author: SALTER, J. SHEPHERD, J.,

text:
    ROYAL CARIBBEAN CRUISES, LTD., Appellant, v. Jean RIGBY, Appellee.
    No. 3D10-483.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Horr, Novak & Skipp, and David J. Horr, Stephanie H. Wylie and Abigail Lewis-Fishkin, Miami, for appellant.
    Luis A. Perez; Russo Appellate Firm and Susan S. Lerner, Miami, for appellee.
    Before SHEPHERD and SALTER, JJ, and SCHWARTZ, Senior Judge.
   SALTER, J.

Royal Caribbean Cruises, Ltd. appeals an order modifying the pretrial maintenance and cure benefits for an injured seaman, Jean Rigby. Inasmuch as the trial court had already determined Rigby’s entitlement to renewed maintenance and cure benefits in an order that was not appealed by Royal Caribbean, we affirm the trial court’s ruling. The trial court’s order and this opinion are without prejudice to Royal Caribbean’s right to seek a subsequent termination or further reduction of maintenance and cure benefits (and an evidentiary hearing to demonstrate the propriety of that relief).

Rigby’s original medical complaint in 2006 was for an inguinal hernia. After medical treatment aboard ship, he was allowed to return to his home country of Nicaragua for surgery. Following post-surgical rehabilitation, in March 2007 Rig-by was found fit for duty and at maximum medical improvement (MMI). Royal Caribbean provided maintenance and cure from Rigby’s departure from Royal Caribbean’s vessel through the date of MMI. At around that time, however, Rigby also complained of, and was treated for, a fracture of the left patella. Royal Caribbean paid for surgery to Rigby’s left knee and postoperative physical therapy.

Rigby also claimed injury to his right shoulder. Royal Caribbean paid for diagnostic tests, but the doctor pronounced Rigby fit for duty and at MMI for this condition in September 2007. After further therapy for Rigby’s knee, the doctor determined that Rigby had reached MMI regarding his knee in January 2008. At that point, Royal Caribbean discontinued maintenance and cure benefits.

In December 2008, however, Rigby was examined by a Miami physician. That physician performed a right shoulder ar-throscopy on Rigby in April 2009. Thereafter, Rigby sued Royal Caribbean in the trial court for two counts under the Jones Act, unseaworthiness, and further maintenance and cure. On July 6, 2009, the trial court granted Rigby’s emergency motion for maintenance and cure for a period of ten days during which “[Royal Caribbean] shall investigate [Rigby’s] medical complaints and send him for a medical evaluation .... ” The order further stated that the continuation of maintenance, and the additional relief sought in Rigby’s motion, would be deferred until further hearing after the evaluation of the plaintiff. Royal Caribbean provided the maintenance (lodging in Miami) specified in the order for the ten-day period and did not terminate it while seeking termination of its duty to do so. Royal Caribbean did not appeal that order.

The January 2010 order sought to be reviewed here only reduced the maintenance and cure obligation of Royal Caribbean, modifying the obligation to provide motel accommodations in Coral Gables to a fixed per diem amount ($25.00) consistent with Rigby’s return to Nicaragua. After unsuccessfully seeking clarification or reconsideration of the modification order in February 2010, Royal Caribbean commenced this appeal.

Analysis

This is an unusual record. Royal Caribbean is correct that in an ordinary case, maintenance and cure cannot be ordered over objection without an evidentiary hearing. Rio Miami Corp. v. Balbuena, 756 So.2d 258 (Fla. 3d DCA 2000). In this case, however, such a ruling was entered at the outset of the lawsuit and Royal Caribbean did not appeal. Indeed, after the initial ten-day period specified in that initial order, Royal Caribbean continued to provide maintenance and cure to Rigby. While to a maritime company this may seem to be punishment for a good deed, to an appellate court the failure to appeal the initial (albeit summary) maintenance and cure ruling seems to have shifted the burden to the maritime company to prove MMI (and to present any other evidence supporting termination of the benefits) at an evidentiary hearing. Whether Rigby has attained MMI after the July 2009 order is a disputed factual issue requiring an evidentiary hearing. Langmead v. Admiral Crises, Inc., 610 So.2d 565, 567 (Fla. 3d DCA 1992).

The true gravamen of Royal Caribbean’s claims below and here is delay. The maintenance and cure benefits as modifies — $25 per day versus the cost of a motel room in Coral Gables — were actually reduced in the subsequent order. Royal Caribbean is frustrated that it has not been granted severance and an expedited trial on the maintenance and cure claim separately, or on all claims, and that Rigby’s presence in Nicaragua portends further delays. Motions to expedite, requests for a short evi-dentiary hearing, and motions for assignment of the case to a senior or backup judge, are among the traditional and available means of addressing such concerns.

Royal Caribbean’s initial brief accuses the trial court of “wrongfully entering a pre-trial order summarily adjudicating the merits of Rigby’s maintenance and cure claim.” That may or may not be so, but that July 2009 order was not appealed. Royal Caribbean’s remedy is thus in the trial court, not this court.

Affirmed.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD, J.,

dissenting.

This is an appeal of an order requiring Royal Caribbean Cruises, Ltd. to pay a seaman indefinite maintenance benefits of twenty-five dollars per day and the cost of rehabilitation, based upon a request made, without supporting evidence, during a motion calendar. The majority opines that because it failed to appeal a prior interlocutory injunction, also obtained without supporting evidence, requiring it to provide the seaman with temporary housing in Miami, Royal Caribbean is barred from challenging the current order. Because the Florida Rules of Appellate Procedure authorize but do not compel a party to appeal from an interlocutory injunction, and the award of maintenance and cure was unsupported by evidence, I respectfully dissent.

FACTUAL BACKGROUND

The seaman in this case, Jean Rigby, signed aboard Royal Caribbean’s Majesty of the Seas on July 7, 2006. On approximately November 22, 2006, Rigby developed right groin pain that was burning in nature, which he attributed to lifting weighty shipboard containers during the course of duty. He initially saw a shipboard doctor, who told him he had a hernia. Consistent with its obligation under general maritime law, see supra note 1, Royal Caribbean arranged for Rigby to be evaluated by a shoreside specialist, who diagnosed him with a right inguinal hernia and recommended surgery to repair it. Rigby elected to undergo the surgery and recovery in his home country, Nicaragua. Royal Caribbean then arranged for Rigby to disembark and return home for further care. In Nicaragua, Royal Caribbean provided Rigby with maintenance, and arranged and paid for Rigby to undergo a right-inguinal herniorrhaphy. The surgery was performed on December 15, 2006, approximately one week after his disembarkation from the ship. His treating physicians in Nicaragua opined that he reached maximum medical improvement for his hernia injury on March 2, 2007.

On February 28, 2007, during his final evaluation for the inguinal injury, Rigby complained of pain in his left knee. Royal Caribbean continued paying maintenance, and arranged and paid for an evaluation and treatment with Dr. Luis Gutierrez Quant, an orthopedic physician. Dr. Gutierrez Quant diagnosed Rigby with a fracture of the left patella. Royal Caribbean paid for Rigby to undergo surgery to the left knee, as well as postoperative physical therapy. Royal Caribbean paid maintenance during this period as well.

During the course of the therapy on the left knee, Rigby began complaining of right-shoulder pain. In response, Royal Caribbean arranged for a further evaluation by Dr. Gutierrez Quant. Diagnostic tests prescribed by Dr. Gutierrez Quant, including X-rays and an ultrasound of the shoulder, were normal. On September 3, 2007, Dr. Gutierrez Quant found Rigby was fit for duty and had reached maximum medical improvement with respect to his shoulder; Thereafter, Dr. Gutierrez Quant opined that Rigby reached maximum medical improvement for his left knee on January 22, 2008. In total, Royal Caribbean continuously paid maintenance and cure for Rigby from late November 2006 to January 22, 2008.

On December 12, 2008, plaintiffs counsel brought Rigby to Miami for examination of the same three complaints for which he was treated in Nicaragua. Rig-by’s Miami physician, Dr. Richard Roz-encwaig, determined Rigby needed further treatment for his shoulder and knee and, after several months of therapy in Miami for both conditions, Dr. Rozencwaig performed arthroscopic surgery on Rigby’s right shoulder on April 16, 2009.

On July 2, 2009, after Royal Caribbean rejected plaintiffs demands for reinstatement of maintenance and cure, Rigby filed a four-count complaint against Royal Caribbean for: (1) maintenance and cure; (2) Jones Act negligence; (3) Jones Act negligent failure to treat; and (4) unseaworthiness. In an attached Emergency Motion for Maintenance and Cure, Rigby asserted that after six months living in the United States courtesy of the “generosity of others,” he was being thrown out of his Miami hotel and was about to become homeless. Four days after Rigby filed his complaint, the trial judge held a telephonic hearing from her car on the emergency motion and, without taking any evidence, ordered Royal Caribbean to “house [Rigby] at the Best Western ChateauBleau Hotel in Coral Gables for ten days,” and, in the meanwhile, “investigate plaintiffs medical complaints and send him for an independent medical examination.” The order encapsulating the results of the July 6, 2009, hearing further stated: “The continuation of the plaintiffs maintenance, and the additional relief sought by plaintiffs motion, is deferred at this time until further hearing by the Court, after the evaluation of the plaintiff.”

