text:
    Jana M. LANTZ, Appellant, v. Dr. Eric J. SMITH, as Commissioner of Education, Appellee.
    No. 1D12-870.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Jana M. Lantz, pro se, Appellant.
    Charles T. Whitelock, Fort Lauderdale, for Appellee.
   PER CURIAM.

Jana M. Lantz, Appellant, appeals from a final order of the Education Practices Commission (Commission). Appellant raises three arguments, but we find merit in only one. We conclude that the Commission abused its discretion when it improperly rejected or modified a number of the pivotal factual findings in the administrative law judge’s (ALJ) recommended order. Accordingly, we reverse.

The Commissioner of Education (Commissioner) filed an administrative complaint against Appellant, a teacher in the Miami-Dade County School District. The administrative complaint alleged Appellant acted in an unprofessional manner toward a colleague (Ms. Wallace) and a member of the school’s administration in the presence of students, engaged in conduct that seriously reduced her effectiveness as an employee, and failed to protect students from conditions harmful to learning and/or to the students’ mental health, physical health or safety.

The case proceeded to a formal administrative hearing during which the ALJ heard conflicting testimony from several witnesses and reviewed documents that were entered into evidence. After the formal administrative hearing, the ALJ issued a comprehensive recommended order finding that after Ms. Wallace used Appellant’s classroom for a portion of the day to administer standardized tests, Appellant returned to the classroom, was displeased to find the desks and tables not in their normal places, and complained loudly that Ms. Wallace had not rearranged the room as promised. The ALJ found the two briefly disagreed over the location of the furniture in the classroom and whose job it was to restore the original configuration. The ALJ determined that Ms. Wallace’s testimony regarding her fear for the safety of herself and students to be disingenuous and concluded that the “incident was neither as intense as Ms. Wallace described it, nor was Ms. Wallace as free of responsibility for causing the incident, or escalating the exchange.”

The ALJ concluded that there was “no basis to find any impact to the students who may have witnessed all or part of a frustrated exchange between two teachers during the week of FCAT testing.” The ALJ also concluded that the Commissioner failed to prove that 1) Appellant was guilty of gross immorality or an act of moral turpitude; 2) “whatever the students witnessed of the confrontation between” Appellant and Ms. Wallace or the dismissive treatment by Appellant of an assistant principal rose to the level of a condition harmful to learning or to the students’ mental or physical, health or safety, or that Appellant intentionally exposed her students to unnecessary embarrassment or disparagement. Finally, the ALJ concluded that the “brief exchange did not rise to the level of interfering with either employee’s discharge of her professional responsibilities or creating a hostile, intimidating, abusive, offensive, or oppressive environment.” Consequently, the ALJ recommended that the administrative complaint be dismissed.

The Commissioner filed exceptions to the recommended order. The Commission held a hearing and entered a final order in which it rejected or modified a number of the ALJ’s findings of fact and conclusions of law. With regard to each of the Commissioner’s eight exceptions to findings of fact, the final order states the Commission “accepted” the exception, “finding there is no[ ] competent and substantial evidence to support the findings of fact in the Recommended Order based on [the Commissioner’s] written argument attached and incorporated herein.” The Commission then adopted the “material allegations in the Administrative Complaint” as its findings of fact. On this basis, the Commission rejected the ALJ’s recommendation and instead issued a letter of reprimand, placed Appellant on two years’ probation, and imposed an administrative fine.

On appeal, Appellant argues that the Commission improperly rejected or modified a number of the pivotal factual findings. Appellant asserts that the case was “primarily one of the weight or credibility” given to the testimony of herself and Ms. Wallace, and that determination of credibility is a matter that “lies with the [ALJ] ” and “is not within the authority of the [C]ommission to reject or modify.” We agree.

Section 120.57(1)0), Florida Statutes (2010), provides that the agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record that the findings of fact were not based upon competent, substantial evidence or that the proceedings on which the findings were based did not comply -with the essential requirements of law. If the ALJ’s findings of fact are supported by competent, substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent, substantial evidence. Resnick v. Flagler Cnty. Sch. Bd., 46 So.3d 1110, 1112-13 (Fla. 5th DCA 2010) (“In a fact-driven case such as this, where an employee’s conduct is at issue, great weight is given to the findings of the [ALJ], who has the opportunity to hear the witnesses’ testimony and evaluate their credibility.”). “Credibility of the witnesses is a matter that is within the province of the [ALJ], as is the weight to be given the evidence.” Stinson v. Winn, 938 So.2d 554, 555 (Fla. 1st DCA 2006). “The [ALJ] is entitled to rely on the testimony of a single witness even if that testimony contradicts the testimony of a number of other witnesses.” Id. An agency abuses its discretion when it improperly rejects the ALJ’s findings. Res-nick, 46 So.3d at 1113.

We conclude the Commission abused its discretion when it modified the factual findings in the recommended order. The ALJ’s findings were supported by competent, substantial evidence. The ALJ was entitled to rely on the testimony of a single -witness even if that testimony contradicts the testimony of a number of other witnesses. Because the ALJ’s findings were supported by competent, substantial evidence, the Commission could not reject or modify them as was done in the final order. Accordingly, we reverse the final order of the Commission and remand the ease for entry of an order dismissing the administrative complaint, consistent with the recommendation of the ALJ.

REVERSED and REMANDED with instructions.

BENTON, C.J., LEWIS and ROWE, JJ., concur.

      . Specifically, the administrative complaint alleged that Appellant 1) violated section 1012.795(l)(d), Florida Statutes (2010), in that she was guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education; 2) violated section 1012.795(l)(g), Florida Statutes (2010), in that she was guilty of personal conduct which seriously reduced her effectiveness as a school board employee; 3) violated section 1012.795(l)(j), Florida Statutes (2010), in that she violated Principles of Professional Conduct for the Education Profession; 4) violated Florida Administrative Code Rule 6B-1.006(3)(a) (2010), when she failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the students' mental health and/or physical health and/or safety; 5) violated Florida Administrative Code Rule 6B-1.006(3)(e) (2010), by intentionally exposing a student to unnecessary embarrassment or disparagement; and 6) violated Florida Administrative Code Rule 6B-1.006(5)(d) (2010), when she engaged in harassment or discriminatory conduct which unreasonably interfered with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment.

      .The material allegations set forth in the administrative complaint were as follows:
      3. On or about March 11, 2010, [Appellant] demonstrated inappropriate conduct and acted in an unprofessional manner toward a colleague and a member of the school administration.
      4. When another (reading coach) teacher had been assigned to utilize [Appellant’s] classroom and rearranged the desks, [Appellant], in the presence of students, became upset and yelled at the teacher in a menacing manner. [Appellant] stood in the other teacher's face in a confrontational manner while pointing her finger at the teacher and yelling. [Appellant] commented that the teacher should, "Go! Be gone, go away! .... By the way, you don’t do anything,” or words to that effect.
      5.When the Assistant Principal arrived, after being summoned by a security monitor, and asked [Appellant] to refrain from her actions in front of students, [Appellant] said, "I will deal with you later,” or words to that effect.

      . Although the Commission could properly reject the finding in paragraph 1 regarding Appellant's weight and the finding in paragraph 13 regarding the possibility that tension may have developed between Appellant and Ms. Wallace based on their respective roles as a steward in the teachers’ union and professional liaison to classroom teachers, these factual determinations did not affect the material findings of fact by the AU—findings that were supported by competent, substantial evidence and in turn supported the conclusions in the recommended order.

      . The record does not demonstrate that the Commission fully understood its role in considering and ruling upon exceptions to the ALJ’s findings of fact. For example, at one point during the consideration of the exceptions, one member made the pertinent observation that “[fit's just so much he said she said.” The chair person stated to other members that if the Commission accepted one of the Commissioner's exceptions, they had to state on the record “that our exception’s more reasonable than what the [ALJ]" concluded. Although the Commission’s counsel explained the standard, the chair person subsequently stated it was for the panel "to determine whether we agree with Petitioner’s filings or agree with what the [ALJ] did.” When addressing Exception Number 2, in which the Commissioner argued there was no competent, substantial evidence to support the finding that the colleague lost her composure and became agitated while testifying, one member of the panel moved to accept the Commissioner's exception "because the proposed conclusion is more reasonable than the [ALJ’s] conclusion.”


source: Caselaw Access Project

author: MARSTILLER, J. BENTON, C.J.,

license: Public Domain

text:
    Leronnie Lee WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6776.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Leronnie Lee Walton (“Appellant”) appeals his convictions and sentences for two counts of attempted murder of a police officer and two counts of attempted armed robbery. We affirm the convictions without discussion.

