author: ALTENBERND, Judge.

text:
    James Arthur WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3709.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

James Arthur Williams appeals his judgments and sentences for aggravated battery, felonious “possession” of a concealed weapon, and possession of cocaine. ■ We affirm his judgment for aggravated battery as well as the judgment for possession of cocaine. We reverse his judgment and sentence for felonious “possession” of a concealed weapon because the relevant statute makes it unlawful to “carry,” not possess, a concealed weapon as a felon. The jury instructions in this case described the wrong elements for this offense and effectively allowed a conviction for a nonexistent crime. See James v. State, 16 So.3d 822, 326 (Fla. 4th DCA 2009). We conclude that the trial court would have imposed the maximum sentence as a habitual offender for the aggravated battery without regard to this error and accordingly affirm the thirty-year term of imprisonment for aggravated battery, as well as the concurrent sentence for possession of cocaine.

On December 29, 2007, at approximately 10:30 p.m., a man and a woman were walking to a coffee shop in downtown St. Pe-tersburg when Mr. Williams rode between them on a three-wheel bicycle. Another man on a bicycle followed immediately behind Mr. Williams. The other bicyclist attempted to steal the woman’s purse. When she resisted, the man with whom she was walking came to her defense. Ultimately, Mr. Williams pulled a box cutter from his waist band and severely cut the man who came to the woman’s defense. The police arrested Mr. Williams a short time later.

The State charged Mr. Williams with aggravated battery, felonious “possession” of a concealed weapon, attempted robbery by sudden snatching, and possession of cocaine. At the bifurcated trial, the State first tried the offenses of aggravated battery and attempted robbery. The jury found Mr. Williams guilty of aggravated battery and not guilty of attempted robbery. Immediately thereafter, the same jury heard evidence establishing that Mr. Williams was a convicted felon, and the trial court instructed the jury on the concealed weapon charge. As explained later in this opinion, over Mr. Williams’ objection to the language in the jury instructions, the jury found him guilty of felonious “possession” of a concealed weapon. Before sentencing, Mr. Williams pleaded guilty to the possession of cocaine charge.

Because both the language used in the information and in the jury instructions intermingled the elements of section 790.23, Florida Statutes (2007), it is first important to review the relevant statute. Section 790.23 provides:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon ... or device, if that person has been:
(a) Convicted of a felony in the courts of this state[.]

Mr. Williams correctly argues that section 790.23(1) contains two subparts. First, it is illegal for a convicted felon to have in his or her “care, custody, possession, or control” any firearm or certain other weapons. Second, it is illegal for a convicted felon to “carry a concealed weapon.”

The error in this case stems from the fact that the information intermingled these two subparts. It did not allege that Mr. Williams “carried” a concealed weapon. Instead, it alleged that he “did unlawfully have in his care, custody, possession or control, [a] concealed weapon.” Mr. Williams did not challenge the sufficiency of the information prior to trial, and there is nothing in the record to suggest that he was prejudiced, misled, or confused by this error. Accordingly, he was not entitled to have the information dismissed or to receive a judgment of acquittal due to this mistake. See Fla. R.Crim. P. 3.140(o); Ford v. State, 802 So.2d 1121, 1130 (Fla.2001).

Mr. Williams’ attorney apparently first noticed this error during the second portion of this trial. At that time, he moved for a directed verdict and also objected to jury instructions that discussed “possession” of a concealed weapon. The trial court ruled that the content of the information controlled the case and gave instructions based on Florida Standard Criminal Jury Instruction 10.15(2)(a) rather than 2(b). Accordingly, the trial court instructed the jury that the offense had two elements: (1) that Mr. Williams was a convicted felon and (2) that after the conviction he “knowingly had in his care, custody, possession, or control a concealed weapon.” The trial court gave the standard supplemental instructions on care, custody, and control, including an instruction on actual or constructive possession. It gave no instruction on “carrying” a concealed weapon.

The circumstances of this case are virtually identical to the circumstances in James, except here, Mr. Williams objected to the jury instructions, whereas in James, the defendant did not object, and the Fourth District treated it as fundamental error. See 16 So.3d at 325. Clearly, if the error warrants correction as a fundamental error, it should be corrected as a preserved error.

Nevertheless, we have considered whether the error was harmless in this case because the evidence strongly suggests that Mr. Williams knowingly carried the concealed box cutter as a concealed weapon. Obviously, even “strong” or “overwhelming” evidence is not necessarily enough to render an error harmless. See Cooper v. State, 43 So.3d 42, 43 (Fla.2010) (stating that the harmless error standard is whether there is a reasonable possibility that the error affected the verdict and not “a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test”) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). However, it is possible the erroneous instruction did not affect the verdict because the jury could have equated “possession” with “carrying,” given the evidence in the case and the nature of the arguments of the attorneys. Still, the fact remains that the trial court instructed the jury on the wrong elements of the offense over Mr. Williams’ objection. State v. Kettell, 980 So.2d 1061, 1068 (Fla.2008) (noting that a defendant is entitled to have the jury instructed on the correct elements of the offense and it cannot be deemed harmless error to fail to do so, especially when the defendant has brought the omission to the attention of the trial court).

In this case, the weapon was a box cutter. It was a tool that can be legally possessed and owned by a person, including a felon, for legitimate work purposes. We are convinced that even a felon can legally carry a box cutter in a concealed pocket if he is carrying the box cutter for a-legitimate work purpose and is not hiding it with the intent to use it, if necessary, as a weapon. See, e.g., Cook v. Crosby, 914 So.2d 490, 491 n. 1 (Fla. 1st DCA 2005) (“Although a razor knife/box cutter was not designed or constructed to cause death or great bodily harm, it can be a deadly weapon if the defendant uses, threatens to use, or intends to use it in a manner likely to cause death or great bodily harm.”). It was up to the jury to determine beyond a reasonable doubt that Mr. Williams knowingly carried the box cutter as a concealed weapon, and the jury instructions simply did not give them the guidance they needed to make that determination. Therefore, we conclude that we cannot regard this error as harmless, and we reverse the conviction and sentence for felonious “possession” of a concealed weapon. On remand, the State may amend the information and seek to prosecute Mr. Williams for the intended offense.

Affirmed in part, reversed in part, and remanded.

VILLANTI and WALLACE, JJ„ Concur.


source: Caselaw Access Project

license: Public Domain

text:
    Michael SUIT, Appellant, v. Evelyn SUIT, Appellee.
    No. 2D08-4814.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.

      David A. Maney and Patricia F. Kuhl-man of Maney, Damsker, Jones & Kuhl-man, P.A., Tampa, for Appellant.
    Edward M. Brennan of Law Office of Edward M. Brennan, P.A., Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Michael Suit appeals the final judgment of dissolution of his marriage to Evelyn Suit. We affirm all aspects of this judgment with the exception of the amount of the award of permanent periodic alimony. The error in that award is caused primarily by the trial court’s failure to determine the true costs of the Wife’s future living arrangements and the effect of those costs on the investment assets that the Wife received in equitable disti'ibution. On remand, we anticipate that the trial court can limit its analysis to this relatively narrow issue.

The parties were married for approximately twenty-three years before they commenced these dissolution proceedings. They are in their mid-fifties and have one child, who is now a legal adult. The Husband works as a financial planner and earned in excess of $600,000 per year during the final five years of the marriage. The Wife had not been employed during most of the marriage, but she operated two small businesses that generated modest income. Other than a home mortgage, the parties had no debt and had accumulated significant assets both in retirement accounts and in other investments.

In light of the Husband’s income, the parties had established a lavish lifestyle. The trial in this case focused on establishing the parties’ standard of living. Neither party disputed that the historic standard of living was the primary method to be used to determine the Wife’s need for alimony. Based on this method, the trial court determined that the Wife “needed” $13,569 per month in alimony over and above the $6500 per month that was spent on the family’s only child. Adjusted for income tax, the trial court awarded the Wife $17,825 per month in permanent, periodic alimony.

In addition to this alimony, the Wife received half of the marital assets. The Husband received the marital home, valued at $850,000. He also became solely responsible for the related mortgage, resulting in a net asset for him of approximately $600,000. Because the Husband received this sizable illiquid asset, the Wife’s distribution was primarily liquid or investment assets. She received approximately $500,000 in retirement accounts and an additional $800,000 in other assets, more than $400,000 of which was invested in interest-bearing bonds.

