text:
    Ruby CLAVELLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2787.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges her conviction for fleeing or attempting to elude a law enforcement officer, but she has not shown any error with regard to that conviction. The appellant also challenges the imposition of certain costs in connection with that conviction, and as the state acknowledges, several of the costs were imposed improperly.

Among other costs, the court imposed a $150 charge for the Public Defender fee, under section 938.29, Florida Statutes. However, it does not appear that the appellant was given notice and an opportunity to be heard on this charge, as required under section 938.29(5). This assessment was therefore premature, and on remand the appellant should be given an opportunity to contest this charge. See Vick v. State, 37 So.3d 951 (Fla. 2d DCA 2010); Snowden v. State, 685 So.2d 974 (Fla. 1st DCA 1996).

The court also imposed a $50 assessment for the Crimes Compensation Trust Fund, and a $3 assessment for an Additional Court Cost Clearing Trust Fund, with the court citing sections 938.93 and 938.010, Florida Statutes. Those citations are inaccurate, and it appears that the court intended to make these assessments under section 983.03 and 938.01, Florida Statutes. On remand, the proper statutory authority should be cited for these assessments. See Snowden v. State, supra.

The court further imposed a “SOC IF 100” charge, without any explanation or citation of authority. On remand, the specific authority should be cited for this assessment. See Snowden v. State, supra.

The court imposed a $225 charge for a Local Government Criminal Justice Trust Fund, under section 938.05, Florida Statutes. The appellant’s offense was committed in May 2008, when the statute authorized only a $200 assessment. See § 938.05, Fla. Stat. (2007). On remand the court should reduce this charge to the $200 amount as authorized in the statute which was in effect on the date of the offense. See Torres v. State, 42 So.3d 914 (Fla. 2d DCA 2010).

The court also imposed a $20 charge as “Additional Court Costs” for the Crime Stoppers Trust Fund, under section 938.06, Florida Statutes, which provides that this assessment is to be made in “addition to any fine....” See § 938.06(1), Fla. Stat. However, the appellant was sentenced as a habitual offender without any fine, and because no fine was imposed this section 938.06 assessment may not be made. See Mallory v. State, 70 So.3d 738 (Fla. 1st DCA 2011); Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011).

The appellant’s conviction is affirmed. The costs addressed herein are vacated, and the case is remanded.

PADOYANO, LEWIS, and CLARK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph ARNAU, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3511.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.

      Nancy A. Daniels, Public Defender, and Joel Arnold, 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.

The lower court’s revocation of appellant’s probation based upon his two violations of condition (5) was supported by the evidence. As the state concedes on appeal, however, the court erred by finding a violation of condition (10), because the trial court had not established a schedule of monthly payments. See Hutchinson v. State, 801 So.2d 291 (Fla. 1st DCA 2001).

We need not remand for reconsideration because it is clear from the record that the trial court would have revoked appellant’s probation and imposed the same sentence based on his commission of two new offenses. See Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011).

We affirm the revocation based upon the violations of condition (5) and remand to the trial court to strike that portion of the revocation order finding that appellant violated condition (10).

AFFIRMED and REMANDED for correction of the revocation order.

WOLF, PADOVANO, and SWANSON, JJ., concur.


text:
    FLORIDA QUARTER HORSE RACING ASSOCIATION, INC., and Florida Quarter Horse Breeders and Owners Association, Inc., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARIMUTUEL WAGERING and Gretna Racing, LLC, Appellee.
    No. 1D11-6425.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2012.
    Michael J. Barry, J. Stephen Menton, Harold F.X. Purnell, and Maggie M. Schultz of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellant.
    Marc W. Dunbar and Daniel R. Russell, of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee Gretna Racing, LLC; Garnett W. Chisen-hall, Chief Appellate Counsel, and Charles T. “Chip” Collette, Assistant General Counsel, Tallahassee, for Appellee Division of Pari-Mutuel Wagering, Department of Business and Professional Regulation; and David S. Romanik, Oxford, co-counsel for Appellee Gretna Racing, LLC
   PER CURIAM.

DISMISSED. McGuire v. Florida Lottery, 17 So.3d 1276 (Fla. 1st DCA 2009) (noting that the provision in the order providing that it would become final if the complaint is not amended did not cure the jurisdictional defect and a separate final order must be entered); Hinote v. Ford Motor Co., 958 So.2d 1009 (Fla. 1st DCA 2007); see also Envtl. Confederation of SW Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 208 (Fla. 1st DCA 2003) (noting that the dismissal of appellants’ petition for administrative hearing was entered without prejudice and with leave to amend but “they declined to amend their petition and instead asked the Department to enter a final order of dismissal”).

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    Ulysses Alonzo BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5207.
    District Court of Appeal of Florida, First District.
    March 1, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., WETHERELL, and RAY, JJ., concur.


author: WETHERELL, J.

text:
    William A. O’BRIEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4849.
    District Court of Appeal of Florida, First District.
    March 2, 2012.

      David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Respondent.
   WETHERELL, J.

William O’Brien petitions for certiorari review of the circuit court order affirming the county court’s denial of his motion to vacate a 1982 conviction and sentence. We deny the petition.

On July 30, 1982, O’Brien pled no contest to, and was adjudicated guilty of driving with an unlawful blood alcohol level (DUBAL). At the time, this offense was separate from driving while under the influence (DUI) and required proof of a blood alcohol level of .10 percent or greater. § 316.193(3), Fla. Stat. (1981). The record of the 1982 proceeding does not reflect O’Brien’s blood alcohol level at the time of the offense and, according to the arrest report, O’Brien refused to take a breath test. The record reflects that O’Brien was initially charged with DUI, but it is unknown whether his DUBAL conviction was the result of a plea bargain or whether he stipulated to a factual basis for his plea to that offense because the transcripts and other court records (including the written judgment and sentence) no longer exist.

On May 6, 2010, nearly 28 years after his conviction, O’Brien filed a motion to vacate his conviction and sentence alleging that he was convicted of a “non-existent crime.” The basis for this claim was that “the evidence did not and could not establish a violation of Driving With an Unlawful Blood Alcohol Level” because O’Brien refused a breath test after his arrest.

The county court denied the motion after a hearing, finding that O’Brien had not presented sufficient evidence to justify setting aside a nearly 30-year old plea and conviction. The circuit court affirmed, explaining:

Review of Appellant’s brief reveals that Appellant is arguing his sentence should be vacated due to the lack of a factual basis upon which the court in 1982 could have accepted his plea. At the heart of Appellant’s argument is that Appellant refused to take a breath test yet pled no contest to DUBAL. Such a claim is more appropriate through direct appeal or arguably, within the two (2) year timeframe for filing a 3.850 motion to withdraw plea. While this Court is aware that conviction of a nonexistent crime is fundamental error, DUBAL was an existing crime in 1982 pursuant to section 316.193, Florida Statutes (1982)[sic].
None of the three (3) specifically carved out exceptions to the two year time-frame [in rule 3.850(b) ] exists in this case....
In addition, even if this Court were to agree with Appellant’s claim that he pled to a nonexistent crime, none of the case law cited by Appellant holds that raising such a claim is allowed outside the two year timeframe established by Florida Rule of Criminal Procedure 3.850 or [would] allow Appellant to raise this claim twenty-eight (28) years after his plea (well beyond the two year time-frame).

(citations and footnote omitted). O’Brien timely filed a petition for certiorari in this court seeking review of the circuit court’s order.

The scope of our certiorari review in this case is limited to determining whether the circuit court observed the essential requirements of law by affording procedural due process and applying the correct law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)).

O’Brien argues in his petition that the circuit court failed to apply the correct law in reaching its decision because the court “failed to recognize that Petitioner’s plea and conviction ... was ... for a nonexistent crime under the facts of this case.” This argument is meritless. The circuit court correctly held that O’Brien did not plead to a non-existent crime and then applied well-settled law in affirming the denial of O’Brien’s untimely motion challenging the factual basis for his plea. See, e.g., White v. State, 935 So.2d 554, 555 (Fla. 3d DCA 2006) (noting that a defendant may raise a claim of a lack of factual basis to support a plea in a rule 3.850 motion, but that the claim must be raised within the two-year time limit imposed by the rule); Nowlin v. State, 639 So.2d 1050, 1052 n. 2 (Fla. 1st DCA 1994) (holding that a challenge to the factual basis for a plea should be raised in a rule 3.850 motion, not a rule 3.800 motion and explaining why such motions must be brought within two years: “The state should not be required to confront factual disputes in cases that have been final for over two years. Stale cases such as these will cause problems in securing transcripts and witnesses, and may also result in inadequate recollection by those witnesses who may still be available.”); and cf. Solano v. State, 32 So.3d 648, 651 (Fla. 1st DCA 2010) (affirming denial of an untimely motion challenging a DUI conviction because “even if [the defendant] was denied his right to counsel in the 1978 proceeding, the judgment and sentence in that case are not ‘void’ as a result and subject to collateral attack 30 years later”). Accordingly, the circuit court did not depart from the essential requirements of law.