However, Appellant raises two sentencing issues that do require discussion. The first is whether the trial court correctly imposed consecutive mandatory minimum sentences under section 775.087, Florida Statutes, the 10-20-Life statute, when Appellant’s crimes were all committed during a single episode. As explicated below, we affirm the sentencing scheme, concluding that section 775.087(2)(d) expressly authorizes consecutive mandatory minimum sentences. In reaching this conclusion, we recede from Lanham v. State, 60 So.3d 532 (Fla. 1st DCA 2011), in which we held consecutive mandatory minimum sentences impermissible where a defendant displays a firearm, but does not discharge it, while committing multiple offenses. We further certify conflict with Irizarry v. State, 946 So .2d 555 (Fla. 5th DCA 2006). The second issue is whether the trial court improperly resentenced Appellant in his absence. Concluding that the court erred, we remand for resentencing with Appellant present.

I.

In the early afternoon of September 10, 2008, Kristina Salas and her sister, Karine Nalbandyan, residents of City Ridge Apartments in Duval County, were putting their 3-year-old children into a car, preparing to pick up their older children from school. As Salas bent over to brush something from the car’s seat, a man ambushed her, put her in a headlock, held a gun to her head, and demanded that she give him her purse or be killed. The two straggled over the purse until the handle broke and it fell to the ground. At that point, the man went to the other side of the car and demanded Nalbandyan’s purse, also threatening her with the gun.

Detectives Shannon Fusco and James Johnston, with the Jacksonville Sheriffs Office, were investigating a theft at City Ridge Apartments when they came upon the scene. Detective Fusco identified herself as law enforcement and ordered the man threatening Nalbandyan to put the gun down. He responded by shooting at the detectives, and a gun battle ensued. Two eyewitnesses — a mother and her teenage daughter — who lived in the complex observed two men shooting at the detectives. They also saw the men get into an orange-colored vehicle and speed away from the scene. The mother was later able to identify the two shooters from a photo line-up; her daughter could identify only one. The man they both identified was Appellant.

Following a jury trial, Appellant was convicted of two counts of attempted murder of a police officer with possession and discharge of a firearm during commission, and two counts of attempted armed robbery with possession of a firearm during commission. Pursuant to section 775.087(2), Florida Statutes (2008), which mandates specific minimum sentences depending on whether a firearm is possessed, displayed, or discharged while committing specified crimes, the trial court sentenced Appellant to life imprisonment with 20 years’ mandatory minimum on each attempted murder charge, and to 15 years’ imprisonment with 10 years’ mandatory minimum on each attempted armed robbery charge. All sentences and mandatory mínimums were to run consecutively.

While this appeal was pending, Appellant filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) asserting that the life sentences were illegal because the statutory provision authorizing life imprisonment for attempted murder of a police officer did not go into effect until after Appellant committed his crimes. He also asserted that the consecutive mandatory minimum sentences were illegal because all the crimes occurred during a single episode. Appellant did not otherwise challenge the sentences imposed for the attempted armed robberies.

The parties ultimately agreed that under section 775.087(l)(b), the attempted murders, normally second-degree felonies, could be reclassified to first-degree felonies subject to a maximum permissible prison term of BO years for each count. Accordingly, the trial court re-sentenced Appellant to two 30-year terms for the attempted murders, re-imposed the 20-year mandatory mínimums for those offenses, left intact the sentences originally imposed for the attempted armed robberies, and again ordered that all sentences and mandatory mínimums run consecutively. Appellant was not present at resentencing. Although the trial court expressed concern about proceeding in Appellant’s absence, defense counsel felt it “would be okay” because Appellant’s total sentence was being reduced, not increased.

II.

We first address whether the trial court may impose consecutive mandatory minimum sentences under section 775.087, Florida Statutes. Appellant argues on appeal, as he did below in his 8.800(b)(2) motion, that such “stacking” of mandatory minimum sentences under section 775.087 is impermissible where the crimes all occurred during a single episode.

Under section 775.087(2)(a)l., Florida Statutes (2008), a person who is convicted of committing or attempting to commit any of several enumerated felonies, “regardless of whether the use of a weapon is an element of the felony,” and who, while committing the offense, “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years[.]” If the person “discharged a ‘firearm’ or ‘destructive device’ ” while committing the offense, section 775.087(2)(a)2., Florida Statutes (2008), mandates “a minimum term of imprisonment of 20 years.” Murder and robbery are two of the specified felonies. See §§ 775.087(2)(a)l.a, (2)(a)l.c., Fla. Stat. (2008).

Appellant here was convicted of two counts of attempted murder and two counts of attempted armed robbery. On the attempted murders, the trial court imposed 20-year mandatory minimum sentences because Appellant fired a gun at two police officers. And on the attempted armed robberies, the court imposed 10-year mandatory minimum sentences because Appellant possessed, but did not discharge, a gun.

Section 775.087(2)(d), Florida Statutes (2008), specifically addresses consecutive imposition of mandatory mínimums, stating:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.

(Emphasis added). Before the Legislature enacted this subsection in 1999, Florida Supreme Court precedent governed whether mandatory minimum sentences could be imposed consecutively for multiple crimes occurring in a single episode. In Palmer v. State, 438 So.2d 1 (Fla.1988), the supreme court held that while consecutive mandatory minimum sentences were permissible for offenses occurring in separate incidents, they were impermissible— absent explicit statutory authority — for multiple crimes occurring in a single episode. Id. at 3-4. There, the defendant displayed, but did not discharge, a firearm while committing multiple felonies — armed robberies and aggravated assaults— against multiple victims during one criminal episode. Id. at 2.

Subsequently, in State v. Thomas, 487 So.2d 1043 (Fla.1986), the supreme court permitted consecutive mandatory minimums where the defendant committed attempted first-degree murder and aggravated assault in one incident, shooting at two victims and injuring one. Id. at 1044. The court reasoned that even without explicit statutory authority, consecutive sentencing was permissible because the single incident involved “two separate and distinct offenses involving two separate and distinct victims.” Id. Later, in State v. Christian, 692 So.2d 889 (Fla.1997), the supreme court further refined the rule, holding that “for offenses arising from a single episode ... stacking of firearm mandatory minimum terms [ ] is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.” Id. at 890-91 (footnotes omitted).

If section 775.087(2)(d) had not been in effect when the trial court sentenced Appellant, Palmer, Thomas, and Christian would dictate that Appellant’s consecutive mandatory minimum sentences for the attempted murders are valid because he fired his gun at two victims. But the consecutive mandatory minimum sentences for the attempted armed robberies would be invalid because Appellant did not fire his gun while committing those crimes.

Section 775.087(2)(d) was and is in effect, however, having been enacted shortly after Christian. The question, therefore, is whether the statute changes the outcome just described.

In State v. Sousa, 903 So.2d 923 (Fla.2005), the supreme court held that section 775.087(2)(d) explicitly authorizes consecutive mandatory minimum sentences imposed under 10-20-Life. Id. at 927. On review in Sousa was a Second District decision disapproving the very type of stacking the supreme court had approved in Christian — consecutive minimum mandatory terms for multiple offenses committed during a single episode where the defendant shot at multiple victims. The Second District had held that section 775.087(2)(d) does not permit the stacking of mandatory minimum sentences imposed under 10-20-Life. Id. at 924. In reaching its conclusion, the Second District had" relied on a decision from the Third District, Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), interpreting the operative sentence in section 775.087(2)(d) to mean that mandatory mínimums under 10-20-Life could only run consecutively to sentences for other separate crimes that are not part of a single prosecution. See Sousa, 903 So.2d at 926-27. Disapproving this interpretation, the supreme court stated:

We disagree that section 775.087 as amended still does not permit consecutive sentences. To draw that conclusion we would have to find that the 1999 amendment to section 775.087 overrules our decisions in Christian and Thomas. We do not agree. Rather we conclude that this amendment to the statute is consistent with the decisions in Christian and Thomas.
We do not agree with the reasoning of the Third District in Mondesir to the extent it construes the statute to mean that the “any other” language only refers to crimes which took place at different times. We find nothing in the statutory language which supports that construction of the statute. The statute’s plain language does not state that, nor do we find the language of the statute to be ambiguous.

