text:
    Rufus B. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6056.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubiea, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Rufus B. Jones, Appellant, challenges his conviction and sentence for attempted second-degree murder with the use of a firearm. We affirm his conviction and sentence but reverse as to the imposition of a fine under section 775.083(1), Florida Statutes (2010), and the resulting surcharge under section 938.04, Florida Statutes (2010). Because the trial court did not announce this discretionary fine and the related surcharge individually at the sentencing hearing, the State properly concedes error under the authority of Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012). Accordingly, we reverse and remand as to this matter only. As we stated in Nix, “[o]n remand, the trial court may reimpose the fine and surcharge after providing notice to Appellant and following the proper procedure.” 84 So.3d at 426.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAVIS, RAY, and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nick JOHNSON, Former Husband, Appellant, v. Kathleen JOHNSON, Former Wife, Appellee.
    No. 1D12-5844.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.

      Bradley G. Johnson of Johnson Green & Hargraves, Milton, for Appellant.
    C. Thomas Holland, Crestview (no appearance), and Parker B. Smith, Destín, for Appellee.
   PER CURIAM.

The appeal and cross-appeal are hereby DISMISSED. Newman v. Newman, 858 So.2d 1273 (Fla. 1st DCA 2003).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Jessica N. NIXON, Appellant, v. BMLRW, LLLP, a Florida Limited Partnership d/b/a Eureka Garden Apartments, and Jessica M. Nixon, as Personal Representative of the Estate of Levi W. Broomfield, on Behalf of the Estate and on Behalf of Survivors, Appellees.
    No. 1D12-6130.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Christopher M. Chestnut and Heather Ann Harmer, Gainesville, for Appellant.
    Christy Brigman and Harold S. Stevens, Fort Lauderdale, for Appellees.
   PER CURIAM.

Appellee’s Motion to Dismiss, filed January 17, 2013, is granted, and the appeal is dismissed for lack of jurisdiction. See, e.g., Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994); Dep’t of Health, Bd. of Medicine v. Thomas, 854 So.2d 259 (Fla. 1st DCA 2003).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    M.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-705.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Based on the State’s proper confession of error, we reverse the adjudication of delinquency of M.B. for resisting arrest without violence. The trial court erred in denying the juvenile’s motions for judgment of dismissal.

The detention of the juvenile was unlawful for several reasons. It was based on an unreliable, anonymous tip that was not corroborated. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Baptiste v. State, 995 So.2d 285 (Fla.2008). There was no evidence that the officer had the reasonable suspicion necessary to detain the juvenile for trespass, D.T. v. State, 87 So.3d 1235 (Fla. 4th DCA 2012), or any other crime. Moreover, the juvenile’s flight, standing alone, also was not sufficient to support the adjudication for resisting without violence. The State introduced no evidence to demonstrate that the flight took place in a high crime area. See O.B. v. State, 36 So.3d 784 (Fla. 3d DCA 2010); M.M.H. v. State, 929 So.2d 628 (Fla. 3d DCA 2006). As such, dismissal of the delinquency petition was required.

The adjudication of delinquency is therefore reversed.


text:
    FLICKER, PAUL, GOLDBERG & KELLER, etc., et al., Appellants, v. April TREBBI, et al., etc., Appellees.
    No. 3D12-1161.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.
    Brett C. Powell, Palmetto Bay, for appellants.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellees.
    Before SHEPHERD, SALTER and FERNANDEZ, JJ.
   CONCESSION OF ERROR

PER CURIAM.

Pursuant to the Appellees’ proper concession of error, we affirm in part and reverse in part the April 3, 2012, order on Appellants’ motion to compel arbitration. We reverse the denial of the motion as to Appellee, April Trebbi, and affirm the granting of the motion as to Appellee, Robert Trebbi. The trial court should stay court proceedings and direct the parties to proceed to arbitration.

Further, upon consideration of Appellants’ motion for appellate attorney’s fees and Appellees’ response thereto, we grant Appellants’ motion and remand to the trial court to fix the amount.

Affirmed in part, reversed in part, and remanded with instructions.


text:
    STATE of Louisiana v. Travis HENDERSON.
    No. 2012-KK-2422.
    Supreme Court of Louisiana.
    Jan. 4, 2013.
   PER CURIAM.

hThe State seeks supervisory relief from the trial court’s ruling that held the defendant’s 1999 conviction for armed robbery, attempted armed robbery, and first degree robbery is not admissible as other crimes evidence under LSA-C.E. art. 404(B)(1) if the defendant elects to invoke his Fifth Amendment privilege against self-incrimination and remain silent, although the facts and events surrounding the crimes subject of the conviction are admissible as other crimes evidence. Under the given facts, we conclude the defendant’s conviction is admissible under LSA-C.E. art. 404(B)(1), regardless of whether the defendant elects to testify at trial or invoke his Fifth Amendment right to remain silent.

