author: CLARK, J.

text:
    Devontae Leroy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1367.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Nancy A. Daniels, Public Defender and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Appellant appeals his conviction and sentence on grounds that the trial court erroneously denied his motion to suppress evidence found on his person pursuant to a detention without sufficient cause to suspect any illegal activity. Because the undisputed facts of Appellant’s initial encounter with the police were insufficient to support a reasonable suspicion that Appellant was committing trespass, the denial of the motion to suppress is reversed.

The consistent testimony of the three police officers at the suppression hearing established that four officers in plain clothes were patrolling in an unmarked vehicle in the neighborhood on the day of the incident. The officers were not responding to a call, any particular complaint, or tip, but were “just riding around.” They observed three men standing in the front yard, near the front porch and driveway, of a townhome. The front window of the townhome displayed a prominent “No Trespassing” sign which the officers observed. The officers stopped their vehicle and all four exited the vehicle (“jumped out,” according to counsel and agreed to by one of the officers) at approximately the same time, in order to make contact with the men and determine if they were trespassing. Before the officers asked any questions, one of the men fled over a fence to a neighboring property and another of the men retreated inside the townhome. Two of the police officers immediately chased the fleeing man and engaged in a physical altercation with him. Appellant was the only one of the group who remained where he was upon seeing the officers emerge from their vehicle. The two officers who approached him testified consistently that Appellant posed no threat and did not make any suspicious movements. There was no evidence that any of the officers recognized any of the men as previous trespassers.

At this point in the encounter, one of the officers inquired of Appellant whether he lived on the premises, to which Appellant responded “my people do” or something similar. Appellant then informed the officer that his own address was several streets away. The officer then directed Appellant to accompany him to the unmarked vehicle to verify Appellant’s identity. Meanwhile, as the other officers continued to struggle with Appellant’s companion who had fled next door, a weapon was found on the companion’s person. Observing this, Officer Gillespie handcuffed Appellant for officer safety. As he was handcuffing Appellant, he visually observed the evidence in question on Appellant’s person.

Contrary to the State’s position in response to the motion to suppress, Appellant’s initial encounter with the police officers was not a consensual encounter requiring no reasonable suspicion that Appellant was trespassing. “When determining whether a particular encounter is consensual, the Court must look to the ‘totality of the circumstances’ surrounding the encounter to decide ‘if the police conduct would have communicated to a reasonable person that the person was free to leave or terminate the encounter.’ ” Collins v. State, 115 So.3d 1040, 1042 (Fla. 4th DCA 2013) (quoting Taylor v. State, 855 So.2d 1, 15 (Fla.2003)). The officers’ description of their sudden, collective exit from their vehicle and immediate pursuit of the fleeing man does not describe a casual encounter where officers merely approach an individual and initiate a conversation.

An example of a consensual encounter is described in Voorhees v. State, 699 So.2d 602 (Fla.1997), where officers approached a man during cold and rainy weather and the man told the officers he was lost. The officers offered the man shelter, clean clothing, and a hot meal, and the man voluntarily entered the patrol vehicle and handed the officers a knife. Similarly, in Ward v. State, 21 So.3d 896 (Fla. 5th DCA 2009), police officers were patrolling on foot in a multi-building apartment complex liberally marked with “no trespassing” signs. The officers approached Mr. Ward, who was also walking in the parking lot of the premises, and inquired whether Ward was a resident. Ward voluntarily responded that he was not a resident and was “just cutting through.” These consensual encounters are distinguishable from the show of force in this case, where the officers suddenly parked, emerged from them vehicle, and pursued and subdued Appellant’s companion before asking any questions.

The initial encounter here is more similar to that described in Leroy v. State, 982 So.2d 1250 (Fla. 1st DCA 2008), where the officer shined a spotlight on the defendant’s vehicle and approached the defendant in a confined space between two vehicles. In Leroy, as under the circumstances in this case, the immediate show of force by the officers would not communicate to a reasonable person that he or she was free to leave or otherwise end the encounter. Rather than fleeing and being pursued and physically subdued like his companion, Appellant stayed in place and responded to the officer’s inquiry of whether Appellant lived there.

Because a reasonable person would not feel free to leave in Appellant’s situation, Appellant’s initial encounter with the officers constituted the second level of police-citizen encounter, an investigatory stop or temporary detention. As such, the officers in this case needed “a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). The elements of trespass on property are set out in section 810.09(1), Florida Statutes. The element of lack of authorization, invitation, etc. may not be presumed upon a person’s mere presence on the property because “mere presence on a property is not sufficient to give rise to a reasonable suspicion that the crime of trespass is being committed and cannot be the basis for an investigatory stop.” Collins v. State, 115 So.3d at 1043. The fact that the property is posted with “no trespassing” signs does not make one’s mere presence sufficient. Leroy, 982 So.2d 1250.

Appellant’s initial encounter with the police was not a consensual encounter, but was an investigatory stop, requiring a reasonable suspicion that Appellant had committed, was committing, or was about to commit a crime. Because the officers lacked reasonable suspicion that Appellant was trespassing at the time they first observed his presence on the property, the investigatory stop of Appellant did not comport with the Fourth Amendment. Accordingly, the eventual evidentiary product of this initial encounter should have been suppressed. The trial court’s denial of the motion to suppress is REVERSED and the judgment and sentence based on the plea entered after denial of the motion to suppress are likewise REVERSED.

WETHERELL and RAY, JJ., concur.

      . The Florida Supreme Court described the three levels of police encounters in Popple v. State, 626 So.2d 185, 186 (Fla.1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dan SOWELL, Bay County Property Appraiser, Petitioner, v. STATE of Florida, Department of Revenue, Respondent.
    No. 1D13-5483.
    District Court of Appeal of Florida, First District.
    May 12, 2014.

      Loren E. Levy and Ana C. Torres of The Levy Law Firm, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General; Timothy E. Dennis and Joseph C. Melli-champ, III, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The Bay County Property Appraiser files a petition for writ of mandamus seeking to compel the Department of Revenue to file a “probable cause review” document with the agency clerk as a “final order” in accordance with section 120.52(7), Florida Statutes (2013) (defining a “final order” as a “written final decision ... which is not a rule, and which is not excepted from the definition of a rule, and which has been filed with the agency clerk, and includes final agency actions which are affirmative, negative, injunctive, or declaratory in form.”). We grant the petition.

Florida’s property appraisers prepare and send notices of proposed property taxes to property owners. The property owners may file a petition with the county value adjustment board (“VAB”) to contest the assessed value. The VAB makes a determination of whether the assessment of the individual property exceeds just value. See § 194.301(2)(a). Section 194.036(l)(c) provides that a property appraiser may file with the Florida Department of Revenue (“DOR”) an “assertion” that the VAB has committed a “consistent and continuous” violation of the law in certain of its decisions. Section 194.036(l)(c) states that if DOR finds upon investigation that a consistent and continuous violation by the VAB has occurred, DOR “shall so inform the property appraiser, who may thereupon bring suit in circuit court against the value adjustment board ....”

In accordance with section 194.036(l)(c), the Bay County Property Appraiser filed such an assertion with DOR challenging the Bay County VAB’s decisions involving 19 taxpayer petitions. DOR issued a probable cause review stating that there was no probable cause to find that a consistent and continuous violation by the Bay County VAB had occurred. DOR’s probable cause review concluded, “Accordingly, the Bay County Property Appraiser is not authorized to file suit” under section 194.036(l)(c).