Id. at 927 (citation omitted).

It is clear, then, that section 775.087(2)(d) authorizes consecutive minimum mandatory sentences for multiple offenses committed during a single episode, involving multiple victims, where the defendant discharges a firearm. Accordingly, we affirm Appellant’s consecutive 20-year mandatory minimum sentences for two counts of attempted murder of a police officer.

We still must determine whether section 775.087(2)(d) authorizes the stacking of mandatory minimums where there are multiple victims and the defendant does not discharge a firearm. In Lanham v. State, 60 So.3d 532, 532 (Fla. 1st DCA 2011), we answered the question in the negative. There, we reversed consecutive mandatory minimum sentences where, although two victims were involved, the appellant displayed, but did not fire, his weapon. Id. at 532. We neither cited nor discussed section 775.087(2)(d). Instead, the foundation for our decision was Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006), which has been followed by at least two other district courts of appeal. See Roberts v. State, 990 So.2d 671, 675 (Fla. 4th DCA 2008); Perry v. State, 973 So.2d 1289, 1289-90 (Fla. 4th DCA 2008); Church v. State, 967 So.2d 1073, 1075 (Fla. 2d DCA 2007).

In Irizarry, the Fifth District held that Christian and Thomas — decisions that predate section 775.087(2)(d) — “still apply in determining when minimum mandatory sentences for 10-20-Life offenses may be consecutively imposed. Christian and Thomas provide that consecutive mandatory minimums are not permitted where a defendant does not fire the weapon.” Iri-zarry, 946 So.2d at 558. The Fifth District based its decision on the above-quoted passage in Sousa in which the supreme court stated that section 775.087(2)(d) did not overrule, and is consistent with, Christian and Thomas. Id.

We have studied Sousa and Irizar-ry anew, and we now disagree with the Fifth District’s reading of Sousa — and consequently recede from Lanham — for the following reasons. First, construed in the context of the specific issue before the supreme court in Sousa, the statement that Christian and Thomas were not overruled by section 775.087(2)(d) means only that those decisions were not overruled insofar as they permitted stacking at all. The Palmeri-Thomas-Christian trio of decisions came about because section 775.087(2) — at that time — did not authorize consecutive mandatory minimum sentences. Case law thus determined when a court could lawfully stack mandatory minimums. The specific issue in Sousa was whether subsequently-enacted section 775.087(2)(d) now provides statutory authority to impose consecutive mandatory minimums for crimes involving multiple victims and firearm discharge — a sentencing scheme that case law previously permitted without statutory authority. Two district courts had held that the statute does not give such authorization. The supreme court rejected their reading of the statute, stating:

We disagree that section 775.087 as amended still does not permit consecutive sentences. To draw that conclusion we would have to find that the 1999 amendment to section 775.087 overrules our decisions in Christian and Thomas. We do not agree.

Sousa, 90S So.2d at 927 (emphasis added). The clear — and limited — import of these statements is that the legislative enactment did not render impermissible that which case law previously had deemed permissible. Although Christian and Thomas held that trial courts may not stack mandatory minimums for offenses not involving firearm discharge without statutory authority, the question of whether such a sentencing scheme became permissible under section 775.087(2)(d) was not considered by the supreme court in Sousa. Therefore, we find the Fifth District’s reading of Sousa overly broad.

Second, our sister court’s conclusion that Christian and Thomas still prohibit consecutive mandatory minimums where a gun is not fired squarely conflicts with the plain language of section 775.087(2)(d). Before the statutory provision came into being, a sentencing court’s authority, under case law, to stack mandatory minimum sentences for crimes occurring during a single episode turned on whether some factor, such as the firing of a gun at multiple victims, bifurcated or separated the crimes for stacking purposes. See Christian, 692 So.2d at 890-91. Now, section 775.087(2)(d), which the Legislature enacted only two years after Christian, authorizes consecutive mandatory minimum sentences under 10-20-Life for crimes committed in a single episode without exception or limitation. The operative sentence in section 775.087(2)(d) reads: “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” (Emphasis added). The statute contains no prohibition against consecutive mandatory minimums where a defendant does not fire a weapon. Neither does the language create an ambiguity that would permit reading such a prohibition into the statute. Rather, the statute is clear: any mandatory minimum term required by section 775.087(2) — whether the defendant fires a gun, or only carries or displays it— shall be imposed consecutively to any other term imposed for any other felony. Because we so hold, we recede from our decision in Lanham, and we affirm Appellant’s consecutive 10-year mandatory minimum sentences for two counts of attempted armed robbery. We further certify conflict with Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006).

III.

Although we hold the trial court correctly imposed consecutive mandatory minimum sentences under section 775.087(2), we reverse Appellant’s sentences because he was not present at re-sentencing. A defendant has a basic constitutional right to be present at every critical stage of a criminal proceeding, including sentencing. See Evans v. State, 909 So.2d 424, 425 (Fla. 5th DCA 2005); Capuzzo v. State, 578 So.2d 328, 330 (Fla. 5th DCA 1991); see also Fla. R. Crim. P. 3.180(a)(9) (2010) (stating a defendant “shall” be present during the “imposition of sentence”). A defendant’s right to be present extends to resentencing following a successful rule 3.800(b) motion. See Rivers v. State, 980 So.2d 599, 600-01 (Fla. 2d DCA 2008). Violation of this fundamental right is reversible error. See Blair v. State, 25 So.3d 46, 48 (Fla. 5th DCA 2009); Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006); Roy v. State, 711 So.2d 1348, 1349 (Fla. 1st DCA 1998).

However, a court may resentence a defendant in his or her absence in two circumstances. First, a defendant may waive the right to be present. See Brown v. State, 929 So.2d 675, 677 (Fla. 5th DCA 2006); Smith v. State, 655 So.2d 1271, 1272 (Fla. 1st DCA 1995). But to be effective, the waiver must be knowingly, intelligently, and voluntarily made. See Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003). Second, a defendant need not be present at resentencing if the error to be corrected is “purely ministerial” or clerical, and involves no exercise of the court’s discretion. See Christian v. State, 5 So.3d 787, 787 (Fla. 1st DCA 2009); Rivers v. State, 980 So.2d 599, 600 (Fla. 2d DCA 2008). Ministerial or clerical corrections include, e.g., striking an improper violent career criminal designation, see Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008); entering a written sentence where none existed before, see Williams v. State, 697 So.2d 584, 584 (Fla. 4th DCA 1997); or changing the written sentence to conform to the oral pronouncement of sentence, see Frost v. State, 769 So.2d 443, 444 (Fla. 1st DCA 2000).

Neither circumstance is present in this ease. Defense counsel’s consent did not serve, under the facts here, to waive Appellant’s right to be present at resen-tencing. Cf. Allen v. State, 799 So.2d 284, 285-86 (Fla. 5th DCA 2001). And the resentencing in this case was not purely ministerial. See Christian, 5 So.3d at 787. Upon concluding, based on Appellant’s rule 3.800(b)(2) motion, that the attempted murders are subject not to life sentences, but to maximum terms of 30 years, the trial court was not bound to impose the maximum terms. Rather, the court had the discretion to impose sentences anywhere between the 20-year mandatory minimum and the 30-year maximum. See, e.g., Phillips v. State, 705 So.2d 1320, 1322 (Fla.1997) (characterizing post-remand re-sentencing as a completely new proceeding in which trial court is not obliged to make same findings as those made at prior sentencing proceeding). Accordingly, we reverse Appellant’s sentences and remand for resentencing with Appellant present.

AFFIRMED in part; REVERSED in part; and REMANDED. CONFLICT CERTIFIED.

WOLF, DAVIS, VAN NORTWICK, PADOVANO, LEWIS, THOMAS, ROBERTS, CLARK, WETHERELL, ROWE, RAY and MAKAR, JJ., concur.

BENTON, C.J., concurs in an opinion joined by SWANSON, J.

BENTON, C.J.,

concurring in result.