By focusing on the established standard of living, the Wife reasoned that she was entitled to buy a house similar in value to the marital home. At the time of the final hearing, she was living in a house with an option to purchase, but she had not made any final plans to purchase the house. She theorized that she would use some of her liquid assets as a down payment on a house and would obtain a mortgage loan for the balance. One of her experts described this as a good way for her to “invest.”

At the trial, the Husband argued that the Wife should have income imputed to her because she was underemployed in her two modest businesses. He also argued that her alimony should be adjusted to reflect the income that she would or could receive from both her retirement accounts and from her other investments. The trial court refused to impute income and likewise refused to adjust the alimony to reflect any income to the Wife from her extensive distribution of marital assets.

We conclude that the trial court did not abuse its discretion in refusing to impute income to the Wife, who was in her mid-fifties, had not been employed for many years, and wished to continue to develop the businesses that her Husband had encouraged her to start. Likewise, the trial court correctly refused to require the Wife to deplete her retirement accounts at this stage in her life. See McLean v. McLean, 652 So.2d 1178, 1181 (Fla. 2d DCA 1995).

On the other hand, we conclude that the trial court abused its discretion in finding that the Wife would have no income from her nonretirement assets. The undisputed evidence established that the $400,000 invested in bonds was returning $25,000 per year in income. The trial court’s final judgment suggests that it was confused about the distinction between invading the corpus of these assets and relying upon the income generated by the corpus. The trial court, for example, relied on this court’s decision in Holley v. Holley, 380 So.2d 1098 (Fla. 2d DCA 1980), to support its decision that the Wife should not “have to deplete her asset or change the character of her capital assets to maintain some semblance of the standard of living she enjoyed during the marriage.” Holley was a ease in which the wife’s assets consisted primarily of real estate. Id. at 1100. The wife in Holley was not awarded permanent alimony but needed funds to sustain her while she rebuilt her own legal practice. Id. In this case, the Wife does not need to invade the character of the bond fund or to change the character of this asset in order to have a significant annual income. The same may be true for other assets awarded to the Wife.

It appears likely that the trial court’s decision not to rely on income from the assets awarded to the Wife was based in significant part on its expectation that the Wife might invest $500,000 in a home. Her desire to eventually buy a home is admittedly a confusing part of the equation in this case. The trial court’s award of alimony is based on a schedule of need that includes $3529 per month to pay a mortgage loan, when the Wife has no such loan. There was also a payment of $288 per month for membership in a homeowners’ association when it is unclear that the Wife currently is or will be a member of such an association. We conclude that these portions of the award are not currently supported by competent, substantial evidence.

On remand, the trial court is free to take-additional evidence on these issues and would be well-advised to make more specific findings about the Wife’s housing, including the true costs that the court finds will be associated with the housing and the effect it will have on her investment assets.

Finally, we note that the Husband has raised a legitimate concern about whether this portion of the alimony payment contains a concealed savings component that contravenes the holding in Mallard v. Mallard, 771 So.2d 1138 (Fla.2000). As the final judgment is currently configured, it appears to be funding payments- on a loan that will be obtained in the future to buy a home as an investment. We first acknowledge and emphasize that it is often appropriate for alimony to be based on reasonable housing expenses. In this case, however, it appears that the trial court has authorized the Wife to buy a house at some time in the future and to require the Husband to purchase much of that house for her through alimony payments. There is a point at which requiring one spouse to pay off a sizable future mortgage on property purchased as an investment is little different than requiring the spouse to fund a savings account or other similar investment. See id. at 1140 (“Current necessary support rather than the accumulation of capital is the purpose of permanent periodic alimony.”). We do not read Mallard to prohibit alimony that indirectly results in a small savings component to a spouse who is paying the mortgage on a marital home, but if the alimony is used to pay off several hundred thousand dollars of investment in new real property, we are concerned that such an arrangement could become a type of savings alimony that is prohibited by Mallard. This is an issue that we expressly do not decide today, but we encourage the trial court to give it careful consideration when reexamining the alimony on remand.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.


text:
    Susan THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1941.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    Susan Thornton, pro se.
   ALTENBERND, Judge.

Susan Thornton appeals the trial court’s order denying her motion for postconviction relief. She argues that her original sentence was a true split sentence and that she could not be sentenced on a violation of community control to more than the suspended term. She is mistaken. The sentence, in the words of Ms. Thornton’s counsel, is “convoluted,” but it is not a true split sentence.

In 2006, Ms. Thornton pleaded guilty to escape from confinement. She negotiated a sentence of two years’ community control, followed by three years’ probation. As part of her sentence, she was to participate in PAR, a residential drug treatment program. Because that program did not have a bed immediately available and Ms. Thornton was subject to a subpoena to testify in a murder trial, the trial court imposed a term of 865 days in jail that would be suspended when a bed was available and her subpoena had expired. The trial court intended this short term in jail, as announced, to be a condition of either her community control or probation.

When Ms. Thornton was transferred to PAR, she quickly absconded. Thereafter, upon the entry of the order vacating her community control, the trial court had the authority to impose any lawful sentence. The ten-year term of imprisonment that the trial court imposed is a lawful term for this second-degree felony. See § 944.40, Fla. Stat. (2006). The 365 days in jail was not imposed as the initial term of imprisonment in a true split sentence, and the trial court was not limited by that sentence when imposing the sentence on violation of community control.

Affirmed.

VILLANTI and KHOUZAM, JJ, Concur.


author: NORTHCUTT, Judge.

text:
    Sergio SANCHEZ, Appellant, v. Mirna G. SANCHEZ, Appellee.
    No. 2D08-4673.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    James E. Rawe of Law Office of James E. Rawe, P.A., Bradenton, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

Sergio Sanchez appeals a final judgment granting to his estranged wife an injunction for protection against domestic violence. We agree that the evidence was insufficient to support the injunction, and we reverse. ■

Section 741.30, Florida Statutes (2008), authorizes a circuit court to grant an injunction for protection to any person “who is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” § 741.30(l)(a). Domestic violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2). Section 741.30(6)(b) provides guidance on the relevant factors to be considered by the circuit court:

In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to:
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10.Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.

In this case, Ms. Sanchez gave unsubstantiated, hearsay testimony relating to only one statutory factor, i.e., harm to a family member (the parties’ daughter). Ms. Sanchez offered no reason to believe that she herself was in imminent danger of becoming a victim of domestic violence. See Jones v. Jones, 32 So.3d 772 (Fla. 2d DCA 2010) (stating that petitioner must produce competent, substantial evidence to show objectively reasonable fear of imminent domestic violence); Muse v. Muse ex rel. Muse, 27 So.3d 232 (Fla. 2d DCA 2010) (noting that subjective fears of domestic violence are not sufficient grounds for injunction).

Because the evidence was insufficient to support an injunction for Ms. Sanchez’s protection, we reverse the injunction under review. We note that the circuit court did not issue an injunction for the daughter’s protection, and therefore we do not address whether the evidence was sufficient to warrant such an injunction.

Reversed.

VILLANTI and CRENSHAW, JJ., Concur.


author: KHOUZAM, Judge. ALTENBERND, Judge,

text:
    Rodney F. CAMPBELL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D09-708.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee/Cross-Appellant.
   KHOUZAM, Judge.

Rodney F. Campbell appeals his convictions for possession of cocaine, possession of cannabis, and possession of drug paraphernalia. The State cross-appeals Campbell’s downward departure sentence for possession of cocaine. We affirm Campbell’s convictions without discussion, but we reverse his downward departure sentence and remand for resentencing.

The lowest permissible sentence for Campbell under the Criminal Punishment Code was 28.05 months in prison. At sentencing, Campbell sought a nonprison sentence because of his son and a sick uncle in hospice. The trial court imposed a downward departure sentence of eighteen months in prison, followed by eighteen months of community control, followed by twelve months of probation. When the State objected to the downward departure sentence, the court replied that “based on the evidence and everything set forth that this will be [ ] equitable for him to have 18 months in State Prison and then [] community control, followed by 12 months probation.” The court did not file any written reasons for the downward departure sentence.

The decision to depart from the minimum sentence mandated by the Criminal Punishment Code is a two-part process. State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002). First, the trial court must decide whether it can depart by determining if there is a valid legal ground and adequate factual support for that ground. Id. That decision will be affirmed on appeal if the valid legal ground provided by the trial court is supported by competent substantial evidence. Id. Next, the trial court must determine whether departure is the best sentencing option for the defendant. Id. This decision is reviewed under an abuse of discretion standard. Id. “An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure.” Id.