The Bay County Property Appraiser filed a notice of appeal within 30 days of issuance of the probable cause review. However, that appeal was dismissed by this court for lack of jurisdiction. See Sowell v. State of Florida Dept. of Revenue, 122 So.3d 996 (Fla. 1st DCA 2013). Because DOR refused to file the probable cause review with the agency clerk, no final order had been rendered as defined by Florida Rule of Appellate Procedure P. 9.020(i), which provides that an “order is rendered when a signed, written order is filed with the clerk of the lower tribunal.”

The Bay County Property Appraiser now seeks a writ of mandamus to require DOR to file the probable cause review with the agency clerk arguing that he is a “party who is adversely affected by final agency action” entitled to judicial review as allowed by section 120.68(1). We agree.

Section 194.036(l)(c) provides, in pertinent part, that if a property appraiser disagrees with the decisions of the VAB, he or she may appeal the decision to the circuit court if:

There is an assertion by the property appraiser to the Department of Revenue that there exists a consistent and continuous violation of the intent of the law or administrative rules by the value adjustment board in its decisions.... If the department finds upon investigation that a consistent and continuous violation of the intent of the law or administrative rules by the board has occurred, it shall so inform the property appraiser, who may thereupon bring suit in circuit court against the value adjustment board for injunctive relief to prohibit continuation of the violation of the law or administrative rules and for a mandatory injunction to restore the tax roll to its just value in such amount as determined by judicial proceeding.

Section 194.036(l)(c) allows a property appraiser, in the event of a probable cause finding by DOR, to file suit directly against the VAB for injunctive relief. See § 194.181(2) (providing that in any other case brought by a property appraiser pursuant to section 194.036(l)(a) or (b), the taxpayer is the party defendant). Section 194.036(l)(c) is silent as to what action a property appraiser may take against the VAB if DOR makes a finding of no probable cause.

Unlike other statutes governing the Department of Revenue and its supervisory authority over the actions of property appraisers which specifically state that Chapter 120 shall not apply, section 194.036(1) does not contain language which would exempt the probable cause determination of an assertion from Chapter 120. DOR’s ruling that “the Bay County Property Appraiser is not authorized to file suit” is agency action within the meaning of Chapter 120. “ ‘The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order ...’” Id., quoting Prime Orlando Props., Inc. v. Dept. of Bus. Reg ulation, Div. of Land Sales, Condominiums and Mobile Homes, 502 So.2d 456, 459 (Fla. 1st DCA 1986). Section 120.68(1) provides that a “party who is adversely affected by final agency action is entitled to judicial review.” Final agency action is that which brings the administrative adjudicatory process to a close. See Hill v. Div. of Ret., 687 So.2d 1376 (Fla. 1st DCA 1997).

In this case, DOR will take no further action in the matter, thus its probable cause review is final agency action. See O'Donnell's Corp. v. Ambroise, 858 So.2d 1138 (Fla. 5th DCA 2003). DOR’s ruling explicitly purports to prevent the Bay County Property Appraiser from bringing suit against the Bay County VAB in circuit court. Plainly, the Bay County Property Appraiser is adversely affected by the finding of no probable cause but, because DOR has refused to render its ruling by filing it with the agency clerk, the property appraiser cannot seek judicial review as contemplated by section 120.68(1). Accordingly, the property appraiser has established the right to mandamus relief. See Huffman v. State, 813 So.2d 10, 11 (Fla.2000) (“In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.”).

The petition for writ of mandamus is granted with directions to the Department of Revenue to file the probable cause review with the agency clerk within 30 days of issuance of mandate in this case.

BENTON, VAN NORTWICK, and THOMAS, JJ., concur.

      . See e.g., § 195.096(8) (DOR’s review of property appraisers’ annual assessment rolls), § 195.097(6) (DOR’s postaudit notification of defects in assessment rolls), § 195.0995(3) (DOR's review of appraisers’ use of sales ■ transactions data), § 193.1142(8) (DOR’s approval of assessment rolls) and § 193.1145(14) (DOR’s approval of interim assessment rolls). See also § 195.092(5) (concerning the authority of DOR and property appraisers to bring and maintain lawsuits).


text:
    Zachary LAMBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5212.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Second Amended Petition Seeking Belated Appeal — Original Jurisdiction. Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The second amended petition seeking a belated appeal of the judgment and sentence rendered on September 27, 2012, in Duval County Circuit Court case number 16-2012-CF-000783-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner requests and qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Alesia E. HOLLAND, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and The Thomas House, Inc., Appellees.
    No. 1D13-5411.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Alesia E. Holland, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Amanda L. Neff, Senior Executive Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appel-lees.
   PER CURIAM.

In accordance with the Reemployment Assistance Appeals Commission’s commendable confession of error, the final order on appeal herein is reversed and the matter is remanded to the lower tribunal for further proceedings.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    K.S., Mother of K. H., K. H., and L. D., Each a Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-6161.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Michael A. Tupper, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville; and Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

The appellant, K.S., challenges an order adjudicating her children dependents of the state. We reverse.

At the arraignment hearing on the Department of Children and Families’ petition for dependency of the appellant’s children, the father entered a written consent to the dependency of the children. Although the appellant requested an eviden-tiary hearing on dependency consistent with the requirements of section 39.507(7)(b), Florida Statutes, the trial court did not conduct a hearing and issued a final order adjudicating the children dependent based only on the consent of the father without providing written findings. The appellees properly concede error in this ease.

We hold that the trial court’s order of dependency based only on the consent of

the father without an evidentiary hearing and without written findings is contrary to the law. See Monteiro v. State, 477 So.2d 45, 45-46 (Fla. 3d DCA 1985) (holding that “consent to the dependency of a child by one parent does not affect the right of the other parent to continue in his or her parental role”). We, therefore, REVERSE and REMAND.

ROWE, MARSTILLER and SWANSON, JJ., concur.


text:
    Hillary C. HENDERSON, VI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2937.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    Hillary C. Henderson, VI, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed belated appeals from the July 6, 2011, judgments and sentences, in Levy County Circuit Court case numbers 38-2011-CF-000130-A and 38-2011-CF-000131-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, SWANSON, and MAKAR, JJ., concur.


text:
    John L. HAMILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4988.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    John L. Hamilton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The motion for extension of time filed in the lower tribunal on or about September 10, 2013, is construed as a timely notice of appeal of the judgment and sentence in Duval County Circuit Court case number 16-2012-CF-005915-AXXX-MA, rendered on August 13, 2013. As in Platts v. State, 119 So.3d 1266 (Fla. 1st DCA 2013), “[t]he circuit court shall transmit the motion, so construed as a notice of appeal, to this court within 15 days of issuance of mandate in this cause.” If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

Consequently, the petition for belated appeal is denied as moot.

ROWE, SWANSON, and MAKAR, JJ., concur.


text:
    Gene E. RUTLAND, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6043.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    Gene E. Rutland, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed belated appeals from the March 26, 2012, judgment and sentence in Duval County Circuit Court case number 16-2005-CF-003358-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, SWANSON, and MAKAR, JJ., concur.


text:
    Victor JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1710.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    Victor Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROWE, SWANSON, and MAKAR, JJ., concur.


text:
    Dae’Quain COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1611.
    District Court of Appeal of Florida, First District.
    May 20, 2014.
    Dae’Quain Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as successive.

ROWE, SWANSON, and MAKAR, JJ„ concur.


text:
    Andrea WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1963.
    District Court of Appeal of Florida, Second District.
    March 5, 2014.
    Rehearing Denied April 11, 2014.
    Andrea Walker, pro se.
   PER CURIAM.