For these reasons, O’Brien’s petition for writ certiorari is DENIED.

PADOVANO and LEWIS, JJ., concur.

      . The only remaining records are the arrest report, the traffic citations, and the clerk's docket entries reflecting the progress and disposition of the case.


author: SWANSON, J.

text:
    PEACE RIVER DISTRIBUTING, INC., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Gregory D. Guilmette, Appellees.
    No. 1D11-2842.
    District Court of Appeal of Florida, First District.
    March 2, 2012.

      Andrew Froman, of Fisher & Phillips, LLP, Tampa, for Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellee.
   SWANSON, J.

This is an appeal of an Administrative Order by the 'Florida Unemployment Appeals Commission (FUAC) reversing the decision of an appeals referee which disqualified Gregory D. Guilmette (“the claimant”) from receipt of benefits for misconduct. Peace River Distributing, Inc. (“the employer”), appeals that final order of the FUAC.

The claimant worked as a route delivery driver for a wholesale beverage distributor for approximately thirty months before being discharged for misconduct. The asserted misconduct was claimant’s failure to pass a random drug test; claimant purportedly tested positive for marijuana and, as a result, was terminated from employment. It was uncontroverted the employer maintained a drug free workplace and a random drug test was conducted on claimant by the employer in accordance with that policy. The policy was communicated to employees upon hire, in the employee handbook, and claimant was aware of the drug free workplace policy.

At a telephonic hearing held before the appeals referee, only two witnesses appeared: an employer representative and claimant. The employer representative testified, without any objection, that claimant was terminated as a result of having tested positive for marijuana on a random drug test. Test results and chain of custody documentation were not provided by the employer during this hearing. Claimant then testified. The appeals referee concluded claimant’s testimony contained admissions.

The appeals referee found the employer had implemented the drug free workplace program under the Florida Workers’ Compensation Program and that claimant was aware of the program. The referee further found that although the employer failed to submit “test results and chain of custody documentation provided to the employer by a licensed and approved drug-testing laboratory,” at the hearing, the referee found claimant’s admission that he failed the drug test was “sufficient in finding misconduct connected with work.” The commission reversed, finding:

[T]he claimant did not admit guilt. His testimony was very short. He was asked the reason given for the termination, and he responded he had a positive failed drug test for marijuana. He indicated he would have been able to come back in a week because the EAP specialist saw it was “just a stupid mistake not a drug problem.” The referee did not ask for clarification, and never asked the claimant if he used marijuana prior to the drug test, how much, if any, he used, or the timeframe of any use. The referee likewise never asked him if he was under the influence of drugs at work.

We conclude the commission’s finding contravened the well-settled principle that “[w]hen reviewing the appeals referee’s order, the [Unemployment Appeals Commission] may not reweigh the evidence or substitute its own findings for those of the referee when the referee’s findings are supported by competent, substantial evidence.” Coastline Fed. Credit Union v. Fla. Unemployment Appeals Comm’n, 72 So.3d 318, 319 (Fla. 1st DCA 2011) (citing Watson v. Summit Asset Mgmt., LLC, 22 So.3d 145, 147 (Fla. 4th DCA 2009); Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 502 (Fla. 4th DCA 2004)). See also Mohammed v. Fla. Unemployment Appeals Comm’n, 847 So.2d 566, 568 (Fla. 3d DCA 2003); Grossman v. Jewish Cmty. Ctr. of Greater Ft. Lauderdale, 704 So.2d 714, 716 (Fla. 4th DCA 1998); Tourte v. Oriole of Naples, Inc., 696 So.2d 1283 (Fla. 2d DCA 1997). “It is in the referee’s sole province as trier-of-fact to judge the credibility of witnesses. The [Unemployment Appeals Commission] is not permitted to reweigh the evidence or reinterpret evidence to arrive at a desired conclusion.” Kriston v. Fla. Unemployment Appeals Comm’n, 693 So.2d 689, 691 (Fla. 2d DCA 1997). See also Morrison v. Newport Wholesalers, Inc., 738 So.2d 1037, 1038 (Fla. 3d DCA 1999).

The decision of the appeals referee in this case did not ignore the rule that it is the employer’s burden to prove an unemployment compensation claimant committed misconduct connected with his employment. See Sheriff of Monroe Cnty. v. Unemployment Appeals Comm’n, 490 So.2d 961 (Fla. 3d DCA 1986); Sears, Roebuck & Co. v. Unemployment Appeals Comm’n, 463 So.2d 465 (Fla. 2d DCA 1985). Nor did the referee’s decision overlook the employer’s duty to demonstrate the drug test was conducted in conformity with the requirements of section 443.101(11), Florida Statutes. See Dann Ocean Towing, Inc. v. Fla. Unemployment Appeals Comm’n, 37 So.3d 968, 968 (Fla. 1st DCA 2010). Here, there was no erroneous conclusion of law reached by the appeals referee that would have authorized the commission to reject the referee’s conclusion and substitute its own correct conclusion of law. See § 120.57(1)(£), Fla. Stat (2010) (“The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction. ...”); Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1108 (Fla. 5th DCA 1990); Microfile, Inc. v. Williams, 425 So.2d 1218 (Fla. 2d DCA 1983). The appeals referee weighed all the evidence and found the employer’s testimony, when considered with claimant’s testimony that he failed the drug test and his use of marijuana was a “stupid mistake,” was sufficient evidence in light of all the evidence presented, that claimant “used or was using controlled substances.” In sum, the appeals referee concluded the claimant’s testimony contained an admission. Competent and substantial evidence (claimant’s testimony) supported the appeals referee’s finding and ultimate conclusion that the claimant committed misconduct by violating the employer’s drug free workplace policy. See Ford v. Se. Atl. Corp., 588 So.2d 1039 (Fla. 1st DCA 1991) (holding that an employee may be terminated for misconduct after only one positive drug test result). We hold the commission’s rejection of the appeals referee’s findings was an impermissible substitution of its own findings in place of those of the referee. For that reason, the final order of the Unemployment Appeals Commission is REVERSED.

VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Frederick LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1067.
    District Court of Appeal of Florida, First District.
    March 2, 2012.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR WRITTEN OPINION

PER CURIAM.

We grant appellant’s motion for written opinion, withdraw our opinion filed on December 21, 2011, and issue this opinion in its stead.

See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

AFFIRMED.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    S.D.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2969.
    District Court of Appeal of Florida, First District.
    March 2, 2012.

      Nancy A. Daniels, Public Defender; Steven L. Seliger and Glenna Joyce Reeves, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

S.D.G., a juvenile, appeals a delinquency disposition order committing him to a high-risk facility. The Department of Juvenile Justice’s (DJJ’s) recommendation was that S.D.G. be placed on probation with the requirement that he participate in a DAART assessment, participate in medication management, and participate in the Children’s Home Society Co-Morbidity group if not accepted into DAART. The State requested that S.D.G. be placed in a moderate-risk facility. S.D.G. argues that the trial court failed to comply with E.A.R. v. State, 4 So.3d 614 (Fla.2009), in deviating from the recommendation of the DJJ. We agree and reverse.

E.A.R. instructs that to lawfully depart from the recommendation of the DJJ, the trial court must:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

E.A.R., 4 So.3d at 638.

The trial court’s stated “reasons” for departing from the DJJ’s recommendation “must provide a legally sufficient foundation for ‘disregarding’ the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs[,] along with the risks that the unrehabilitated child poses to the public.”

C.C.T. v. State, 53 So.3d 1149, 1151 (Fla. 1st DCA 2011) (quoting E.A.R., 4 So.3d at 638).