The next hearing on the matter occurred at a motion calendar on July 23, 2009, during which the trial court was presented with the report of an independent medical examination conducted by Dr. Jerry Sher on July 13, 2009. Dr. Sher concluded Rig-by “has likely reached maximum medical improvement with regard to his orthopedic complaints [and] additional surgery to the right knee[] is unlikely to yield any significant gains given the diffuse nature of his symptoms.” Despite Dr. Sher’s opinion concerning future surgery, Plaintiffs counsel announced at the hearing that Rigby was scheduled for additional left-knee surgery in two weeks. The trial court was perturbed that the “further hearing” ordered on July 6 had been placed on her ten-minute motion calendar. Nevertheless, because the surgery was scheduled within two weeks, the trial court ordered Royal Caribbean to keep Rigby in the hotel until his surgery and once again deferred the issue of maintenance. In turn, Plaintiffs counsel promised to get an evi-dentiary hearing date to resolve the matter.

Surgery on Rigby’s knee did not occur until August 27, 2009. When considerably more than two weeks passed without an evidentiary hearing (during which Royal Caribbean continued to pay Rigby’s hotel expenses), Royal Caribbean moved to sever and expedite the maintenance and cure claim for trial. At the October 1, 2009, hearing on this motion, with Plaintiffs counsel now objecting to both a severance and an evidentiary hearing because counsel had caused the entire case to be set on the court’s February 1 trial calendar, Royal Caribbean’s motion was denied. The trial court stated: “I am not dealing with anything else in this case until trial unless you need me for something. You pay or not pay at your own peril.”

On December 21, 2009, Royal Caribbean learned from Plaintiffs counsel Rigby had returned to Nicaragua and would not be available either for his scheduled pre-trial deposition or the February trial. Recognizing that for some unknown period it had been paying for an unoccupied hotel room, Royal Caribbean filed a motion to terminate its obligation to house the plaintiff in the United States. At the January 20, 2010, hearing on the motion, the trial court terminated Royal Caribbean’s obligation to pay Rigby’s Coral Gables hotel room, but, without any evidence, ordered Royal Caribbean to pay Rigby maintenance at a rate of twenty-five dollars (US) per day and furnish plaintiff post-surgical rehabilitation. The primarily hand-written order reads in pertinent part:

ORDERED AND ADJUDGED that said Motion be, and the same is hereby [gjranted in part. [Defendant] shall no longer be required to pay for Plaintiffs housing in Miami. [Defendant] shall pay Plaintiffs maintenance at a rate of $25 (US)/day and furnish Plaintiff post-surgical rehabilitation as necessary. Plaintiff shall provide [Defendant] with all recent medical and physical therapy records to the extent they exist.

Thereafter, Royal Caribbean unsuccessfully moved for reconsideration, asking the trial court to reconsider its order or, in the alternative, reduce the maintenance rate to twelve dollars per day, based on a sworn affidavit stating that twelve dollars per day is what Royal Caribbean currently pays for maintenance for crewmembers in Nicaragua.

DISCUSSION

The beginning of legal wisdom in this case is to recognize the July 6, 2009, order, which required Royal Caribbean to house Rigby for ten days while the defendant investigated Plaintiffs medical complaints, and is the order the majority says operates to bar appellate relief here as an interlocutory or temporary injunction. See Camji v. Helmsley, 602 So.2d 617, 618 (Fla. 3d DCA 1992) (“The very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved.”); Black’s Law Dictionary 855 (9th ed. 2009) (defining a preliminary injunction as one “issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case”). Like any interlocutory order, a temporary injunction is dissolva-ble or modifiable at any time during the course of the litigation. See, e.g., AC Holdings 2006, Inc. v. McCarty, 985 So.2d 1123, 1125 (Fla. 3d DCA 2008); Bettez v. City of Miami, 510 So.2d 1242, 1243 (Fla. 3d DCA 1987). For this reason, Florida Rule of Appellate Procedure 9.130(a)(3)(B) authorizes, but does not obligate, an adversely affected party to take an interlocutory appeal from orders which “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.” See Saul v. Basse, 399 So.2d 130, 133 (Fla. 2d DCA 1981) (“[Fjailure to utilize the right to take an interlocutory appeal does not restrict the scope of appellate review when the final order is appealed.”). Thus, the majority’s res judica-ta-like assertion that “[ijnasmuch as the trial court had already determined Rigby’s entitlement to renewed maintenance and cure benefits in an order that was not appealed by Royal Caribbean, [it must] by law affirm the trial court’s ruling,” see majority op. at 1146-47, is legally unsupportable.

Moreover, it is axiomatic that a court may “alter the decree to adapt it to such changed conditions or set it aside altogether ... where there is a change in the controlling facts on which an injunction rests.” See Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143, 146 (1942) (quoting 28 Am.Jur. pp. 494, 495). Here, there clearly was a change in the controlling facts because Rigby had returned to Nicaragua. Moreover, the second condition of the prior injunction had occurred. Royal Caribbean had investigated Rigby’s medical complaints, received a medical opinion that further surgery was unnecessary, and determined Rigby was not entitled to further maintenance and cure. Thus, upon Royal Caribbean’s motion, the trial court properly terminated the injunction to pay for the hotel room. Unfortunately, the trial court did not confine her ruling to ending Royal Caribbean’s obligation to pay for the hotel room, but ordered Royal Caribbean to pay Rigby’s maintenance and cure. In so doing, the trial court erred.

Without evidence, the trial court could not convert the injunction for temporary relief to an order that not only set an indefinite maintenance amount, but also, for the first time, ordered Royal Caribbean to pay rehabilitation from a knee operation, the need for which was still in dispute. Just months earlier, the trial court correctly declined to make Royal Caribbean financially responsible for both maintenance. and cure without proof, and ordered the issue be set for an evidentiary hearing. See Buchanan v. Sullivan, 620 So.2d 1301 (Fla. 4th DCA 1993) (reversing an injunction granted without evidence); Zuckerman v. Prof'l Writers of Fla., Inc., 398 So.2d 870 (Fla. 4th DCA 1981).

Here, Rigby’s entitlement to further maintenance and cure was in dispute, and should have been tried. The order awarding maintenance and cure without a trial flies in the face of settled law in this District that a seaman is not entitled to a pre-trial order for payment of maintenance and cure before a trial on the merits on disputed issues. See Rio Miami Corp. v. Balbuena, 756 So.2d 258 (Fla. 3d DCA 2000); Langmead v. Admiral Cruises, Inc., 610 So.2d 565 (Fla. 3d DCA 1992); see also Rose, 939 F.Supp. at 1548 (settling dispute between physicians as to whether seaman reached maximum medical improvement at bench trial on claim for maintenance and cure). The principle is one which generally is accepted. See Blake v. Cairns, No. C-03-4500 MJJ, 2004 WL 1857255, at *1 (N.D.Cal.2004) (“Generally, ‘[a] suit for maintenance and cure presents questions of fact. It should not be disposed of by summary judgment nor should payment be decreed on motion.’ ”) (emphasis added) (citing Martin J. Norris, The Law of Seaman, Vol. 2, § 26.21 (4th ed. 1985)); Carline v. Cap. Marine Supply, Inc., 81 F.R.D. 710 (E.D.La.1979) (denying seaman’s motion for preliminary injunction to compel employer to pay maintenance and cure); Billiot v. Toups Marine Transp., Inc., 465 F.Supp. 1265, 1269 (E.D.La.1979) (“[A]n injured seaman does not have the right to injunctive relief on the issue of payment of maintenance, and ... an employer has the right to dispute, in good faith, the rate of maintenance to be paid.”); Sanfilippo v. Rosa S., Inc., No. 85-3915-Me, 1985 WL 4565, at *2 (D.Mass.1985) (“[Ujnless the seaman can show that there are no material facts in dispute and that he is entitled to summary judgment on the claim, he cannot obtain a pre-trial order for payment.”); Claudio v. Sinclair Ref. Co., 126 F.Supp. 154, 154 (E.D.N.Y.1954) (“There is no authority for [an order for immediate payment of maintenance] by way of a summary proceeding or motion, excepting where there is no genuine issue of material fact....”); Guerra v. Arctic Storm, Inc., No. C04-1010L, 2004 WL 3007097 (W.D.Wash.2004) (holding that seaman was not entitled to summary judgment for payment of maintenance and cure where disputed issues of fact existed); but see Nuzum v. Dritsik Fisheries, Inc., No. A93-0057CV, 1995 WL 455801 (D.Alaska 1995) (granting pre-trial motion to reinstate maintenance and cure where there existed conflicting opinions concerning seaman’s fitness to return to work at the time maritime employer ceased maintenance and cure payments); Sefcik v. Ocean Pride Alaska, Inc., 844 F.Supp. 1372, 1373-74 (D.Alaska 1993) (granting motion to reinstate maintenance and cure where “questions of fact [concerning whether plaintiff had reached maximum medical improvement] did not arise after the time plaintiff filed his motion to reinstate maintenance and cure”).

Applying these principles of law to the facts of this case requires reversal of the order before us. Moreover, because the order under review rests on purely legal matters, it is subject to full, or de novo, review before this court. See Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993) (“To the extent it rests on purely legal matters, an order imposing an injunction is subject to full, or de novo, review on appeal”), aff'd in part, rev’d in part on other grounds sub nom. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994).

CONCLUSION

I am sure the trial judge meant well. One also could not be faulted for detecting a tinge of sympathy for the seaman in the opinion of the majority. However, our legal system requires more than heartfelt sympathy. The solution to a seaman’s claim that he needs immediate payment of maintenance and cure in this case lies in his own hands. He either may sue separately for maintenance and cure, or, having filed one suit, ask for severance of the maintenance claim and an expedited trial of it by the court. See Tate v. Am. Tugs. Inc., 634 F.2d 869, 871 (5th Cir.1981). The seaman in this case is not satisfied to pursue either of these well-travelled routes. I would reverse the order compensating him while he waits.