Andrea Walker appeals the order denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of ground one without comment. Because the court failed to address ground two, we reverse and remand for further proceedings.

In ground two of his motion, Mr. Walker alleged his sentences are illegal because they exceed the statutory maximum. Mr. Walker contended that he must be allowed to withdraw his plea or be resentenced. This is a cognizable claim in a motion for postconviction relief. See Fla. R.Crim. P. 3.850(a)(4); Gonzalez v. State, 890 So.2d 1194 (Fla. 5th DCA 2005). In addressing Mr. Walker’s motion, the postconviction court failed to address this claim. Such an omission is reversible error. See, e.g., Gore v. State, 100 So.3d 177, 178 (Fla. 2d DCA 2012).

Mr. Walker pleaded guilty to three counts of lewd and lascivious conduct and one count of lewd or lascivious molestation, all second-degree felonies. See § 800.04(5)(c)(2), (6)(b), Fla. Stat. (2011). The trial court orally imposed concurrent terms of ten years’ imprisonment on counts one and two and ten years’ sex offender probation with ten years’ imprisonment suspended on counts three and four. However, the written judgment and sentence reflect sentences of ten years’ imprisonment followed by ten years’ probation on counts one and two. This discrepancy is a scrivener’s error in the preparation of the written document, as opposed to a sentence that exceeds the statutory maximum. See Fla. R.Crim. P. 3.800 court cmt.; Ashley v. State, 850 So.2d 1265, 1268 n. 3 (Fla.2003) (defining a scrivener’s error as “ ‘a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error’ ” (citation omitted)); see also Betts v. State, 128 So.3d 158, 158 (Fla. 2d DCA 2013). Additionally, the sentences on counts three and four are not illegal because they are true split sentences. See Powers v. State, 51 So.3d 514, 515 (Fla. 2d DCA 2010) (characterizing the suspended portion of a true split sentence as a predetermined sanction for a violation of probation).

Because the error pointed to by Mr. Walker is a scrivener’s error, he is not entitled to withdraw his plea or to be resentenced. He is, however, entitled to have his written sentence corrected to conform to the oral pronouncement. See Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006). Therefore, we reverse the order on appeal insofar as it fails to address ground two and remand for the correction of the written sentence.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, LaROSE, and SLEET, JJ., Concur.


author: THOMAS, J.

text:
    Marlon Faron KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4795.
    District Court of Appeal of Florida, First District.
    March 14, 2014.
    Rehearing Denied May 5, 2014.
    Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant raises two issues on appeal. He contends that the trial court committed reversible error during resentencing by imposing a mandatory minimum sentence that exceeded the court’s original mandatory minimum sentence. Appellant also argues the trial court erred by admitting into evidence certain photographic evidence. We affirm this second issue without further comment. For the reasons explained below, we reverse the trial court’s sentence imposed on resentencing.

Factual Background

Appellant was convicted of two counts of aggravated battery, one count of aggravated assault (all charged as first-degree felonies), and one count of possession of a firearm by a convicted felon. The jury specifically found: Appellant discharged a firearm, causing great bodily harm to the victims of the aggravated batteries; Appellant discharged a firearm in the course of the aggravated assault; and possession of a firearm by a convicted felon. Appellant was sentenced to 40 years’ imprisonment as to each of the aggravated battery charges, both to run concurrently. Pursuant to section 775.087(2)(a), Florida Statutes (the “10-20-Life statute”), the trial court imposed the 25-year minimum sentence provided by that law. The court also sentenced Appellant to 20 years’ imprisonment on the aggravated assault conviction, to run concurrently with the other sentences, which was also a mandatory minimum based on 10-20-Life.

Appellant subsequently filed a Florida Rule of Criminal Procedure 8.800(b)(2) motion alleging that his sentence was illegal. Appellant argued that the phrasing used in the verdict form pertained to the special finding that a firearm was used in the commission of the crime; thus, the use of a firearm was made an element of the offense of aggravated battery, and therefore, the aggravated battery charges were second-degree, not first-degree felonies, carrying a maximum 15-year sentence, rather than the 30-year maximum applicable to first-degree aggravated battery. Appellant also contended that, because the court expressly pronounced at the sentencing hearing that the mandatory minimum would be 25 years, it could not exceed that 25-year sentence when imposing the mandatory minimum for a second-degree felony. Appellant further argued that, pursuant to Mendenhall v. State, 48 So.3d 740 (Fla.2010), the maximum penalty the court could impose was 25 years, because the batteries were second-degree felonies, yet the court specifically imposed a 25-year mandatory minimum for use of the firearm.

The trial court issued a show cause order, to which the State responded by arguing the sentence was legal pursuant to section 775.087(2)(a)3., Florida Statutes, which provides that “regardless of whether the use of a weapon is an element of a felony,” and during the course of committing a felony the defendant discharged a firearm resulting in death or great bodily harm, the convicted felon “shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.”

The trial court issued an order granting Appellant’s motion with respect to the issue of reducing the felonies from first to second degree. Addressing Appellant’s claim that his 40-year sentence was illegal, and that any sentence above the 25-year mandatory minimum was also illegal, the trial court found:

In Mendenhall v. State, 48 So.3d 740 (Fla.2010), the Florida Supreme Court held that under the ’10-20-Life’ statute, a defendant could be sentenced to a mandatory minimum sentence of 25 years to life irrespective of the statutory maximum for the offense. However, Mendenhall did not specifically authorize a sentence above the statutory maximum beyond the mandatory minimum sentence.

(Citation omitted; emphasis in original.) The trial court then cited the Fourth District’s recent opinion in Wiley v. State, 125 So.3d 235 (Fla. 4th DCA 2013), and found:

because counts one and two should be second-degree felonies, a 40-year sentence is not authorized by law. Therefore, Defendant should be resentenced to a legal sentence that will effectuate the intent of the Court. See Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011) (a Court may restructure a sentence on the counts challenged by a defendant as long as the overall term of the sentence is the same). The Court’s original intent was for Defendant to serve the 25-year mandatory minimum sentence followed by 15 years in prison, during which he would be eligible for gain time awards. Pursuant to section 944.275, Florida Statutes, a defendant must serve at least 85% of his sentence regardless of the amount of gain time accrued. Accordingly, under the original 40-year sentence, if Defendant were to accrue the maximum gain time award available, he would have to serve 12.75 years after completing the 25-year mandatory minimum. Therefore, in order to impose a sentence clearly authorized by Mendenhall without increasing the overall term of incarceration, it appears that a mandatory minimum sentence of 37.75 years would be permissible at resentenc-ing and would effectuate the Court’s intent. However, both parties should be prepared to argue the permissible sentencing range at resentencing.

(Emphasis in original.)

After a resentencing hearing, the trial court imposed its new sentence comporting with the sentence discussed in this order, and this appeal followed.

Analysis

The trial court’s new sentence involves two issues: First, whether it erred by imposing a greater mandatory minimum sentence than its previous sentence included; and second, whether it was incorrect in determining that it was not permitted to impose once again a 40-year overall sentence. Because both issues present questions of law, our review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). We conclude that the trial court erred in both instances.

Increased Mandatory Minimum Sentence

“It is well established that once a defendant has begun serving a lawfully-imposed sentence, the defendant may not thereafter be resentenced for an increased term of incarceration.” Rizzo v. State, 430 So.2d 488 (Fla. 1st DCA 1983). This principle applies to any increase to a mandatory minimum aspect of a sentence. See Macias v. State, 572 So.2d 22, 23 (Fla. 4th DCA 1990) (holding it was error to increase a mandatory minimum sentence once the court entered a written sentence which the appellant had begun serving).