In the instant case, the record supports the trial court’s belief that S.D.G. was a flight risk such that he would not receive the counseling he required outside of a secure location. However, the trial court failed to articulate an understanding of the various restrictiveness levels and to logically and persuasively explain why a high-risk facility was better suited to serving S.D.G.’s rehabilitative needs and the safety of the public. See id. Accordingly, we reverse and remand with instructions to enter an order in compliance with E.A.R. If no such order can be entered, we direct the trial court to impose the DJJ’s recommendation. See C.C.T., 53 So.3d at 1151; B.L.R. v. State, 74 So.3d 173, 177 (Fla. 1st DCA 2011).

REVERSED and REMANDED with directions.

THOMAS, ROBERTS, and ROWE, JJ„ concur.


text:
    Brian Sharard EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3261.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    STATE ex rel. Dalton B. ROGERS v. STATE of Louisiana.
    No. 2010-KH-2788.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Rogers, Dalton B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 07-CR-016064; to the Court of Appeal, Second Circuit, No. 45,993-KH.

Denied.


text:
    STATE of Louisiana v. Rodney R. SCOTT.
    No. 2011-K-1460.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Scott, Rodney R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court, No. 434441; to the Court of Appeal, First Circuit, No. 2011 KA 0012.

Denied.


text:
    Alfred DUPREE, et al. v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. 2011-C-2453.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Louisiana Medical Mutual Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 10-C2674; to the Court of Appeal, Third Circuit, No. 11-366.

Granted.


text:
    Ann BERNARD, et al. v. Antoinette ELLIS, et al.
    No. 2011-CC-2377.
    Supreme Court of Louisiana.
    Feb. 3, 2012.
   In re Imperial Fire & Casualty Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, New Orleans First City Court, No. 10-50054; to the Court of Appeal, Fourth Circuit, No. 2010-C-1495.

Granted.


text:
    STATE of Louisiana v. Willie WOOLRIDGE and Jeremy Jackson.
    No. 2012-KK-0317.
    Supreme Court of Louisiana.
    Feb. 7, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 489-552; to the Court of Appeal, Fourth Circuit, No. 2011-K-1624.

Writ granted. The ruling of the trial court denying the motion in limine is reversed, and the State is permitted to introduce the statements of the victim made to the Jefferson Parish Sheriffs Office, subject to a limiting instruction under La. C.E. art. 105 if requested by the defendants. The statements sought to be introduced are not inadmissible hearsay because they are not being offered for the truth of the matter asserted, i.e., that the individual identified by the victim committed the 2008 armed robbery. Rather, the statements are being offered for the purpose of establishing the defendants’ motive for killing the victim, i.e., retaliation for the victim’s cooperation with law enforcement authorities regarding the armed robbery case.


text:
    Bonnie TAMPLIN v. Stephanie DAWSON.
    No. 2012-CJ-0161.
    Supreme Court of Louisiana.
    Feb. 8, 2012.
   In re Coln, Stephanie Dawson; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2010-17160; to the Court of Appeal, First Circuit, No. 2011 CW 1740.

Denied.


text:
    STATE of Louisiana v. Lawrence JACOBS.
    No. 2011-K-1753.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Jacobs, Lawrence; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 96-7161; to the Court of Appeal, Fifth Circuit, No. 07-KA-887.

Denied.

KNOLL, J., recused.


text:
    STATE of Louisiana v. Wayne WILSON.
    No. 2011-K-1978.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Wilson, Wayne; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 493-006; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1604.

Denied.


text:
    STATE of Louisiana v. Kendall GORDON.
    No. 2011-K-2038.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Gordon, Kendall; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 492-470; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1286.

Denied.


text:
    STATE of Louisiana v. Jomo CARTER.
    No. 2011-KO-2060.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Carter, Jomo; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 09-2752; to the Court of Appeal, Fifth Circuit, No. 10-KA-973.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Eric L. BOLTON.
    No. 2011-KO-2061.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Bolton, Eric L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 484145; to the Court of Appeal, First Circuit, No. 2011 KA 0329.

Denied.


text:
    STATE of Louisiana v. Terrell HOLMES.
    No. 2011-K-2113.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Holmes, Terrell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 488-362; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1203.

Denied.


text:
    STATE ex rel. Arthur WALKER v. STATE of Louisiana.
    No. 2009-KH-1535.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Walker, Arthur; — Plaintiff; Applying for Reconsideration of this Court’s action dated April 13, 2010; Parish of Jefferson, 24th Judicial District Court Div. I, No. 00-5967; to the Court of Appeal, Fourth Circuit, No. 09-KH-277.

Reconsideration denied.


text:
    STATE of Louisiana v. Kimberlin EDWARDS.
    No. 2011-KO-2120.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Edwards, Kimberlin; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 458,662; to the Court of Appeal, First Circuit, No. 2011 KA 0447.

Denied.


text:
    STATE ex rel. Samuel Tyrone JEFFERS v. STATE of Louisiana.
    No. 2010-KH-1753.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Jeffers, Samuel Tyrone; — Plaintiff; Applying for Reconsideration of this Court’s action dated August 19, 2011; Parish of Caddo, 1st Judicial District Court Div. 2, No. 156,667; to the Court of Appeal, Second Circuit, No. 45,713-KH.

Denied.


text:
    STATE ex rel. Adam FRANK, Jr. v. STATE of Louisiana.
    No. 2010-KH-1870.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Frank, Jr., Adam; — Defendant; Applying for Reconsideration of this Court’s action dated September 16, 2011; Parish of St. Landry, 27th Judicial District Court, Div. B, No. 03K0233; to the Court of Appeal, Third Circuit, No. KH 10-00499.

Denied.


text:
    Carl R. GUIDRY, et ux. v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 2011-C-2470.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Progressive Security Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 20055487-K; to the Court of Appeal, Third Circuit, No. 11-262.

Denied.

VICTORY, J., would grant.


text:
    Pamela Marinovich SHORT v. David Allen SHORT.
    No. 2011-C-2635.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Short, Pamela Marinovich; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 627-792; to the Court of Appeal, Fifth Circuit, No. ll-CA-3.

Denied.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2010-KH-2028.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lay, Richard; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 16, 2011; Parish of St. Tammany, 22nd Judicial District Court, Div. F, Nos. 130364, 131275; to the Court of Appeal, First Circuit, No. 2010 KW 0795.

Rehearing denied.

WEIMER, J., recused.


text:
    STATE ex rel. Arlen BROWN v. STATE of Louisiana.
    No. 2010-KH-2144.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Brown, Arlen — Plaintiff; Applying for Reconsideration of this Court’s action dated September 30, 2011; Parish of Ascension, 23rd Judicial District Court Div. A, No. 10949, to the Court of Appeal, First Circuit, No. 2010 KW 0703.

Reconsideration denied.


text:
    STATE ex. rel. Felix A. PRICE v. STATE of Louisiana.
    No. 2010-KH-2206.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Price, Felix A.; Plaintiff; Applying for Reconsideration of this Court’s action dated October 7, 2011; Parish of Orleans, Criminal District Court Div. F, No. 269-823.

Reconsideration denied.


text:
    STATE of Louisiana v. Michael HARRELL.
    No. 2010-KO-1377.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Harrell, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 05-4740; to the Court of Appeal, Fifth Circuit, No. 09-KA-364.

Denied.


text:
    STATE ex rel. Donald R. BROWN v. STATE of Louisiana.
    No. 2010-KH-1820.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Brown, Donald R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 08-95-0613; to the Court of Appeal, First Circuit, No. 2010 KW 0960.

Denied.

WEIMER, J., recused.


text:
    Leila WELLS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Madison Parish Law Enforcement District, Charles R. Harmon, Jr. (Sued in Official Capacity) and E.A. Conway Medical Center.
    No. 2011-C-2637.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Wells, Leila; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. A, No. 96-127; to the Court of Appeal, Second Circuit, No. 46,428-CA.

Denied.


text:
    STATE ex rel. Darrol B. BROWN v. STATE of Louisiana.
    No. 2010-OK-1907.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Brown, Darrol B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 261,509; to the Court of Appeal, Third Circuit, No. 10-856-KH.

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


text:
    STATE ex rel. Edward ODOM, Jr. v. STATE of Louisiana.
    No. 2011-KH-0357.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Odom Jr., Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 412925; to the Court of Appeal, First Circuit, No. 2009 KW 2068.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Frederic Lubron BIRGANS.
    No. 2011-KO-0496.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Birgans, Frederic; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. K, No. 09-F0298; to the Court of Appeal, Second Circuit, No. 45,952-KA.