      . The initial post-complaint order granting Rigby's motion for maintenance and cure was entered July 23, 2009. Instead of appealing that order, Royal Caribbean elected to move to sever the maintenance and cure claim for trial (a motion denied October 1, 2009) and then to terminate the relief granted in the July 23, 2009 order. The order modifying the maintenance and cure to be provided Rigby, and denying Royal Caribbean’s motion to terminate maintenance and cure pending trial, was entered January 20, 2010, and is the subject of this appeal. Royal Caribbean did not present evidence at the hearing on its motion to terminate maintenance and cure.

      . Rigby’s injuries occurred aboard ship while attempting to manually lift heavy garbage bins of food waste and other debris.

      . The trial court's oral ruling was not reduced to a signed order until July 23, 2009, but Royal Caribbean did not await the written ruling before providing maintenance and cure to Rigby.

      . Royal Caribbean apparently has accepted the benefit of the trial court's order relieving Royal Caribbean of providing the Coral Gables motel room to Rigby. Its claims of ambush and prejudice (by obtaining an improvement in daily cost) are not compelling.

      . The cause of the injury is of no moment to this case. Short of culpable negligence on the part of the seaman, a ship owner has an absolute duty under general maritime law to provide maintenance and cure while the seaman is in the employ of the ship "irrespective of whether the illness or injury is suffered in the course of the seaman's employment.” See Vella v. Ford Motor Co., 421 U.S. 1, 4, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975); see also Duarte v. Royal Caribbean Cruises, Ltd., 761 So.2d 367 (Fla. 3d DCA 2000) (holding ship owner responsible for paying maintenance and cure for aggravation and enhancement of shipboard injuries caused by automobile accident while seaman was ashore receiving maintenance and cure).

      . This was approximately eleven months after Dr. Gutierrez Quant found Rigby had reached maximum medical improvement with respect to his knee; fifteen months after Rigby was found fit for duty with respect to the shoulder; and twenty-one months after reaching maximum medical improvement from the hernia.

      . The written order on this ruling was not entered until July 23, 2009.

      . The reference to the "right knee” here appears to be a scrivener’s error. The report, which is four pages long, makes reference only to Rigby's left knee in multiple places, including the section recounting the details of the doctor’s physical examination.

      . The order entered on July 23, 2009, simply memorialized the court’s July 6, 2009, ruling. Thus, the rulings made at the July 23, 2009, hearing were not reduced to writing, and as such were not appealable. See Rivera v. Dade Cnty., 485 So.2d 17, 17 (Fla. 3d DCA 1986) (stating "this court lacks jurisdiction to review orders which have not been reduced to writing”). The following occurred when the trial court was provided with Dr. Sher’s report:
      THE COURT: ... So what do you want me to do with this report?
      [PLAINTIFF’S COUNSEL]: I want you to hold an evidentiary hearing, as the law requires. I want the Court ... to continue the defendant's obligation, which is not predicated, Your Honor, on any fault or concepts of negligence or unseaworthiness, until this man reaches maximum medical improvement.
      THE COURT: It says he did.
      [PLAINTIFF'S COUNSEL]: That’s a doctor selected by the defendant after an 18-month delay of not sending him to anybody. He’s here in Miami. He’s treating with Doctor Rozencwaig, he's scheduled for knee surgery in two weeks, he has not reached MMI.
      THE COURT: I'm not doing this on motion calendar. Keep paying the two weeks, let him have his surgery, and I’ll deal with it after that. We are not talking about a million dollars, anyway.
      [DEFENDANT'S COUNSEL]: Judge, just to clarify, the defendant’s position is that he’s not entitled to surgery to be paid by us. THE COURT: I didn't say you are going to pay for the surgery. I just said keep him in the hotel. It can’t be that much for two weeks until his surgery. I’ll deal with it after.
      THE COURT: [Defense counsel], you brought this man back to the United States without court order. Your office probably paid for his return. I went out of my way to make sure that I gave him the IME and the ten days of maintenance; okay? So that report, the way I'm reading it, is that the defense says he reaches MMI. At this point, I'm not going to order any more than the hotel payment. You need to continue to pay it and then I’ll deal with it at an eviden-tiary hearing at a later date, but not today.
      THE COURT: The continuation of the plaintiff’s maintenance and additional relief is deferred until further hearing by the Court....
      And I need to ask both of you not to do this, and particularly the plaintiff, on motion calendar, because I don't have the ability to deal with major serious issues on motion calendar.
      [PLAINTIFF’S COUNSEL]: I'm sorry, Your Honor. We’ll get an evidentiary hearing date.

      . The last evidence in the record of Rigby’s presence in the United States was November 13, 2009, his last appointment with Dr. Roz-encwaig. Rigby’s room charge at the Best Western ChateauBleau Hotel in Coral Gables was sixty-five dollars per day.

      . I belabor the recitation of the factual and litigation history pertinent to this case only to show this is not an "unusual record,” and that a mere peek at the law is all that is necessary to appreciate why the order under review should be reversed.

      . The obligation of a ship owner to pay maintenance and the obligation of a shipowner to pay cure represent two different obligations. "Maintenance is a per diem subsistence allowance ... intended to encompass the reasonable cost of food and lodging comparable to that received aboard the vessel.” Costa Crociere S.p.A. v. Rose, 939 F.Supp. 1538, 1548 (S.D.Fla.1996). Cure refers to medical treatment. Id.

      . The majority fails to explain how a temporary order for short term maintenance bars review of a later order, the one now before us, which for the first time compels payment of cure.

      . More accurately, the trial court should have asked the parties to either set the entire case for an expedited jury trial, or a bench trial on only the maintenance and cure claim.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Yuri BERY, as Personal Representative of the Estate of Juliana Bery, Petitioner, v. Ghassan FAHEL, D.O., Respondent.
    No. 3D12-525.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Austin & Laurato, Michael Laurato and Laura Datz, Tampa, for petitioner. .
    Hicks, Porter, Ebenfeld & Stein, and Dinah S. Stein and Erik P. Bartenhagen; Fann & Petruccelli, and Steven Osher, Fort Lauderdale, for respondent.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The Petition for Writ of Certiorari is denied.


author: WELLS, Chief Judge.

text:
    Douglas T. EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-865.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Douglas T. Edwards, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   WELLS, Chief Judge.

In Edwards v. State, 96 So.3d 900, 2012 WL 3031521 (Fla. 3d DCA 2012) (table), this court affirmed the denial of Edwards’ most recent pro se filing with this court concerning his conviction and sentence imposed in lower tribunal number 94-21946. That same day this court ordered Edwards to show cause why he should not be precluded from filing further pro se appeals, petitions, or motions in this court regarding the conviction and sentence imposed in this case.

As this court has stated:
“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n. 3,116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps the punishment of ... sanctions.”). As this Court stated in Lanier v. State, 983 So.2d 658, 660 (Fla. 3d DCA 2008), Hicks v. State, 974 So.2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007), “there comes a point where enough is enough.”

Barber v. State, 994 So.2d 376, 377 (Fla. 3d DCA 2008).

After carefully considering Edwards’ response to this court’s show cause order, see State v. Spencer, 751 So.2d 47 (Fla.1999), and this court’s independent review of the many pro se filings made by Edwards in this court arising out of lower tribunal case number 94-21946, we conclude that Edwards has reached the point where enough is enough. We therefore direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions or other papers relating to Edwards’ conviction and sentence in lower tribunal number 94-21946, unless they are filed and signed by a member of the Florida Bar in good standing.

      . Edwards v. State, 88 So.3d 167 (Fla. 3d DCA 2012) (table); Edwards v. State, 86 So.3d 1129 (Fla. 3d DCA 2012) (table); Edwards v. State, 73 So.3d 772 (Fla. 3d DCA 2011) (table); Edwards v. State, 63 So.3d 771 (Fla.2011) 3D 11-1236 (Fla. 3d DCA Mar. 7, 2012); Edwards v. State, 63 So.3d 771 (Fla. 3d DCA 2011) (table); Edwards v. State, 56 So.3d 778 (Fla. 3d DCA 2011) (table); Edwards v. State, 32 So.3d 632 (Fla. 3d DCA 2010) (table); Edwards v. State, 29 So.3d 306 (Fla. 3d DCA 2010) (table); Edwards v. State, 23 So.3d 122 (Fla. 3d DCA 2009) (table); Edwards v. State, 963 So.2d 241 (Fla. 3d DCA 2007); Edwards v. State, 955 So.2d 579 (Fla. 3d DCA 2007) (table); Edwards v. State, 915 So.2d 1217 (Fla. 3d DCA 2005) (table); Edwards v. State, 883 So.2d 807 (Fla. 3d DCA 2004) (table).


author: PER CURIAM.

text:
    Mackendy FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-947.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.

      Ricardo R. Corona and Sahar R. Awal, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. Ortiz, 79 So.3d 177 (Fla. 3d DCA2012).


text:
    Oscar MURPHY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1830.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Oscar Murphy, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    CARIBEVISION HOLDINGS, INC., Caribevision TV Network, LLC, and Caribevision Station Group, LLC, Appellants, v. Omar ROMAY, America TeVe Network, Inc., Promisa, Inc., and Okeechobee Television Corp., et al., Appellees.
    Nos. 3D12-412, 3D12-1206, 3D12-1422.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Baker & McKenzie and Effie D. Silva, Heather A. Frazier, and Donald J. Hayden, Miami-Dade, for appellants.
    David M. Rogero, Coral Gables, for ap-pellees Omar Romay, America TeVe Network, Inc., Promisa, Inc., and Okeechobee Television Corp.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because neither an error of law nor an abuse of discretion has been demonstrated in the denial below of the injunctive relief sought by appellants, the orders under review are affirmed.