Generally, courts may not admit evidence of other crimes, wrongs or acts of a criminal defendant in order to show that he or she is a person of bad character who has acted in conformity therewith. LSA-C.E. art. 404(B)(1). However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. LSA-C.E. art. 404(B)(1). The evidence must tend to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La.1979). Additionally, pthe State bears the burden of proving that the defendant committed the other crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2 (La.1/10/03), 839 So.2d 932, 933, per curiam, citing State v. Prieur, 277 So.2d 126, 130 (La.1973). Although a criminal defendant’s prior bad acts may be relevant and otherwise admissible under LSA-C.E. art. 404(B), the court must still balance the probative value of the other crimes, wrongs or acts evidence against its prejudicial effects before the evidence can be admitted. LSA-C.E. art. 403. The probative value of the evidence must outweigh its prejudicial effect of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. Id.; State v. Galliano, 2002-2849, p. 3, 839 So.2d 932 at 933. As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. State v. Germain, 433 So.2d 110, 118 (La.1983). The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. State v. Rose, 2006-0402, p. 13 (La.2/22/07), 949 So.2d 1236, 1244, citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

In applying these principles, we are mindful of the finality of the trial court’s separate ruling that the facts and events surrounding the crimes subject of the defendant’s 1999 conviction are admissible under LSA-C.E. art. 404(B)(1). See State v. Henderson, 12-2168 (La.10/26/12), 99 So.3d 657. In light of such, the admissibility of the defendant’s 1999 guilty pleas and resulting conviction are probative because they are additional evidence of the other crimes and, importantly, bar any question as to whether he committed the offenses. Moreover, admission of the conviction is not unduly or unfairly prejudicial such that it would lure the | -¡factfinder into declaring guilt based on the prior criminal offenses. Since the events surrounding the conviction have been rendered admissible as other crimes evidence, there is no additional “risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126 at 128.

Last, the issue of whether the defendant elects to exercise his Fifth Amendment right against self-incrimination and remain silent is not relevant to the admissibility of his conviction. Contrary to the trial court’s reasoning, there is no conflict between LSA-C.E. art. 404(B)(1) and LSA-C.E. art. 609.1 under the given facts. LSA-C.E. art. 609.1 places guidelines on the impeachment of a witness in a criminal proceeding with evidence of a prior conviction. State v. Crawford, 95-1352, p. 11 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, 205. In the event the defendant elects to invoke his Fifth Amendment privilege to remain silent, LSA-C.E. art. 609.1 is not implicated as to the admissibility of his conviction since he is not a trial witness. Id. Moreover, to accept the trial court’s interpretation of LSA-C.E. art. 609.1, a criminal defendant’s prior conviction, regardless of it being highly probative, relevant to the proceedings, and admissible on other grounds, would never be introduced into evidence unless the defendant takes the stand at his trial.

Nonetheless, under the given facts, the defendant’s prior conviction is admissible under LSA-C.E. art. 404(B)(1) regardless of the defendant’s participation in the trial proceedings as a witness or the application of LSA-C.E. art. 609.1. The State has sustained its burden of proving an independent and relevant reason under LSA-C.E. art. 404(B)(1) for the admission of the 1999 conviction as other crimes evidence, which is not substantially outweighed by the risk of undue or unfair prejudice to the defendant.

Therefore, we conclude the trial court abused its discretion in finding the |,¡defendant’s prior conviction to be inadmissible under LSA-C.E. art. 404(B)(1) if the defendant invokes his Fifth Amendment privilege to remain silent. Accordingly, the writ is granted. The judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings.


text:
    In re John B. PULLIAS.
    No. 2010-OB-2309.
    Supreme Court of Louisiana.
    Jan. 22, 2013.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Pullias, 10-2309 (La.10/15/10), 46 So.3d 190, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


text:
    Dionysia PREJEAN v. Robert T. BAROUSSE, Acadia Parish Clerk of Court.
    No. 2012-C-1177.
    Supreme Court of Louisiana.
    Jan. 29, 2013.

      Huval, Veazey, Felder & Renegar, LLC, Bradford Hyde Felder, George Andrew Veazy, Dona Kay Renegar, for applicant.
    James D. Caldwell, Attorney General, Robert T. Barousse, in Proper Person, for respondent.
   PER CURIAM.

|,The issue presented in this case is whether La. R.S. 13:4210, which states that a judge shall forfeit one quarter’s salary for failing to issue a judgment within thirty days of the close of trial, is constitutional. For the reasons that follow, we find La. R.S. 13:4210 is unconstitutional on its face.

FACTS AND PROCEDURAL HISTORY

Dionysia Prejean is a party to a child custody proceeding captioned Dionysia F. Huval Prejean v. Ronald Joseph Prejean, which is pending in the 15th Judicial District Court. The last day of trial in the Prejean proceeding was March 18, 2011, at which time the district judge took the matter under advisement.

When the district judge court did not render judgment within thirty days, as required by La. R.S. 13:4207, Ms. Prejean filed writ of mandamus against the Acadia |2Parish Clerk of Court, Robert Barousse, seeking an order requiring him to immediately notify the legislative auditor that the district judge failed to render a decision within the time prescribed by La. R.S. 13:4207, as required by La. R.S. 13:4210. In addition, the writ of mandamus sought an order against the state auditor to withhold one quarter’s salary from the district judge, as required by La. R.S. 13:4210.

The district court denied the writ of mandamus. Ms. Prejean sought an appeal from this ruling.