Although the trial court here declared at the resentencing hearing that its intent at the time it imposed the original sentence was for Appellant to serve 40 years in prison, it is clear from the transcript of the original sentencing hearing, and the written sentencing documents signed at that hearing, that the court’s sentence was for 40 years’ imprisonment, with a special provision that Appellant serve a mandatory minimum of 25 years.

If the court intended for Appellant to mandatorily serve the entirety of 40 years, it could have legally imposed such a sentence pursuant to section 775.087(2)(a)3, Florida Statutes, at the time of the original sentencing. That statute provides, in relevant part:

Any person who is convicted of a felony ... regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

In Mendenhall, our supreme court held that, regardless of what the maximum sentence may have been, but for this statute, a trial court has the discretion to impose a mandatory minimum in excess of 25 years. 48 So.3d at 742. Here, the trial court did not do so in its original sentence; thus, its new sentence increasing the mandatory minimum portion of Appellant’s sentence from 25 years to 37.55 years was legally impermissible.

Also, contrary to the trial court’s finding, this new sentence was not, as in Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011), a mere restructuring to comport with its intent while also ensuring that the overall length of Appellant’s sentence was not increased. Rather, the trial court upwardly modified Appellant’s sentence by making the entire sentence a mandatory minimum, thus impermissibly increasing the previously-imposed mandatory minimum sentence.

It is clear from the trial court’s order issued in advance of the resentencing hearing, and in our review of the transcript from that hearing, that the court relied on the Fourth District’s Wiley opinion, which the trial court read as prohibiting a sentence in addition to a selected mandatory minimum sentence, if the resulting overall sentence exceeds the statutory maximum sentence for an offense absent the 10/20/ Life requirement. Pursuant to Wiley, the trial court was of the opinion that it could not reimpose a sentence of 40 years with a 25-year minimum because such a sentence would exceed the 15-year maximum applicable to a second-degree aggravated battery felony. The court thus attempted to navigate the Mendenhall and Wiley decisions by imposing a mandatory minimum that did not exceed its original overall sentence of 40 years’ imprisonment. As discussed below, however, to the extent Wiley stands for the proposition that, under section 775.087(2)(b), a trial court may impose a sentence in addition to its selected mandatory minimum, only if there is separate statutory authority to do so, we respectfully disagree with that decision, and we decline to follow it.

Permissible Sentencing Range

In Wiley, the appellant was convicted of second-degree murder and sentenced to life in prison pursuant to the 10-20-Life statute. On appeal, the conviction was reduced to third-degree murder, and the case was remanded for resentencing. 125 So.3d at 237. On remand, “[i]n conjunction with the determination that Wiley was a habitual felony offender, the trial judge, pursuant to the 10/20/Life statute, sentenced Wiley to life in prison with the requirement that he serve a mandatory minimum imprisonment of 25 years.” Id.

On appeal of this sentence, Wiley argued that it was illegal because it was for life in prison “plus a twenty five (25) year mandatory minimum sentence, pursuant to the 10/20/life statute.” Id. at 240 (emphasis in original). Wiley argued that the “ ‘10/20/ life statute provides for a mandatory sentence of twenty five (25) years in prison up to life but not both.’” Id. (emphasis in original). The court rejected this argument, explaining that it “misconstrues the trial court’s sentence imposition.” Id.

The Wiley court explained that “the 10/20/Life statute ... ‘requires the imposition of a mandatory minimum sentence where a firearm is possessed or used during the commission of certain enumerated crimes, including murder.’ Mendenhall, 48 So.3d at 746.” Wiley, 125 So.3d at 240-41. That mandatory minimum, the court noted, is 25 years. Id. at 241. The court then opined that, “while Mendenhall pertained to the trial court’s discretion to set a mandatory minimum sentence, it did not address whether the trial court might impose a sentence longer than the mandatory minimum and in excess of the statutory maximum sentence as provided in section 775.082.” Id.

It was in this context that the Fourth District stated:

In this regard, section 775.087(2)(b) provides that the mandatory minimum sentence in subsection (2)(a)3. does “not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence.” (Emphasis added). From a literal reading of the statute, it appears that while a trial judge may sentence a defendant pursuant to section (2)(a)3. to a mandatory minimum sentence between twenty-five years to life, the trial judge may give a sentence over the mandatory minimum selected only if “authorized by law.”

Id. (italicized emphasis in original; bolded emphasis added).

The court continued: “Here, Wiley’s conviction for third-degree murder was properly reclassified pursuant to the 10/20/ Life statute as a first-degree felony, punishable by a maximum of 30 years in prison. However, the trial court also found Wiley to be a habitual felony offender, which, pursuant to section 775.084(4)(a) 1.,” allowed a life sentence. Id. “Therefore, because Wiley was determined to be a habitual felony offender and the 10/20/ Life reclassification applied, the life sentence was ‘authorized by law.’ ” Id.

Thus, in Wiley, the Fourth District interpreted section 775.087(2)(b) as providing that, once a trial court imposes a mandatory minimum sentence, it can impose a sentence above that minimum only if otherwise authorized by law — that is, by an authorized sentence enhancer such as the habitual felony offender provision applicable in that case. We disagree.

First, if, pursuant to Mendenhall, a trial court may impose a mandatory minimum that exceeds the maximum sentence that would otherwise apply but for the 10-20-Life statute, it seems logical that the court could also impose a total sentence that exceeds that otherwise applicable maximum sentence. This interpretation is supported by the plain language of section 775.087(2)(b), Florida Statutes: “Subpara-graph (a)l., subparagraph (a)2., or subpar-agraph (a)3. does not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law.” (Emphasis added.)

Unlike the court in Wiley, as we read the statute, the phrase “as authorized by law,” as used in this provision does not refer to some external authorization for a sentence in excess of the trial court’s selected mandatory minimum (such as the habitual offender statute in Wiley); rather, it refers to the maximum sentence authorized by law but for the 10-20-Life enhancement. In support of this interpretation, we point to the phrase “or from imposing a sentence of death pursuant to other applicable law.” § 775.087(2)(b) (emphasis added). The emphasized language clearly refers to external authority for imposing the death sentence, in contrast to the “as authorized by law” language that appears earlier in the statute. Had the Legislature intended for this phrase to refer to a sentence-enhancing statute, we are of the opinion that it would instead read “as otherwise authorized by law.”

Here, as the trial court correctly noted, at the time it imposed its sentence, it was bound by the Wiley decision, which at the time was the only appellate decision on this issue. With the rendering of the instant decision, however, circuit courts in the First District may, pursuant to section 775.087(2)(b), Florida Statutes, impose a sentence in addition to its selected mandatory minimum sentence without regard to whether additional statutory authority for such an additional sentence exists.

Conclusion

Based on the foregoing, we reverse the trial court’s sentence and remand for re-sentencing, with Appellant present, consistent with this opinion. We affirm the trial court’s decision to allow into evidence the photographs to which Appellant objected at trial. We also certify conflict with the Fourth District’s opinion in Wiley to the extent that case holds that, under section 775.087(2)(b), Florida Statutes, a trial court may impose a sentence in addition to its selected mandatory minimum sentence imposed under the 10-20-Life statute only if otherwise authorized by another statute.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing; CONFLICT CERTIFIED.

MARSTILLER and MAKAR, JJ., concur.