Affirmed.


author: KHOUZAM, Judge.

text:
    Anthony LITCHMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-800.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 2012.
   KHOUZAM, Judge.

Anthony Litchmore appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postcon-viction court ruled that the motion was untimely, and we agree. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As we did in Barrios-Cruz, we hold that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in post-conviction proceedings, and we certify the following question of great public importance:

SHOULD THE RULING IN PADILLA v. KENTUCKY, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

ALTENBERND and MORRIS, JJ„ Concur.


text:
    Mikchael HICKS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5340.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Karol Jean BOWERS-CHASE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1157.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ„ concur.


text:
    Willie Lee HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4083.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2012.
    Willie L. Harris, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    Shawn A. MYERS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 1D12-3445.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2012.
    Shawn A. Myers, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

Appellant has sought review of an order vacating decision of the appeals referee based on a procedural error and remanding the matter to the referee for further proceedings and rendition of a new decision. Because the order on appeal does not bring the administrative adjudicative process to a close, it is not a final administrative order. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Consequently, this appeal is premature. Appellee’s Motion to Dismiss, filed on August 1, 2012, is granted and the appeal is dismissed for lack of jurisdiction.

WOLF, DAVIS, and ROBERTS, JJ., concur.


text:
    Gabriel DEL RISCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1513.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2012.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before, CORTEÑAS, ROTHENBERG and FERNANDEZ, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Defendant, Gabriel Del Risco, appeals three convictions for manslaughter arising from a judgment and sentence, entered upon a plea of guilty, wherein he was also convicted for three counts of DUI manslaughter. Based upon appellee, the State of Florida’s, confession of error, we order that the convictions for manslaughter be vacated and remand for further proceedings in the trial court. See Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010) (“[T]he defendant’s convictions for both vehicular homicide and DUI manslaughter cannot stand as they violate double jeopardy.”).

Reversed and remanded with instructions.


text:
    NUTEC and Smooth Slide, Appellants, v. Dennis DOLESHALL, Appellee.
    No. 1D12-2937.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2012.
    Michael R. Antinori, West Palm Beach, for Appellants.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Ap-pellee.
   PER CURIAM.

In this workers’ compensation case, Appellant, an uninsured employer, challenges an order of the Judge of Compensation Claims. Appellant filed a notice of appeal in the lower tribunal, but failed to pay the mandatory $300 filing fee required by both section 35.22(3), Florida Statutes (2011), and Florida Rule of Appellate Procedure 9.180(b)(3). Thereafter, this court entered an order requiring Appellant to pay the filing fee within twenty days; Appellant did not respond to the order, nor did it pay the filing fee as was ordered. Ultimately this court entered an order requiring Appellant to show cause within ten days why the appeal should not be dismissed and why Appellant’s attorney, Michael Antinori, should not be held personally responsible for the payment of the filing fee. Neither Appellant nor its attorney Michael Antinori responded to this order to show cause.

Section 35.22(3)(a), Florida Statutes (2011), requires in mandatory language that the clerk of the appellate court charge $300 for each case that is docketed, and Florida Rule of Appellate Procedure 9.180(b)(3) provides that a notice of appeal shall be accompanied by the filing fee unless the filing party seeks waiver of the filing fee (circumstances not applicable here). “The filing fee is an entry fee to the appellate process, not a fee for prosecuting the appeal to a final result.” In re: Payment of Filing Fees, 744 So.2d 1025, 1026 (Fla. 4th DCA 1997). Dismissal or abandonment of an appeal or petition does not relieve the appellant or petitioner from the obligation to either pay the filing fee or secure a waiver thereof. Because of the complete disregard that both Appellant and attorney Michael Antinori have shown for the rules of procedure and this court’s orders, and further, because neither Appellant nor Michael Antinori has shown cause why attorney Michael Antinori should not be held personally responsible for payment of the filing fee, we hereby dismiss this appeal and, as a sanction, order Michael Antinori to pay to this court $300 to cover the unpaid filing fee. See Florida Rule of Appellate Procedure 9.410.

DISMISSED.

MARSTILLER, RAY, and SWANSON, JJ., CONCUR.

      . We also have before us Appellee’s motion to dismiss this appeal based on the Appellant’s purported failure to post a bond as required under section 440.25(5)(c), Florida Statutes (2011). Because we dismiss this appeal based on Appellant’s nonpayment of the appellate filing fee, we do not reach the Appel-lee’s motion to dismiss on other grounds.

      . Although this case is a workers' compensation case implicating Florida Rule of Appellate Procedure 9.180, the appellate rules pertaining to other types of actions also provide that the filing fee is due upon the filing of the document that invokes the jurisdiction of the appellate court, unless the filing party seeks waiver of the filing fee. See Fla. R.App. P. 9.100(b) (pertaining to original proceedings), 9.110(b) (pertaining to appeal of final orders), and 9.130(b) (pertaining to review of non-final orders).


text:
    Buck Jamar JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5729.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    James Marvin NUNISS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5365.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger,' Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Stephen CAIN and Christopher Cain, Petitioner, v. Joel KIRSCH, Respondent.
    No. 1D12-2584.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Brian J. Lee of Schuler & Lee, P.A., Jacksonville, for Petitioner.
    Jerilynn M. O’Hara and Susan S. Oost-ing of O’Hara Law Firm, Jacksonville, for Respondent.
   PER CURIAM.

DISMISSED. See Jackson v. Computer Sci Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010) (stating that court lacks certiorari jurisdiction where irreparable harm is not established).

MARSTILLER, RAY and SWANSON, JJ., concur.


text:
    David C. DOBRINIC, Personal Representative of the Estate of Dorothy Dobrinic, Petitioner, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Respondent.
    No. 1D12-3526.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Michael Farrar, Miami, for Petitioner.
    Richard T. Donelan, Jr., Chief Counsel, Department of Financial Services, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot. Petitioner’s request for an award of attorney’s fees is denied.

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Fred PERRY, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5601.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Demario M. BAGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6055.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Nancy A. Daniels, Public Defendei’, Michael M. Corin, Assistant Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney

      General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Brandon Darnell ROWE, Appellant, v. STATE of Florida.
    No. 1D11-6146.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Kevin Dewayne BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1159.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Jonathan Zumudio ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2338.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2012.

      Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012); Zamora v. State, — So.3d —, 2012 WL 3194115 (Fla. 1st DCA 2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


author:
ROLAND L. BELSOME, Judge.
      BONIN, J.,

text:
    STATE of Louisiana v. Billy R. LEWIS.
    No. 2010-KA-1775.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, James D. “Buddy” Caldwell, Attorney General, Robert Abendroth, Assistant Attorney General, Baton Rouge, LA, for Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

| STATEMENT of the case

On October 10, 2002, Billy Lewis and his co-defendant, Ronald Anderson, were indicted with one count each of first-degree murder relating to the July 24, 2002, shooting deaths of sixteen-year-old Travis Webb and his eleven-year-old sister Da-veion Jones. Lewis pled not guilty at his arraignment on October 25, 2002.

According to the minute entries, the cases were severed on May 11, 2005.

On October 1, 2008, Ronald Anderson filed a motion to declare Article I § 17 of the Louisiana Constitution of 1974 and La. C.Cr.P. art. 782(A) unconstitutional, which the trial court denied on April 23, 2009. There is no indication in the record that Lewis ever joined in the motion.

On October 19, 2009, the State amended the charges against Lewis to two counts of second-degree murder, to which he pled not guilty. Following a four day trial, the jury found Lewis guilty as charged on both counts on March 11, 2010.

|2On March 25, 2010, Lewis filed a written motion for mistrial based upon the alleged unconstitutionality of the non-unanimous verdict provisions of Article I § 17 of the Louisiana Constitution of 1974 and La.C.Cr.P. art. 782(A). The trial court denied the motion for mistrial that same day, and sentenced Lewis on each count to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. This appeal followed.

FACTS

Ms. Dominique Jones testified that in July 2002, she lived on Intrepid Street. At that time, she was fifteen years old and knew both the victim, Travis Webb, and the defendant, Billy Lewis. She confirmed that Webb and the defendant also knew one another prior to the shooting, and testified that she and Webb got into an altercation over the defendant coming into the neighborhood. A few days prior to the shooting, Ms. Jones was speaking to the defendant on her home phone when Webb approached her and pushed her down. Ms. Jones testified that she related the incident to the defendant, who said, “[t]hat boy [Webb] should be dealt with.”

A few days later, on July 24, 2002, as the defendant was visiting Ms. Jones, Webb and his friends from the neighborhood began making derogatory comments to the defendant and telling him to leave the area. Webb purportedly then said, in reference to the defendant, “[h]e’s got a gun, let me go and get mine.” Later that evening, Ms. Jones heard gunshots and people yelling that Webb had been shot. Ms. Jones testified that she subsequently spoke to the defendant on the phone and asked him where he was, to which he responded that he was at a club with friends. |sMs. Jones never saw the defendant in possession of a gun, nor did she show the defendant where Webb lived. Under cross-examination, Ms. Jones denied that she had romantic relationships with either Webb or the defendant, and stated that she did not tell the defendant to harm or threaten Webb.