On appeal, the court of appeal affirmed. Prejean v. Barousse, 11-1368 (La.App. 3 Cir. 3/7/12), 90 So.3d 477. On its own motion, the court of appeal raised the issue of the constitutionality of La. R.S. 13:4210, and determined the statute unconstitutional on its face because the legislature lacks the authority to regulate judicial conduct, pursuant to La. Const. Art. V, § 5(A). In addition, the court of appeal found La. R.S. 13:4210 is an unconstitutional violation of the due process clause, as it purports to reduce a judge’s salary without providing the judge notice or opportunity to be heard. Finally, the court of appeal found La. R.S. 13:4210’s reference to “one quarter salary” unconstitutionally vague. Based on its finding that La. R.S. 13:4210 was unconstitutional, the court of appeal determined the district |3court was legally correct to deny Ms. Prejean’s requested writ of mandamus, and therefore affirmed the district court’s judgment in its entirety-

Ms. Prejean filed an application for writ of certiorari. Because this case involved a declaration of unconstitutionality, we granted the writ and docketed the case as an appeal, pursuant to our appellate jurisdiction under La. Const. Art. V, § 5(D). Prejean v. Barousse, 12-1177 (La.9/28/12), 98 So.3d 822. Following our docketing of the case, Ms. Prejean filed a motion to waive oral argument and submit the matter on briefs. The other parties concurred in this motion. Accordingly, we granted the motion, and allowed the case to be submitted on briefs.

DISCUSSION

At the outset, we must address whether the court of appeal was procedurally correct in raising the issue of constitutionality on its own motion, when this issue was not raised by the parties or presented in the district court. As a general rule, the constitutionality of a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded, and the grounds for the claim particularized. Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-865; Arrington v. Galen-Med, Inc., 06-2968, p. 3 (La.2/2/07), 947 So.2d 727, 728-729. However, our jurisprudence has recognized a very limited exception to this rule in cases where the statute at issue is clearly unconstitutional on its face. See, e.g., Board of Commissioners of Orleans Levee Dist. v. Connick, 94-3161, p. 6 (La.3/9/95), 654 So.2d 1073, 1076 (“[ujnless a statute as drawn is clearly unconstitutional on its face, it is preferred that the parties to a dispute uncover any constitutional defects in a statute through the dialectic of our adversarial system ... ”).

14To challenge a legislative act as unconstitutional on its face is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the statute would be valid. City of New Orleans v. Louisiana Assessors Retirement and Relief Fund, 05-2548, p. 23 (La.10/1/07), 986 So.2d 1, 19; State v. Brown, 94-1290, p. 5 (La.1/17/95), 648 So.2d 872, 875 (citing United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Generally, the legislature may do anything which the constitution does not prohibit. Medlen v. State, 418 So.2d 618, 624 (La.1982). Therefore, our task is to determine whether La. R.S. 13:4210 is so inconsistent with our constitution, that there exists no set of circumstances under which the statute would be valid.

La. R.S. 13:4210 has been part of our statutory law since 1884. See La. Acts 1884, No. 72, § 4. During its lengthy existence, the statute has been rarely invoked, and has not been discussed in detail in the jurisprudence.

La. R.S. 13:4210 is phrased in mandatory terms. Essentially, the statute provides that a judge who does not comply with the time limits set forth in La. R.S. 13:4207 through 13:4209 “shall forfeit one quarter’s salary for each violation.” The statute mandates the clerk of court to “notify the auditor of any failure on the part of the judge to render a decision within the time prescribed herein.” Upon receiving such notification from the clerk of the court, the auditor is mandated to “withhold from such judge the payment of one quarter’s salary, which amounts shall be paid by the auditor into the general school fund.”

The obvious intent of this statute is to penalize the judge for not rendering judgment within the prescribed time limits. See, e.g., Dragon v. Schultz, 97-664, p. 4 (La.App. 5th Cir.1/14/98), 707 So.2d 1274, 1276 (holding that a judgment rendered outside of the time limits set forth in La. R.S. 13:4207 is not invalid; rather, “La. R.S. 1513:4210 provides the penalty for violating La. R.S. 13:4207 and it is solely a penalty to the judge and not invalidity of the judgment”). It is well settled that the constitution vests the supreme court with exclusive original jurisdiction over judicial disciplinary cases. In re: Hughes, 03-3408 (La.4/22/04), 874 So.2d 746; In re: Wimbish, 98-2882 (La.4/13/99), 733 So.2d 1183. Therefore, we must determine whether the penalty provision of La. R.S. 13:4210 conflicts with our exclusive jurisdiction over judicial disciplinary proceedings.

La. Const. Art. V, § 25(C) sets forth the range of penalties this court may impose in judicial disciplinary proceedings. Among those sanctions is the authority to suspend a judge with or without pay:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office .into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pendency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent ... [emphasis added],

Pursuant to this authority, we have disciplined judges who delayed rendering decisions in a timely fashion, by suspending them without pay. See In re Lee, 06-0454 (La.7/6/06), 933 So.2d 736 (judge suspended for 120 days without pay based on decisional delays, failing to report cases under advisement, and mishandling of travel expenses). Thus, insofar as La. R.S. 13:4210 constitutes a form of judicial | ^discipline, it clearly usurps powers which the constitution grants exclusively to this court.

The concurring judge in the court of appeal suggested it might be possible to avoid reaching the constitutionality of La. R.S. 13:4210. In particular, the concurring judge opined this court recognized the time limits for rendering judgment in its General Administrative Rules, Part G, § 2, but permits the judge to provide an explanation for his or her failure to comply with these limits. In the instant case, the district judge provided an explanation for the delay, and anticipated date for rendition of judgment. Thus, the concurring judge would have found the mandamus was properly denied without reaching the constitutional issue.