      . See also § 775.087(2)(c) ("If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.”) (emphasis added).


text:
    In re Andre Thomas HAYDEL.
    No. 2014-OB-0547.
    Supreme Court of Louisiana.
    March 20, 2014.
   ORDER

|, Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Andre Thomas Haydel, Louisiana Bar Roll number 24723, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Richard R. MILLS.
    No. 2013-KO-1901.
    Supreme Court of Louisiana.
    March 21, 2014.
   PER CURIAM.

|!Writ granted in part. Defendant was convicted of possession of cocaine based on the presence of residue in a glass pipe and adjudicated as a second felony offender. The district court sentenced him to serve 10 years imprisonment at hard labor, the maximum term of imprisonment authorized by the pertinent statutes. See La. R.S. 15:529.1(A)(1); La. R.S. 40:967(0(2). The court of appeal affirmed after finding, in pertinent part, that defendant failed to preserve his excessive sentence claim for review and that defense counsel’s failure to object to the sentence or file a motion to reconsider did not amount to ineffective assistance because, in any event, the sentence imposed by the court is not excessive. State v. Mills, 12-0851 (La.App. 4 Cir. 7/3/13), 120 So.3d 802.

As a general rule, “[sentences must be individualized to be compatible with the offenders as well as the offenses.” State v. Jones, 398 So.2d 1049, 1051 (La.1981). In addition, this Court has found that “maximum sentences are reserved for the most egregious or blameworthy of offenders.” State v. Telsee, 425 So.2d 1251, 1254 (La.1983). In the present case, the only justification expressed by the sentencing judge for imposing a maximum sentence was her belief that a longer sentence would effectuate defendant’s express desire to steer clear of the Orleans Parish Prison and result in his placement in a facility operated by the Department of Public Safety and Corrections, which does have the authority to house prisoners | gcommitted to its custody in the local parish prisons of the state to alleviate overcrowding in state-run correctional facilities “until the individual is confined in a penal or correctional institution under the supervision of the department.” La.R.S. 15:824(B)(l)(a). In fact, the trial court lacked the authority to insure defendant’s placement within the Department of Corrections under any set of circumstances. See La. R.S. 15:824(A) (“Any individual subject to confinement in a state adult penal or correctional institution shall be committed to the Louisiana Department of Corrections and not to any particular institution within the jurisdiction of the department.”); see also State v. Rome, 96-0991, p. 7 (La.7/1/97), 696 So.2d 976, 980 (“A trial judge cannot designate the particular place of confinement wherein a defendant will serve his term of imprisonment.”) (citing State v. Blue, 315 So.2d 281, 282 (La.1975)).

To the extent that sentencing errors, including claims of ineffective assistance of counsel at sentencing, are not cognizable in post-conviction proceedings, State v. Thomas, 08-2912 (La.10/16/09), 19 So.3d 466; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172, the court of appeal properly considered defendant’s pro se claim that counsel rendered ineffective assistance at sentencing on direct review. The court of appeal, however, misconstrued the nature of the claim. Defendant did not simply contend that counsel failed to object to imposition of the maximum sentence as excessive. Defendant also claimed that counsel erred by encouraging the court to interject an improper consideration into its sentencing determination, i.e. the attempt to steer him clear of the parish prison and into the Department of Correction’s facilities, thereby effectively removing the court’s discretion to consider any sentence less than the maximum. A trial court may not, however, arbitrarily refuse to exercise the discretion placed in it by law. State ex rel. Robertson v. Maggio, 341 So.2d 366, 370 (La.1976). Counsel’s error appears to have prejudiced defendant | ¡¡because there is a reasonable probability that the defendant’s sentence would have been “significantly less harsh,” Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir.1993), taking into account “such factors as the defendant’s actual sentence, the potential minimum and maximum sentences that could have been received, the placement of the actual sentence within the range of potential sentences, and any relevant mitigating or aggravating circumstances.” United States v. Segler, 37 F.3d 1131, 1136 (5th Cir.1994) (citing Spriggs, 993 F.2d at 88). Even though sentencing does not concern a defendant’s guilt or innocence, ineffective assistance of counsel during a sentencing hearing may result in prejudice within the compass of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because “any amount of [additional] jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 700, 148 L.Ed.2d 604 (2001).

Therefore, to the extent that we may resolve defendant’s claim of ineffective assistance on the present record, and in fact must resolve it on direct review if he is to have any forum in which to pursue the claim, we vacate the sentence imposed by the trial court and remand the case for a new sentencing hearing. In all other respects, the application is denied.

GUIDRY and CLARK, JJ„ would deny.


text:
    In re Timothy Baron HOLDEN.
    No. 2014-B-0390.
    Supreme Court of Louisiana.
    March 21, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent was arrested and charged with simple possession of marijuana and that he misrepresented his history of marijuana use to the Committee on Bar Admissions and to a Lawyers Assistance Program evaluator. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 8.1(a), 8.1(b), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Timothy B. Holden, Louisiana Bar Roll number 34403, be suspended from the practice of law for a period of three years.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Sonceree Smith CLARK.
    No. 2014-B-0518.
    Supreme Court of Louisiana.
    April 4, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, and failed to promptly refund an unearned fee. Following the filing of formal charges, respondent refunded the fee and thereafter she and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sonceree Smith Clark, Louisiana Bar Roll number 19275, be and she hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    Donald DAVIS, individually and on behalf of his deceased mother, Cynthia Tuckson v. CANADIAN NATIONAL RAILWAY, City of Kenner, State of Louisiana through the Department of Transportation and Development, Denver F. Dickens, and Chad Bishop.
    Nos. 13-C-2959, 13-C-2963.
    Supreme Court of Louisiana.
    April 17, 2014.
    Rehearing Denied May 23, 2014.
   PER CURIAM.

11 Writ granted. The judgment of the court of appeal is reversed and the trial court judgment granting summary judgment in favor of defendants in reinstated.

After plaintiffs mother, Cynthia Tuck-son, was killed by an oncoming train as she attempted to walk across the railroad tracks at Taylor Street in Kenner, plaintiff filed suit against the railroad and the City of Kenner alleging that they had a duty to install an active warning signal to visually alert those using the crossing that a train was approaching. The defendants’ filed motions for summary judgment, alleging that the undisputed facts established that they breached no duty owed to Ms. Tuck-son, and no culpable act of omission caused or contributed to the harm she suffered. Defendants introduced a video from a camera mounted on the dash of the train which captured in real time the accident and the approach of the train to the crossing. The video shows Ms. Tuckson walking directly in front of the train without once looking in either direction to ascertain whether rail traffic was approaching. A photograph showed the adequacy of the sight line available to Ms. Tuckson at the crossing. Plaintiff admitted in discovery that “if plaintiffs decedent Cynthia Tuckson had | ^stopped at the post mounted cross buck sign and looked both ways for approaching rail traffic traveling on the IC tracks she could have seen IC’s approaching train before she walked up on to the tracks in front of the approaching train.” Plaintiff also admitted that “plaintiffs decedent Cynthia Tuckson could have looked both ways for approaching rail traffic on the IC tracks from a location which would not have placed her in a position to be struck by a passing train.” In addition, plaintiff admitted that “the cross buck signs located at the Taylor Street grade crossings were installed and maintained by IC in compliance with La. R.S. 32:169.”

The district court granted summary judgment in defendants’ favor, finding as follows:

this crossing was not a dangerous trap, and plaintiffs mother had ample opportunity from a position of perfect safety to see what she should have seen had she simply looked as she was legally obligated to do.

A summary judgment is reviewed de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 882-88.