The State next called Ms. Keota Brown, the girlfriend of Travis Webb and mother of his child. She testified that she learned of the altercation between Dominique Jones and Travis Webb from her cousin, Jacob. One or two days before the shooting, Ms. Brown and Webb were sitting in the garage at her aunt’s house on Adventure Street when the defendant appeared, looking for Webb. Webb walked to the front of the garage as Ms. Brown tried to restrain him.

Ms. Brown further testified that on the day of the shooting, she and Webb were at the Intrepid Street address. Ms. Brown observed Webb and Ezekiel Harris, a friend, having a conversation outside the house, after which time Webb indicated that he was going to go inside and take a shower. Ms. Brown also went inside, where both the radio and television were turned to a loud volume. As Webb finished showering, his niece, Tierra Jones, knocked on the bedroom door to tell Webb that someone was asking for him at the front door. Ms. Brown did not hear the shooting because of the noise from the television and the radio, but opened the J^door after a few minutes to see Tierra holding up her injured hand and walking towards her. Ms. Brown also discovered Webb kneeling by the sofa holding the wound in his abdomen and Daveion Jones lying on the floor. Ms. Brown testified that she did not see the person who did the shooting, and she could not identify the defendant as the shooter.

Detective Darryl Ribet, the lead investigator in this case, testified that he observed eight large bullet holes in the front screen door and determined that the shots were fired from outside into the house. Canvassing the scene, he also found three .40 caliber shell casings in the driveway.

During his investigation, Det. Ribet interviewed Ezekiel Harris, a witness who described himself as Travis Webb’s best friend. Harris informed Det. Ribet that he drove Webb and Tierra to the hospital and then returned to the scene. Det. Ri-bet testified that he also spoke to Keota Brown, Webb’s girlfriend, who advised him that there were bad feelings between Webb and Dominique Jones, and that Ms. Jones told Webb that she was going to get her boyfriend, the defendant, after Webb.

ItiOn the morning of July 25, 2002, Det. Ribet obtained an arrest warrant for the defendant, who was ultimately arrested on August 1, 2002, in the 500 block of Rendon Street. The defendant advised Det. Ribet that he should be looking for an individual he referred to as “Running Wild” as well as an individual named Darryl Sutton, and indicated that he was in Darryl Sutton’s green Mustang on the night of the shooting. Det. Ribet’s investigation of the defendant failed to yield any weapons.

Ms. Tierra Jones also testified that on the night in question, she answered the door to find a man with a gun wearing a hat and a bandana over his face asking to see Webb. As Webb walked to the front door, gunfire erupted. Tierra confirmed that she identified Ronald “Running Wild” Anderson as the shooter from a photo lineup a few weeks later.

Sergeant Kevin Seuzeneau testified that shortly after the shooting, he located to Lakeland Hospital to speak with Tierra Jones and Travis Webb. As Sgt. Seuzen-eau approached the hospital’s emergency entrance, he observed a vehicle speeding away from the area, stopped the vehicle and spoke to the driver, who indicated that he had transported the victims to the hospital. The sergeant testified that he returned to the hospital and spoke with Webb, who told him that “Billy, Dominique’s friend” shot him, and that he was able to see the shooter because the door was open.

| (jEzekiel Harris testified that he and Travis Webb were best friends who lived across the street from one another. Mr. Harris testified that he knew Dominique Jones from the neighborhood, and confirmed that Keota Brown was Webb’s girlfriend. Harris was aware of a conflict between Webb and Dominique Jones. On the day of the shooting, Harris testified that he met Webb at 4:30 p.m. at Webb’s aunt’s house, where the pair visited with family and friends for approximately two hours before driving to Webb’s house on Intrepid Street.

Harris testified that he returned to his residence across the street, and as he spoke to his girlfriend on the phone, he heard rapid gunfire erupt across the street at Webb’s house. Harris got down on the floor, looked out his front window and saw that the front door to Webb’s house was open, but did not see anyone or hear any vehicle drive away. Harris testified that he tried to call Webb, but the line was busy, and as he continued to look out of the window, he saw Webb’s mother fall to her knees at the front door. Harris heard crying and Webb calling to him, “[Da-veion]’s dying, we need to go to the hospital. Please rush us to the hospital.” Harris ran across the street and discovered that both Webb and Daveion were critically wounded. Harris and his mother drove Webb and Tierra to Lakeland Hospital. Harris testified that during the ride to the hospital, Webb told him: “Man, that dude Billy [Lewis] shot me.”

The defendant, Billy Lewis, took the stand and explained to the jury that he met Dominique Jones in February 2002, who suggested that he allow her to braid his hair. He denied a romantic relationship with Ms. Jones. Furthermore, Lewis 17testified that he did not frequent her neighborhood, and that he did not know Webb or anyone else in that neighborhood. The defendant insisted that he had no knowledge of any neighborhood dispute or any trouble between Webb and Ms. Jones, nor was he asked to intervene in any disagreement between the two.

Lewis further testified that on the day of the shooting, he was registered at the Capri Motel where he entertained two female friends at various times during the day. That evening, he drove to Ms. Jones’ house on Intrepid Street and visited for about five minutes. At about 9:00 p.m., he met with another female friend. Lewis further testified that at approximately midnight, he was with his friend Darryl Sutton playing pool when Ms. Jones called him. Lewis testified that he had no connection to Ronald “Running Wild” Anderson.

ERRORS PATENT

A review for errors patent on the record reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant complains that Article I, § 17 of the Louisiana Constitution violates the equal protection clause of the Fourteenth Amendment.

| ^Louisiana Constitution Article I, § 17(A) provides that a case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” Additionally, La. C.Cr.P. art. 782(A) provides in part that “[cjases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” Defendant was charged with two counts of second degree murder, which is punishable by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:31. A jury of twelve was empaneled in this case and rendered verdicts of ten to two and eleven to one in favor of conviction. Accordingly, the proper number of jurors concurred in the verdicts.

Nevertheless, this issue is not preserved for appellate review because the defendant failed to raise an objection as to the unconstitutionality of the complained-of provision. La.C.Cr.P. art. 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” This prohibition extends to errors or deficiencies for which a defendant seeks a mistrial. See State v. Eugene, 03-1128 (La.App. 5 Cir. 1/27/04), 866 So.2d 985, 991.

This particular issue has not been addressed by any court. Notably, however, the Louisiana Supreme Court has found that errors concerning jury matters must be complained of prior to the verdict. See State v. Haarala, 398 |flSo.2d 1093, 1098 (La.1981). The defendant argues that he filed a motion to declare Article I § 17 of the Louisiana Constitution and La.C.Cr.P. art. 782(A) unconstitutional prior to trial, and also argues that, following the verdict, he reinforced his previous objection by moving for a mistrial based on the same grounds.

However, a review of the record indicates that the defendant did not file any pre-verdict motion to declare Louisiana’s non-unanimous jury verdict provisions unconstitutional. While the record does contain such a motion, it was filed by the defendant’s co-defendant, Ronald Anderson, and there is no notice or other indication in the record that the defendant intended to join in that motion. As previously noted herein, the defendants’ cases had actually been severed at the time Anderson’s motion was filed. Furthermore, the defendant’s motion for mistrial—filed thirteen days after the verdict was rendered—was the improper vehicle for raising the non-unanimous verdict claim. See State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, 609 n. 4. Even if the motion for mistrial were construed as a motion for new trial, the defendant failed to preserve the issue for review, as issues concerning the jury cannot be raised for the first time in a motion for new trial absent a pre-verdict objection. See State v. Collins, 359 So.2d 174, 177 (La.1978). Accordingly, because the defendant failed to lodge any pre-verdict objection to the constitutionality of the complained-of provisions, the post-verdict motion for mistrial notwithstanding, he is precluded from assigning such as error on appeal; this assignment of error has been waived.

ASSIGNMENT OF ERROR NUMBER 2

1 ipThe defendant next argues that the non-unanimous jury verdicts violate his right to a jury trial under the Sixth and Fourteenth Amendments; however, the Louisiana Supreme Court has previously rejected the defendant’s argument. As the Court stated in State v. Bertrand, 2008-2215, p. 6 (La.3/17/09), 6 So.3d 738, 742, under current jurisprudence from the United States Supreme Court, non-unanimous twelve-person jury verdicts are non-violative of the Sixth and Fourteenth Amendments.

ASSIGNMENT OF ERROR NUMBER 3

In the third and final assignment of error, the defendant argues that the trial court erroneously denied him the right to utilize a “reserved” backstrike on a provisionally accepted juror, Rickey Steven Wolfe, following the close of the fourth and final venire panel. The record reflects that the trial judge denied the defendant’s backstrike because Mr. Wolfe had been a member of the first panel, and indicated a belief that the law did not allow back-strikes on a particular panel once the unexcused jurors had been accepted therefrom. The defendant further argues that the court’s error was not harmless because it deprived him of his right to freely exercise a peremptory strike, consistent with Louisiana law.

Backstriking of jurors is authorized by La.C.Cr.P. art. 799.1, which provides:

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full corn-plement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the | njury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

In this case, after the State and defense exercised their peremptory challenges to the first venire panel, defense counsel asked the court whether Wolfe, a member of that panel, had been selected as a juror or been challenged. The court informed counsel that Wolfe had been chosen as a juror, to which counsel responded, “okay.” After the first panel produced six jurors, the court asked if either party wished to exercise any backstrikes, to which defense counsel responded, “[w]e’d reserve.” After the conclusion of the fourth venire panel, the defendant attempted to exercise his reserved backstrike on Wolfe, and the court denied his request, advising that it only allowed backstrikes on a “per panel” basis and “[didn’t] have to allow [the defendant] to go all the way back to the first panel” to exercise a backstrike.