I concur in the court’s judgment insofar as it affirms the appellant’s convictions. I agree that the sentences pronounced below must be reversed because the defendant was not present, and did not waive his right to be present, at sentencing.

      .
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, ... the felony for which the person is charged shall be reclassified as follows:
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      § 775.087(l)(b), Fla. Stat. (2008).

      . See ch. 99-12, § 1, at 540, Laws of Fla.

      . See §§ 775.082(3)(b), 775.087(l)(b), Fla. Stat. (2008).


author: PER CURIAM.

text:
    Jerry COLEMAN, individually, and Jerry Coleman, P.L., Appellants, v. ATTORNEY GENERAL OF FLORIDA and The Bank of America Corporation, In Re: Investigative Subpoenas Duces Tecum Issued by the Florida Attorney General, Department of Legal Affairs, Economic Crimes Division, to Countrywide Home Loans, Inc., Appellees.
    No. 1D12-1513.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.

      Jerry Coleman, of Jerry Coleman, P.L., Key West, for Appellants.
    Pamela Jo Bondi, Attorney General, and Mark S. Hamilton, Assistant Attorney General, Tallahassee, for Appellee Attorney General of the State of Florida; Paul F. Hancock of K & L Gates LLP, Miami, and Richard E. Doran of Ausley & McMul-len, Tallahassee, for Appellee Countrywide Home Loans, Inc.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction. See Morrell v. Nat’l Health Investors, Inc., 876 So.2d 580, 580-81 (Fla. 1st DCA 2004) (dismissing the appeal because a non-party to the proceedings below may not participate in appellate review).

DISMISSED.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Anthony Lewis GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1336.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2013.
    Anthony Lewis Graham, pro se; Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm but remand with directions to the trial court to again direct the clerk of the court to correct the judgment and sentence to remove the $100 Prosecution Investigative Cost as the court had previously ordered, and to ensure that the probation order has been corrected as previously ordered.

AFFIRMED.

LEWIS, CLARK, and RAY, JJ., concur.


author: WARNER, J.

text:
    Andrako BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2541.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Andrako Bradley, appeals his sentence to five years in prison following his no contest plea. Because the trial court failed to make written findings that a nonstate prison sanction could present a danger to the public, pursuant to section 775.082(10), Florida Statutes (2010), we reverse and remand for resentencing.

The state charged appellant with felony battery in violation of section 784.03(2). It alleged the commission of a battery by appellant together with the commission of a previous battery by him in 2005. Felony battery is a third degree felony, punishable by up to five years in prison. See § 775.082(3)(d), Fla. Stat. (2010). Appellant entered a plea, and was adjudicated guilty and sentenced to three years of probation. Subsequently, in 2011, appellant violated probation. Following a hearing, the court revoked appellant’s probation and immediately sentenced appellant to five years in prison. It is undisputed that appellant’s criminal scoresheet at the time of sentencing, including the violation of probation, totaled 12.8 points. After sentencing, appellant filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that his sentence violated section 775.082(10), which requires the court to sentence an offender to a nonstate prison sentence when the offender has not committed a forcible felony and whose sentencing points are 22 or fewer. The trial court did not rule on this issue within the time permitted by the rule, thus requiring us to review the issue through this appeal. See Fla. R. Crim. P. 3.800(b)(1)(B). We review the legality of appellant’s sentence de novo. Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

Section 775.082(10) sets forth the following rule regarding sentencing for offenders scoring less than 22 points:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

The list of “forcible felonies” in section 776.08, Florida Statutes (2010), does not specifically include battery. However, a catchall provision covers “any other felony which involves the use or threat of physical force or violence against any individual.”

Felony battery under section 784.03(2) requires that the state prove the elements of battery, which occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

§ 784.08(l)(a), Fla. Stat. (2010). In addition, the state must prove that the defendant has a prior conviction for battery, aggravated battery, or felony battery. Id.

At issue is whether felony battery constitutes a forcible felony within the meaning of the statute. The supreme court addressed what was a forcible felony under an identical catch-all provision in section 776.08 in State v. Hearns, 961 So.2d 211, 213-14 (Fla.2007). In Hearns, the defendant was convicted of battery on a law enforcement officer (“BOLEO”). The state sought an enhanced sentence under the violent career criminal statute, which requires conviction of a forcible felony as defined by section 776.08, which “does not specifically list BOLEO, or even battery, as a qualifying offense.” Id. at 214.

Citing Perkins v. State, 676 So.2d 1310 (Fla.1991), the Hearns court held that “for an offense to be a forcible felony under section 776.08, the ‘use or threat of physical force or violence’ must be a necessary element of the crime.” Id. at 215. “If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.” Id.See also Perkins, 576 So.2d at 1313 (quoting § 776.08, Fla. Stat. (1987)) (“The statute does not say that a forcible felony is any felony that ‘may sometimes’ involve violence, or even a felony that ‘frequently does’ involve violence. Rather, the statute requires that the felony actually ‘involves the use or threat of physical force or violence against any individual.]’ ”).

Applying Hearns to this case, the felony battery alleged was based specifically and exclusively on appellant’s previous battery conviction, rather than on causing great bodily harm, permanent injury, or permanent disfigurement. Therefore, the only elements the state had to prove were: 1) that appellant committed a battery, and 2) that appellant was previously convicted of a battery. Because the crime requires only the commission of a battery, it does not involve a forcible felony, because otherwise “any intentional touching, no matter how slight, is sufficient to constitute a simple battery.” Hearns, 961 So.2d at 218-19. Battery does not require as an element physical force or violence against an individual. That felony battery, as charged against appellant, may sometimes or even frequently involve the use or threat of physical violence is insufficient to categorize felony battery under section 784.03(2) as a forcible felony.

The conclusion that appellant was not convicted of a forcible felony and scored fewer than 22 points implicates the sentencing restriction in section 775.082(10). The statute requires the court to impose a nonstate prison sanction unless it makes written findings that such a sentence poses a danger to the public. See also Bryant v. State, 98 So.Sd 381 (Fla. 2d DCA 2012). (“[T]he plain language of the statute requires the trial court to make ‘written findings that a non[-]state prison sanction could present a danger to the public’ before it ‘may sentence the offender to a state correctional facility.’ ”). In Bryant, the court reversed and remanded for re-sentencing, at which time the trial court could make additional findings to support a prison sentence. Of note, the Second District certified conflict with Goldberg v. State, 76 So.3d 1072 (Fla. 5th DCA 2011). There, the court held that when the trial court fails to make written findings at the original sentencing hearing, the trial court could not make additional findings to depart from the nonstate prison sentence. Id. at 1074.

The trial court below did not make any written findings (or any findings for that matter) that a nonstate prison sanction could present a danger to the public. This was error, and we reverse and remand for resentencing. In line with Bryant, the trial court may consider whether a nonstate prison sentence would be a danger to the public, but it must make written findings to support its sentence. To the extent that this opinion conflicts with Goldberg, we also certify conflict.

CIKLIN and LEVINE, JJ., concur.


text:
    PHILIP MORRIS USA INC., R.J. Reynolds Tobacco Company, and Lorillard Tobacco Company, Appellants, v. Jerry WEINGART, as Personal Representative of the Estate of Claire Weingart, Appellee.
    No. 4D11-3878.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Gary L. Sasso of Carlton Fields, Tampa, for appellant, Philip Morris USA Inc.
    David J. Sales of David J. Sales, P.A., Jupiter, for appellee.
   PER CURIAM.

Affirmed. See R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011).

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Joshua BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-871.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Joshua Bonilla, Crestview, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Joshua Bonilla’s April 2008 motion filed in accordance with Florida Rule of Criminal Procedure 3.850. We remand for the trial court to consider and rule on Bonilla’s timely filed supplemental motion. Bonilla timely turned over the supplemental motion to prison officials for mailing before the two-year time period of rule 3.850 expired, and before the trial court ruled on the initial motion. See Thompson v. State, 761 So.2d 324, 326 (Fla.2000); Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999) (receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004)). We recognize that the supplemental motion may not have been received by the trial court prior to it ruling on the initial motion. However, Bonilla moved for rehearing, noting his timely supplemental motion and furnishing a copy for review.