Louisiana law requires the installation of cross-bucks at all public roadway crossings over which the railroad carrier operates. La. R.S. S2:169(A). Plaintiff admitted in discovery that the cross-buck signs located at the Taylor Street grade crossing were installed and maintained in compliance with La. R.S. 32:169. The only remaining issue was for the district court to determine whether defendants owed any further duty to warn roadway users of the presence of the crossing, which required an analysis of whether this crossing constituted a “dangerous trap.” Glisson v. Missouri Pac. R. Co., 246 La. 470, 165 So.2d 289 (1964). As correctly recognized by the court of | ¡¡appeal “[t]o find a ‘dangerous trap’ requires a fact determination that the view of the roadway is so obstructed as to require the user to place himself in a position of peril dangerously near the tracks to have a view of any oncoming traffic.” Op. at 12-18. Even the court of appeal recognized as an uncontested fact that “if she had stopped at the cross buck sign [12-15 feet away from the nearest rail] and looked both ways for approaching rail traffic, she could have seen the oncoming train before she walked up on the tracks in front of the train ...” The uncontested facts showed that she did not have to place herself in a position of peril in order to see the oncoming train and that she simply did not look in either direction before crossing the tracks. In granting summary judgment in favor of defendants, the district court simply applied the uncontested facts to the applicable substantive law.

While this matter involved a tragic accident, based on the evidence presented, we find there existed no genuine issue of material fact that if proven at the trial would or could, under the duty-risk analysis, demonstrate either defendants’ liability for the fatal accident. Accordingly, the judgment of the court of appeal is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

JOHNSON, C.J., dissents.


text:
    EASY WAY HOMES CORPORATION v. Craig D. VEZINAT, et al. Craig D. Vezinat, et al. v. Platinum Homes, et al.
    No. 14-CC-0240.
    Supreme Court of Louisiana.
    April 17, 2014.
   PER CURIAM.

|, Granted. The allegations of relator’s petition are sufficient to state a claim for redhibition. Although relator denied the existence of redhibitory defects in connection with its claim for indemnity, La.Code Civ. P. art. 892 provides “a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive.”

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. The case is remanded to the district court for further proceedings.


text:
    Helen M. CALLIET-COMEAUX v. WINN-DIXIE MONTGOMERY, L.L.C., et al.
    No. 2013-C-2945.
    Supreme Court of Louisiana.
    Feb. 28, 2014.
   In re Winn-Dixie Montgomery, L.L.C.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. K, No. 201111140; to the Court of Appeal, Third Circuit, No. 13-407.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    6126, L.L.C., James P. Farwell, and G.F. Gay Lebreton v. Jon Besthoff STRAUSS, Jeffry B. Strauss, and Susan Marie Carman Strauss.
    No. 2014-C-0001.
    Supreme Court of Louisiana.
    Feb. 28, 2014.
   In re 6126, L.L.C. et al.; Farwell, James P.; LeBreton, G.F. Gay;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2012-04732; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0853.

Denied.


text:
    James Ricky BIAGAS v. ST. LANDRY PARISH SHERIFF OFFICE, et al.
    No. 2014-C-0073.
    Supreme Court of Louisiana.
    March 14, 2014.
   In re Biagas, James Ricky;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 10-C-4212-A; to the Court of Appeal, Third Circuit, No. 13-642.

Denied.


author: McDonald, J.

text:
    Virginia Butler BARKER v. Tony Robert BARKER.
    No. 2013 CA 0116.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 18, 2013.

      Marcus T. Foote, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellant Virginia Butler Barker Rangeley.
    John B. Brumfield, Jr., Baton Rouge, Louisiana, Attorney for Defendant/Appel-lee Tony Robert Barker.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, J.

^Virginia Butler Barker Rangeley (Ms. Rangeley) joined the City Parish Employee Retirement System (CPERS) when she started working at the Baton Rouge City Police Department (the Department) on September 1,1978. Ms. Rangeley married Tony Barker on January 20, 1979. She continued to work for the Department until she resigned on March 11, 1985, and on April 15, 1985, CPERS refunded all the contributions made into her account.

Ms. Rangeley went back to work for the Department on October 14, 1986. She decided to buy back her prior service time, and on January 15, 1987, she signed an authorization for deductions from her paycheck for this purpose to be set aside, at the rate of $250.00 per month. The actual repurchase transaction would take place after the last payment was made.

Ms. Rangeley filed a petition for divorce on June 16, 1988, at which time she had repaid $3,750.00 of the repurchase amount. Ms. Rangeley continued to make the payments after the petition for divorce was filed, using $5,668.97 of her separate funds. Ms. Rangeley and Mr. Barker were divorced on April 2, 1990. Ms. Rangeley completed the last repurchase payment on May 15, 1990, at which time the repurchase transaction occurred.

Ms. Rangeley and Mr. Barker entered into a stipulated judgment, which was signed by the trial court on November 4, 1998. The judgment stated among other things that Mr. Barker “shall be awarded his interest in the pension of [Ms. Range-ley] from East Baton Rouge City Parish employees retirement system.”

On December 9, 2011, Mr. Barker filed a petition for injunctive relief. He alleged that Ms. Rangeley intended to retire in January 2012, and he sought an injunction to freeze his portion of her retirement benefits pending further orders of the court. On January 30, 2012, the trial court signed a stipulated judgment in | ¡¡which the parties agreed to a temporary benefit distribution to Mr. Barker, pending further orders of the court.

After a trial, in a September 18, 2012 judgment, the trial court found that all of the service time earned during the community, as well as all of the repurchased service time that had been earned during the community, was a community asset. The judgment specified that Ms. Rangeley was entitled to reimbursement from Mr. Barker for one-half of her separate funds used to repurchase the prior service time, $2,834.50.

Ms. Rangeley filed a suspensive appeal from that judgment. This court issued a rule to show cause on April 1, 2013, noting that the judgment at issue appeared to be a non-appealable ruling. The parties were ordered to show cause by briefs whether the appeal “should or should not be dismissed.” The parties responded by joint memorandum, which urged that the ruling was appealable.

Thereafter, the rule to show cause was referred to the merits panel to which the appeal was assigned. Barker v. Barker, 2013 CA 0116 (LaApp. 1 Cir. 6/20/13). We note that the rule to show cause was issued based upon lack of specificity; the judgment declares that the repurchased service time earned during the community shall be divided according to the Sims formula, but does not apply the formula to provide a specific sum. However, we note that the judgment was not, technically speaking, based upon a demand for money in the usual sense; rather, Mr. Barker sought a ruling on the legal issue of whether he was entitled to a portion of the retirement credits earned during the community, but repurchased after the dissolution of the community. The judgment answers that question with complete certainty. Thus, we find that the judgment is final and appealable.

In her appeal, Ms. Rangeley makes the following assignments of error:

|41. The Trial Court erred in classifying as community property things which had been liquidated during the existence of the community, and for which the community received and spent cash, even though Appellant repurchased those things with her own money, after the divorce.
2. The Trial Court erred in classifying repurchased pension service credits based on the time of initial acquisition, rather than on the time [of] repurchase, or the source of funds used to repurchase the service credits.

Mr. Barker answered the appeal asking that, pursuant to La. C.C.P. art. 2133, the judgment be modified to provide for an amount of damages as a result of his loss of interest accrued on any portion of the retirement benefit awarded to him by the trial court, including both the DROP as well as the monthly service retirement allowance awarded in the trial court judgment, retroactive to the date of distribution of the retirement benefits accumulated in Ms. Rangeley’s DROP account and the monthly service retirement allowance by CPERS. He asked that the judgment be affirmed in all other respects'and that Ms. Rangeley be assessed with costs.