Although the concurring judge’s attempt to harmonize La. R.S. 13:4210 within the constitutional structure is commendable, this approach actually reveals an unresolvable conflict between the statute and the constitutional authority of this court. Specifically, nothing in La. R.S. 13:4210 provides that the judge may provide an explanation for the judge’s failure to render a judgment within the required time limits. Rather, as discussed above, the statute is phrased in mandatory terms. Unlike General Administrative Rule, Part G, § 2(b), which allows the judge to provide an “explanation of the reasons for any delay and an expected date of decision,” nothing in La. R.S. 13:4210 permits the judge to provide an explanation for the delay. Therefore, even though this court might decline to impose discipline on a judge who 17provides a reasonable explanation for a decisional delay, La. R.S. 13:4210 mandates the judge’s salary be withheld. This analysis convincingly demonstrates La. R.S. 13:4210 runs afoul of the constitutional mandate in La. Const. Art. V § 25(C), granting exclusive original jurisdiction over judicial discipline to this court.

Additionally, we find La. R.S. 13:4210 conflicts with La. Const. Art. V, § 21, which provides “[t]he term of office, retirement benefits, and compensation of a judge shall not be decreased during the term for which he is elected” [emphasis added]. Courts have held legislation resulting in a reduction of a judge’s pay during the term for which he or she was elected violates La. Const. Art. V, § 21. See Redwine v. State, 94-0160, p. 3 (La.App. 1 Cir. 12/22/94), 649 So.2d 61, 63 (“[A]lthough the legislature may enact laws regarding judges and elected public officials, the clear language of the Constitution prohibits the legislature from reducing the salary of judges and other elected public officials during their terms of office”). In the instant case, the effect of a partial forfeiture of a judge’s salary would result in a decrease of compensation of the judge during the term for which he was elected, in violation of La. Const. Art. V, § 21.

Under these circumstances, we determine La. R.S. 13:4210 is unconstitutional on its face, as no set of circumstances exists under which the statute would be valid. While we agree La. R.S. 13:4210 was motivated by the laudable intent to ensure judgments are rendered in a timely fashion, those concerns are now addressed by this court pursuant to its exclusive original jurisdiction. Therefore, although we now declare La. R.S. 13:4210 to be unconstitutional, this action will in no way alter the 1 ^obligation of district judges to render judgements timely, and adhere to the reporting requirements set forth in General Administrative Rule, Part G, § 2(b).

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed. It is ordered, adjudged, and decreed that La. R.S. 13:4210 is unconstitutional and without effect.

      . La. R.S. 13:4207 provides:
      If oral reasons for judgment are not rendered in open court and the matter taken under advisement, the district judges and judges of the city courts shall render a written judgment within thirty days from the time the cases are submitted for their decision. All motions or applications for a new trial and all orders of appeal shall be passed upon by judges of the city court within three days from the time such motions or applications for new trial or orders of appeal are submitted to them for their decision and by district court judges within seven days from the time such motions or applications for a new trial or orders of appeal are submitted to them for their decision; but by the written consent of the attorneys representing both sides, filed in the records or spread upon the minutes, the time herein granted may be extended for a further period of ten days, but no longer.

      . La. R.S. 13:4210 provides:
      All judges mentioned in R.S. 13:4207 through 13:4209 who shall violate those provisions or requirements, relative to the time within which they shall render decisions as aforesaid, shall forfeit one quarter's salary for each violation. The clerk of court shall notify the auditor of any failure on the part of the judge to render a decision within the time prescribed herein. The auditor, upon receiving such notification from the clerk of the court, shall withhold from such judge the payment of one quarter's salary, which amounts shall be paid by the auditor into the general school fund.

      . The court of appeal cited La. Const. Art. V, § 5(A) for the proposition that "regulation of conduct by Louisiana judges is within the exclusive realm of the Louisiana Supreme Court.” However, La. Const. Art. V, § 5(A) is silent with regard to judicial discipline. The court presumably meant to cite La. Const. Art. V, § 25(C), which addresses judicial discipline.

      . General Administrative Rule, Part G, § 2(b) provides:
      (b) Reports. Each judge of a district, juvenile, family, parish, city municipal or traffic court shall report to this court, through the office of Judicial Administrator, on or before the tenth day of each month, all cases which have been fully submitted and under advisement for longer than thirty days, together with an explanation of the reasons for any delay and an expected date of decision.

      . The mandatory nature of La. R.S. 13:4210 could lead to absurd results. For example, if the judge’s failure to render judgement was due to circumstances beyond the judge's control, such as a natural disaster, the statute would still mandate the judge's pay be withheld.

      . Because of our conclusion that La. R.S. 13:4210 is contrary to the provisions of La. Const. Art. V, we need not reach the other grounds for unconstitutionality cited by the court of appeal. However, we note the statute’s failure to provide the judge with a hearing raises significant due process concerns. See Op. Atty Gen. No. 77-358 (March 7, 1977) (opining that the failure to provide a hearing amounts to deprivation of property without due process).


author: JOHNSON, Justice.

text:
    STATE of Louisiana v. Tony J. GIBSON.
    No. 2012-C-1145.
    Supreme Court of Louisiana.
    Jan. 29, 2013.