We find that the trial court failed to provide a valid legal ground for the downward departure sentence. To the extent that the trial court considered Campbell’s family situation as a reason for downward departure, “Florida courts have consistently held that family support concerns are not valid reasons for downward departure.” State v. Walker, 928 So.2d 1262, 1265 (Fla. 1st DCA 2006). See Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (concluding “it would not be good policy for the legislature to punish those with families to support less than those without families”). Therefore, we reverse Campbell’s downward departure sentence and remand for resentencing pursuant to the Code. See Tyrrell, 807 So.2d at 128.

Affirmed in part, reversed in part, and remanded for further proceedings.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion. It is the law, but I am not entirely convinced it is good policy. The State wants Mr. Campbell to serve 28.05 months in prison for these drug offenses. The trial court sentenced him to eighteen months in prison, followed by eighteen months’ community control, followed by twelve months’ probation. The State correctly argues that this forty-eight month sanction is a downward departure sentence that is unsupported by evidence establishing a valid legal ground for such a departure and that the State is entitled to have Mr. Campbell serve the 28.05 month term in prison as the “longer” sentence. All in all, I suspect that the trial court’s “shorter” forty-eight month sentence would be a far more effective sanction than twenty-eight months in prison. Because Mr. Campbell has fully served his current term of imprisonment, he will presumably be removed from his community control and returned to prison.

Although Mr. Campbell’s attorney made little attempt to present evidence to permit a downward departure sentence in this case, it appears that Mr. Campbell’s actions a number of years earlier strongly affected his scoresheet. He has approximately sixty felony convictions that apparently arise from a credit card scheme he committed for a short period of time as an employee at some type of business. While the facts are not well developed, it appears likely that he was convicted of forgery, uttering a forged instrument, and some form of theft each time he misused a credit card. If each credit card transaction had been treated as one felony rather than two or three, the sentence he received in this case would not be a downward departure and his scoresheet may have permitted a non-state prison sanction.

Under current law, I express no opinion about whether Mr. Campbell’s attorney could have proven a legal basis for a downward departure, but none was proven at the sentencing hearing. It seems unusual to me that the credit card scheme he committed as a young man creates as many points on his scoresheet as if he had committed a lewd and lascivious battery on one occasion and a home-invasion robbery on another. See § 921.0022, Fla. Stat. (2008).


author: DAMOORGIAN, J.

text:
    Anthony WISE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2495.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Defendant appeals his judgment and sentence on two counts of armed sexual battery, one count of armed kidnapping, and one count of resisting an officer with violence, raising three issues for our consideration. We write only to address defendant’s argument that, because the jury rendered a special verdict that he did not possess a firearm, he was improperly convicted and sentenced for armed sexual battery and armed kidnapping. We reverse and remand for resentencing on this issue as to the armed kidnapping conviction and sentence only. We affirm defendant’s judgment and sentence on his remaining counts of armed sexual battery and resisting an officer with violence.

By way of background, defendant was driving around at nighttime in his car and pulled up to a convenience store. Defendant yelled out to the victim who was talking with her friends outside of the store. After the victim approached defendant’s car, defendant opened the passenger-side door, grabbed the victim by her dress, and told her to get in the car or else she would be shot. Once in the car, the victim noticed that defendant had a black automatic gun. After driving for some time, defendant stopped at a house, and while holding the victim at gunpoint, walked with her to the home’s backyard. The victim and defendant then entered a sleeping tent built inside the yard’s empty pool.

While holding the gun on the victim, defendant pulled the victim’s dress up and touched various parts of her body. Defendant also had oral sex with the victim and attempted to have vaginal sex with her. Defendant stopped after hearing a dog barking in a neighbor’s yard. The victim and defendant then left the home in defendant’s car. The defendant placed the gun on his lap while driving with the victim, and eventually dropped her off near a friend’s home. The victim went directly to the friend’s house and contacted the police.

Shortly thereafter, the police discovered the home where the incidents occurred based on a description given by the victim. At some point, defendant pulled into the driveway of the home and proceeded to approach the front door of the house. One of the police officers on the scene identified himself and gave defendant verbal commands to show his hands. Defendant taunted the officer, yelling profanity and ignoring his commands. A physical struggle ensued between the officer and defendant until defendant was subdued after other officers arrived on the scene. No gun was ever discovered on defendant, in his car, or in the tent.

At trial, defendant testified that the victim was a prostitute and that he only asked the victim to perform sexual acts on herself while they were in the tent. Thereafter, the victim asked defendant for money while they were driving as payment for her services. In response, defendant pulled over and told the victim to get out of his car. The victim became upset and spiteful, threatening to call the police. Defendant denied ever possessing a gun or raping and kidnapping the victim.

Ultimately, the jury found defendant guilty on two counts of armed sexual battery, one count of armed kidnapping, and one count of resisting an officer with violence. In a special verdict interrogatory, the jury found that defendant did not possess a firearm while committing the crimes of armed sexual battery and armed kidnapping.

At his sentencing hearing, defendant argued that he could not be convicted and sentenced on two counts of armed sexual battery and one count of armed kidnapping because of the jury’s special verdict, finding that he did not possess a firearm during the commission of the crimes. The trial court disagreed, adjudicating defendant guilty and imposing three consecutive life sentences on him for these crimes. The court also adjudicated defendant guilty on his one count of resisting an officer with violence and sentenced him to five years in prison, running concurrent to the armed kidnapping sentence. The court further designated defendant as a sexual predator. Defendant then filed the instant appeal.

While his appeal was pending, defendant filed a Florida Rule of Criminal Procedure 3.800(b) motion, alleging again that he was improperly convicted and sentenced on his crimes for armed sexual battery and armed kidnapping. Defendant likewise based his argument on the jury’s special verdict that he did not possess a firearm. The trial court did not rule on the motion, and therefore, it is deemed denied.

On appeal, defendant continues with the same argument presented at his sentencing hearing and in his rule 3.800(b) motion. In response, the State contends that defendant’s convictions and life sentences were proper because, even though the jury rendered a special verdict that defendant did not possess a gun, the jury could have found with its guilty verdicts that defendant threatened to use a gun while committing the crimes. The State further argues that defendant may not challenge his convictions in a rule 3.800(b) motion because rule 3.800(b) may only be used to correct sentencing errors. Defendant’s argument is correct as to his armed kidnapping conviction and sentence only.

Defendant was charged, by information, with (a) two counts of armed sexual battery, pursuant to section 794.011(3), Florida Statutes (2006), and (b) one count of armed kidnapping, pursuant to section 787.01(l)(a)2., Florida Statutes (2006), and section 775.087(l)(a), Florida Statutes (2006).

Based on section 794.011(3), a defendant may commit armed sexual battery if he uses a deadly weapon, threatens to use a deadly weapon, or uses actual physical force likely to cause serious personal injury. § 794.011(3), Fla. Stat. As part of its instruction on the elements of armed sexual battery, the trial court instructed the jury that it must determine whether defendant used or threatened to use a deadly weapon. Given this instruction, the jury’s special verdict that defendant did not possess a firearm does not preclude a conviction for armed sexual battery because the jury could have determined that defendant threatened to use a firearm. Therefore, the trial court did not err in adjudicating defendant guilty on two counts of armed sexual battery and in sentencing him to life in prison since armed sexual battery is a life felony. See § 794.011(3), Fla. Stat.

With regards to kidnapping, section 787.01(l)(a)2. does not provide, as part of the elements for kidnapping, that a defendant may be convicted of armed kidnapping by using or threatening to use a deadly weapon. Moreover, on its own, kidnapping is a first-degree felony. See § 787.01(2), Fla. Stat. (2006). In order to reclassify kidnapping from a first-degree felony to a life felony, a defendant must, while committing kidnapping, either (a) carry, display, use, threaten to use, or attempt to use a weapon or firearm, or (b) commit an aggravated battery. § 775.087(l)(a), Fla. Stat. The jury must make a separate factual finding to this effect via a special verdict before the trial court may reclassify kidnapping as a life felony. See State v. Tripp, 642 So.2d 728, 730 (Fla.1994) (holding that, before a crime may be reclassified under section 775.087, the jury must either (a) find the defendant guilty of a crime involving a weapon or firearm, or (b) answer a specific question on a special verdict form regarding the defendant’s use of a weapon or firearm).