The facts of this case are not in dispute. Therefore, the issue is whether the district court correctly interpreted and applied the law. Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Northwest Louisiana Production Credit Ass’n v. State, Dept. of Revenue and Taxation, 98-1995 (La.App. 1 Cir. 11/5/99), 746 So.2d 280, 282; Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 886 So.2d 121.

| .^Louisiana Civil Code article 2338 provides:

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

Louisiana Civil Code article 2341 provides:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

In its reasons for judgment, the trial court found:

Pursuant to La. C.C. art. 2338, the right to share in a retirement plan is a community asset, co-owned by the spouses, and subject to division upon dissolution of the marriage. Louisiana State Employees’ Retirement System v. McWilliams, 2006-2191 (La.12/2/2008), 996 So.2d 1036, 1043.
Our Supreme Court, citing Frazier v. Harper, 600 So.2d 59, 62-6[3] (La.1992), summarized the basis behind community property law principles surrounding retirement benefits as follows:
“(1) an employee’s contractual pension right is not a gratuity, but a property interest owned by him; (2) to the extent that the right derives from the spouse’s employment during the existence of the marriage, it is a community asset and subject to division upon dissolution of the marriage; (3) the right to share in a retirement plan is a community asset which, at the dissolution of the community, must be so classified-even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time.” McWilliams, 996 So.2d at 1043.
UThe repurchased retirement is a benefit granted to compensate Virginia [Rangeley] for the exercise of her labor, skill or industry. To the extent that the effort was made during the community, the benefit should be community. Had Virginia not worked during that period of time, there would be nothing to buy back. It is the community labor that created the right. The benefit is attributable to labor during the marriage. It should be unimportant that her buy back was voluntary or that she had to complete the payments in order to get the benefit. Furthermore, the source of the funds with which Virginia purchased the community assert should not change the character of the asset.
The Court finds that all repurchased service time that was earned during the existence of the community is an asset of the community and shall be divided according to the Sims formula. Virginia [Rangeley] is entitled to reimbursement from Tony Barker in the amount of one-half of the separate funds that she used to repurchase the service time.

In support of her position that the service credits she purchased were separate property, Ms. Rangeley cites Lodrigue v. Lodrigue, 01-1630 (La.App. 3 Cir. 5/8/02), 817 So.2d 466, writ denied, 02-1604 (La.10/4/02), 826 So.2d 1124. In that case, Mr. Lodrigue served in the military prior to his marriage. After he married, Mr. Lodrigue purchased service credit in his public pension program for his two years of military time. The trial court found that the two years of military service credit were not part of the community property. On appeal, the third circuit found that the two years of military service credit were community property because they were acquired during the community and were purchased with community funds. Thus, Ms. Rangeley maintains, the classification of the service credits purchased is determined by both the source of the funds and the timing of the purchase.

Ms. Rangeley also relies upon Tarver v. Tarver, 05-367 (La.App. 3 Cir. 11/2/05), 916 So.2d 1222. In that case, Mr. Tarver began working for the Concordia Parish Police Jury in 1973. He began contributing to the Parochial Employees Retirement System in April 1977, and got married three years and five months later. Three years after the marriage, in September 1983, he began working for the Department of Wildlife and Fisheries, withdrew his accrued 17contributions from the Parochial Employees Retirement System, and spent the refunded money on community purchases. Thereafter in 1991, he repurchased the time in the Parochial Employees Retirement System, and also purchased additional time for the three years and seven months that he worked with the Concordia Parish Police Jury before he joined the Parochial Employees Retirement System, for a total of 10.11 years, using community funds. The trial court concluded that the repurchased time was not community property. On appeal, following its ruling in Lodrigue, the third circuit reversed the trial court, noting that all of Mr. Tarver’s retirement credits were either earned or repurchased during the community with community funds, and finding that the repurchased time was all community property. Ms. Rangeley maintains that the Tarver court found that the source of the funds dictated the classification of the service credits.

Ms. Rangeley states that the language of Sims requires the trial court to credit the community only with the years of service credit that were in existence during the community, and that she did not have a property interest in the years of service credits being repurchased prior to the community termination date, June 16, 1988, as no service credits were put back into the system until the last payment was made. Thus, she maintains that her property interest in the service credits was attained on May 15, 1990, when she made the last payment.

Mr. Barker maintains that the trial court correctly determined that he had a property interest right in that portion of Ms. Rangele/s retirement benefit account earned and accrued during the existence of the matrimonial regime, irrespective of the time and manner in which it was repurchased. Mr. Barker asserts that the jurisprudence provides that the classification and characterization of the retirement benefit is to be determined as of the time the right was derived and/or acquired, irrespective of the marketable or redeemable cash value, and even though the ^contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time.

Mr. Barker relies in part upon La. State Employees’ Retirement System (LASERS) v. McWilliams, 06-2191 (La.12/2/2008), 996 So.2d 1036, 1043, for the holding that “pursuant to La. C.C. art. 2338, the right to share in a retirement plan is a community asset, co-owned by the spouses, and subject to division upon dissolution of the marriage.” In that case, Joel and Dianne McWilliams were married in 1969, and in 1972 Mr. McWilliams began working for the state of Louisiana. The couple had two children, Jodee and Joelle. The couple divorced in 1987, and a 1989 judgment recognized Dianne’s interest in Joel’s state retirement plan, providing that she was entitled to her portion, when and if he retired, terminated employment, or died. The judgment also recognized her interest in his military retirement plan and his interest in her Diocese of Baton Rouge retirement plan and ordered Dianne to make an equalizing payment to Joel. In 1993, Joel married Jane McMahon, and around 10 years later Joel died while still employed by the state.

Thereafter Jane, Joelle (then a college student), and Dianne all filed claims with LASERS for survivor benefits. LASERS invoked a concursus pursuant to La. C.C.P. art. 4651 to determine who was entitled to the survivor benefits. The Louisiana Supreme Court determined that, although Dianne was not the surviving spouse or child of Joel under the LASERS plan, her interest in the community portion of Joel’s retirement plan from their marriage remained intact. While these facts are very different from those in the case before us now, they show the extent to which the law protects the interest of the non-worker spouse in the worker spouse’s retirement service credits accrued during the marriage.

We find that under the jurisprudence, and the facts of this case, the service credits retained their character as a community asset. The service credits were |9earned during the marriage, they were cashed in and the refunded money went to the community. Thereafter, money was set aside by paycheck deductions beginning during the marriage from community funds to repurchase the service credits. The purchase was made after the divorce with both community and separate funds.

Thus, we find no legal error in the trial court judgment. All of the service time earned during the community, as well as all of the repurchased service time which had been earned during the community, is a community asset. Ms. Rangeley, however, is entitled to reimbursement from Mr. Barker for one-half of her separate funds used to repurchase the prior service time in the amount of $2,834.50.

In his answer to the appeal, Mr. Barker asks that the judgment be modified to provide for damages for his loss of interest accrued on any portion of the retirement benefit awarded to him by the trial court, including both the DROP account as well as the monthly service retirement allowance, retroactive to the date of distribution of the benefits. Mr. Barker did not make this request to the trial court; therefore the trial court did not rule on this issue, and his request is denied.

For the foregoing reasons, the trial court judgment is affirmed. The costs of the appeal are assessed against Ms. Rangeley.

RULE TO SHOW CAUSE DISMISSED; JUDGMENT AFFIRMED; ANSWER TO THE APPEAL DENIED.