      James D. Caldwell, Attorney General, Lafourche Parish District Attorney’s Office, Camille A. Morvant II, District Attorney, Joseph Sidney Soignet, Assistant District Attorney, for applicant.
    Nelson Dan Taylor, for respondent.
   JOHNSON, Justice.

liWe granted this writ application to determine whether the State can directly enforce Article I, § 10 of the Louisiana Constitution to prevent a candidate from taking public office without regard to the Election Code’s time limitations on challenges to candidacy. Answering that question affirmatively, we reverse the ruling of the court of appeal and reinstate the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

On December 16, 1997, Tony Gibson pled guilty to the felony offense of carnal knowledge of a juvenile. In accordance with the terms of a plea bargain, Mr. Gibson was sentenced to serve a term of imprisonment of five years, the execution of which was suspended, and Mr. Gibson was placed on supervised probation for a period of three years. Mr. Gibson subsequently received an automatic first offender pardon on October 22, 2002.

Article I, § 10 of the Louisiana Constitution prohibits a convicted felon from | ^qualifying for or taking public office unless he has been granted a governor’s pardon or fifteen years have elapsed since the completion of his sentence. On July 8, 2010, Mr. Gibson filled out a qualifying form for election to the Office of Alderman for the Town of Baldwin in St. Mary Parish. Therein, Mr. Gibson certified that he was not prohibited from qualifying as a candidate pursuant to Article I, § 10.

Subsequent to Mr. Gibson qualifying for office, but before the election, the District Attorney for St. Mary Parish became aware that Mr. Gibson was not qualified to seek elective office pursuant to Article I, § 10. No formal action was taken by the District Attorney on behalf of the State to challenge Mr. Gibson’s candidacy, nor was any voter challenge brought pursuant to the Election Code.

On November 2, 2010, Mr. Gibson was elected as an alderman for the Town of Baldwin. The District Attorney for St. Mary Parish subsequently filed an ex parte motion and order in the 16th Judicial District Court, seeking to be recused from handling any civil or criminal action arising out of any potential violation of the Louisiana Election Code or the Louisiana Constitution occurring in connection with Mr. Gibson’s election. The motion alleged that Mr. Gibson, a convicted felon, was ineligible to hold public office pursuant to Article I, § 10 of the Louisiana Constitution. The motion further alleged that a civil action existed to prevent Mr. Gibson from taking office and/or remove him from office. The District Attorney claimed that a conflict existed which could reasonably prevent his office from taking | -¡part in that proceeding as at least one assistant district attorney would likely be a witness. Moreover, the motion alleged that there was a pending criminal action against Mr. Gibson in the 16th Judicial District Court, and a possible conflict of interest existed in the District Attorney’s office prosecuting both actions. The motion requested that the District Attorney for Lafourche Parish be appointed as substitute district attorney to handle any civil and criminal matters related to the claimed Election Code violations, and that the Office' of the Attorney General be appointed to take over the pending criminal action against Mr. Gibson. The trial court granted the motion on December 9, 2010.

On January 11, 2011, the Lafourche Parish District Attorney, on behalf of the Parish of St. Mary, filed a petition seeking to prevent Mr. Gibson from taking office on January 13, 2011, on the grounds that he was prohibited by Article I, § 10 from being sworn into public office and was therefore ineligible to serve as alderman for the Town of Baldwin. The State did not request injunctive relief, therefore Mr. Gibson was sworn in on January 13, 2011.

After a hearing on the merits of the State’s petition, the trial court issued judgment on February 24, 2011, holding that Mr. Gibson was not qualified to run for public office, ordering that Mr. Gibson be removed from his seat, and declaring the seat to be vacant. The trial court also denied Mr. Gibson’s Motion for New Trial.

On Mr. Gibson’s appeal, the court of appeal reversed and held the State’s petition was untimely according to the Election Code. The court relied on an earlier case from the First Circuit, State v. Banta. According to the court, Banta holds that if no timely opposition to qualifications or taking public office is made under the |4Election Code, one who is duly elected can only be removed by one of the methods of removing elected officials from office set forth in the Constitution and the Election Code. The court also noted the State’s petition did not request injunctive relief to prevent Mr. Gibson from taking office. Thus, once Mr. Gibson was seated, the court reasoned he could only be removed by impeachment or recall.

The State filed the instant writ application in this Court, which we granted.

DISCUSSION

This writ application presents the purely legal issue of whether the State can take action to directly enforce Article I, § 10 of the Louisiana Constitution, without regard to the particular procedures and time limitations contained in the Election Code.

La. Const, art. I, § 10 provides, in pertinent part:

(B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or to take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies ... and has not afterwards been pardoned ... by the governor of this state....
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold such office if the date of his qualifying for such office is more than fifteen years after the date of the completion of his original sentence.

(Emphasis added).

The State argues it has plenary power to enforce the Constitution, including Art. I, § 10(B), which prevents a candidate from qualifying for office and from taking office. The State asserts this power is not diminished by the Election Code, which is | ¡¡designed to give private citizens the opportunity to challenge elections. The State further asserts it timely filed its action prior to Mr. Gibson taking office, and that Mr. Gibson is not authorized to keep his seat merely because he was elected and sworn in.

By contrast, Mr. Gibson contends this is a challenge to candidacy, which must be brought within seven days of qualifying pursuant to La. R.S. 18:1405(A) of the Election Code. He points out the State did not bring an action until months after both the election and qualifying were concluded. Mr. Gibson also argues the State is not without recourse, noting the Election Code provides an indictment procedure for an election offense. Mr. Gibson states an indictment has been brought against him and a conviction of such offense can result in removal from office.