Denied.


text:
    STATE ex rel. Terrance POLK v. STATE of Louisiana.
    No. 2011-KH-0523.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Polk, Terrance; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 07-2858; to the Court of Appeal, Fifth Circuit, No. 11-KH-19.

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


text:
    STATE ex rel. Malcolm McKENDALL v. STATE of Louisiana.
    No. 2011-KH-0530.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re McKendall, Malcolm; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, Nos. 404980, 363817; to the Court of Appeal, First Circuit, Nos. 2010 KW 2014, 2010 KW 2186.

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


text:
    STATE ex rel. Robert M. SKIPPER v. STATE of Louisiana.
    No. 2011-KH-0793.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Skipper, Robert M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 19644; to the Court of Appeal, Second Circuit, No. 46,-413-KH.

Denied.


text:
    STATE ex rel. Dwayne P. BUTLER v. STATE of Louisiana.
    No. 2011-KH-0795.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Butler, Dwayne P.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 06-5453; to the Court of Appeal, Fifth Circuit, No. 11-K-190.

Denied.


text:
    STATE ex rel. Jackie GREEN v. STATE of Louisiana.
    No. 2011-KH-0801.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Green, Jackie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 489,279; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0454.

Denied.


text:
    STATE ex rel. Timothy TAYLOR v. STATE of Louisiana.
    No. 2011-KH-0943.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Taylor, Timothy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 99CR2531; to the Court of Appeal, Second Circuit, No. 46530-KH.

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


text:
    STATE ex rel. Jerome J. HAYDEN v. STATE of Louisiana.
    No. 2011-KH-0944.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Hayden, Jerome J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 380-122; to the Court of Appeal, Fourth Circuit, No. 11-K-358.

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


text:
    Shaun STECKLER and Marianne Steckler Individually and on Behalf of the Minor Children, Brayden Steckler and Tristan Steckler v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. 2011-C-2639.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lafayette Consolidated Government; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2009-2159; to the Court of Appeal, Third Circuit, No. 11-427.

Denied.


text:
    STATE ex rel. Darryl TATE v. STATE of Louisiana.
    No. 2011-KH-0945.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Tate, Darryl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 282-121; to the Court of Appeal, Fourth Circuit, No. 2011-K-0351.

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


text:
    STATE ex rel. Jerry L. BUTLER v. STATE of Louisiana.
    No. 2011-KH-0964.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Butler, Jerry L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, to the Court of Appeal, Fifth Circuit, No. ll-KH-181.

Denied.


text:
    STATE ex rel. Johnny WILLIAMS, Jr. v. STATE of Louisiana.
    No. 2011-KH-0965.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Williams Jr., Johnny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 06-F-2694-4; to the Court of Appeal, Second Circuit, No. 46,374-KH.

Denied.


text:
    STATE ex rel. Earl THOMAS v. STATE of Louisiana.
    No. 2011-KH-0976.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Thomas, Earl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 06-85-0308; to the Court of Appeal, First Circuit, No. 2011 KW 0137.

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


text:
    Nancy ROBINSON v. CALCASIEU PARISH SCHOOL BOARD.
    No. 2011-C-2641.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Calcasieu Parish School Board;— Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Compensation, No. 09-7555; to the Court of Appeal, Third Circuit, No. 11-615.

Denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Donald LOGAN v. STATE of Louisiana.
    No. 2011-KH-0977.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Logan, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 03-4506; to the Court of Appeal, Fifth Circuit, No. 11-KH-214.

Denied.


text:
    STATE ex rel. Willie D. WASHINGTON v. STATE of Louisiana.
    No. 2011-KH-0978.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Washington, Willie D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 95F0081; to the Court of Appeal, Second Circuit, No. 46,-509-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    Sherry JULIAN-ROBINSON v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2011-C-2643.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lafayette Parish School Board;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2011-0363; to the Court of Appeal, Third Circuit, No. CA 11-712.

Denied.


text:
    STATE ex rel. David Wayne POYDRAS v. STATE of Louisiana.
    No. 2011-KH-0979.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Poydras, David Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 52685; to the Court of Appeal, Third Circuit, No. CR87-224.

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

KNOLL, J., recused.


text:
    STATE ex rel. Terry W. JONES v. STATE of Louisiana.
    No. 2011-KH-1014.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Jones, Terry Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2007-0329; to the Court of Appeal, Third Circuit, No. CW 11-00481.

Denied.


text:
    In re Medical Review Panel of Roger TYLER and Saundra Tyler.
    No. 2011-CC-2644.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Christus Health Southwestern Louisiana d/b/a Christus St. Patrick Hospital; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. F, No. 2011-1910; to the Court of Appeal, Third Circuit, No. CW 11-00909.

Denied.


text:
    Angie BROWN v. SHOP RITE, INC.
    No. 2011-C-2647.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Shop Rite, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, No. 10-00760; to the Court of Appeal, Third Circuit, No. 11-727.

Denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Bobby DANTZLER v. STATE of Louisiana.
    No. 2011-KH-1017.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Dantzler, Bobby; — Plaintiff; Applying For Supervisory arid/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, Nos. 332-191, 333-873; to the Court of Appeal, Fourth Circuit, No. 2010-K-1373.

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


text:
    Timothy CORMIER v. McNEESE STATE UNIVERSITY.
    No. 2011-CC-2649.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re McNeese State University; State of Louisiana, Board of Supervisors/Trustees for Colleges and Universities; — Defendants); Applying For Supervisory and/or Remedial Writs Office Workers’ Compensation District 03, No. 10-11131; to the Court of Appeal, Circuit, No. CW 11-00756.

Denied.

GUIDRY and CLARK, JJ., would grant.


text:
    Robert G. NUGENT, et ux. v. J & A AUTO SUPPLY, INC., et al.
    No. 2011-C-2650.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re American Economy Insurance; Safeco Insurance Company; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 233,999; to the Court of Appeal, Third Circuit, No. 11-693.

Denied.

CLARK, J., would grant.


text:
    STATE ex rel. Jacob Broody COMARDELLE v. STATE of Louisiana.
    No. 2011-KH-1018.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Comardelle, Jacob Broody; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 438525; to the Court of Appeal, First Circuit, No. 2010 KW1270.

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


text:
    LAROSE SCRAP & SALVAGE, INC. v. LONG ISLAND LAND & DEVELOPMENT COMPANY, L.L.C.
    No. 2011-CC-2651.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Long Island Land & Development Company, L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. D, No. 03-80825; to the Court of Appeal, Third Circuit, No. CW 11-00813.

Denied.


text:
    STATE ex rel. Ricardo M. MADINA v. STATE of Louisiana.
    No. 2011-KH-1019.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Madina, Ricardo M.; — Plaintiff; Applying For Supervisory; and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 377-676; to the Court of Appeal, Fourth Circuit, No. 2011-K-0505.

Denied.


text:
    STATE of Louisiana v. Cecil MARTIN.
    No. 2011-KK-2656.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Martin, Cecil; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 502-729; to the Court of Appeal, Fourth Circuit, No. 2011-K-1109.

Denied.


text:
    STATE ex rel. Randall Steven BASCO v. STATE of Louisiana.
    No. 2011-KH-1022.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Basco, Randall Steven; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 379568; to the Court of Appeal, First Circuit, No. 2010 KW 2362.

Denied.


text:
    Travis Jerod RICHARDSON v. Jerry GOODWIN, Warden David Wade Correctional Center, Brenda Acklin and James LeBlanc, Secretary, Louisiana Department of Corrections.
    No. 2011-CI-1023.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Richardson, Travis Jerod; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 573-742; to the Court of Appeal, First Circuit, No. 2010 CA 1320.

Denied.


text:
    Roy L. PILKINTON and Amy H. Pilkinton v. ASHLEY ANN ENERGY, L.L.C. Chesapeake Operating, Inc.
    No. 2011-C-2657.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Ashley Ann Energy L.L.C. et al; Chesapeake Operating Inc.; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial' District Court Div. B, No. 128,265; to the Court of Appeal, Second Circuit, No. 46,650-CA.

Denied.

VICTORY, J., recused.


text:
    STATE ex rel. Deyton MARTINEZ v. STATE of Louisiana.
    No. 2011-KH-1024.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Martinez, Deyton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 06-1661; to the Court of Appeal, Fifth Circuit, No. 11-KH-303.