Considering the plain language Article 799.1, which provides that “prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted,” the trial court erred by refusing to allow the defendant to exercise his reserved backstrike on juror Wolfe. La. C.Cr. P. art. 799.1. In addition to establishing that the court erred in denying his exercise of a backstrike, however, the defendant must also demonstrate that the court’s error unduly prejudiced him.

In State v. Hailey, 2002-1738, p. 4 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, 567, this Court recognized a party’s right to backstrike a juror who had been initially accepted, so long as the juror is peremptory challenged prior to the swearing in of the entire jury panel:

| ^Backstriking is a party’s exercise of a peremptory challenge to strike a prospective juror after initially accepting him. State v. Plaisance, 2000-1858, p. 30, n. 4 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193, n. 4, writ denied, 2002-1395 (La.11/27/01), 831 So.2d 270, cert, denied, Plaisance v. Louisiana, 538 U.S. 1038, 123 S.Ct. 2084, 155 L.Ed.2d 1071 (2003). An accused has a constitutionally guaranteed right to peremptorily challenge jurors. La. Const. Art. I, § 17. La.C.Cr.P. art. 795(B)(1) states only that peremptory challenges shall be exercised prior to the swearing of the jury panel. La.C.Cr.P. art. 788(A) states that when a prospective juror is accepted by the State and the defendant, he shall be sworn immediately as a juror, subject to the provisions of La. C. Cr. P. art. 795. Thus, in State v. Watts, 579 So.2d 931 (La.1991), the Louisiana Supreme Court cited La.C.Cr.P. art. 795(B)(1) in holding that even though a prospective juror is “temporarily” accepted and immediately sworn as juror in accordance with La.C.Cr.P. art. 788, that juror may nevertheless be challenged peremptorily prior to the swearing of the entire jury panel.

In State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, the Louisiana Supreme Court determined that the denial of a right to exercise a backstrike was subject to a harmless error analysis, finding that although the trial court improperly denied the defendant the right to exercise his remaining peremptory challenges immediately before the jury panel was sworn, such error was harmless. Likewise, in Plaiscmce, supra, this Court held that La.C.Cr.P. art. 795(B)(1), as interpreted in Watts, supra, provided for backstrikes. This Court further held that the trial court in Plaisance erred in denying the defendant the right to use backstrikes, but found the error harmless, citing Taylor, supra. State v. Hailey, 2002-1738, p. 5, 863 So.2d at 567. Thus, a defendant has a right under La.C.Cr.P. art. 795(B)(1) to employ backstrikes, but the erroneous denial of that right is subject to the harmless error analysis. Id; see also James E. Boren & Michael A. Fiser, Fear of A Paper Tiger: Enforcing Louisiana’s Procedural and Statutory Rules in the Wake of Harmless Error Analysis, 64 La. L.Rev. 5, 11 (2003)(noting that “a defendant has a right under Louisiana Code of Criminal Procedure art. 795(B)(1) to employ back-strikes, |; <¡¿e., exercise remaining peremptory challenges before a jury panel is sworn, but the erroneous denial of that right is subject to harmless error analysis.”).

The defendant in this case argues that the question of harm should turn on whether the trial court’s ruling prevents the defendant from using a peremptory strike. Although “[a]n erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error,” State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, in this case, the defendant was not erroneously deprived of his last peremptory challenge. Nevertheless, the defendant argues that the same logic should apply under these facts, and that any denial of a peremptory challenge should not be susceptible to harmless error analysis. Furthermore, while a defendant has a right under the Louisiana State Constitution to peremptorily strike prospective jurors, there is no constitutional right to back-strike, only a statutory right. See, e.g., State v. Stukes, 2008-1217, p. 19 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233, 1246, writ denied, 2009-2194 (La.4/9/10), 31 So.3d 381; State v. Hailey, 2002-1738, p. 9, 863 So.2d at 569.

In this case, the error involves only a violation of the defendant’s statutory right to backstrike previously-accepted jurors prior to the swearing-in of the final jury. The defendant’s state constitutional right to exercise peremptory challenges was not implicated, considering that the trial court offered him the opportunity to peremptorily strike juror Wolfe at the conclusion of voir dire of the first venire panel. Accordingly, the defendant must demonstrate that the trial court’s erroneous refusal to allow him to subsequently backstrike Wolfe contributed to the jury’s verdicts against him. See State v. Hailey, 2002-1738, p. 9, 863 So.2d at 569.

114Even assuming arguendo that another juror submitted in Wolfe’s place would have returned not guilty verdicts on both counts, the backstriking of Wolfe would still have returned a legal verdict of guilty, resulting in a life sentence. Therefore, the defendant cannot demonstrate that the outcome of his trial would have been materially different had the trial court properly allowed him to backstrike Wolfe.

Furthermore, a review of the voir dire transcript indicates that despite the defendant’s opportunity to examine Wolfe and challenge him for cause, defense counsel engaged Wolfe minimally and did not single Wolfe out for questioning on any subject. Wolfe’s answers and statements during voir dire were neutral or favorable to the defense. Wolfe stated that he worked on a pipeline; that he would listen to country music radio in his vehicle; and that he had a ten-year-old-son. On a scale of one to ten, Wolfe rated the NOPD only a five. Upon questioning by the defense, Wolfe said that he would have no problem returning a verdict of not guilty despite one of the victims in the case being a child; that he was not familiar with the area in which the crime occurred; that he could fairly consider medical evidence that might contradict the testimony of a State witness; and that he would weigh dying declaration testimony less than other evidence admitted at trial.

Considering Wolfe’s responses in voir dire, it does not appear that he warranted a defense challenge. Wolfe’s mediocre appreciation of the NOPD and his mistrust of dying declaration testimony could have provided grounds for a State challenge for cause. Of the nineteen potential jurors other than Wolfe on the first venire panel, the defendant exercised peremptory challenges against only two, who gave the NOPD ratings of four and six. Seven potential jurors were struck for |,.r,cause between the parties. Of the remaining ten, six gave the NOPD equal or lower ratings than Wolfe, and none was challenged by the defendant. Notably, the jurors’ perception of police formed his sole basis for challenging for cause another juror who had given the NOPD a perfect rating. Moreover, almost every panel member voiced hesitation regarding dying declaration testimony and opined that it would have to be considered based on the strength of the remaining evidence. One juror, who was not struck by the defendant, affirmed that he would treat such evidence with a high degree of skepticism, while another said she would not consider such evidence if it were not written.

We find the record reflects that defense counsel had ample opportunity to examine Wolfe, to challenge him for cause, and to peremptorily challenge him after the first venire panel. The defendant has not demonstrated any specific prejudice that inured to him because of the trial court’s erroneous ruling; notably, Wolfe shared pertinent attributes with other potential jurors whom the defendant did not strike. Moreover, the defendant has failed to show that another juror would have voted to acquit him in Wolfe’s absence. Even giving the defendant the full benefit of the doubt concerning Wolfe, the trial would have still ended in a guilty verdict and life sentence as to one count of the indictment. While it is arguable that the verdict on the other count could have resulted in a nine to three verdict, the defendant has not demonstrated a reasonable probability that this would have occurred.

Additionally, as the defendant acknowledged in his appellate brief, he had three peremptory challenges remaining. In State v. Taylor, supra, the Louisiana Supreme Court specifically recognized that the defendant in that case had five peremptory challenges remaining, and found no merit in the defendant’s argument |,fithat any prejudice resulted from failing to exhaust all his peremptory challenges. The Court held that “[t]he trial court’s refusal to allow the parties to ‘back strike’ prospective jurors did not prevent the defendant from utilizing all of his challenges during the jury selection process.” State v. Taylor, 93-2201, p. 26, 669 So.2d at 378.

Accordingly, the defendant has failed to demonstrate that but for the trial court’s erroneous denial of his backstrike of juror Wolfe, there is a reasonable probability that the outcome of his trial would have been any different, and that the jury’s verdicts were attributable to the error.

CONCLUSION

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

AFFIRMED

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

Iil respectfully dissent.

In order to find harmless error, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “The inquiry ... is whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (italics in original). Because I cannot declare a belief that the error in disallowing the peremptory back-strike of an identified juror was harmless beyond a reasonable doubt and that the jury’s guilty verdicts were surely unattributable to the error, I would reverse Mr. Lewis’ convictions and remand for a new trial. I explain my reasoning in greater detail in the following Parts.

I

There is no question that the trial judge mistakenly prevented the defense from peremptorily back-striking a juror whom it identified to the trial judge. The law has been quite clear for some time that the trial judge has no discretion to restrict a defendant’s exercise of a peremptory challenge by back-striking. See La.C.Cr.P. art. 795 B(l); State v. Watts, 579 So.2d 931 (La.1991), and State v.Taylor, 93-2201, p. 22 (La.2/28/96), 669 So.2d 364, 376 (“In other words, peremptory challenges are exercisable at any time before the jury panel is sworn.”)

|;>The Louisiana Supreme Court requires us to review the trial judge’s violation of the defendant’s right to peremptorily back-strike a juror under the so-called “harmless error” rule. See Taylor, 93-2201, p. 26, 669 So.2d at 378 (holding, “we find that the verdict rendered was surely unattributable to any error that occurred in not allowing ‘back striking,’ and so qualifies as harmless.”) Despite my disagreement that this kind of error should be reviewed under harmless-error analysis, as a judge of an intermediate appellate court I am bound to follow our Supreme Court’s latest expression of the governing law. See Pelican State Associates, Inc. v. Winder, 253 La. 697, 706, 219 So.2d 500, 503 (1969), and Oliver v. Magnolia Clinic, Inc., 11-2132, p. 3 (La.3/13/12), 85 So.3d 39, 44. Also, panels of this court, applying the harmless-error rule, have refused to find reversible error when, as here, trial judges simply fail (for whatever reason) to afford the defendant the right to back-strike. See State v. Plaisance, 00-1858 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172; State v. Hailey, 02-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564; and State v. Stukes, 08-1217 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233.