After a full review of the record, and considering the briefs, argument and law, we hold the State of Louisiana has plenary power to directly enforce Art. I, § 10 of the Louisiana Constitution and is not limited to bringing a challenge under the provisions of the Election Code.

The court of appeal relied on Banta to support its holding, but we do not find that case applicable. Mr. Banta was convicted of a felony in 1990 and received a first offender pardon in 1997. In 1999, he was elected to public office, and took the oath of office on January 12, 2000. Nearly three years later, in November of 2002, the district attorney filed a petition for writ of quo warranto, asserting that Mr. Banta illegally held office in violation of Art. I, § 10 of the Constitution and seeking his removal. The trial court found Mr. Banta held the office without authority and in | ¿violation of the Constitution.

Mr. Banta appealed, arguing the trial court erred in utilizing the quo warranto summary proceeding to effectively remove him from office. The court of appeal agreed. The court noted that a petition for writ of quo warranto pursuant to La. C.C.P. art. 3901 is a writ directing an individual to show by what authority he claims or holds public office. The court explained its purpose is to prevent usurpation of office or powers, and is essentially limited to a person who assumes or pretends to be a public officer without the authority of an election, or who has been duly addressed out of an office, or who has been removed from such an office by impeachment or recall. Because Mr. Banta proved he was duly elected, received a commission from the governor certifying same, and took his oath of office, the quo warranto action was no longer viable against him and should have been dismissed.

Further, the court noted that prior to any action being taken against him, Mr. Banta had qualified for the election and taken office. The court reasoned that in filing the petition of quo warranto, the State was essentially raising questions regarding Mr. Banta’s qualifications to run for office and such issues are controlled by the Election Code. The court further noted no action was filed objecting to Mr. Banta’s candidacy and that the time to do so had long since expired. Finally, the court noted the Louisiana Constitution provides other methods by which individuals may be removed from public office, such as impeachment or recall, but none of those provisions applied to Mr. Banta.

|7We find the facts of Banta distinguishable from this case. First, unlike Banta, the petition in this case sought to prevent Mr. Gibson from taking office and was filed before Mr. Gibson was sworn into office. The petition in Banta was filed nearly three years after Mr. Banta took office. Further, in Banta, the State chose to bring a quo warranto action. We agree with the reasoning of the Banta court that such an action was improper. The quo warranto action is equally inapplicable in this case because Mr. Gibson is not a usurper. A usurper is a person who assumes or pretends to be a public officer without the authority of an election. Thus, the State in this case properly chose not to bring a quo warranto action, and instead filed a petition to directly enforce Art. I, § 10 of the Constitution.

Moreover, to the extent Banta holds the State is limited to the actions and time limitations set forth in the Election Code to enforce Art. I, § 10, it is overruled. The legislature was charged with adopting an Election Code by Article XI, § 1 of the Louisiana Constitution. The Election Code is set forth in La. R.S. 18:1 et seq. La. R.S. 18:1 provides that the Election Code “shall regulate the conduct of elections and political subdivisions shall be prohibited from adopting any law, resolution, or ordinance relative to elections and the conduct thereof, including campaign finance, except as otherwise specifically authorized in this code.” For our purposes, the relevant provisions of the Election Code are set forth in La. R.S. 18:491 et seq. and La. R.S. 18:1401 et seq., which establish the procedures by which challenges are made to candidacy and elections.

La. R.S. 18:491 provides for standing to object to candidacy and states, in pertinent part:

A. A registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office | sfor which the plaintiff is qualified to vote.
B. A registered voter may present evidence that a candidate has illegally qualified for elective office. The evidence may be presented to the respective parish district attorney, who shall determine whether or not the evidence presented establishes grounds for objecting to such candidacy and if the district attorney makes such a determination he shall file an action objecting to candidacy within the time, limitation provided in R.S. 18:493.

La. R.S. 18:492 provides grounds for objecting to candidacy and states, in pertinent part:

A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(3) The defendant does not meet the qualifications for the office he seeks in the primary election.
(4) The defendant is prohibited by law from becoming a candidate for one or more of the offices for which he qualified.

The time for objecting to candidacy is set forth in La. R.S. 18:493, which provides, in pertinent part:

An action objecting to candidacy shall be commenced in a court of competent jurisdiction within seven days after the close of qualifications for candidates in the primary election. * * * After the expiration of the time period set forth in this Section, no action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492 above.

La. R.S. 18:495 provides standing for the district attorney to object to candidacy for violations of Art. I, § 10 and states, in pertinent part:

A. If after investigation the district attorney has reason to believe that a convicted felon who is prohibited from qualifying for office pursuant to Article I, Section 10 of the Constitution of Louisiana has filed a notice of candidacy, the district attorney shall immediately bring an action objecting to the candidacy of such person. * * *
B. The district attorney shall have standing to bring such an action pursuant to this Subpart. * * * The time limitation to commence an action objecting to candidacy prescribed by R.S. 18:493 shall apply to such actions brought by the district attorney or the attorney general.

RLa. R.S. 18:1401 et seq. set forth procedures for election contests. La. R.S. 18:1401 states, in pertinent part:

A. A qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote.
B. A candidate who alleges that, except for substantial irregularities or error, or except for fraud or other unlawful activities in the conduct of the election, he would have qualified for a general election or would have been elected may bring an action contesting the election.
C. A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.
* * *

La. R.S. 18:1405 provides the time periods to bring such an action and states, in pertinent part:

A. An action objecting to candidacy shall be instituted not later than 4:30 p.m. of the seventh day after the close of qualifications for candidates in the primary election. After the expiration of the time period set forth in this Section, no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.
B. An action contesting any election involving election to office shall be instituted on or before 4:30 p.m. of the ninth day after the date of the election', * * *.