Denied.


text:
    STATE ex rel. Timothy ROBERTSON v. STATE of Louisiana.
    No. 2011-KH-1026.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Robertson, Timothy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 05-01-0148; to the Court of Appeal, First Circuit, No. 2011 KW 0194.

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


text:
    Ronnie R. CEASAR v. Mike and Connie WILTZ.
    No. 2011-CC-2660.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Ceasar, Ronnie R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 11 — C—3561; to the Court of Appeal, Third Circuit, No. CW 11-01315.

Denied.


text:
    STATE ex rel. Quantrell CAGER v. STATE of Louisiana.
    No. 2011-KH-1027.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Cager, Quantrell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 380-954; to the Court of Appeal, Fourth Circuit, No. 2011-K-0289.

Denied.


text:
    STATE ex rel. Stanley COSTON v. STATE of Louisiana.
    No. 2011-KH-1032.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Coston, Stanley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 403628; to the Court of Appeal, Fourth Circuit, No. ll-K-460.

Denied.


text:
    Edna WILSON v. BANK OF AMERICA d/b/a Bank of America Mortgage and/or State Street Bank and Trust Company.
    No. 2011-C-2671.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Wilson, Edna; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2001-8611; to the Court of Appeal, Fourth Circuit, No. 2011-CA-392.

Denied.


text:
    STATE ex rel. Claude HULIN v. STATE of Louisiana.
    No. 2011-KH-1033.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Hulin, Claude; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 246759; to the Court of Appeal, First Circuit, No. 2010 KW 2315.

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


text:
    STATE ex rel. Lionel R. COLLINS v. STATE of Louisiana.
    No. 2011-KH-1034.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Collins, Lionel R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 02-6609; to the Court of Appeal, Fifth Circuit, No. 11-KH-251.

Denied.


text:
    Bobby ABSHIRE, et al. v. CONTINENTAL CASUALTY COMPANY, et al.
    No. 2011-C-2674.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Abshire, Billy; Abshire, Bobby et al.; Abshire, Danny; Abshire, Hubert; Abshire, Janet; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. G, No. 84656; to the Court of Appeal, Third Circuit, No. 11-655.

Denied.


text:
    STATE ex rel. Demarcus ALEXANDER v. STATE of Louisiana.
    No. 2011-KH-1043.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Alexander, Demarcus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, Nos. 1-08-633, 2-08-0061; to the Court of Appeal, First Circuit, No. 2011 KW 0316.

Denied.


text:
    Shaun STECKLER and Marianne Steckler Individually and on Behalf of the Minor Children, Brayden Steckler and Tristan Steckler v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. 2011-C-2677.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Steckler, Marianne; Steckler, Shaun et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2009-2159-D; to the Court of Appeal, Third Circuit, No. 11-427.

Denied.


text:
    STATE ex rel. Jessie Lee MARTIN v. STATE of Louisiana.
    No. 2011-KH-1054.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Martin, Jessie Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 04725F; to. the Court of Appeal, Second Circuit, No. 46,-539-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Johnny J. GREEN v. STATE of Louisiana.
    No. 2011-KH-1055.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Green, Johnny J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 358-127; to the Court of Appeal, Fourth Circuit, No. 2011-K-0470.

Denied.


text:
    ACADIAN GAS PIPELINE SYSTEM v. Pierce Dalton NUNLEY and Susan Moody Nunley.
    No. 2011-C-2680.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Nunley, Pierce Dalton et al.; Nun-ley, Susan Moody; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 71266; to the Court of Appeal, Second Circuit, No. 46,648-CA.

Denied.


text:
    Everette DAVIS, Jr., et ux. v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2011-C-2681.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Davis et ux. Jr., Everette; Davis, Sheila Creel; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Catahoula, 7th Judicial District Court Div. A, No. 19,677; to the Court of Appeal, Third Circuit, No. 11-0625.

Denied.


text:
    Arthur WALLER, et al. v. STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS.
    No. 2011-C-2692.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Department of Health and Hospitals; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rap-ides, 9th Judicial District Court Div. G, No. 228,496; to the Court of Appeal, Third Circuit, No. 11-643.

Denied.

VICTORY, J., would grant.


text:
    Walter DAVIS, III v. RALEY BROTHERS, L.L.C.
    No. 2011-CC-2695.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Raley Brothers L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 41,004; to the Court of Appeal, Third Circuit, No. CW 11-00915.

Denied.


text:
    Johnnie BRADLEY and Barry Bradley v. 1 SUBWAY, LLC, Assurance Company of America, SGA Investments, LLC and XYZ Insurance Company.
    No. 2011-CC-2696.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re 1 Subway, LLC et al.; Assurance Company of America; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 534,559; to the Court of Appeal, Second Circuit, No. 46,-944-CW.

Denied.

VICTORY, J., would grant.


text:
    M.A. PATOUTE & SON, LTD. v. FACTORY SALES AND ENGINEERING, INC.
    No. 2011-CC-2700.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Houston Casualty Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. D, No. 111,623; to the Court of Appeal, Third Circuit, No. CW 11-00876.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Sarah Richards BUCK v. DEUTSCHE BANK, as trustee for Long Beach Mortgage Loan Trust 2003-2, Washington Mutual Bank, F.A., Long Beach Mortgage Loan Company, and Dean Morris, LLP.
    No. 2011-C-2708.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Buck, Sarah Richards; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. I, No. 98407; to the Court of Appeal, First Circuit, No. 2010 CA 1653.

Denied.


text:
    STATE of Louisiana v. Manuel SCOTT.
    No. 2011-KK-2712.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Scott, Manuel; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 103868; to the Court of Appeal, First Circuit, No. 2011 KW 1883.

Denied.


text:
    Geraldine GUILLORY and Linus Guillory v. OUTBACK STEAKHOUSE OF FLORIDA, INC., and Joey Gannard, d/b/a Outback Steakhouse.
    No. 2011-C-2811.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Joey Gannard, d/b/a Outback Steakhouse; Outback Steakhouse of Florida, Inc., et al; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 551,235; to the Court of Appeal, First Circuit, No. 2010 CA 1929.

Denied.

VICTORY, J., would grant.


text:
    ABC BUILDING CONTRACTORS, INC. v. WESTBANK PROFESSIONAL BUILDING PARTNERSHIP, et al.
    No. 2011-C-2812.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lindstrom Cleaning and Construction Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2006-4565; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0747.

Denied.


text:
    ABC BUILDING CONTRACTORS, INC. v. WESTBANK PROFESSIONAL BUILDING PARTNERSHIP, et al.
    No. 2011-C-2816.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re ABC Building Contractors, Inc.; American Building Contractors, Inc.;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2006-Í565; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0747.

Denied.


text:
    STATE of Louisiana v. Gaylord LEE.
    No. 2011-KK-2819.
    Supreme Court of Louisiana.
    Feb. 10, 2012.
   In re Lee, Gaylord; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 06 — 11— 0500; to the Court of Appeal, First Circuit, No. 2011 KW 1717.

Denied.


author: MOORE, J.

text:
    Kristy Eloise DAVENPORT, et al., Plaintiff-Appellants v. Beverly GILES, et al., Defendant-Appellees.
    No. 46,606-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Rice & Kendig, Shreveport, LA, by J. Marshall Rice, Marshall Carl Rice, William Fabian Kendig, Jr., for Appellants.
    Wiener, Weiss & Madison, Shreveport, LA, by Frank H. Spruiell, Jr., for Appel-lees.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

|/The plaintiffs 13-year-old daughter and her two friends stood up in the bed of the pickup truck operated by the defendant as they were preparing to leave the parking lot of the Tinseltown movie theater in Shreveport. When the defendant accelerated the vehicle forward, plaintiffs daughter fell out of the truck and sustained injuries. After a bench trial, the court found that the defendant “improvidently accelerated” the vehicle, causing plaintiffs daughter to suffer a hematoma or “bump on the head.” He awarded the plaintiff $3,000 in general damages and $6,554.10 for the cost of most, but not all, of the medical expenses incurred. The plaintiff appeals both the general and special damage awards, contending that the lowest reasonable amount of general damages that the court could have awarded is $12,000, and the court should have awarded $7,730.10 in medical charges, plus $66.23 for medical record charges.

After review, we amend the special damages award, and, as amended, affirm.