On remand, the post-conviction court must determine whether Bonilla’s claims are facially sufficient and, if so, must either attach portions of the record to its order demonstrating that Bonilla is not entitled to relief or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

MAY, C.J., WARNER and CONNER, JJ., concur.


author: MARSTILLER, J.

text:
    DEPARTMENT OF REVENUE o/b/o Karina SORTO, Appellant, v. Joacquin LaGREE, Appellee.
    No. 1D12-2820.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    No appearance for Appellee.
   MARSTILLER, J.

The Department of Revenue (“Department”), on behalf of Karina Sorto, appeals a final administrative paternity and support order that limits retroactive child support to the 24 months preceding the mailing date of the notice of proceeding to establish administrative support order (hereinafter “notice of support proceeding”). For the reasons explained herein, we hold that the Administrative Law Judge (“ALJ”) should have determined the retroactive period based on the earlier service date of the notice of administrative proceeding to establish paternity (hereinafter “notice of paternity proceeding”).

On July 12, 2011, the Department served Appellee with a notice of paternity proceeding. The notice advised Appellee, inter alia, that if genetic testing proved him to be the father of the Ms. Sorto’s child, he would receive either a proposed order of paternity or a notice of support proceeding. Genetic testing established paternity in November 2011, and the Department subsequently sent Appellee a notice of support proceeding. The notice is dated, and was mailed on, January 23, 2012. The administrative hearing occurred on May 1, 2012.

The presiding ALJ issued a “Final Administrative Paternity and Support Order” naming Appellee the legal and biological father of Ms. Sorto’s child, and establishing Appellee’s child support obligation at $250.00 per month. The order further directs Appellee to “pay retroactive support from February 01, 2010 through May 31, 2012, a total of 28 months, based on the two years preceding the filing of the notice of proceeding for support.” The Department argues on appeal that the retroactive support period should have been calculated from the date the notice of paternity proceeding was served on Appellee. We agree.

The Department administers the State’s child support enforcement program. See § 409.2557(1), Fla. Stat. (2011). Support obligations are based on the child support guidelines in section 61.30, Florida Statutes, and may include retroactive support pursuant to section 61.30(17), Florida Statutes. See §§ 61.046(21); 61.30; 409.2563(l)(a), (l)(g), (4)(f), Fla. Stat. (2011). The retroactive period is determined as follows:

In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a 'period of ¾ months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.

§ 61.30(17), Fla. Stat. (2011) (emphasis added).

In cases in which paternity is unknown, section 409.256, Florida Statutes, gives the Department the option to either commence paternity and support proceedings at the same time, or commence a paternity proceeding first, and if paternity is established, follow up with a support proceeding. See §§ 409.256(2)(a), (4), Fla. Stat. (2011). If the Department chooses the latter option, it must provide separate notices for the paternity proceeding and the support proceeding. See § 409.256(4)(a)7.b., Fla. Stat. (2011). The Department need not obtain separate orders, but may await a combined paternity and support order at the conclusion of the support proceeding. See §§ 409.256(4)(a)7., (9), Fla. Stat. (2011).

The Department asserts that where, as in this case, it chooses the two-step statutory process, the 24-month retroactive support period under section 61.30(17) should be calculated from the date on which the notice of paternity proceeding was served on the putative father. We agree. But while the Department reasons that the later notice of support proceeding essentially amends — and thus, relates back to — the notice of paternity proceeding, we conclude, instead, that section 409.256(4) creates a bifurcated administrative proceeding that begins with service of the notice of paternity proceeding.

According to the statute, “[t]he Department of Revenue shall commence a proceeding to determine paternity, or a proceeding to determine both paternity and child support, by serving the respondent with a notice as provided in this section.” § 409.256(4), Fla. Stat. (2011) (emphasis added). The statute requires the Department to serve such notice “by certified mail, restricted delivery, return receipt requested, or in accordance with the requirements for service of process in a civil action.” Id. Significantly, the statute further provides:

(a) A notice of proceeding to establish paternity must state:
7. That if the results of the genetic test indicate a statistical probability of paternity that equals or exceeds 99 percent, the department may:
a. Issue a proposed order of paternity that the respondent may consent to or contest at an administrative hearing; or
b. Commence a proceeding, as provided in s. 409.2563, to establish an administrative support order for the child. Notice of the proceeding shall be provided to the respondent by regular mail.

§ 409.256(4)(a)7., Fla. Stat. (2011) (emphasis added). Cf. § 409.2563(4), Fla. Stat. (2011) (providing that for support proceedings initiated under that section, notice is to be served by certified mail or by service of process as in a civil action). Therefore, under the procedure set forth in section 409.256(4), service of a notice of paternity proceeding commences the administrative action. The issue of paternity is determined first, and if established, the father’s support obligation is then determined. The support proceeding is thus part two of an ongoing overall administrative action, the goal of which is to ensure the child’s biological father pays child support.

Section 61.30(17), as well, supports using the service date of the notice of paternity proceeding to determine the retroactive period. Of the three proceedings listed in the statute resulting in an initial child support determination — paternity action, dissolution of marriage action, and petition for support during marriage — a paternity action is the only one analogous to the type of administrative proceeding at issue in this case. If section 61.30(17) permits retroactive child support for a 24-month period preceding the date a paternity action was filed in circuit court, the service date of the notice of paternity proceeding likewise should be the operative date for administrative proceedings in which the Department uses the bifurcated procedure in section 409.256(4).

Accordingly, we REVERSE and REMAND for the ALJ to recalculate the Appellee’s retroactive support obligation using the date the Department served Ap-pellee with the notice of paternity proceeding — July 12, 2011 — to determine the retroactive period. In all other respects, the administrative paternity and support order is AFFIRMED.

WOLF and THOMAS, JJ., concur.


text:
    Ernest BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0218.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Matt Shirk, Public Defender, and Michael I. Bateh, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 5, 2012, judgment and sentence in Duval County Circuit Court case number 16-2010-CF-012603-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)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Robert Carlton POWELL, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4017.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Ileana Haedo of Ileana Haedo, P.A., Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the May 22, 2012, judgment and sentence in Alachua County Circuit Court case number 01-2010-CF-004836-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)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Linda GOLLIN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Race-Mart, Inc., Appellees.
    No. 1D12-2755.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Felipe B. Fulgencio of Fulgencio Law, Tampa, for Appellant.
    Louis A. Gutierrez and Amanda Neff, Senior Attorneys, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order of the Reemployment Assistance Appeals Commission is quashed and the cause is remanded for further proceedings.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Cristina ORTIZ, Appellant, v. FLORIDA AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D12-1567.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2013.
    Bryan S. Funk, Tallahassee, for Appellant.
    Michael Palecki, General Counsel and Richard C. Beliak of Richard C. Beliak, P.A., Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Spencer v. Agency for Persons with Disabilities, 86 So.3d 1250 (Fla. 1st DCA 2012); Faille v. Agency for Persons with Disabilities, 91 So.3d 179 (Fla. 1st DCA 2012).

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Cory R. CAHN, Mike Cahn, III, Whitney Cahn, Sandra Cahn, and Capital One Bank, NA, Trustee of the Cahn Trust represented by Snappy Jacobs, CCIM Real Estate Management, LLC v. Joseph COX d/b/a Globorx, Inc.
    No. 2013-C-0005.
    Supreme Court of Louisiana.
    Jan. 4, 2013.
   In re Joseph Cox d/b/a Globorx Inc.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, New Orleans First City Court, No. 2011-03244; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0315.

Stay denied. Writ denied.


text:
    NEW ORLEANS FIRE FIGHTERS PENSION AND RELIEF FUND, et al. v. The CITY OF NEW ORLEANS, et al.
    No. 2013-CC-0009.
    Supreme Court of Louisiana.
    Jan. 4, 2013.
   In re City of New Orleans et al.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2012-7061; to the Court of Appeal, Fourth Circuit, No. 2012-C-1758.

Stay denied, writ denied.

JOHNSON, J., recused.


text:
    STATE of Louisiana v. Mark DORSEY.
    No. 2012-KK-2639.
    Supreme Court of Louisiana.
    Jan. 4, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 510-726; to the Court of Appeal, Fourth Circuit, No. 2012-K-1689.