After reviewing these provisions of the Election Code, we do not find they provide the State with an adequate remedy to fully enforce Art. I, § 10 in this case. La. R.S. 18:491 et seq. address procedures for bringing an action to challenge a candidate’s qualifications. These statutes are primarily focused on challenges brought by registered voters, and also provide a short time frame for bringing such actions. La. R.S. 18:491 gives registered voters standing to directly object to candidacy, and further provides that a registered voter can present evidence of a candidate’s illegal qualification for office to a district attorney, who must then file an action if it is Unsupported by that evidence. This statute does not provide standing for a district attorney to bring an action sua sponte. La. R.S. 18:493 requires that challenges to candidacy be brought within seven days of the close of the qualifying period.

The sole provision aimed at State action is La. R.S. 18:495, which gives a district attorney standing to bring an action objecting to the candidacy of a person who is not qualified under Art. I, § 10. However, such an action must also be brought within the same seven-day time period. While the State could have used La. R.S. 18:495 to challenge Mr. Gibson’s qualification? prior to the election, and within the seven day period provided by La. R.S. 18:493, La. R.S. 18:495 does not provide for an action to challenge a candidate’s qualifications, or object to a candidate taking office, after the seven-day time period. There is no evidence in the record indicating the State was aware that Mr. Gibson was in violation of Art. 1, § 10 within that seven-day time period. Thus, by the time the District Attorney became aware of the violation, he was prohibited by La. R.S. 18:495 from challenging Mr. Gibson’s candidacy. Limiting the State to an action pursuant to La. R.S. 18:495 would deny the State a remedy in this case.

La. R.S. 18:1401 et seq. provide for election challenges, but do not give the State standing to bring such actions. Further, such challenges are not directly aimed at violations of Art. I, § 10.

Moreover, there are procedures in the Election Code and the Constitution for removing a person from public office, but none of these provisions are applicable to Mr. Gibson. La. R.S. 42:1411 provides for the removal of a public officer from office for conviction of a felony during his term of office. Louisiana Constitution Art. X, § 24 provides for impeachment of an elected official for commission or conviction of |na felony or malfeasance or gross misconduct while in office. Mr. Gibson pled guilty to a felony offense in 1997, years prior to being elected alderman. Thus, because Mr. Gibson did not commit such an offense while in office, these provisions are inapplicable.

Recall elections are authorized by Louisiana Constitution Art. X, § 26 and initiated by a petition signed by a requisite number of qualified electors. La. R.S. 18:1300.2. Although it is technically conceivable that a district attorney, as a qualified elector, could institute a recall drive, the Constitution and enabling statutes clearly envision the proceeding as a civic undertaking by the electorate. Further, a recall petition does not require any particular cause for removal, and thus cannot be considered the proper relief for the State to enforce Article I, § 10.

Additionally, La. R.S. 42:76 provides that an action shall be brought by the State when a person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office. However, as discussed earlier in this opinion, Mr. Gibson is not a usurper of the office. Thus, any action under this statute, or an action for writ of quo war-ranto pursuant to La. C.C.P. art. 3901 would be improper.

Finally, Mr. Gibson argues the State has a remedy in this case because the Election Code provides he can be removed from office if convicted of an election offense. We disagree. La. R.S. 18:1461.3(A)(3) provides for an election offense if a person supplies a false answer or statement to an election official or in any document required by the Election Code or executes an affidavit knowing it contains false or incorrect information. This statute provides for particular penalties. La. R.S. 18:1461.8(A) provides that if a candidate is convicted of violating 18:1461.3(A)(3), he “shall forfeit such public office,” in addition to the penalties provided. While the | instate may pursue criminal charges against a candidate based on the above provisions, we do not find the State is required to pursue a criminal conviction in order to enforce Art. I, § 10. There may be cases where a criminal conviction, although warranted, is not obtained. Moreover, there may be cases where a criminal conviction is not warranted, yet a candidate is still in violation of Art. I, § 10. To limit the State to this remedy alone is ineffective.

It is clear the procedures enumerated in the Election Code for challenging a candidate’s qualifications, and the procedures providing for the removal of a candidate from office, do not provide the State with an effective method to enforce Article I, § 10 based on the facts of this case. However, the State is not limited to traditional challenges under the Election Code. The prohibition contained in Art. I, § 10 is two-fold. Article I, § 10 not only sets forth qualifications for office by prohibiting a felon from qualifying for public office unless certain conditions are met, but it goes further by expressly prohibiting such a felon from taking office. Although the provisions of the Election Code do not directly provide a method or cause of action for the State to prevent Mr. Gibson from taking office in violation of Art. I, § 10, we find the State can bring a direct action pursuant to that constitutional provision. A cause of action arises when Art. I, § 10 is violated because the constitutional prohibition contained therein is self-executing. , A constitutional provision is self-executing when it can be given effect without the aid of legislation, and there is nothing to indicate that legislation is intended to make it operative.