FACTS

After viewing a movie at Tinseltown with his girlfriend and his roommate, Cody Williams met up in the theater parking lot with his 13-year-old sister, Caitlyn, and her two friends, Nicole Loscialo and Kelly Brehmer, ages 12 and 13, respectively. Once they were in the bed of the truck, they suddenly stood up when they saw their friend, Farrah Gapes, just as Williams moved the vehicle forward. One of the girls, Kelly Brehmer, fell out of the truck, striking her head on the pavement. Kelly’s [2mother and grandmother were contacted. When they arrived at the parking lot, they took Kelly to the Willis-Knighton Pierremont Emergency Room, where she was examined and treated by the emergency room physician, who ordered a CT scan. The CT scan came back normal, and he released Kelly to go home after approximately one hour and twenty minutes.

Four days later, on November 18, 2008, Kelly went to her primary care physician, Dr. Melita Williams d/b/a Healing Hands Family Medicine, complaining of a slight headache and slight ache in her upper back and neck. Kelly reported no memory loss, vision problems, dizziness or weakness in her arms or legs. Dr. Williams noted that she appeared healthy and in no distress. Kelly’s head and upper back (trapezius) were mildly tender to palpation and there was mild discomfort at the extremes of range in neck motion. She recommended moist heat and stretching for her neck and prescribed a muscle relaxer and anti-inflammatory drug for pain and inflammation.

Three weeks later, on December 9, 2008, Kelly went to see Dr. Eubulus Kerr, III, of the Spine Institute of Louisiana, where Kelly’s mother was employed. Kelly complained of neck, back, shoulder and arm pain and headaches in the area of contact with the pavement. Dr. Kerr assessed these complaints as symptomatic of cervical radiculopathy and he ordered an MRI of her cervical spine and an EMG of her left upper extremity. Both the |HMRI and EMG were normal. The report dated January 6, 2009, regarding the EMG test by Dr. David Adams was that there was no electrodiagnostic evidence of radiculopa-thy, neuropathy, myopathy, brachial plexo-pathy, ulnar neuropathy or carpal tunnel syndrome. Dr. Kerr enrolled Kelly in a physical therapy program and referred her to Dr. John David Googe for assessment of the MRI results and her shoulder.

Kelly reported to Dr. Googe on January 12, 2009 that she had pain in her left shoulder that really bothered her and prevented her from doing the activities she liked such as cheerleading and gym class. The MRI results were normal. Dr. Googe’s assessment was that her pain was caused by scapulothoracic dyskinesis, and he ordered scapulothoracic rehab added to her cervical spine protocol (physical therapy)-

Kelly did not report to physical therapy until March 19, 2009, over two months later. She then missed her next two sessions. Although she was scheduled to attend three sessions per week for four weeks for a total of 12 sessions, she attended only one more session. After that session on March 24, 2009, she was discharged after reporting that she had no complaints of pain or limitations in her abilities to perform the physical requirements of her lifestyle.

Kelly had a follow-up visit with Dr. Kerr on January 14, 2010 and reported mild cervical pain. She said her shoulder pain was better but had no severe pain and her headaches had resolved.

At trial, Kelly testified that she went to physical therapy only two times because they told her she did not need to come back. She said she 14still has headaches and some neck pain and shoulder pain, but that it has gotten better. She stated that Dr. Googe and Dr. Kerr told her not to do cheerleading anymore; however, she was a member of the pep squad at Captain Shreve. She said she did try out for cheerleading but did not make the cut. Kelly said she did not really want to do cheerleading but her mother wanted her too. She said she was afraid of people falling on her.

Under cross-examination, Kelly admitted that she told Dr. Williams that she only had mild discomfort in her neck when she visited her 4 days after the accident. Dr. Kerr sent her to physical therapy, but she did not go until 2 months later and told the therapist she was not having any problems. She also admitted that she told Dr. Williams in her follow-up that she was not having any problems.

Kristy Davenport, who is Kelly’s mother and the plaintiff in this case, now lives in Plano, Texas, and is employed as an office manager for an orthopedic group. At the time of the accident, however, she was employed by Orthopedic Specialists in the front office checking in patients. She brought her daughter to be treated at this clinic (Dr. Kerr and Dr. Gouge) and the associated chiropractic clinic, Spine Specialists. She testified that the accident caused Kelly to gain 50 pounds in four weeks since the accident, and caused her to quit cheerleading, and she had difficulty carrying her book sack.

Dr. Melita Williams testified that she treated Kelly about 3 or 4 days after the incident for the head and neck pain. She prescribed medication. She had been treating Kelly for ADHD with Adderall for several years. She | fisaid she recommended that Kelly go to a chiropractor, but did not follow up on it. Her primary treatment of Kelly involved ADHD. Dr. Williams attributed part of the pre-acci-dent weight gain to the fact that Kelly had grown 2 inches in height during the weight gain period.

After trial, the court stated that it had credibility problems with virtually everyone who testified. Although the liability issue was hotly contested, with conflicting testimony among the witnesses regarding the accident, the court concluded that Cody Williams was at fault when he improvidently accelerated the truck which caused Kelly to fall out. He concluded that Kelly suffered a hematoma and some soreness of a duration of one month, and he characterized the remaining medical treatment as likely overtreatment, but not under fraudulent circumstances. He awarded special damages to cover the costs for the hospital emergency room visit, the visit to Dr. Melita Williams and the first consultation with Dr. Kerr totaling $6,554.10, and he awarded $3,000 in general damages against the defendant, Progressive Security Insurance Company.

Discussion

The plaintiff appeals the amounts awarded by the court for general and special damages, contending that the trial court abused its discretion and made factual findings that were clearly wrong. Specifically, the plaintiff raises the following six assignments of error:

(1) the record does not provide a reasonable factual basis to support the court’s finding that the plaintiff overtreated for her injuries;

(2) the record provides no reasonable factual basis to support ajsfinding that the plaintiffs injury duration was one month;

(3) the record provides no factual basis to support the credibility determination made against Dr. Melita Williams, an expert in family medicine;

(4) the record provides no factual basis for the credibility determinations of the plaintiff and her minor daughter regarding medical treatment and injuries;

(5) the district court erred as a matter of law in failing to award reasonable general damages; and,

(6) the district court erred as a matter of law in failing to award all special damages claimed.

The first four assignments of error pei*-tain to factual findings and credibility determinations made by the trial court regarding the treatment and duration of Kelly’s injuries resulting from the accident. Our standard of review for factual findings and credibility determinations is well-settled: an appellate court may reverse the findings of the trial court only when a reasonable factual basis does not exist for the finding and the finding is clearly wrong or manifestly in error. Stobart v. State, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, 37,395 (La.App. 2 Cir. 8/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137, Thomson v. Thomson, 34,353 (La.App. 2 Cir. 1/24/01), 778 So.2d 736. Though an appellate court may surmise that its own evaluations and inferences are reasonable, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable ^inferences of fact should not be disturbed upon review. Goings v. State, 94-1386 (La.1/17/95), 648 So.2d 884; Pope v. Prunty, supra; Thomson v. Thomson, supra. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact’s findings, for only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Where a factfinder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845; Thomson, 778 So.2d at 738.

The task of the reviewing court is not to assess whether the trial court’s factual findings are right or wrong in an absolute sense, nor to determine whether the court of appeal or another trier of fact might reasonably reach a different conclusion from the same evidence, but solely to ask whether this factfinder’s resolution of the conflicting evidence was reasonable in light of the record as a whole. See Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

After finding that the cause of the accident was the improvident acceleration by Cody Williams, the trial judge concluded that the evidence showed that Kelly suffered “a hematoma and a little soreness” of a month’s duration, but that she was not seriously injured. Specifically, the court noted that Kelly went to Dr. Williams four days after the accident, and there was no objective indication of injury except for the hematoma and Kelly’s |sreport that she was slightly sore. He observed that Kelly’s mother let her return to Caitlyn’s house in a few days or couple of weeks and allowed her to spend the night there again and miss school.

The plaintiff contends that the record does not provide a reasonable basis for the trial court’s findings of fact regarding the extent of Kelly’s injuries and their duration. She contends that the record shows that Kelly obtained medical treatment for over one year in which she complained of neck, head, back and shoulder pain. The defendants, she argues, did not challenge the medical testimony (Dr. Williams) with regard to her treatment and stipulated that Dr. Williams was an. expert in family medicine. The plaintiff also notes that both she and Kelly testified regarding the difficulties experienced after the accident, including Kelly’s weight gain and her decision to quit cheerleading.