When we find error (as we have here) in the trial court, we may only reverse the conviction if the error affects a substantial right of the accused. See La.C.Cr.P. art. 921.

Interestingly, when a trial judge erroneously denies the defendant a challenge for cause and the defendant uses one of his peremptory challenges (and also exhausts all of his peremptory challenges), the Supreme Court concludes that a defendant’s substantial right has been violated, prejudice is presumed, and the error is reversible error. See State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686 (“Therefore, when a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, |srequiring reversal of the conviction and sentence.”) The principle that such error requires reversal of a conviction has been re-stated even after the Taylor decision. See, e.g., State v. Camp bell, 06-0286, p. 70 (La.5/21/08), 983 So.2d 810, 856; State v. Lindsey, 06-255 (La.1/17/07), 948 So.2d 105, 107; and State v. Juniors, 03-2425, p. 8 (La.6/29/05), 915 So.2d 291, 305 (“Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges.”).

Notably, the error constitutes reversible error even when the defendant is unable to show that he “was forced to accept an obnoxious juror.” See State v. McIntyre, 365 So.2d 1348, 1351 (La.1978). And the general rule is “an erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges constitutes a substantial violation of a constitutional or statutory right requiring reversal of his conviction and sentence.” Id.

Curiously, the Taylor court, however, did not distinguish or explain the difference in the right which has been violated under the circumstance of an erroneous denial of challenge for cause from the circumstance of an erroneous denial of a peremptory back-strike challenge. Indeed, in the first circumstance there is only a possibility that an obnoxious juror has been seated; in this circumstance there is the actuality that an identified juror “obnoxious” to the defendant has been seated and has deliberated.

The authority cited by the Taylor court for reviewing the back-strike error for “harmless error” was State v. Johnson, infra, a case which did not involve jury selection at all, but rather the erroneous introduction of evidence of other crimes. Taylor, 93-2201, p. 26, 669 So.2d at 378. The Johnson court recognized the distinetion made Sullivan v. Louisiana between “trial error” and “structural error.” \4State v. Johnson, 94-1379, pp. 14-15 (La.11/27/95), 664 So.2d 94, 100-101. Under Sullivan, the Johnson error would be classified as a “trial error,” which is the type of evidentiary error that is clearly subject to harmless-error review. “Structural error,” however, “is one which affects the framework within which the trial proceeds.” Johnson, pp. 14-15, 664 So.2d at 101, citing to Arizona v. Fulminante, 499 U.S. 279, 307-311, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Taylor court did not at all consider whether interfering with jury selection is more akin to a “structural error.”

Fulminante, explaining Chapman, pointed to violations which are not subject to harmless-error analysis and review. Fulminante, 499 U.S. at 309-310, 111 S.Ct. 1246. These include the total deprivation of the assistance of counsel or a trial judge who is not impartial. Id. “These are structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id. at 309, 111 S.Ct. 1246 (emphasis added).

The back-striking error, as much as the Cross-error, goes to the issue of how the jury as fact-finder or decision-maker is constituted. Thus, it seems to me, that this kind of error should not be subject to harmless-error analysis at all, and just as with the Cross-error, we should presume prejudice to the defendant under these circumstances.

II

The right to full voir dire and peremptory challenges are constitutionally protected in our state. See La. Const, art. I, § 17. At the outset, I acknowledge that the right to peremptory challenges is neither absolute nor protected by the federal constitution, see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and it may be waived or forfeited. Here, however, there is no Batson challenge, no waiver, and no forfeiture.

IsNotably, the coupling of full voir dire and peremptory challenges reveals the insistent preference of the drafters of our state constitution to diminish sanctioned interference by a trial judge in the parties’ selection (or exclusion) of jurors in criminal trials. At the time of the adoption of our 1974 constitution, the United States Supreme Court had observed that “[t]he voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of perempto-ries.” Swain v. Alabama, 380 U.S. 202, 218-219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” Id. at 219, 85 S.Ct. 824. “The denial or impairment of the right is reversible error without a showing of prejudice.” “[F]or it is, as Blackstone says, an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose.” Id. See also Lewis v. United States, 146 U.S. 370, 376-377, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” Swain, 380 U.S. at 220, 85 S.Ct. 824 (emphasis added). When during questioning by another delegate to the constitutional convention on the draft of section 17, delegate Chris Roy, a prominent trial lawyer, explained that the voir dire process allowed to both see and hear a prospective juror’s responses “so that you can maybe determine any prejudice for which you would want to challenge him. You know just for peremptorily, just say T don’t want you because he kind of snickered when he answered or something.’ ” Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Yol. 7, 44th Days Proceedings — September 8,1973.

When a trial judge, without any lawful basis, controls a defendant’s timely exercise of a peremptory 1 ^challenge, the constitutional protection of peremptory challenges fails in its purpose. The most extensive voir dire is rendered meaningless when the defendant cannot exercise his peremptory challenge. In a different context, the United States Supreme Court has noted that “[t]he difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

The majority opinion, however, ironically concludes that the trial judge’s deprivation of Mr. Lewis’ peremptory challenge of the identified juror is harmless because Mr. Lewis cannot establish that the juror could have been excused for “cause.” Much of the explanation focuses on the objected-to juror’s responses during voir dire. I agree, of course, that there was no legal basis to challenge the juror for cause, which is undoubtedly why the defense sought to peremptorily challenge the juror. How ironic a “requirement” that would require establishing “cause” for a challenge in order to show that an error associated with a peremptory challenge is not harmless. The majority opinion even seems to go so far as to second-guess the defense’s decision to peremptorily challenge this particular juror; under the circumstances of this case, a judge (or panel of judges) really has no right to substitute its judgment about the peremptory challenge of a juror.

The majority opinion also seems to quantify the effect of this objected-to juror. The majority notes that the objectionable juror’s verdict was not necessary to the conviction on the count which was decided by an 11-1 vote because a non-unanimous jury may render a verdict with only 10 votes. This notion, of course, completely ignores the effect that any one person may have on others. We simply cannot know (and most assuredly not beyond a reasonable doubt) how a different juror, acceptable to the defendant, may have interacted with the other jurors, nor |7can we know how this objected-to juror interacted with them. And it must be recalled and considered that the defendant cannot inquire into, discover, or use information about the jurors’ deliberations. -See La. C.E. art. 606 B.

In my view, we have a clear situation where a person who should not have been in the jury room deliberating did in fact participate, deliberate, and render a verdict. In United States v. Olano, the United States Supreme Court considered the erroneous allowance by the district judge of alternate jurors into the jury’s deliberation room with instructions that the alternates not participate in the deliberations. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because the defendants “made no specific showing that the alternate jurors in this case either participated in the jury’s deliberations or ‘chilled’ deliberation by the regular jurors,” the Supreme Court concluded on the record that the violation was not prejudicial. Id. at 739, 113 S.Ct. 1770. Here, to the contrary, we must assume that the objected-to juror, not having been instructed not to participate in deliberations, must have joined in and contributed to the decision to render the verdicts actually rendered.

Thus, I am not persuaded beyond a reasonable doubt the resulting verdicts in this trial were “surely unattributable to the error” of the trial judge in depriving Mr. Lewis of his back-strike peremptory challenge. Sullivan, 508 U.S. at 279, 113 S.Ct. 2078.

Ill

In this Part, I address and distinguish on their dispositive facts several decisions which applied the harmless-error analysis to a peremptory back-strike challenge.

The Taylor court found that the failure of the trial court to allow the defense to “back-strike” a particular juror was harmless error. Taylor, 93-2201, p. 25-26, 669 So.2d at 377-378. Unlike here, the defendant was made aware early in the |8voir dire and challenge process that the trial court would not allow back-striking, but the trial court provisionally allowed one back-strike on the initial panel to cure any confusion. Id. Here, Mr. Lewis had no warning early on that back-striking would not be permitted and obviously, but reasonably, misunderstood the trial judge’s apparent acquiescence in his reservation of a back-strike challenge. Unlike here, the defense did not identify the objected-to juror until oral arguments in the Supreme Court. Id. Here, the juror was identified to the trial judge before jury selection was concluded. Finally, unlike here, the objected-to juror was in the last panel and nothing prevented the defendant from using his peremptory on her at that time. Id. In summary, none of the factual features of Taylor are present in this case.

Next I consider our decision in State v. Plaisance, 00-1858, pp. 30-34, 811 So.2d at 1193-1196. As in Taylor, in Plaisance the trial court took some curative action by allowing a provisional back-strike when it clarified that it would not allow back-strikes. Id. pp. 31-32, 811 So.2d at 1195. More importantly, we observed in Plai-sance, however, that “[although the record contains a full transcript of the general voir dire, the defendant does not refer to a single juror he would have struck.” Id. p. 31, 811 So.2d at 1194. This again is factually distinguishable from our case.

In State v. Hailey, the defendant did not identify any juror whom he wished to back-strike until the hearing on his motion for new trial. 02-1738, p. 6, 863 So.2d at 567. We concluded that contemporaneous identification of an objected-to juror on back-strike was essential to preserve the back-strike claim for review because otherwise the defense could “gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire |ntranscript for jurors whom he can claim he would have back-struck.” Id. p. 8, 863 So.2d at 569.

