant timely filed a motion to modify and/or reduce sentence seeking to eliminate some of the conditions of his probation. After a hearing, the trial court granted defendant’s motion in part and denied it in part.

Defendant later filed an untimely appeal with this Court, which was dismissed and remanded to allow defendant an opportunity to seek reinstatement of his appeal rights. State v. Sampognaro, 07-324, p. 4 (La.App. 5 Cir. 9/25/07), 968 So.2d 765, 766. On remand, defendant sought reinstatement of his appeal rights through an application for post-conviction relief, which was granted. Defendant now timely appeals his sentence arguing one assignment of error, that the trial court erred in denying defendant’s motion to modify and/or reduce sentence.

Defendant’s sole assignment of error challenges the following three conditions of his probation imposed by the trial court: 1) the prohibition against him attending school functions with his minor children, 2) the requirement that he post a notice outside his medical office regarding his sex offender status, and 3) the requirement that he serve eight hours of community service every week for the first year of probation. Defendant contends the first condition imposes needless suffering, the second condition is superfluous and encroaches on the duties of the Louisiana Medical Board to regulate the practice of medicine, and the third condition does not comport with the severity of the offense.

DISCUSSION

An error patent review was conducted under LSA-C.Cr.P. art. 920. This review reveals an error that prevents this Court from reaching the merits of defendant’s appeal. Specifically, defendant received probation for an offense that |4does not permit probation and defendant’s sole assignment of error on appeal relates to the conditions of his probation.

Defendant entered a nolo contendere plea to attempted possession of child pornography. We note that defendant entered his no contest plea without any agreement as to the sentence, except that he would be required to comply with the sex offender registration requirements.

A person who is convicted of an attempt to commit a crime “shall be fined or imprisoned ... in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” LSA-R.S. 14:27(D)(3). The sentencing range for possession of child pornography is set forth in LSA-R.S. 14:81.1(E)(1), which provides: “Whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.”

The trial court sentenced defendant to five years with the Department of Corrections but suspended the sentence and placed defendant on active probation, with numerous conditions, for five years. Thus, defendant received an illegal sentence.

The State did not object to the illegal sentence at the time of sentencing or at the hearing on the motion to modify and/or reduce sentence, or on appeal. Under LSA-C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. However, this authority is permissive rather than mandatory. State v. Quinones, 03-907, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830.

In State v. Jones, 327 So.2d 417 (La.1976), the defendant’s sentence was suspended in favor of probation. The Louisiana Supreme Court determined the trial court did not have authority to suspend the defendant’s sentence. As such, the Supreme Court reversed the trial court’s ruling suspending the sentence and remanded the matter for the trial court to correct the sentence. Id. at 419-20.

Also, in State v. Sugasti, 01-3407, pp. 1-2 (La.6/21/02), 820 So.2d 518, 519, the Louisiana Supreme Court affirmed this Court’s decision vacating the defendant’s sentence and remanding for resentencing where defendant received probation for an offense that did not allow for probation at the time the defendant committed the offense.

A defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So.2d 790, 797. Therefore, we vacate defendant’s sentence and remand the matter for resentencing. There is no need to reserve defendant’s right to withdraw his nolo contendere plea because his plea was not conditioned on any particular sentence. There is nothing in the record to indicate defendant entered his plea in exchange for probation or a suspended sentence.

Additionally, we find that defendant was not advised of the two-year prescriptive period within which to file an application for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8. Therefore, upon remand, we order the trial court to inform defendant of the two-year prescriptive period as required by Article 930.8.

SENTENCE VACATED; MATTER REMANDED FOR RESENTENCING.