We have reviewed the entire record in this case, including the transcript of testimony of all witnesses and the medical records submitted into evidence. We conclude that the medical record supports the trial court’s finding that there was no objective evidence of injury beyond the scalp hematoma and soreness in Kelly’s upper back. Although Kelly reported pain in her neck, back and shoulder, and headaches to Dr. Kerr three weeks after the accident, the MRI and EMG test results were normal and did not show objective evidence of a pinched nerve (cervical radiculopathy). Dr. Kerr sent her to physical therapy, but she did not report for her first session for over two months. She saw Dr. Googe in January and reported “achy pain” in her shoulder, but her MRI was normal. Dr. Googe l9diagnosed scapulothoracic dyski-nesis and ordered a physical therapy regimen added to the protocol of therapy for treatment of cervical radiculopathy that Kelly had not yet started. When Kelly did finally attend physical therapy, she went to one session, skipped two, then went in and reported that she had no pain or problems performing her activities.

We conclude that the record supports the conclusion reached by the trial court that the duration of Kelly’s injury that required medical treatment was approximately one month. Even though Kelly went to see Drs. Kerr and Googe and returned to Dr. Williams once complaining of some pain in her upper back, neck and shoulder, there was no objective evidence of damage from the tests performed. We also note that, although the court stated that the first consultation with Dr. Kerr “may be overtreatment,” the judge did not actually reach the conclusion that it was overtreatment and stated that there was no fraudulent intent. We conclude, therefore, that plaintiffs first two assignments of error are without merit.

On the other hand, we agree with plaintiffs assignment of error that the trial court erred as a matter of law in failing to award all special damages claimed. A plaintiffs recovery of medical charges must be confined to those expenses related to the accident. Beasley v. Yokem Toyota, 33,805 (La.App. 2 Cir. 8/23/00), 767 So.2d 149; Harper v. Garda, 32,142 (La.App. 2 Cir. 8/18/99), 739 So.2d 996. However, a tortfeasor is required to pay for the cost of overtreatment or unnecessary medical treatment unless the overtreatment was incurred by the victim in bad faith. Beasley v. Yokem Toyota, supra; White v. Wal-Mart Stores, Inc., 32,621 (La.App. 2 Cir. 3/3/00), 753 So.2d 995. A jury is in error for failure to award the full amount of medical expenses proved by a victim. Beasley v. Yokem Toyota; Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2 Cir.1993). Inasmuch as the court found no fraudulent intent in this case, the trial court erred as a matter of law in failing to award special damages for all medical expenses related to this injury, including the cost of medical reports.

By her third, fourth, and fifth assignments of error, the plaintiff contends that the record provides no factual basis to support the credibility determinations made against Dr. Melita Williams, an expert in family medicine, and the credibility determinations of the plaintiff and her minor daughter regarding medical treatment and injuries, and that the district court erred as a matter of law in failing to award reasonable general damages.

Our review of the trial court’s oral reasons indicate that the trial court stated that it had credibility problems with virtually everyone who testified at trial. Dr. Williams, the plaintiff and her daughter were among the witnesses called to testify at trial; however, neither the trial court nor the plaintiff indicate exactly what testimony the court found not to be credible.

The principle that questions of credibility are for the trier of fact to resolve applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Cain v. Cain, 39,903 (La.App. 2 Cir. 5/11/05), 903 So.2d 590, writ denied, 2005-1517 (La.6/15/05), 904 So.2d 679, cert. denied, 546 U.S. 978, 126 S.Ct. 563, 163 L.Ed.2d 462 (2005); Bonnette v. Conoco Inc., 2001-2767 (La.1/28/03), 837 So.2d 1219. After h weighing and evaluating expert and lay testimony, the district court may accept or reject the opinion expressed by any expert. The weight given to expert testimony depends on the professional qualifications and experience of the expert and the facts upon which the opinion is based. Jones v. Jones, 38,790 (La.App. 2 Cir. 6/25/04), 877 So.2d 1061; Verret v. Verret, 34,982 (La.App. 2 Cir. 5/9/01), 786 So.2d 944.

Dr. Melita Williams testified regarding her medical treatment of Kelly Brehmer. The evidence file also contains the medical records of her treatment of Kelly for the injury sustained on November 14, 2008, as well as the medical records of several other office visits before and after the accident. Dr. Williams stated that the injury Kelly sustained could affect her ability to participate in activities such as cheerlead-ing or sports due to postconcussive syndrome. However, she admitted to the court, when questioned by the trial judge, that there was no evidence of concussion or brain injury. Regarding Kelly’s weight gain, Dr. Williams said Kelly’s changes in ADHD medication, problems in mood and depression, and reduced activity could contribute to weight gain. On cross-examination, Dr. Williams noted that although Kelly had gained 24 pounds between March 24, 2008 and the accident, she had grown 2 inches during that period. She agreed that the substantial weight gain during the summer of 2009 was possibly the result of going off Adderall. Finally, she agreed that there are many possible factors that led to the weight gain.

Kelly’s mother, Kristy Davenport, testified that the accident caused Kelly to cease cheerleading and all activities resulting in her gaining 50 Impounds and losing her self-esteem. She stated that her daughter still complains of neck pain.

As previously noted, Kelly testified that she tried out for the cheerleading squad after the accident, but did not make the cut. She stated that she really did not want to participate in cheerleading any more because she was afraid that she would hurt herself. Kelly did not remember what she told Dr. Williams regarding her pain on November 18, 2008, although she said that her neck and back hurt. She had no explanation for why she did not go to physical therapy for 2 months after Dr. Kerr recommended her to go. She admitted that she went to spend the night at Caitlyn’s a week or two after the accident and did not mention any physical complaints.

After reviewing the testimony of the three witnesses, we conclude that the trial court was not clearly wrong in its finding that the damages Kelly suffered were of one month’s duration. The court apparently did not find that the accident caused Kelly to stop her cheerleading, nor was it the cause of her weight gain.

The trier of fact is given great and even vast discretion in setting general damage awards, and an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 628 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 879 (1994). The initial inquiry in appellate review of general damages is “whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Youn, 623 So.2d at 1260.

113Only when the award is in either direction beyond that which a reasonable trier of fact could have assessed for the effects of the particular injury on the particular plaintiff under the particular circumstances should the appellate court reduce or increase the award. Youn, 623 So.2d at 1261. The award may then be raised or lowered only to the highest or lowest point reasonably within the discretion of the trier of fact. Orea v. Scallan, 32,622 (La.App. 2 Cir. 1/26/00), 750 So.2d 483. An appellate court should view the evidence in the light most favorable to the plaintiff in deciding whether an award is excessive. O’Brien v. Remington Arms Co., 601 So.2d 330 (La.App. 2 Cir.1992), writ denied, 604 So.2d 1003 (La.1992). If an articulated factual analysis shows an abuse of discretion by the trier of fact, then the appellate court may look to prior awards to determine the highest or lowest point within the trier of fact’s discretion. Youn, 623 So.2d at 1260.

The appellant suggests that the lowest reasonable award for general damages is $12,000 based upon the award in Smith v. Ebey, 2004-889 (La.App. 3 Cir. 12/29/04), 896 So.2d 143, which awarded that amount of general damages for a plaintiff with a six-month soft tissue injury.

Although the award in this instance is at the lower end of the spectrum, because we find that the trial court was not clearly wrong in its conclusion that the plaintiff suffered only a hematoma and soreness of about one month’s duration, we conclude that the trial court did not abuse its discretion in awarding general damages of $3,000.

Accordingly, this assignment is without merit.

1^Conclusion

For the foregoing reasons, we amend and increase the judgment awarding special damages against Progressive Security Insurance Company to $7,730.10 plus $66.23 medical record charges. In all other respects, the judgment is affirmed. Each party shall bear its own costs.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . There were several conflicting accounts at trial regarding whether the other two girls were seated in the back of the pickup and then stood up when Kelly spotted Farrah Gapes.

      . Cervical radiculopathy is the damage or disturbance of nerve function that results if one of the nerve roots near the cervical vertebrae is compressed. Damage to nerve roots in the cervical area can cause pain and the loss of sensation in various upper extremities, depending on where the damaged roots are located.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Jarvis Dontrell JONES, Appellant.
    Nos. 46,712-KA, 46,713-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Dale Newton Montgomery II, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

|, Jarvis Jones entered pleas of guilty to unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4, and to one count of aggravated battery, a violation of La. R.S. 14:34. He was sentenced to 10 years at hard labor on each count, with the sentences to be served consecutively. No motion for reconsideration of sentence was filed.