In this case, the trial court instructed the jury that, if it found that defendant committed kidnapping, but did not possess a firearm, then it should find him guilty of kidnapping, not armed kidnapping. Based on this instruction, the jury should not have found defendant guilty of armed kidnapping since it rendered the special verdict that he did not possess a firearm. Therefore, the trial court erred in adjudicating defendant guilty of armed kidnapping. The court also erred in sentencing defendant to life in prison pursuant to section 775.087(l)(a), given the jury’s special verdict and the lack of any other factual findings regarding defendant’s use of a firearm. See Tripp, 642 So.2d at 730.

We, therefore, reverse defendant’s conviction and sentence for armed kidnapping, and remand for the trial court to adjudicate defendant guilty of kidnapping and to resentence him accordingly. We find no merit to defendant’s remaining arguments and affirm his conviction and sentence on two counts of armed sexual battery and one count of resisting an officer with violence.

Affirmed in part, Reversed in part, and Remanded.

MAY and GERBER, JJ., concur.

      . The trial court instructed the jury that, if it found defendant guilty of armed sexual battery and armed kidnapping, it must answer the following question on the verdict form: "During the course of the crime committed, did defendant actually possess a firearm?”

      . See Fla. R.Crim. P. 3.800(b)(1)(B) ("Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied." (emphasis added)).

      . Although the State correctly argues that defendant may not challenge his armed sexual battery and armed kidnapping convictions in a rule 3.800(b) motion, see Echeverria v. State, 949 So.2d 331, 335 (Fla. 1st DCA 2007), we hold that defendant has preserved his argument for review because it was raised at his sentencing hearing.

      . Section 794.011(3) provides:
      A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.
      § 794.011(3), Fla. Stat. (emphasis added).

      . Section 787.01(l)(a)2. states: "(l)(a) The term 'kidnapping' means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to ... 2. Commit or facilitate commission of any felony.” § 787.01(l)(a)2„ Fla. Stat.

      .Section 775.087(l)(a) provides:
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

      (a) In the case of a felony of the first degree, to a life felony.
      § 775.087(l)(a), Fla. Stat. (emphasis added).


text:
    ROSEMONT FARMS CORPORATION, a Florida Corporation, Appellant, v. BLUEBERRIES, S.A., an Argentinean Corporation, and Ulises C. Sabato, As President and Individually, Appellees.
    No. 4D09-1664.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Craig A. Stokes and Carolann A. Swanson of Stokes Law Office, LLP, Miami, Ramon A. Abadin, Erin E. Dardis and Aldo M. Leiva of Abadin Cook, Miami, for appellant.
    Allison Oasis Kahn of Carlton Fields, P.A., West Palm Beach, for appellees.
   DAMOORGIAN, J.

Rosemont Farms Corporation appeals the trial court’s final summary judgment and order denying Rosemont’s motion for reconsideration and vacating of summary judgment. We reverse the summary jüdgment, making it unnecessary for us to review the order denying the motion for reconsideration.

Rosemont Farms is a grower, packer, shipper, and marketer of perishable agricultural commodities in Florida. In 2006, Rosemont entered into an agreement with Blueberries, S.A. (“BSA”), a grower and exporter of blueberries in Argentina. Under the terms of this agreement, Rosemont would buy blueberries from BSA and resell them. The agreement further provided that Rosemont would pay for the products through Wallinbay, S.A., a Uruguayan company, which in turn would tender payment to BSA.

While the agreement was still in effect, Rosemont erroneously wired $81,455.49 to Wallinbay on the BSA account. Rosemont intended to wire these funds as payment on its account with another supplier in Argentina. Rosemont attempted to recoup the funds, but was unable to do so. Finally, Rosemont filed a single-count complaint for conversion against BSA. Included with the complaint was the affidavit of Alex Torres, who was Rosemont’s controller. Torres’ affidavit set forth the following facts:

1. On November 28, 2007, Rosemont wired $81,455.59 to BSA’s account at HSBC Republic International Bank in Miami, Florida.
2. At the time of the payment, Rose-mont did not owe BSA money. The funds were sent by mistake.
3. On December 5, 2007, Torres sent a letter to BSA’s president, Dr. Ulises Sabato, advising him of the error. A copy of the letter, which was identified as “Exhibit B,” was attached to the affidavit. The letter stated that BSA’s receipt of the funds had been confirmed by BSA’s controller, and that the controller had stated that he had prepared wire instructions to effectuate the return of the funds to Rosemont. As of the date of the letter, the funds had not been returned.

In response to the complaint, BSA moved for summary judgment. In support of its motion, BSA provided affidavits from its officers, stating that it (a) had no ownership interest in, control over, or affiliation with Wallinbay and (b) had never received the wire transferred funds which Rosemont paid to Wallinbay on the BSA account. Rosemont responded that, even if BSA had not received the funds, Wallin-bay was BSA’s agent for purposes of the wire transfer. The trial court granted the motion and entered judgment in favor of BSA.

We review the trial court’s decision to grant summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58, 60 (Fla. 1st DCA 1999)).

On appeal, Rosemont argues that the statement made by Torres in his affidavit created a genuine issue of material fact as to whether BSA received the funds. BSA counters that Torres’ affidavit is insufficient because Torres did not state in the body of the affidavit that BSA actually received the funds. Moreover, BSA argues, attaching a copy of Torres’ letter to BSA’s president confirming the conversation between Torres and BSA’s controller is insufficient to create a factual dispute as to whether BSA received the excess funds.

The issue here is whether attaching Torres’ letter to his affidavit satisfies the requirements of Florida’s summary judgment rule, Florida Rule of Civil Procedure 1.510. If it does, then we are satisfied that Rosemont created a disputed issue of material fact as to BSA’s possession of the erroneous payment. In order to resolve this issue, we turn to rule 1.510(e), which provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Fla. R. Civ. P. 1.510(e).

In Mack v. Commercial Indus. Park, Inc., 541 So.2d 800, 800 (Fla. 4th DCA 1989), the defendant moved for summary judgment. In support of its motion, the defendant attached to its motion, as exhibits, contracts allegedly establishing the lack of material facts. Id. In reversing the trial court’s summary judgment, we noted that

[t]he problem with these exhibits was that, prior to their appearance in the motion, they were not on file, not even mentioned in the pleadings and never alluded to in any depositions or interrogatories .... In addition, the exhibits were not accompanied by an affidavit in support of the motion which might have authenticated them and caused them to be properly filed under Florida Rule of Civil Procedure 1.510(e).

Id.

We have the opposite situation in this case. Attached to Torres’ affidavit in opposition to the motion for summary judgment was Torres’ letter in which he confirms that BSA’s controller acknowledged BSA’s receipt of the funds as well as BSA’s intention to return the funds. Moreover, Torres authenticated the letter when he stated under oath that he prepared and sent the attached letter to BSA’s president. When viewed together, the affidavit and attached letter created a genuine issue of material fact regarding BSA’s receipt and possession of the funds. Accordingly, the trial court erred in granting summary judgment in favor of BSA. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709-10 (Fla. 4th DCA 1997).

We reverse and remand this case to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

MAY and GERBER, JJ., concur.


author: PER CURIAM. WEIMER, J.,

text:
    STATE of Louisiana v. Deloyd JONES.
    No. 2010-KK-1026.
    Supreme Court of Louisiana.
    Oct. 1, 2010.
   PER CURIAM.

| -[Writ granted. The trial court ruling suppressing the identification made by the victim is reversed.

The victim told the police he recognized the person who shot him as “Puggy”, whom he knew from the neighborhood. On the day of the shooting, the victim was shown a six person photographic lineup, but was unable to identify the defendant. In this first photo lineup, all of the men had dreadlocks. However, on the day of the shooting defendant had short hair. Defendant was arrested on the day of the shooting on an unrelated charge; the booking photograph depicts the defendant with short hair.

Two months later, the victim was shown a second photographic lineup. Defendant’s recent booking photo was included and all of the men in the lineup had short hair. The victim identified the defendant.

The trial court found its reliability questionable and suppressed this identification based upon the last two Brathwaite factors. It reasoned that the victim’s identification was uncertain, the use of the booking photo in the lineup was Rpossibly suggestive, and too much time had elapsed between the crime and negative identification and the positive identification. We find the trial court abused its discretion in suppressing the identification.

In the first photo lineup, the defendant had dreadlocks even though he had short hair at the time of the alleged offense. Thus, there is a reasonable explanation for the victim’s failure to identify anyone in the first lineup. Nor do we find the two month delay between the lineups an unreasonable length of time that would increase the likelihood of misidentification. Assuming arguendo the use of the booking photo was possibly suggestive, the defendant did not prove that any suggestiveness resulted in a likelihood of misidentification. A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a substantial likelihood of mis-identification as a result of the identification procedure. State v. Brown 03-897, p. 19 (La.4/12/05), 907 So.2d 1, 16; State v. Prudholm, 446 So.2d 729, 738 (1984).