In State v. Stukes, we again observed that “[m]ore importantly, neither at trial, in his motion for new trial, nor in his argument to the court does the appellant specify whom he would have backstruck had he been allowed to do so.” Stukes, 08-1217, p. 20,19 So.3d at 1247.

The distinguishing factual feature of these four decisions is that — unlike Mr. Lewis — the defendants did not identify the objected-to juror until after the jury’s verdict. And Mr. Lewis had no warning until the end of voir dire that the trial judge would not comply with the law and disallow peremptory back-strikes.

IV

In summary, it seems to me, that we should consider the denial of a peremptory back-strike of an identified juror as a structural error and treat it in the same manner as we treat the erroneous denial of a challenge for cause when the defendant must use all of his peremptory challenges. That is, we should presume prejudice which affects a substantial right of the defendant.

In this case, even analyzing the facts under the harmless-error rule, I cannot find beyond a reasonable doubt that the resulting guilty verdicts in this case are surely unattributable to the unlawful participation of the timely identified and objected-to juror in the jury’s deliberations and decisions. Any other result treads dangerously close, and likely violates, Mr. Lewis’ right to have a jury, rather than a judge (or panel of judges), reach the requisite finding of guilty. See Sullivan, 508 U.S. at 277,113 S.Ct. 2078.

I,therefore, respectfully dissent.

      . Ronald Anderson is not a party to this appeal.

      . The shooting occurred at 14327 Intrepid Street in New Orleans, Louisiana.

      .On November 19, 2002, the trial court conducted a competency hearing after which Lewis was found competent to stand trial. In May 2003, the trial court conducted hearings on Lewis’ pre-trial motions to suppress evidence, statements and identification. On May 21, 2003, the trial court denied the motions to suppress statements and identification. On July 9, 2003, Lewis filed motions to suppress the dying declaration of Travis Webb and to quash the indictment. The trial court denied the motions on July 18 and 25, 2003, respectively.

      . The defendant was twenty-seven years old at the time of the shooting; Ms. Jones testified that the defendant told her when they met initially that he was eighteen years old.

      . The body of Travis Webb was autopsied by Dr. Gerald Liuzza on August 22, 2002, at approximately 10:00 a.m. Dr. Liuzza determined that the victim suffered two gunshot wounds from a high velocity weapon. One bullet entered the victim’s right forearm and the second bullet, the mortal wound, pierced his abdomen, incising his liver, colon and small intestines. Webb died approximately one month after the shooting.

      . Due to time constraints, the defense agreed to call Dominique Jones back to the stand as its first witness. Defense counsel referred Ms. Jones to her prior testimony given on May 14, 2003, at which time Ms. Jones said that she saw the defendant at her house on July 24, 2002, for about ten minutes, approximately six hours prior to the homicide, and she did not know where the defendant went after that time. Under cross-examination, Ms. Jones explained that she saw the defendant twice on the day of the homicide, once in the morning and once between 9:00 and 10:00 p.m. that evening.

      . Jeremiah Brown, Keota Brown's brother, also testified, stating that he lived on Painters Street at the time of the shooting, but that he spent time at his Aunt Debra's house in Mi-choud, Louisiana. Mr. Brown acknowledged that his sister and Webb were dating, but testified that he knew nothing of the shooting, and he said that he did not remember giving a statement to the police. At the request of the State, the court declared Brown a hostile witness; Mr. Brown continued to give non-responsive answers to the prosecutor's questions. Consequently, the prosecutor presented Mr. Brown with a statement he purportedly gave to police, in which he indicated that before the shooting, there was an altercation between Webb and Ms. Jones, at which time Webb pushed Ms. Jones. Mr. Brown also indicated that Ms. Jones cursed Webb and told him to be around her house on the day of the shooting because she "had something for him.” Mr. Brown reported that just prior to the shooting, he observed the defendant drive to the Intrepid Street address and get out of his car with a gun.

      . Assistant NOPD Communication Supervisor, Cindy Woods, testified that her job entailed supervising 911 operators and calls. As the custodian of all 911 calls, Ms. Woods identified the printout copy of the incident recall related to the July 24, 2002, shooting at 14327 Intrepid Street bearing item number G-45223-02. The State played the recording of the 911 call made by Emily Harris, who lived across the street from the scene of the shooting.

      . Dr. William P. Newman, III autopsied the body of Daveion Jones on July 25, 2002, at approximately 7:45 a.m. Dr. Newman testified that the victim suffered a frontal gunshot to her head which caused extensive destruction of the skull and brain. Dr. Newman did not recover a bullet from the victim’s skull. Further, he stated that the victim died almost instantly because of the catastrophic injury to her head.

      . Ms. Terry Varnado, Travis Webb's mother, also testified that she was at the Intrepid Street address on the night of the shooting, and although she saw two men running away from the house, she could not identify either of them.

      . The shooting scene was investigated by NOPD Crime Scene Technician Tarez Smith Cook. Ms. Cook identified State’s Exhibit 5, item number G-45223 of 2002 as the crime scene report of her investigation of this homicide, and also identified photographs she had taken of the interior and exterior of the house where the shooting occurred, testifying that she saw Daveion Jones lying in the hallway near the front door with a bullet casing near her right knee. Ms. Cook collected several other .40 caliber bullet casings from the residence as well as one pair of pants located in the front yard of the residence.

      . Det. Ribet is now retired.

      . Det. Ribet also testified that he obtained a pellet recovered during surgery on Tierra Jones. The pellet was consistent with an assault rifle.

      . Emily Harris, who made the 911 call played for the jury, is Ezekiel Harris’ mother.

      .- Det. Ribet subsequently determined that "Running Wild” was the nickname of Ronald Anderson.

      . Det. Ribet testified that based upon this information, he had Darryl Sutton picked up and taken to the station for questioning; however, Sutton refused to give a statement.

      . Now retired NOPD ballistics expert, Kenneth Leary, examined three bullet casings, four bullets and one fragmented bullet recovered from the Intrepid Street shooting scene. After examining the .40 caliber cartridge cases, he determined that the bullets were fired from the same weapon. He performed the same inspection on the bullets and determined that they were all fired from the same AK47 or SKS assault rifle. Moreover, Leary examined four weapons relative to this case, which were seized from different locations. His testing was inconclusive on all of the weapons as to whether any of them fired the bullets and casings seized at the scene. At a later date, Leary was asked to examine a copper jacketed bullet recovered from the body of Daveion Jones. However, as with the other bullets and casings, testing was inconclusive to connect the copper bullet to any of the weapons seized.

      . The driver was Ezekiel Harris.

      . Daveion died at the scene.

      . After medical personnel began working on Webb, Harris testified that he drove back to Webb’s house to check on Daveion, at which time Harris told police officers what he knew of the incident and gave a recorded statement to detectives later that evening, relating what Webb had told him. Additionally, Officer Jason Sloan testified that he assisted in the investigation of this shooting by relocating to Lakeland Hospital where he interviewed Webb, who advised him that “Billy” shot him and that he saw Billy through the open front door.

      .Ms. Tynette Gaunichaux testified that she met the defendant at the Capri Motel on July 24, 2002, and that they engaged in sex for about two hours until the defendant left to return his friend’s vehicle. Ms. Gaunichaux testified that she could not remember what time of day that she was in the hotel with the defendant.

        Ms. Iilyn Jackson also testified that she had a sexual relationship with the defendant, and remembered being with the defendant at the Capri Motel but could not recall the day.

      . The defendant concedes that this issue is foreclosed by Bertrand and raises it solely to preserve it for further review in the U.S. Supreme Court.

      . The following morning at work, Lewis learned that he was a suspect in the shooting. After being booked, Lewis testified that he learned the name of the person responsible for the shooting during conversations while he was incarcerated, at which time he wrote a letter to his sister, Patrice Lewis, asking her to send the information anonymously to Cri-mestoppers.

      . Article 1 § 17 provides in part:
      (A) Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

      . The vote on the second count was 11-1.

      . Citing to Cross, 93-1189, p. 6, 658 So.2d at 686, the Juniors court concluded that to establish "reversible error warranting reversal of a conviction and sentence, defendant need only demonstrate (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges.” But see State v. Reeves, 06-2419, p. 86 n. 188 (La.5/5/09), 11 So.3d 1031, 1086 n. 188, which suggests— apparently erroneously — -that the "overruling” of Cross was "recognized” in Juniors.

      . See Batson v. Kentucky, 476 U.S. 79, 100, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (White, J., concurring) (“The court overturns the principal holding in Swain v. Alabama.")

      . The majority opinion’s disposition of the count decided by a 10-2 verdict is even less satisfying.

      . While fictional, there is nonetheless a real truth in the Henry Fonda character in Twelve Angry Men, a single juror who through force of personality, integrity, and perseverance persuades all of the remaining eleven jurors to change their votes from guilty to not guilty.

      .I admittedly ignore considerable obiter dicta in the decisions.

      . Another issue in Plaisance was the attempt by the defendant to back-strike "for cause.” As we noted, there is no back-striking "for cause.” See La.C.Cr.P. art. 795 A. Plaisance, 00-1858, p. 31 n. 5, 811 So.2d at 1194 n. 5. We also noted that there was no prejudice about the specific juror identified by the defendant on appeal, because that was the one he wished to back-strike for cause and he had not exhausted his peremptory challenges as required to preserve that for review. Id. p. 32, 811 So.2d at 1195.