Denied.


text:
    STATE of Louisiana v. Joshua CHEFNEY.
    No. 2013-KK-0078.
    Supreme Court of Louisiana.
    Jan. 10, 2013.
   CORRECTED ACTION

In re State of Louisiana; — Plaintiff; Applying for Rehearing of this Courts order dated January 10, 2013; Parish of Orleans, Criminal District Court Div. L, No. 508-500; to the Court of Appeal, Fourth Circuit, No. 2012-K-0026.

Rehearing denied.

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


text:
    STATE of Louisiana v. Stanley JONES.
    No. 2013-KK-0057.
    Supreme Court of Louisiana.
    Jan. 10, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 513-098; to the Court of Appeal, Fourth Circuit, No. 2012-R-1690.

Denied.


text:
    STATE of Louisiana v. Joe Bob CLARK.
    No. 2012-K-1296.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 10-5180; to the Court of Appeal, Fifth Circuit, No. 11-KA-700.

Granted.


text:
    Cynthia Fry PEIRONNET and Elizabeth Fry Franklin v. MATADOR RESOURCES COMPANY.
    No. 2012-C-2292.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Chesapeake Louisiana, L.P.; Chesapeake Operating, Inc.; Coastal Land Services, Inc.; Matador Resources Company; Prestige Exploration, Inc.; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 521,390; to the Court of Appeal, Second Circuit, No. 47,190-CA.

Granted.


text:
    Cynthia Fry PEIRONNET and Elizabeth Fry Franklin v. MATADOR RESOURCES COMPANY.
    No. 2012-C-2377.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Petrohawk Properties, L.P.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 521,390; to the Court of Appeal, Second Circuit, No. 47,-190-CA.

Granted.


text:
    STATE ex rel. Derrick GARRETT v. STATE of Louisiana.
    No. 2012-KH-1949.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Garrett, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2012-10398; to the Court of Appeal, First Circuit, No. 2012 CW 0788.

Writ granted in part; otherwise denied. The St. Tammany Parish District Attorney’s Office is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. In all other respects, the application is denied.


text:
    ST. JOSEPH ABBEY, Mark Coudrain v. Paul Wes CASTILLE, Belva M. Pichon, Craig G. Gill, Andrew Hayes, Wall V. McKneely, Margaret Shehee, Kelly Rush Williams, Louis Charbornnet, in their Official Capacities as members of the Louisiana State Board of Embalmers and Funeral Directors, Patrick H. Sanders, in his official capacity in place of Oscar A. Rollins (Deceased).
    No. 2012-CQ-2326.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Paul Wes Castille, et al.; — Defendant; Applying For Certified Question United States Court of Appeals for the Fifth Circuit, No. 11-30756.

Certified Question denied.

JOHNSON, J., would grant certification.

KNOLL, J., recused.


text:
    STATE ex rel. Jerrod A. WILSON v. STATE of Louisiana.
    No. 2012-KH-1484.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Wilson, Jerrod A.; — Plaintiff; Applying for Reconsideration of this Court’s action dated November 16, 2012, and from Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. CR-1883-96; to the Court of Appeal, Third Circuit, No. KH-2011-932.

Reconsideration denied.


text:
    AAKAL LODGING, LLC v. AMERICAN EXPRESS, et al.
    No. 2012-C-1710.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re AAKAL Lodging, LLC; — Plaintiff (s); Applying for Reconsideration of this Courts action dated November 2, 2012; Parish of Bossier, 26th Judicial District Court Div. F, No. 135859; to the Court of Appeal, Second Circuit, No. 47,219-CA.

Reconsideration denied.


text:
    Mark DELESDERNIER, Jr. v. Vinca Carevich, Wife of Mark DELESDERNIER, Jr.
    No. 2012-C-1979.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Delesdernier Jr., Mark; — Plaintiff; Applying for Reconsideration of this Court’s Order dated November 9, 2012, Parish of Jefferson, 24th Judicial District Court Div. I, No. 272-878; to the Court of Appeal, Fifth Circuit, No. 12-CA-38.

Denied.


text:
    In re Michael CALABRESE.
    No. 2012-OB-2096.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Calabrese, Michael R.; — Plaintiff; Applying for Reconsideration of this court’s order dated October 26,2012.

Reconsideration denied.


text:
    Thelma M. HODGES and Marcus J. McCoy v. Michael A. TAYLOR.
    No. 2012-C-1581.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Hodges, Thelma M. Et al., — Plaintiff; Applying for Rehearing of this Court’s action dated November 2.2012; Parish of Jefferson Davis, 31st Judicial District Court Div. O. No. C-753-08; to the Court of Appeal, Third Circuit, No. 12-107.

Rehearing denied.


text:
    FIREFIGHTERS’ RETIREMENT SYSTEM v. REGIONS BANK, Morgan Asset Management, Inc., and Christopher J. Burke.
    No. 2012-CC-2147.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Burke, Christopher J.; Morgan Asset Management, Inc.; — Defendant(s); Applying for Rehearing of this Court’s Order dated November 2, 2012, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 567874; to the Court of Appeal, First Circuit, No. 2012 CW 0050.

Rehearing denied.

JOHNSON, J., recused.


text:
    Mrs. Sybil MORIAL v. BPI HOME BUILDERS, L.L.C., et al.
    No. 2012-CC-2195.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Mrs Sybil Morial, applying for Rehearing of this court’s action dated November 2, 2012, from the Civil District Court No. Div F, 2012-1265; to the Court of Appeal, Fourth Circuit, No. 2012-C-0786.

Rehearing denied. See International River Center v. Johns-Manville Sales Corp., 02-3060 (La.12/3/03), 861 So.2d 139.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2012-KH-0851.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 12-270, 12-344; to the Court of Appeal, Fifth Circuit, No. 12-K-289.

Denied.


text:
    STATE of Louisiana v. Corey JOHNSON.
    No. 2012-K-1389.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Johnson, Corey; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 497-338; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0977.

Denied.


text:
    STATE of Louisiana v. Henry GOLDEN.
    No. 2012-K-1393.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Golden, Henry; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 471-194; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0735.

Denied.


text:
    STATE of Louisiana v. Tarsa COOLEY.
    No. 2012-KO-1395.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Cooley, Tarsa; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 270,692; to the Court of Appeal, Second Circuit, No. 47,087-KA.

Denied.


text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 2012-KO-1405.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Pettus, Nathan; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 08-4739; to the Court of Appeal, Fifth Circuit, No. 11-KA-861.

Denied.


text:
    STATE of Louisiana v. Ronnie T. JONES.
    No. 2012-K-1415.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Jones, Ronnie T.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court, No. 463673; to the Court of Appeal, First Circuit, No. 2012 KW 0513.

Denied.


text:
    STATE of Louisiana v. Henry GOLDEN.
    No. 2012-K-1417.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 471-194; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0735.'

Denied.


text:
    STATE of Louisiana v. Lionel BURTON.
    No. 2012-K-1422.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Burton, Lionel; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 09-1559; to the Court of Appeal, Fifth Circuit, No. 11-KA-1023.

Denied.


text:
    STATE of Louisiana v. Jules ROBERTSON.
    No. 2012-KO-1432.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Robertson, Jules; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 09-91(1); to the Court of Appeal, Fifth Circuit, No. 11-KA-1017.

Denied.


text:
    STATE of Louisiana v. Christopher SHERMAN.
    No. 2012-KO-1433.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Sherman, Christopher; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. B, No. C15026; to the Court of Appeal, Third Circuit, No. 11-1042.

Denied.


text:
    STATE of Louisiana v. Patrick Jerome WILLIAMS.
    No. 2012-K-1445.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Williams, Patrick Jerome; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 703180; to the Court of Appeal, First Circuit, No. 2011 KA 1844.

Denied.


text:
    STATE of Louisiana v. John H. COOK.
    No. 2012-KO-1463.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Cook, John H.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 504,777; to the Court of Appeal, First Circuit, No.. 2011 KA 2336.

Denied.


text:
    STATE of Louisiana v. William Earl BURNEY, Jr.
    No. 2012-K-1469.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Burney Jr., William Earl; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 178,930; to the Court of Appeal, Second Circuit, No. 47,05&-KA.

Denied.


text:
    STATE ex rel. Blake REINE v. STATE of Louisiana.
    No. 2012-KH-1554.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Reine, Blake; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. C, No. 09-2726-C; to the Court of Appeal, Third Circuit, No. KH 12-00576.