In reversing the trial court ruling, we find it appropriate to observe these comments in Brathwaite concerning admissibility of identification:

In essence what the Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ] due process right protects is an evidentiary interest....
It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness — an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the “integrity” — of the adversary process.
Counsel can both cross-examine the identification witnesses and argue in summation as to the factors causing doubts as to the accuracy of the identification including reference to both any suggestibility in the | identification procedure and any countervailing testimony such as an alibi. Clemons v. United States, 133 U.S.App. D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).
Brathwaite, 432 U.S. at 113, n. 14, 97 S.Ct. at 2252 (ellipsis in original).

The trial court’s ruling suppressing the identification is reversed. Our order staying all proceedings in this matter is lifted. This matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

STAY LIFTED. REVERSED AND REMANDED.

JOHNSON, J., dissents.

WEIMER, J., dissented with reasons.

WEIMER, J.,

dissenting.

| fin suppressing the identification in this case, the district court carefully considered the factors outlined in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and articulated the reasons why she concluded the identification was suggestive and there was a likelihood of misidentification as a result of the identification procedure. The standard of review of a district court’s ruling on the admissibility of identification evidence is abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981). Applying that standard in this case, I find the district court’s ruling, which was based on the court’s ability to view first hand the photographs used in the line-up identification and to assess the credibility of the witnesses, was within the court’s discretion. The State’s application for writ of certiorari should be denied.

      . Reliability is the linchpin in determining the admissibility of identification testimony. The factors to be considered include (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

      . In Stovall the Court instructed that determining whether due process was violated in the conduct of a confrontation depends on the totality of the circumstances surrounding it. Stovall, 388 U.S. at 302, 87 S.Ct. at 1972.


author: GUIDRY, Justice.

text:
    STATE of Louisiana v. Daniel SMALLS.
    No. 2009-KK-2695.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Joshua A. Perry, for Applicant.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., Dist. Atty, Matthew Caplan, Francis Xavier deBlanc, III, Asst. Dist. Attys., Phelps Dunbar, LLP, Harry Allan Rosenberg, New Orleans, for Respondent.
   GUIDRY, Justice.

| ,We granted the defendant’s writ application to determine whether, under the Louisiana Constitution, the non-elected commissioners of the Magistrate Section of the Criminal District Court for the Parish of Orleans may conduct trials and accept guilty pleas in misdemeanor cases under the authority of La.Rev.Stat. 18:1347. Because we find La.Rev.Stat. 13:1347 does not grant to the non-elected commissioners the same adjudicatory powers of the elected magistrate judge of the Criminal District Court, we find that court’s practice, as set forth in Louisiana Rules of Court, District Court Rules, Appx. 11 (now Appx. 14.0A, effective June 1, 2010), of allotting misdemeanor criminal cases to the commissioners of the Magistrate Section of the court for accepting guilty pleas and conducting trials, violates La. Const, art. V §§ 1 and 22 (1974). See State v. O’Reilly, 00-2864 (La.5/15/01), 785 So.2d 768. Accordingly, for the reasons set forth below, we today clarify the scope of La.Rev.Stat. 13:1347 in conformity with our state constitution and hold that the commissioners of the Magistrate Section of the Criminal District Court for the Parish of Orleans may not conduct trials or accept guilty pleas in misdemeanor cases, i.e., because they are not elected judges, the commissioners may not lawfully exercise the ^adjudicatory power of the state.

FACTS AND PROCEDURAL POSTURE

The defendant is charged by bill of information with a misdemeanor offense: simple criminal damage to property having a value less than $500. His case was allotted to an appointed commissioner in the Magistrate Section of Criminal District Court for the Parish of Orleans, under Louisiana Rules of Court, District Court Rules, Appx. 11 (now Appx. 14.0A, effective June 1, 2010). After entering a plea of not guilty, the defendant filed a pleading entitled: “Notice of Objection to the Exercise of Any Adjudicatory or Judicial Power in this Case by an Unelected Officer; Motion to Declare La. R.S. 13:1347 Unconstitutional Insofar as It Allows Unelected Officials to Exercise the Judicial or Adjudicatory Powers; and Motion for Transfer to a Court of Competent Jurisdiction.” This pleading was served on both the District Attorney and the Attorney General. The commissioner to whom the case was allotted denied the motion. The court of appeal denied the defendant’s writ application “on the showing made.” State v. Smalls, 09-1653 (La.App. 4 Cir. 12/9/09). At the defendant’s request, this court on December 16, 2009, stayed all further proceedings, including trial of his misdemean- or charge in the Magistrate Section by a commissioner. This court thereafter granted the defendant’s writ application. State v. Smalls, 09-2695 (La.4/16/10), 31 So.3d 1056.

DISCUSSION

The precise issue before the court is whether the non-eleeted commissioners |sof the Magistrate Section of Orleans Parish Criminal District Court may conduct trials and accept guilty pleas in misdemeanor cases under the purported authority of La.Rev.Stat. 13:1347. The defendant asserts the commissioners, because they are not elected judges, may not exercise adjudicatory powers of the state in violation of La. Const, art. V, §§ 1 and 22. He contends this court answered that question in State v. O’Reilly, supra. The State of Louisiana agrees with the defendant, and further asks this court, should it determine that La.Rev.Stat. 13:1347 is unconstitutional as applied, to order the Clerk of the Criminal District Court to re-allot all misdemeanor cases pending before the commissioners to either the magistrate judge or the other sections of the district court. The judges and commissioners of the Criminal District Court argue that the authority of the commissioners, by virtue of La.Rev.Stat. 13:1347, to exercise the adjudicatory power of the state commensurate with the adjudicative authority granted to the duly elected magistrate judge in La.Rev.Stat. 13:1346 was “preserved” when the 1974 Constitution was ratified.

For the reasons more fully discussed below, our review of the applicable constitutional provisions and the history of the pertinent statutes mandates the conclusion that the commissioners of the Magistrate Section of Orleans Parish Criminal District Court may not conduct trials or accept guilty pleas in misdemeanor cases. The principal fallacy in the argument of the judges and commissioners is that the magistrate judge and the commissioners in Orleans Parish Criminal District Court had been granted adjudicatory powers pri- or to the effective date of the 1974 Constitution. In fact, the magistrate judge was not granted the authority to adjudicate misdemeanor cases until 1975, by La. Acts 1975, No. 178, effective July 12, 1975, well after the effective date of the 1974 Constitution on December 31, 1974. Thus, when the commissioner offices were retained in the 1974 Constitution, they possessed no adjudicatory powers, and have not since been granted any such powers; nor can they be granted such powers under La. Const, art. V, §§ 1 and 22.

Our analysis begins with the principles recognized in O’Reilly, which addressed not Orleans Parish but the legislature’s creation in 1998 of the office of | ¡¡commissioner for the 22nd Judicial District Court. As enacted, La.Rev.Stat. 13:719(E)(2)(e) gave the commissioner jurisdiction over criminal matters concurrent with the judges in the 22nd Judicial District and specifically empowered the commissioner to conduct trials, to accept guilty pleas, and to impose sentences in misdemeanor cases, among other duties such as fixing bail and issuing search and arrest warrants. The statute further provided the judges in the 22nd Judicial District would select the commissioner, i.e., the commissioner was not an elected judge.

Following their convictions for misdemeanor offenses, the defendants in O’Reilly moved to set aside the verdicts and sentences on the ground that, because he was not an elected judge, the commissioner had no constitutional authority to adjudicate their trials, or accept their guilty pleas, render verdicts, and impose sentences. This court agreed and found that “[t]he commissioner, an unelected official, cannot lawfully exercise the adjudicatory power of the state.” O’Reilly, 00-2864 p. 8, 785 So.2d at 774. We based our conclusion on La. Const, art. V, §§ 1 and 22(A), see note 2, swpra. We reasoned as follows:

Accepting guilty pleas, rendering verdicts after presiding over a trial, and imposing sentences are unquestionably final determinations which involve the exercise of adjudicatory power. In the instant case, the commissioner, pursuant to the authority granted by La. R.S. 13:719(E)(2)(e), exercised adjudicatory power by accepting O’Reilly’s guilty plea, finding Brewster guilty after trial, and sentencing defendants. Clearly, this subsection allows the commissioner to exercise a portion of judicial power restricted by La. Const, art. V, §§ 1 and 22 to elected judges of authorized courts. The power to make the ultimate determination in a case must be exercised by duly elected judges. The commissioner, an unelected official, cannot lawfully exercise the adjudicatory power of the state. Subsection (E)(2)(e) of La. R.S. 13:719, which authorizes a non-elected person to exercise adjudicatory power, is therefore unconstitutional.