      . Sims v. Sims, 358 So.2d 919 (La.1978).


text:
    Lolita B. CHESTERFIELD v. GENESIS HOSPICE, L.L.C., d/b/a Highland Hospice and Palliative, Care of Louisiana.
    No. 2013 CA 0179.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 19, 2013.

      A. Todd Caruso, Denham Springs, Louisiana, for Plaintiff/Appellant, Lolita B. Chesterfield.
    J. Ryan Vivian, John C. Hopewell, III Zachary, Louisiana, for Defendant/Appel-lee, Genesis Hospice, L.L.C. d/b/a Highland Hospice and Palliative Care of Louisiana.
    Before PETTIGREW, McDONALD, and McClendon, JJ.
   McDonald, J.

| ¡.Plaintiff appeals a district court judgment ordering payment of wages, vacation leave, and reimbursement for mileage by her former employer, but failing to order attorney fees, costs, and penalties. For the following reasons, we amend, and as amended, affirm.

Lolita Chesterfield began working as a billing manager for Genesis Hospice, L.L.C. d/b/a Highland Hospice & Palliative Care of Louisiana (Genesis) in September 2005. After some years, Genesis began having financial difficulties. In February 2011, Ms. Chesterfield determined that she could not continue to work, as she was not being paid. She resigned, with her last day of work being February 21,2012.

Ms. Chesterfield maintains that despite amicable demand, Genesis failed to pay her upon her separation from their employ in accordance with La. R.S 23:631A(l)(b). That statute provides, in pertinent part:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no longer than fifteen days following the date of resignation, whichever comes first.

Louisiana Revised Statutes 23:632 provides a penalty for employers who violate La. R.S. 23:631, which Ms. Chesterfield maintains she is owed. That statute provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed |sfrom time of making the first demand following discharge or resignation.

Genesis does not dispute that it owed Ms. Chesterfield’s wages, but claims that it had an equitable defense to its failure to pay them, and it is not liable for penalty wages. A good faith non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability, permits the court to excuse the employer from the imposition of additional penalty wages. Wyatt v. Avoyelles Parish School Bd., 01-3180 (La.12/4/02), 831 So.2d 906, 917; Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555, 557 (La.1978). Ms. Chesterfield asserts that Genesis’s “defense” was devised after it received notice of a lawsuit that Ms. Chesterfield had filed in city court and it became aware that it could be liable for attorney fees and penalty wages. According to Ms. Chesterfield, prior to that time Genesis alleged that Ms. Chesterfield was not being paid because the funds were not available.

The record indicates that, in fact, Genesis’s employees were not paid timely and Genesis seemed to be in financial difficulty. However, though not timely, all employees, except Ms. Chesterfield, were eventually paid. Ms. Chesterfield was the billing manager for Genesis. Genesis alleges that it was their policy to conduct an internal audit if that position became vacant. It was the audit that revealed the problems with Ms. Chesterfield’s work that was submitted as a defense. Actually, Genesis was refusing to pay Ms. Chesterfield’s salary and offered to pay her minimum wage for the hours owed. It was their contention that Ms. Chesterfield’s actions or inactions cost them a considerable amount of time and money, especially by her failure to submit Medicare/Medicaid billing, although she had the necessary information. Also, Genesis’s business was being purchased, which may have contributed to some disorder.

|4Ms. Chesterfield maintains the jurisprudence requires a “dispute” to establish an equitable defense, and in this case, there was none. Our review of jurisprudence, however, reveals a dispute is not required to establish an equitable defense. See Newsom v. Global Data Systems, Inc., 12-412, 12-413 (La.App. 3 Cir. 12/12/12), 107 So.3d 781, 787-788, writ denied, 13-0429 (La.4/5/13) 110 So.3d 595; Goulas v. B & B Oilfield Services, Inc., 10-934, 10-1393 (La.App. 3 Cir. 8/10/11), 69 So.3d 750, writ denied, 11-1951 (La.11/14/11), 75 So.3d 945. Further, arguably, Genesis has created a dispute by maintaining it did not owe Ms. Chesterfield the totality of back wages at her rate of pay of $17.21 per hour, because she failed to do the work that was required.

The district court judgment awarded Ms. Chesterfield the amount of wages she had sued for at the rate of $17.21 per hour for a total of $2,753.60. Additionally, she was awarded the amount of $1,536.85 for her earned vacation leave and mileage reimbursement in the amount of $13.20. The court’s judgment specifies that “[I]t is further ordered, adjudged and decreed that the court declines to assess any penalty wages against Genesis Hospice.” Apparently, the court found that Genesis had an equitable defense that relieved them of the obligation to pay penalty wages.

Louisiana Revised Statutes 23:632, insofar as it imposes a penalty, “must be strictly construed and it may yield to equitable defenses.” Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.3/4/98), 707 So.2d 1233, 1236; See also, Bannon v. Techeland Oil Corp., 205 La. 689, 693, 17 So.2d 921, 922 (La.1944). We are a court of review, not a court of original jurisdiction. We may not reverse the district court on a factual determination unless it is manifestly erroneous. Barnett v. Saizon, 08-0336 (La.App. 1 Cir. 9/23/08), 994 So.2d 668, 672. Upon our review of the entire record, we find a reasonable basis for the district court’s decision not to impose penalty wages and |fido not find that it is manifestly erroneous. Therefore, we affirm the district court’s decision not to award penalties pursuant to La. R.S. 23:632. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

What remains of Ms. Chesterfield’s appeal is her challenge of the district court’s assessment of costs and failure to award attorney fees. Unlike penalty wages, courts do not permit equitable defenses to the award of attorney fees in the event a “well-founded” suit for wages is filed. Beard, 707 So.2d at 1237; Kern v. River City Ford, Inc., 98-0407 (La.App. 1 Cir. 2/19/99), 754 So.2d 978, 985. An award of reasonable attorney fees is mandatory in the event an employee brings a well-founded suit for unpaid wages, even if penalty wages are not due, and suits in which the recovery of back wages are granted are considered well-founded. Schuyten v. Superior Systems, Inc., 05-2358 (La.App. 1 Cir. 12/28/06), 952 So.2d 98, 107. Where the record does not detail time and costs of an attorney’s services, the court may nonetheless fix the fee. Cochran v. American Advantage Mortg. Co., Inc., 93-1480 (La.App. 1 Cir. 6/2/94), 638 So.2d 1235,1240.

Rule 1.5 of the Rules of Professional Conduct provides the following factors to be considered by the court in setting reasonable attorney fees:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

| ^Considering what we are able to glean from the record regarding the factors listed, we award an attorney fee of $5,000.00.

The district court decreed that each party was to bear their own costs. We affirm and find no abuse of the trial court’s discretion on this issue.

Accordingly, after careful review of the law and jurisprudence, the district court judgment awarding Ms. Chesterfield past wages in the amount of $2,753.60, $1,536.85 for vacation leave, and mileage reimbursement in the amount of $13.20 is affirmed. The court’s decision that each party bear their own costs is affirmed. Having determined that an award of attorney fees is mandated when a suit for unpaid wages is successful, we amend the judgment and order the defendant, Genesis Hospice, L.L.C. d/b/a Highland Hospice & Palliative Care of Louisiana, to pay attorney fees in the amount of $5,000.00.

Costs of this appeal are assessed against the appellee, Genesis Hospice, L.L.C. d/b/a Highland Hospice & Palliative Care of Louisiana.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The suit initially filed was dismissed because it was in an improper venue.