Denied.


text:
    STATE ex rel. Justin Charles SINGLETON v. STATE of Louisiana.
    No. 2012-KH-1771.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Singleton, Justin Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 03-963-0; to the Court of Appeal, Third Circuit, No. KH 11-00980.

Denied.


text:
    STATE ex rel. Darren WILLIAMS v. STATE of Louisiana.
    No. 2012-KH-1818.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Williams, Darren; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. J, No. 02-CR10-084016; to the Court of Appeal, First Circuit, No. 2012 KW 0779.

Denied.


text:
    STATE ex rel. Leon HORNE v. STATE of Louisiana.
    No. 2012-KH-1900.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Home, Leon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 349-170; to the Court of Appeal, Fourth Circuit, No. 2012-K-0999.

Denied.


text:
    STATE ex rel. Allen JOHNSON v. STATE of Louisiana.
    No. 2012-KH-1901.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Johnson, Allen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 282^446; to the Court of Appeal, Fourth Circuit, No. 2012-K-1067.

Denied. Repetitive. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Thomas ROPPOLO v. STATE of Louisiana.
    No. 2012-KH-1902.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Roppolo, Thomas; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 10-0453; to the Court of Appeal, Fifth Circuit, No. 12-KH-497.

Denied.


text:
    STATE ex rel. Edward JACKSON v. STATE of Louisiana.
    No. 2012-KH-1903.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Jackson, Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, Nos. 04-8066, 03-7207; to the Court of Appeal, Fifth Circuit, No. 12-KH-550.

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


text:
    STATE ex rel. Edward D. OWENS v. STATE of Louisiana.
    No. 2012-KH-1905.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Owens, Edward D.; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Sabine, 11th Judicial District Court Div. C, No. 89-CR-38422; to the Court of Appeal, Third Circuit, No. KH 11-00917.

Denied.


text:
    STATE ex rel. Granderson CARTER v. STATE of Louisiana.
    No. 2012-KH-1956.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Carter, Granderson; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 490-044; to the Court of Appeal, Fourth Circuit, No. 2012-K-1063.

Denied on the showing made.


text:
    STATE ex rel. Eugene FRAZIER, Jr. v. STATE of Louisiana.
    No. 2012-KH-1957.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Frazier Jr., Eugene; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div. C, No. 49586; to the Court of Appeal, Third Circuit, No. KH 12-00842.

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


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2012-KH-1958.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 10-1601; to the Court of Appeal, Fifth Circuit, No. 12-KH-506.

Denied.


text:
    STATE ex rel. Lawrence SYLVE, III v. STATE of Louisiana.
    No. 2012-KH-1966.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Sylve III, Lawrence; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, Nos. 08-0020, 08-0021; to the Court of Appeal, Fourth Circuit, No. 2012-K-0902.

Denied.


text:
    STATE ex rel. Roderick PARKER. v. STATE of Louisiana.
    No. 2012-KH-1967.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Parker, Roderick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 277,833; to the Court of Appeal, Second Circuit, No. 47,-719-KH.

Denied.


text:
    STATE ex rel. Steven D. GOBERT v. STATE of Louisiana.
    No. 2012-KH-1968.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Gobert, Steven D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 14100-93; to the Court of Appeal, Third Circuit, No. KH 11-01509.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. See also La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Stanley DORSEY v. STATE of Louisiana.
    No. 2012-KH-1998.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Dorsey, Stanley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 04-7986; to the Court of Appeal, Fifth Circuit, No. 12-KH-621.

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


text:
    STATE ex rel. Clifford DOLEMAN v. STATE of Louisiana.
    No. 2012-KH-2009.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Doleman, Clifford; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 372-773; to the Court of Appeal, Fourth Circuit, No. 2012-K-1184.

Denied.


text:
    TOWER CREDIT, INC. v. Mark Allen PIDGEON.
    No. 2012-CD-2011.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Pidgeon, Hattie M.; — Other; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Baton Rouge City Court, No. 9905-04854; 19th Judicial District Court Div. I, No. 608,722.

Denied.


text:
    STATE ex rel. Harrison WILLIAMS v. STATE of Louisiana.
    No. 2012-KH-2017.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Williams, Harrison; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 486-768; to the Court of Appeal, Fourth Circuit, No. 2012-K-1208.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912, (La.10/16/09), 19 So.3d 466.


text:
    STATE ex rel. Barry Ray ELMORE v. STATE of Louisiana.
    No. 2012-KH-2021.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Elmore, Darry Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. K, No. 10-F-000720; to the Court of Appeal, Second Circuit, No. 47,703-KH.

Denied.


text:
    STATE of Louisiana v. Lee TURNER Jr.
    No. 2012-KK-2030.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Turner, Jr., Lee; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 07-11-0678; to the Court of Appeal, First Circuit, No. 2012 KW 1124.

Denied.


text:
    M. Tahir QAYYUM, M.D., a Professional Medical Corporation v. MORE HOUSE PARISH HOSPITAL SERVICE DISTRICT d/b/a Morehouse General Hospital.
    No. 2012-C-2063.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   In re Morehouse Parish Hospital Service District d/b/a Morehouse General Hospital; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. I, No. 2002-823; to the Court of Appeal, Second Circuit, No. 47,324-CA.

Denied.


author: GREMILLION, Judge.

text:
    Michael P. TYLER, et al. v. Joseph DEJEAN, et al.
    No. CA 12-760.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 22, 2012.
    Thomas Richard Edwards, Domengeaux & Wright, Lafayette, LA, for Plaintiffs/Ap-pellees, Michael P. Tyler, Ivory Thomas.
    Joshua Jocias Pitre, Attorney at Law, Opelousas, LA, for Plaintiff/Appellee, Felicia Guilbeau Rushing.
    David Thomas Butler, Jr., Funderburk & Andrews, Baton Rouge, LA, for Interve-nor/Appellee, Bridgefield Casualty Ins. Co.
    Daniel R. Atkinson, Jr., Perry, Atkinson, Balhoff, Baton Rouge, LA, for Defendants/Appellants, America First Insurance Company, Peerless Indemnity Ins. Co.
    Court composed of MARC T. AMY, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 This court, ex proprio mot% issued a rule to show cause on July 9, 2012, for the defendants-appellants, Peerless Indemnity Company and American First Insurance Company, to show cause, by brief only, why this appeal should not be dismissed as having been taken from a judgment which does not have proper decretal language. The appellants have filed a brief in response to this court’s order. For the reasons given herein, we dismiss the appeal.

In the course of the litigation in this case, the plaintiffs-appellees and the appellants filed cross motions for summary judgment. Following a hearing on these motions, the trial court entered a written judgment which reads, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs Michael P. Tyler, Ivory Thomas and Felicia Guil-beau Rushing (sic) Motion for Summary Judgment is Granted;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants Peerless Indemnity Company and America First Insurance Company (sic) Motion for Summary Judgment is Denied.

The appellants have appealed this judgment. Upon the lodging of the record in this appeal, this court issued the rule to show cause under consideration herein.

In dismissing an appeal and remanding the case for clarification of the appealed ruling, this court, in State v. White, 2005-718, pp. 2-4 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146-47, states:

In reviewing this case, we have discovered that the judgment is sufficiently unclear so as to render this matter improperly before us on review. In Jenkins v. Recovery Technology Investors, 02-1788, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, 600, the first circuit observed that:
While the judgment contains decre-tal language, it does not order the payment of money, and it does not identify the defendant who is cast in judgment. The failure to name the defendant against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom it may be enforced. See Scott v. State of Louisiana, 525 So.2d 689, 691 (La.App. 1st Cir.1988), writ denied, 558 So.2d 1128 (La.1990).
A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045, p. 3 (La.App. 1st Cir. 12/20/02), 836 So.2d 364, 365; Davis v. Farm Fresh Food Supplier, 2002-1401, p. 4 (La.App. 1st Cir. 3/28/03), 844 So.2d 352, 353. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st Cir. 11/27/02), 837 So.2d 43.