O’Reilly, 00-2864 pp. 7-8, 785 So.2d at 774.

With those principles in mind, we next turn to the particular arguments of the judges and commissioners of the Criminal District Court. While pointing out the | Jong-term existence and established efficiencies of the commissioner system in Orleans Parish, the judges and commissioners assert the legislature created the position of magistrate judge, a Magistrate Section located within the Criminal District Court, as well as the offices of the commissioners, before the 1974 Constitution went into effect. Thus, they contend, unlike the situation in the 22nd Judicial District addressed in O’Reilly, the magistrate judge and the commissioners in Orleans Parish were “preserved” as a matter of La. Const, art. V, § 15(A), which provides that “[t]he district, family, juvenile, parish, city, and magistrate courts existing on the effective date of this constitution are retained.” Given the retention clause in Art. V, § 15, the judges and commissioners argue that the persons appointed to the office of commissioner have the same powers, duties, and functions as the elected judge for the Magistrate Section of Criminal District Court for the Parish of Orleans that existed prior to December 31, 1974 (the effective date of the current constitution). Alternatively, the judges and commissioners cite the retention clause in the 1974 Constitution specifically addressing Orleans Parish, La. Const, art. V, § 32, which provides as follows:

Except for provisions relating to terms of office as provided elsewhere in this Article, and notwithstanding any other contrary provision of this constitution, the following courts and officers in Orleans Parish are continued, subject to change by law; the civil and criminal district courts; the city, municipal, traffic, and juvenile courts; the clerks of the civil and criminal district courts; the civil and criminal sheriffs; the constables and the clerks of the first and second city courts; the register of conveyances; and the recorder of mortgages.

We find these arguments to be unavailing, because they fail to recognize the 1974 Constitution could not have retained adjudicatory powers which neither the magistrate judge nor the commissioners possessed prior to its effective date. The legislature created the position of an elected magistrate judge for Orleans Parish in La. Acts 1972, No. 236, which enacted La.Rev.Stat. 13:1346 and provided for “one 17additional judgeship of the Criminal District Court for the Parish of Orleans.... ” La.Rev.Stat. 13:1346(A). The statute as originally enacted provided that the “additional judge created herein shall have all of the powers, duties, rights and prerogatives and qualifications as are now prescribed by the constitution and laws of this state relative to judges of the Criminal District Court for the Parish of Orleans, except as provided herein.” La.Rev.Stat. 13:1346(B)(emphasis added). Act No. 236 also created the Magistrate Section of the Criminal District Court to which the additional judge would be assigned, and specified that the judge “shall have jurisdiction to act as committing magistrate in felony and misdemeanor charges and to hold preliminary examinations, with the authority to bail or discharge or to hold for trial, in all cases before the Criminal District Court for the Parish of Orleans, and shall have the power to adopt all necessary rules with respect thereto.” La.Rev.Stat. 13:1346(C). The legislature further provided the magistrate judge with the authority, subject to approval by the other judges in the Criminal District Court meeting en banc, to “hear preliminary motions, pleas and other matters preliminary to the trial on the merits.... ” La.Rev. Stat. 13:1346(D). As we implicitly recognized in O’Reilly, a guilty plea is not a plea “preliminary to the trial on the merits,” but a final adjudicatory act taking the place of trial. Therefore, conspicuously missing from the enabling legislation for the Magistrate Section was any grant of adjudicatory authority to the magistrate judge, although he was otherwise a duly elected official as any other judge in the Criminal District Court.

Two years later, the legislature created the offices of commissioner for the Magistrate Section, providing the commissioners with “the same qualifications, powers, duties and functions, all as is now or hereafter provided for the judgeship in the magistrate section of said criminal district court.” La. Acts 1974, No. 54818(enacting La.Rev.Stat. 18:1347). Because the commissioners had no greater (and no less) authority than the magistrate judge at that time, the commissioner office at its inception was also non-adjudicatory.

Thus, when the 1974 Constitution went into effect on December 31, 1974, it retained a non-adjudicatory magistrate judge and non-adjudicatory offices of commissioner, all presiding in a non-adjudicatory Magistrate Section within the Criminal District Court. This fact was made clear by the court’s holding in State v. Brady, 310 So.2d 593 (La.1975), which addressed an en banc rule adopted by the judges of the Criminal District Court on December 9, 1974, authorizing the magistrate judge to try misdemeanor cases allotted for that purpose to the Magistrate Section of court. The defendant, facing a charge of a misdemeanor offense, challenged the authority of the magistrate judge to conduct the trial after arraigning her. This court agreed with the defendant that La.Rev.Stat. 13:1346(D) then imposed specific limits on the magistrate judge’s exercise of judicial powers, which excluded trying misdemean- or cases. We reasoned:

[T]he Legislature has limited the jurisdiction and authority of the judge known as the Magistrate to acting as committing. Magistrate, holding preliminary examinations, and hearing motions, pleas, and other matters preliminary to trial on the merits.... The Magistrate has no jurisdiction or authority to conduct the trial of a misdemeanor case on the merits.

Brady, 310 So.2d at 596. We concluded the Criminal District Court’s rule attempting to broaden the magistrate judge’s powers was “ineffective,” and accordingly ordered the defendant’s case re-allotted to another section in the Criminal District Court. Id.

Thus, we recognized in Brady that the magistrate judge in Criminal District Court, from the inception of that additional judgeship in 1972, possessed no adjudicatory power. However, some months after our decision in Brady, and after the effective date of the 1974 Constitution, the legislature enlarged the jurisdiction and |aauthority of the magistrate judge, providing that, with the approval of the other judges in the Criminal District Court meeting en banc, the judge would have the authority to “hear preliminary motions, accept pleas in misdemeanor cases, hear and render judgment in other matters, including misdemeanor cases, preliminary to the trial on the merits, and conduct trials of misdemeanor cases and sign and issue search and arrest warrants upon probable cause being show in accordance with law.” La. Acts 1975, No. 178 (amending La.Rev. Stat. 13:1346(D)). At the same time, by La. Acts 1975, No. 594, the legislature amended La.Rev.Stat. 13:1347(Á) to ratify and confirm the creation of three commissioner positions in the Magistrate Court, specifying that the commissioners “shall not be judges, but shall have the same qualifications, powers, duties, jurisdiction and functions, all as is now or hereafter provided for the judge in the magistrate section of said criminal district court.”

Nonetheless, because the magistrate judge did not possess the adjudicatory power of the state when the 1974 Constitution became effective, neither did the commissioners. Consequently, and contrary to the argument of the judges and the commissioners, the retention clauses of La. Const, art. V, §§ 15(A) and 32 have no bearing on the question of whether the commissioners in the Criminal District Court may now exercise adjudicatory powers otherwise reserved for duly elected judges that the legislature purportedly conferred upon them in 1975. The answer to that question, as we previously found in O’Reilly, is that the commissioners, as non-elected officials, cannot lawfully exercise the adjudicatory power of the state. Thus, to the extent that the Criminal District Court for the Parish of Orleans has interpreted La.Rev.Stat. 13:1347 to permit the commissioners to accept guilty pleas and conduct trials in misdemeanor cases, we find the practice in Criminal District Court to violate |10La. Const, art. V, §§ 1 and 22.

However, unlike the case in O’Reilly, the issue presented here does not require severing one part of La.Rev.Stat. 13:1347 from the remainder of the statute, as opposed to interpreting and narrowing its language. The purported authority of the commissioners to adjudicate misdemeanor cases arises not from any specific provision therein, but from the broad statement that the commissioners “shall have the same qualifications, powers, duties and functions,” as the magistrate judge, whose expansion of powers in 1975 included the adjudication of misdemeanor cases. Indeed, the constitutional impropriety we determine exists in the commissioner system of the Criminal District Court for the Parish of Orleans arises from the local rules of the Criminal District Court, which provide for allotment and transfers of misdemean- or cases to the non-elected commissioners for the disposition of misdemeanor cases, i.e., accepting guilty pleas and conducting trials. In that light, we today clarify the scope of La.Rev.Stat. 13:1347 in accordance with our state constitution and hold that the commissioners of the Magistrate Section of the InCriminal District Court for the Parish of Orleans may not conduct trials or accept guilty pleas in misdemean- or cases, i.e., because they are not elected judges, the commissioners may not exercise the adjudicatory power of the state.