Art. I, § 10 prevents a convicted felon from qualifying for or taking public office unless he has obtained a governor’s pardon or fifteen years have elapsed from | iacompIetion of the sentence. It is undisputed that Mr. Gibson obtained a first offender pardon, but not a governor’s pardon. In Touchet v. Broussard, this Court held that an automatic first offender pardon is different than a governor’s pardon in that it does not restore the status of innocence. We explained:

Article I, § 10(B) is specifically limited to gubernatorial and presidential pardons and makes no mention of automatic first offender pardons. Further, the automatic pardon provision for first offenders was added to the 1921 Constitution by a 1968 amendment. When the pardon process was overhauled during the 1973 Constitutional Convention, the automatic pardon provision remained and was enacted in Article IV, § 5. Not only was La. Const, art. , § 10(B) enacted later than La. Const, art. IV, § 5(E), Article I is in the “Declaration of Rights” section of the constitution, Article IV, § 5 delineates the powers of the executive branch, and § 5(E)(1) grants to the governor the power to pardon. Further, § 10(B) specifically addressed the right to run for public office and the provision allowing a convicted felon to run for office expressly applies only to a felon who “has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.” Had the people intended for felons who had been granted an automatic first offender pardon to be immediately qualified to run for office pursuant to La. Const, art. I, § 10 they could have said so, and they did not. Instead, a convicted felon is not forever prohibited from running for public office, he simply must wait 15 years from the completion of his sentence.

(Internal citations removed). The plain meaning of the unambiguous language of Art. I, § 10 prohibits Mr. Gibson from serving in office, and this language must be applied as written. Mr. Gibson currently holds an office he is not qualified to hold under the Constitution. We do not find Mr. Gibson should be allowed to hold office in violation of Art. I, § 10 simply because the State was not aware of the violation and did not bring a challenge to his qualifications within the confines of the Election Code. The | ^constitution is the supreme law of this state to which all legislative acts must yield. Thus, the time limits and procedures set forth in the Election Code cannot be applied to limit the State’s power to enforce Art. I, § 10. If the Louisiana Constitution is to have validity, the State of Louisiana must retain the plenary power to support and execute its provisions whenever a violation exists. Therefore, we hold the State had plenary power in this case to bring this direct action pursuant to Art. I, § 10 to prevent Mr. Gibson from taking office in violation of the Constitution.

CONCLUSION

While the Election Code provides certain procedures for challenging a candidate’s qualifications prior to an election, it does not provide a direct procedure for the State to prohibit a candidate, once elected, from taking public office in violation of Art. I, § 10 of the Louisiana Constitution. Art. I, § 10 is a self-executing provision which specifically prohibits certain felons from qualifying for public office and from taking public office. For the reasons stated herein, we hold the State was entitled to bring a direct action pursuant to Art. I, § 10 to prohibit Mr. Gibson from taking office.

DECREE

REVERSED. RULING OF THE TRIAL COURT REINSTATED.

Retired Judge FRANK FOIL, assigned as Justice ad hoc, sitting for WEIMER, J., recused.

       Retired Judge Frank Foil, assigned as Justice ad hoc, sitting for Weimer, J., recused.

      . La. Const, art. IV, § 5(E)(1) provides, in pertinent part: "[A] first offender convicted of a non-violent crime ... never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

      . A notice of candidacy shall include a certificate, signed by the candidate, certifying that he meets the qualifications of the office for which he is qualifying and also that he is not currently under an order of imprisonment for conviction of a felony and that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana. La. R.S. 18:463(A)(2)(a)(ii) & (iii).

      .It is not clear from the record exactly when the District Attorney’s office became aware of the issue relative to Mr. Gibson’s candidacy. The State asserts in brief that the St. Mary Parish District Attorney was alerted to the situation in August of 2010. Additionally, the record contains two emails referencing the issue from the District Attorney’s office dated September 17, 2010, and October 6, 2010, addressed to an attorney who was apparently representing Mr. Gibson at that time.

      . State v. Gibson, 11-1185, 2012 WL 1744464 (La.App. 1 Cir. 5/11/12) (unpublished).

      . 03-0200 (La.App. 1 Cir. 2/23/04), 872 So.2d 1110.

      . State v. Gibson, 12-1145 (La.10/8/12), 98 So.3d 865.

      . La. R.S. 18:1405(A) provides, in pertinent part: "An action objecting to candidacy shall be instituted not later than 4:30 p.m. of the seventh day after the close of qualifications for candidates in the primary election.”

      .Counsel for Mr. Gibson states in brief that Mr. Gibson has been indicted for such a violation, but this information is not included in the record.

      . Banta, 872 So.2d at 1112.

      . Id.

      . Id. at 1113.

        .Id. at 1113-14.

      . Id.

      . See La. C.C.P. art. 3901 and La. R.S. 42:71.

      . See Office of the District Attorney v. Cormier, 11-1322 (La.App. 4 Cir. 9/23/11), 76 So.3d 544, 545; Burkett v. Lewis, 42,985 (La.App. 2 Cir. 9/21/07), 966 So.2d 718, 721.

      . See Avenal v. State, 03-3521 (La.10/19/04), 886 So.2d 1085, 1104.

      . See Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, 1135.

      . 10-0380 (La.3/3/10), 31 So.3d 986, 995-96.

      . Id., at 992-93.

      . East Baton Rouge Parish School Bd. v. Foster, 02-2799 (La.6/6/03), 851 So.2d 985, 996.

      . See City of New Orleans v. Louisiana Assessors' Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 13.

      . See La. Const. art. IV, § 5.