The defendant appeals. We affirm, in all respects.

FACTS

On July 16, 2010, in Bossier Parish, the defendant took a car belonging to another person, without permission. The owner reported a stolen vehicle.

Two days later, a Bossier Parish sheriffs deputy spotted the defendant driving the subject vehicle, and a chase ensued.

Deputy Richard Atkins placed his patrol car in the path of the speeding car, in an effort to stop the vehicle. Instead of stopping, the defendant accelerated and rammed the patrol car occupied by the deputy. Continuing his mayhem, the defendant crashed into the patrol car of Officer Jonathan Pounder of the Haughton Police Department. Both police vehicles were badly damaged. The defendant tried to escape on foot, but was caught.

Initially, there were three charges against the defendant:

• one count of theft of a motor vehicle, a violation of La. R.S. 14:67; and

• two counts of attempted first degree murder of a peace officer, violations of La. R.S. 14:30(A)(2) and 14:27(D)(l)(a).

The defendant entered into a plea agreement whereby he pled guilty to one count of unauthorized use of a motor vehicle, La. R.S. 14:68.4, and | gone count of aggravated battery, La. R.S. 14:34. In exchange, the state dismissed the charge of theft and two counts of attempted first degree murder of a peace officer. There was no agreement as to sentence.

The trial court:

• informed the defendant of his rights under Boykin v. Alabama;

• explained to him the potential penalties he was facing; and

• accepted the guilty pleas, ordering a presentence investigation (PSI).

At sentencing, the trial court ably and thoroughly reviewed the PSI report, noting that the defendant:

• had an extensive criminal history, though only 24 years old;

• had a juvenile record, not detailed in the PSI;

• was classified as a fourth felony offender;

• was convicted in 2003 of possession of marijuana;

• violated his probation immediately;

• was convicted in 2004 of simple burglary, and again placed on probation, with that probation being revoked 18 months later;

• was convicted in 2005 of aggravated burglary, yet again being placed on probation, with that probation being revoked 13 months later;

• was convicted in late 2005 of misdemeanor hit and run and no driver’s license, resulting in 32 days of jail time;

• was convicted in 2006 of attempted sexual battery, for which he was sentenced to a midrange 3/6 years at hard labor;

• was convicted in 2009 of simple battery;

• pled guilty in 2010 to felony illegal possession of stolen things, being sentenced to two years at hard labor;

• was paroled for this felony in May of 2010;

|3* committed the crimes we are reviewing in these appeals later in 2010;

• has two sisters and one half-sister;

• completed the 10th grade at Haughton High School;

• worked for three years as a hot walker at Louisiana Downs;

• admitted starting usage of marijuana at age 16; and

• admitted to drinking alcohol every day.

The judge thoroughly reviewed the sentencing guidelines in La. C. Cr. P. art. 894.1, making these findings:

• that the defendant was in need of correctional treatment that could most effectively be provided in an institution;

• that a lesser sentence would deprecate the seriousness of his crimes;

• that he had knowingly created a risk of death or great bodily harm to more than one person; and

• that this criminal conduct was likely to recur.

The trial court sentenced the defendant to 10 years at hard labor on each crime, ordering the sentences to be served consecutively.

We consolidated these matters for briefing, docketing and disposition.

DISCUSSION

Ineffectiveness of Counsel

The defendant complains that his attorney provided ineffective assistance of counsel by failing to:

• file a motion for reconsideration of his sentence as provided for under La. C. Cr. P. art. 881.1; and

• object to the severity of the sentence.

LBecause of these omissions, the defendant points out that he is now deprived of his right to object to the severity of the sentence, being limited to a mere review of his sentence for constitutional excessiveness.

The state responds that a failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffectiveness can only be found if the defendant can show a reasonable probability that, but for his counsel’s error, his sentence would have been different. The state claims that in this case, the trial judge imposed a fair sentence, and that even if a motion for reconsideration had been filed by defense counsel, the result would not have changed.

A claim of ineffective assistance of counsel is often not urged upon appeal. Instead, it is often raised in the trial court through the means of an application for post-conviction relief (“PCR”). This defendant claims, however, that the ineffectiveness of counsel during the sentencing phase of the proceedings is not cognizable on collateral review pursuant to La. C. Cr. P. art. 930.3. State v. Thomas, 2008-2912 (La.10/16/09), 19 So.3d 466.

Accordingly, we will review the merits of the defendant’s claims.

Our law on reviewing ineffective assistance of counsel is well settled.

| .^Considering what trial counsel had to work with, and the exposure to more than a century of prison time, this defendant got the deal of the century. To urge ineffectiveness is somewhat stunning.

Nowhere does the defendant demonstrate what prejudice he suffered on account of counsel’s failure to file a motion to reconsider sentence. He has not shown a reasonable probability that but for counsel’s error, his sentence would have been different. He has clearly failed under the second prong of the Strickland, supra, test. This assignment of error is merit-less.

Unconstitutional Harshness of Sentence

The defendant argues that these sentences:

• are unconstitutionally harsh and excessive because the trial judge imposed the maximum term for each crime;

h* were ordered to be served consecutively, making his punishment grossly out of proportion to his criminal acts, being nothing more than a needless and purposeless imposition of pain and suffering;

• should only be assessed against the worst type of offender, a status he holds is inapplicable to him; and

• should not be administered against a person in his situation.

The defendant requests that his sentence be set aside and the matter remanded for resentencing.

The state, unsurprisingly, disagrees, taking the position that:

• the sentences are entirely appropriate and not an abuse of discretion;

• the trial court carefully reviewed the PSI report; and

• the sentences are not out of proportion to the crimes committed, and in fact, by taking the plea bargain agreement, the defendant greatly decreased the number of years of imprisonment to which he would have been exposed had the matter gone to trial.

The two crimes of conviction contain the following elements:

• La. R.S. 14:68.4, Unauthorized use of a motor vehicle

A. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.
B. Whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years or both.

• La. R.S. 14:34, Aggravated battery

Aggravated battery is a battery committed with a dangerous weapon.
Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

|7Our law on review of sentences for excessiveness is well settled.

In this case, the trial judge clearly tailored the sentence to fit this particularly incorrigible defendant. The sentences imposed were within the statutorily mandated range. The defendant received the benefit of entering into the plea bargain agreement, thereby radically limiting his exposure for prison time. This fact supports the court’s choice of the maximum sentences. State v. Lewis, 2009-1404 (La.10/22/10), 48 So.3d 1073; State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792.

Considering the horrendous track record of this young career criminal, the sentences imposed are not disproportionate to the crimes committed or the harm done to society, and they do not shock the sense of justice. These actions put at least two law officers at risk of terrible injuries or even death. The trial court did not abuse its discretion in imposing these [smaximum and consecutive sentences. This assignment of error is also without merit.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . The defendant says that he quit school because he was in and out of jail so much.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La. 12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). Also, State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La. 12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.
      The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may be found only if a defendant can show a reasonable probability that but for counsel’s error, his sentence would have been different. State v. Hongo, 96-2060 (La.12/2/97), 706 So.2d 419; State v. Louis, 32,347 (La.App.2d Cir.10/27/99), 744 So.2d 694.

      . The defendant avers that he is young, uneducated, and in need of substance abuse treatment. He further stresses that the crimes with which he was charged were essentially part of one transaction in that the events occurred over the course of two days.

      . When the defendant fails to file a motion to reconsider sentence, he is precluded from arguing noncompliance with La. C. Cr. P. art. 894.1 on appeal and is relegated to the bare claim of constitutional excessiveness. La. C. Cr. P. art. 881.1 E; State v. Mims, 93-0808 (La.6/18/93), 619 So.2d 1059; State v. Montgomery, 42,432 (La.App.2d Cir.9/19/07), 966 So.2d 127. Jones filed no motion to reconsider and hence cannot argue any deficiencies in the factual basis for the sentence, but we would note parenthetically that the court carefully discussed the evidence bearing on sentence and fully complied with Art. 894.1.
      A sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir. 4/2/97), 691 So.2d 864.
      A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App. 3d Cir. 6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.