DECREE

Because they are not elected judges, the commissioners of the Magistrate Section of the Criminal District Court for the Parish of Orleans may not exercise the adjudicatory power of the state to dispose of misdemeanor cases by accepting guilty pleas or conducting trials. Accordingly, the commissioner below erred in denying the defendant’s motion to transfer his case, or cause it to be re-allotted, to either the magistrate judge or one of the other sections of the Criminal District Court. That ruling is reversed, and the case is transferred to the Criminal District Court, which is ordered to re-allot the defendant’s case to the magistrate judge or another section of the Criminal District Court.

REVERSED AND TRANSFERRED TO THE CRIMINAL DISTRICT COURT TO BE RE-ALLOTTED.

JOHNSON, J., concurs.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The local rule for Criminal District Court, Orleans Parish, set forth in Appendix 11 to the District Court Rules, now found at Appendix 14.0A to those Rules, effective June 1, 2010, provides for five classes of cases, and describes the "fourth class" as "[t]hose triable by the Court without a jury....” Allotments, Rule 2(d). Rule 8 under the heading "Allotments” provides that "[fjourth class cases shall be randomly allotted among Sections A though L and the Magistrate Section,” which would presumably include the commissioners of the Magistrate Section. Furthermore, the rules under the heading "Transfers,” provides that "[a]ny Judge may transfer to a Commissioner any non-jury misdemeanor case for disposition without the approval of that Commissioner.” Transfers, Rule 2.

      . La.Rev.Stat. 13:1347, entitled “Commissioners of magistrate section,” provides in pertinent part:
      A. (1) In addition to the judgeships, including the judge of the magistrate section of the Criminal District Court for the parish of Orleans, the four offices of commissioner of said court created under R.S. 13:1347, Act No. 548 of the 1974 Regular Session as amended by the Louisiana Legislature are hereby approved, confirmed, ratified, affirmed, and validated in the magistrate section of said court. The persons appointed to the offices of commissioner created by this Section shall be known as commissioners and shall not be judges, but shall have the same qualifications, powers, duties, jurisdiction, and functions, all as is now or hereafter provided for the judge in the magistrate section of said criminal district court.

      (3) The judges of the criminal district court, sitting en banc, shall determine the further powers, duties, functions, and policy affecting the offices of commissioner, not inconsistent with the provisions of this Section.
      B. The initial appointments by the governor of the three commissioners created in R.S. 13:1347, Act No. 548 of the 1974 Regular Session of the Louisiana Legislature, are hereby approved, confirmed, ratified, continued, validated, and affirmed and said appointment shall be for a term of six years from the date thereof.
      C. Should there be a vacancy created by the removal, resignation or death of any commissioner, the judges of the criminal district court sitting en banc shall fill the vacancy by appointment for the unexpired term. At the termination of the initial term and or any subsequent terms of a commissioner, the judges of the criminal district court sitting en banc shall appoint successors to the office for like terms....
      D. There is hereby created an additional commissioner of the Criminal District Court of the parish of Orleans. The commissioner shall have the same qualifications, powers, duties, jurisdiction, and functions all as is now or hereafter provided for the other commissioners in the magistrate section of said criminal district court.

      (2) The judges of the Criminal District Court of the parish of Orleans sitting en banc, shall make the initial appointment of the additional commissioner of the Criminal District Court of the parish of Orleans for a term of six years....

      . Art. V, § 1 provides: "The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.”
      Art. V, § 22(A) provides in part: "Except as otherwise provided in this Section, all judges shall be elected.”

      . Although the judges and commissioners suggest that “countless attacks questioning convictions and guilty pleas presented to the Commissioners in Orleans Parish will be the inevitable result” of a finding that the commissioners cannot exercise the adjudicatory power of the state, neither the defendant nor the State makes such an argument. Indeed, even the judges and commissioners acknowledge that in O’Reilly this court "embraced” the de facto officer doctrine to uphold the constitutional validity of the defendants’ convictions. "The de facto officer doctrine confers validity upon the acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” O'Reilly, 00-2864 p. 12, 785 So.2d at 777 (quoting Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995)).
      As previously explained, we determined in O’Reilly that La.Rev.Stat. 13:719(E)(2)(e), creating the commissioner office in the 22nd Judicial District Court, was unconstitutional under La. Const, art V, §§ 1 and 22; however, we reversed the trial court’s rulings vacating and setting aside the defendants' convictions based on the unconstitutionality of the statute. In applying the de facto officer doctrine, we reasoned the commissioner "was not a usurper of an office who was acting without color of right.” O’Reilly, 00-2864 p. 13, 785 So.2d at 778. "Rather, he was at minimum a de facto officer sitting pursuant to an apparently valid statute whose unconstitutionality had not been attacked directly or declared at the time defendant O'Reilly pleaded guilty and was sentenced and at the time [defendant] Brewster was tried, found guilty, and sentenced.” Id., pp. 13-14, 785 So,2d at 778. Although the issue is not directly presented under the facts of this case, the judges and commissioners have not demonstrated any valid reason why that same rationale would not apply to the commissioners in Orleans Parish.

      . The judges and the commissioners broadly argue that, if the non-elected commissioners in Orleans Parish may not exercise the adjudicatory power of the state, then the appointment by this court of non-elected persons or retired judges as judges pro tem or ad hoc is equally violative of the constitution. The issue of the scope of adjudicatory power in any situation in which a non-elected individual is appointed as a judge pro tem or ad hoc is not presently before us. Instead, the only question we decide today is the constitutional propriety of a non-elected commissioner in the Magistrate Section of Orleans Parish Criminal District Court exercising the adjudicatory power of the state in misdemeanor cases. Nevertheless, we note that La. Const, art. V, § 5(A), as amended in 1987, provides as follows:
      The supreme court has general supervisory jurisdiction over all other courts. It may establish procedural and administrative rules not in conflict with law and may assign a sitting or retired judge to any court. The supreme court shall have sole authority to provide by rule for appointments of attorneys as temporary or ad hoc judges of city, municipal, traffic, parish, juvenile, or family courts.


author: CLARK, Justice.

text:
    STATE of Louisiana v. Ronnie Joe BROOKS, Jr.
    No. 2009-K-2323.
    Supreme Court of Louisiana.
    Oct. 19, 2010.

      James D. Caldwell, Attorney General, Jonathan M. Stewart, Dist. Atty., Kenneth Patrick Haines, Asst. Dist. Atty., for Applicant.
    Richard C. Gooriey, for Respondent.
   CLARK, Justice.

| ,We granted this writ application in order to determine whether the court of appeal erred in modifying the defendant’s conviction for aggravated burglary. For the reasons that follow, we reverse the ruling of the court of appeal and reinstate the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

On June 13, 2007, Joseph Daniel Smart drove by the home of his girlfriend, Melissa Flournoy, to check on it, as he frequently did. When Smart noticed that the back screen door was open, he called the Arcadia Police Department. A subsequent investigation revealed that the house had been burglarized, furniture had been broken, a computer had been disconnected, and several video game consoles and games had been taken. The police dusted the home for fingerprints prior to leaving the house.

Shortly after he and the police left, Smart revisited the house and discovered that someone was inside. He again called the Arcadia Police Department. Before the police arrived, Smart entered the home and noticed footprints leading to a window on the second floor. Thinking that the person may have been attempting to leave the 12home through the window, Smart exited the house and went around to the back. As he came around to the back, Smart saw the defendant and another man, DeShan Dunn, exiting the back door of the home. When the defendant saw Smart, he attempted to leave the house toward the back line of the yard, while Dunn ran around the house toward the front. Smart chased the defendant and caught him near some bushes in the back yard, about forty-five feet from the house.

When Smart grabbed the defendant, the defendant bit Smart on the arm, broke loose, and again attempted to leave. Smart chased the defendant again and caught him in the middle of the road, where the defendant bit Smart again, and attempted to escape once more. Smart finally caught the defendant about fifteen feet further away in a neighboring yard, pinned him to the ground, and held him until the police arrived.

On July 8, 2007, the defendant was charged by bill of information with the aggravated burglary of Ms. Flournoy’s home. The defendant pled not guilty and was tried by jury on November 17 and 18, 2008. The jury found that the defendant had violated La.Rev.Stat. § 14:60, aggravated burglary, and convicted him of that crime. The trial court denied defendant’s motions for post verdict judgment of acquittal and new trial, and imposed a sentence of ten years at hard labor. On September 23, 2009, the court of appeal issued an opinion modifying the verdict, vacating the conviction for aggravated burglary, and rendering, instead, a conviction for simple burglary of an inhabited dwelling. State v. Brooks, 44,730 (La.App. 2 Cir. 9/23/09), 24 So.3d 917. We granted the state’s writ of certiorari to review the correctness of the court of appeal’s opinion. State v. Brooks, 2009-2323 (La.5/21/10), 36 So.3d 220.

LAW

The jury convicted the defendant of aggravated burglary, a violation of Title 14, Section 60, of the Louisiana Revised Statutes. The statute reads:

|s§ 60. Aggravated burglary
Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

La.Rev.Stat. § 14:60 (Emphasis added).

There is no dispute that the defendant, without authority, entered the dwelling inhabited by Ms. Flournoy and her children, with the intent to commit a theft. Instead, as recognized by the court of appeal, the single issue in dispute is whether the batteries committed by the defendant during his attempt to escape apprehension after the burglary was discovered can form the basis for an aggravated burglary conviction within the meaning of the statute. This issue turns on the meaning given to the phrase “leaving such place,” as contained in the statute.

DISCUSSION

The starting point in the interpretation of any statute is the language of the statute itself. State v. Johnson, 2003-2998, p. 11 (La.10/19/04), 884 So.2d 568, 575. “When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” La.Rev.Stat. § 1:4. Similarly, “[t]he articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La.Rev.Stat. 14:3.

The purpose of statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. Theriot v. Midland Risk Insurance Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186. “Legislative intent is the fundamental question in all cases of statutory interpretation; rules of statutory construction are designed to ascertain and enforce the intent of the statute.” Theriot, 95-2895 at 3, 694 So.2d at 186. The best evidence of legislative intent or will is the wording of a statute. Johnson, 2003-2993 at 12, 884 So.2d at 575.

As stated by the court of appeal, criminal statutes are subject to strict construction under the rule of lenity. State v. Carouthers, 618 So.2d 880, 882 (La.1993). The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct will be considered criminal. State v. Piazza, 596 So.2d 817, 820 (La.1992). The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. Piazza, 596 So.2d at 820.

In interpreting the statute, the court of appeal stated:

Our construction of the statutory phrase “Commits a battery upon any person while in such place, or in entering or leaving such place” indicates that the legislature contemplated circumstances in which there is a close connection between the battery and the structure, such as when a burglar commits a battery on a victim to gain entry to the inhabited dwelling or structure, or commits a battery while within the structure, or commits a battery on a victim in order to leave the structure. In other words, there needs to be a relationship between the battery and either the burglar’s entry into, exit from, or presence in the structure. Once the burglar has exited the structure, the crime is complete.

Brooks, 44,730 at p. 4, 24 So.3d at 919 (emphasis in original). As can be seen, the court of appeal replaced the word “leav-tag” with a different, albeit similar, word, “exiting,” rather than examining the word “leaving” in the context in which it is used in the statute.

IsRather than “to exit,” “to leave” means “to go away from.” Webster’s New Collegiate Dictionary, (1977). Similarly, the Random House College Dictionary Revised Edition, (1988), defines “to leave” as “to go away or depart from, as a place, a person, or a thing: quit.” Likewise, Blacks Law Dictionary 973 (9th ed.2009) defines “to leave” as “to depart; voluntarily go away; quit (a place).” None of these sources equate “leaving” with “exiting,” as postulated by the court of appeal.

Further, as stated, the statute requires that a battery be committed either in a dwelling, or while entering or leaving a dwelling. According to the court of appeal’s interpretation, one could only be “leaving” a dwelling while one is “in” a dwelling, because if one had exited the dwelling and were, thus, outside, the crime of burglary would be complete. While the rule of lenity requires the courts to provide narrow interpretations of criminal statutes, State v. Carr, 1999-2209 (La.5/26/00), 761 So.2d 1271, it does not require courts to interpret a statute in such ways as to render words contained in the statute, such as the word “leaving,” without meaning.

Likewise, instead of focusing upon the relationship between the battery and the structure, as the court of appeal does, we interpret the statute as requiring a connection between the battery and the burglary in order to protect individuals from injury during the perpetration of the burglary. Under the court of appeal’s interpretation, if a homeowner chased a burglar to his front door and the burglar, in an attempt to escape, committed a battery on the homeowner just inside the front Ifidoor, an aggravated burglary was committed. However, if the burglar, in his escape attempt, battered the homeowner just outside the front door, no aggravated burglary would have occurred, even though the burglar’s intent and actions were exactly the same. Similarly, if a homeowner or the police chased a burglar out a second floor window onto the roof where the burglar committed a battery during his capture, the court of appeal’s interpretation would find that no aggravated burglary had occurred, because the battery happened after the burglar had “exited” the structure and “the crime was complete.” Such an interpretation is too restrictive and, as we have stated, renders the term “leaving” without meaning.

A “continuous transaction” analysis supports our conclusion that the battery was part and parcel of the burglary. This Court has ruled that a killing which takes place after commission of a felony is committed during the “perpetration” of the felony when the underlying felony and the homicide form part of one continuous transaction which occurred without a significant break in the chain of events. State v. Brooks, 505 So.2d 714, 719-20 (La.1987). Furthermore, a homicide which occurs during a defendant’s flight from the scene of an aggravated burglary could be found by the trier of fact to be first degree murder under La.Rev.Stat. 14:30(1), a homicide committed during the course of an aggravated burglary. State v. Anthony, 427 So.2d 1155 (La.1983). In reaching this conclusion, we stated:

[W]hen a burglary has been planned, in order to carry it out, or, in other words, to perpetrate it, the burglar must go to the building; he must break and enter it; he may effect his purpose or attempt it, and he must come away; for the very nature of the transaction implies that the burglar will not remain in the building. An infinite variety of things may happen in carrying out the crime. The perpetrator may kill a man while going to or trying to enter the building, he may kill a man after he has broken and entered the house, and he may kill a man while trying to escape, either in the house or outside of it. Can any sound reason be suggested 17why the killing in any one of these instances might be in the perpetration of or attempt to perpetrate a burglary, and not so in the others?

Anthony, 427 So.2d at 1157 (quoting Conrad v. State, 75 Ohio St. 52, 70-71, 78 N.E. 957, 959-960). Likewise, can any sound reason be suggested why a battery committed during the perpetration of a burglary while trying to escape, either in a house or outside of it, should not be considered “leaving such place?”

We find that the determination whether a burglar is leaving or has left is not limited by a particular time or distance for the purpose of La.Rev.Stat. § 14:60, but instead is determined on a case by case basis by the fact finder. The facts of this case show that Mr. Smart saw defendant leaving Ms. Flournoy’s dwelling and immediately pursued him. Smart caught the defendant approximately forty-five feet from the back door, at which time the defendant committed a battery on Mr. Smart in an attempt to leave the scene. Whether this set of facts comported with the elements of the crime of aggravated burglary found in La.Rev.Stat. § 14:60 is an inquiry that fell squarely within the jury’s discretion. Ultimately, the jury found defendant guilty of aggravated burglary. We find that this finding of fact is supported by the proper interpretation of the criminal statute.

CONCLUSION

For the reasons stated above, we conclude that the court of appeal erred in modifying the jury’s verdict. We reinstate defendant’s original conviction and sentence for aggravated burglary.

COURT OF APPEAL MODIFICATION OF VERDICT REVERSED; JUDGMENT OF CONVICTION OF SIMPLE BURGLARY OF AN INHABITED DWELLING VACATED; ORIGINAL VERDICT OF THE JURY AND SENTENCE IMPOSED BY THE TRIAL COURT REINSTATED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . All burglaries, whether simple or aggravated, necessarily require a connection with a structure of some type.

      . The notes to La.Rev.Stat. § 14:60 state that "[t]here has been added to the present section, 'commits a battery upon any person while in such place, or in entering or in leaving such place.’ Most burglary statutes appear to be limited to armed offenders. It appears, however, that one of the fundamen-tais of the crime is the danger or harm to human life. A battery upon another, though not with a dangerous weapon, may prove very serious. It appears consistent with the concept that there must be an apparent danger to human life to constitute burglary.”

      .First degree murder is the killing of a human being ... when the offender has specific intent to kill ... and is engaged in the perpetration ... of [an enumerated felony]. La. Rev.Stat. § 14:30(1).