The judgment in the present ease is insufficient for this court’s review. In short, it is difficult to discern the hearing officer’s finding and, through adoption, the trial court’s finding. In written reasons, the hearing officer explained that the hearing was held due to the State’s rule to determine arrearage. This arrearage apparently arises from a June 24, 1999 order of child support. However, the hearing officer’s ruling indicates that the entire course of Mr. White’s child support obligation and related protective orders were considered. After setting forth the payment history, including the State’s role in the matter as payment was made to the State beginning in 1995 and ending in 1999, the hearing officer explained that:

The result of the comparison of what is owed by order of the court for child support and what has been paid voluntarily by the defendant, results in an overpayment by the defendant [in] the sum of $5,513.19.
For the foregoing reasons, a recommendation for judgment recognizing an overpayment by the defendant in the amount of $5,513.19 is submitted, attached, and has been mailed by certified mail to the parties this the 10th day of February, 2004[sie].
Furthermore, the Hearing Officer’s Findings and Recommendations, adopted by the trial court and declared to be its final judgment, state merely that: “Def is not in arrears — overpayment] in the amount of $5,513.19.” This language is merely a finding or an observation, not a judgment that is “precise, definite and certain.” Jenkins, 858 So.2d at 600. There is no indication as to what relief is granted or denied. Certainly a ruling that would require repayment by the State is a different matter than one that would require the withholding of ongoing child support owed to Mr. White’s children through the operation of La.Civ.Code art. 227. We note that, although the State filed the rule to establish arrearage, Ms. Douglas appears before this court as the appellant and the State has filed a brief in support of the hearing officer’s ruling. Without a definite ruling from the lower court for review, the purported judgment does not constitute a final appeal-able judgment; therefore, this court lacks jurisdiction to review this matter. See La.Code Civ.P. arts. 1911 and 2083. Accordingly, we dismiss this appeal and remand this matter to the trial court for reformation of the judgment and additional clarification of the record as necessary. In the event that an appropriate judgment is obtained, a new appeal may be filed at that time.

Likewise, in the instant case, we find that the appealed judgment is insufficient to be reviewed by this court. Therefore, we hereby dismiss this appeal at appellants’ cost and remand the case to the trial court for further proceedings in accordance with this court’s ruling.

IsAPPEAL DISMISSED AND REMANDED FOR CLARIFICATION.


author: LOLLEY, J.

text:
    Joel H. THOMAS, Plaintiff-Appellant v. Joel H. ROBERTS, Jr., Defendant-Appellee.
    No. 47,411-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Donald Weathersby, II, for Appellant.
    The Smith Law Office, L.L.C., by Esk-ridge Elgin Smith, Jr., Bossier City, LA, Linda Lea Smith, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

hln this matter to establish filiation, Joel H. Thomas appeals the judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, which sustained the exceptions of prescription and no right of action filed by Joel H. Roberts, Jr. For the following reasons, we affirm the trial court’s judgment.

Facts

Joel Thomas was born on April 22,1968, to Shirley Ann Hobbs. In a petition to establish filiation filed on July 28, 2011, when Thomas was 43 years old, he claimed to be the child of Joel H. Roberts, Jr., who is still living. Thomas alleged that Roberts informally acknowledged Thomas as his child by: treating Thomas as his own child; acknowledging Thomas as his child; having regular weekend visits with Thomas; and, purchasing gifts and automobiles for Thomas. In the petition, Thomas sought DNA testing and expert analysis of the results to prove that he was Roberts’s child and a declaration that Roberts was his father.

In response, Roberts filed exceptions of prescription and no right of action. His exceptions hinged on the fact that Thomas was over the age of 19 when he filed his petition for filiation, and pursuant to former La. C.C. art. 209, his claim was prescribed. Thomas opposed the exceptions, arguing that art. 209 was repealed and replaced by La. C.C. art. 197 on June 29, 2005. He conceded that art. 209 provided the prescriptive period noted by Roberts; however, he contended that currently art. 197 provides for no prescriptive period for a filiation claim, except for those associated with a succession, and his claim was revived when the new article was enacted. IsAfter a hearing on Roberts’s exceptions, the trial court sustained both, judgment was entered in favor of Roberts, and this appeal by Thomas ensued.

Discussion

On appeal, Thomas argues that the trial court erred in sustaining Roberts’s exceptions of prescription and no right of action. Regarding the prescription issue, Thomas maintains that La. C.C. art. 197 has been the statute concerning prescription for filiation actions since being enacted in 2005, and it provides for no prescriptive period for filiation actions brought by a child, except in the case of a filiation action associated with a succession. Thomas further argues that generally, prescription statutes are accorded retroactive application, and art. 197 would serve to revive his action. As to his right of action against Roberts, Thomas argues that he does belong to the class of individuals to which the law grants the action advanced.

Formerly, La. C.C. art. 209 provided, in pertinent part, as follows:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

| aArticle 209 was subsequently replaced when Acts 2005, No. 192, § 1, was passed and made effective on June 29, 2005, as La. C.C. art. 197. That article provides:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence. For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

Consequently, except in cases of successions, this article eliminated the prescriptive period for filiation claims.

The First Circuit has specifically considered former art. 209 and determined that it was peremptive, and we agree. See In re Succession of James, 2007-2509 (La.App. 1st Cir.08/21/08), 994 So.2d 120, 122, writ denied, 2008-2302 (La.12/12/08), 996 So.2d 1119; Matheme v. Broussard, 2006-0838 (La.App. 1st Cir.02/14/07), 959 So.2d 975, 980.

Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458; Borel v. Young, 2007-0419 (La.11/27/07), 989 So.2d 42. Where an ordinance or statute creates a right of action and fixes the time in which to commence the action, the time so fixed is an integral part of the right created and is peremptive or substantive, as opposed to prescriptive or procedural. Upon expiration of the peremp-tive period, the right is extinguished. Houston Industries, Inc. v. Fitch, 32,654 (La.App. 2d Cir.02/01/00), 752 So.2d 974, writ denied, 2000-0643 (La.04/20/00), 760 So.2d 351.

Once a statute of limitations has run, the party relying on the statute has a vested property right in the statute of limitations defense, and changes to or repeal of the period of limitations cannot be applied retroactively to extinguish that right. Chance v. American Honda Motor Co., Inc., 93-2582 (La.04/11/94), 635 So.2d 177. The same can be said of peremption; once peremption has extinguished a cause of action, the defendant has a vested right to invoke the peremptive period, even after that period has been abolished by the legislature. As stated by the Louisiana Supreme Court in Chance, supra at 178:

Although prescriptive statutes are generally procedural in nature, the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiffs claim. Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. Guided by the principles established in [La. C.C.] article 6 [providing the framework from which statutes are to be interpreted], we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an “extreme exercise of legislative power.” (Citations omitted; emphasis added.)

Here, Thomas turned 19 years old on April 22, 1987, and, as of that date, he had not filed a filiation claim. The next day, pursuant to La. C.C. art. 209 which was in effect at the time, Thomas’s claim was perempted. ^Consequently, his claim against Roberts was extinguished and ceased to exist. Louisiana C.C. art. 197, which was effective in 2005, cannot serve to revive an extinguished and nonexistent claim that Thomas attempted to assert on July 28, 2011-24 years after it was per-empted. Such a retroactive application would deprive Roberts of a right to plead prescription or peremption.

Furthermore, contrary to Thomas’s argument, there is no “clear and unequivocal expression of intent” by the Louisiana Legislature that art. 197 was to be given retroactive application to allow the revival of claims such as his. Thomas argues that the Revision Comments to art. 197 clearly state that the article is a change in the law and that the effects of former La. C.C. art. 209 provided a “harsh result not justified by any policy consideration.” Thomas’s observations regarding the Revisions Comments are correctly noted, and those assertions might be true. However, the mere fact that art. 197 changed the law which provided a “harsh result” hardly serves as “a clear and unequivocal expression of intent” that the new article was to be given retroactive application. Thus, in the absence of clear intent to provide retroactive application of the new law, former art. 209 controlled and Thomas’s claim was prescribed in 1987. See In re Succession of James, supra; Succession of Faget, 2005-1434, 2005-1435 (La.App. 1st Cir.06/09/06), 938 So.2d 1003, writ denied, 2006-1719 (La.11/09/06), 941 So.2d 40; In re Succession of McKay, 2005-0603 (La. App. 3rd Cir.02/01/06), 921 So.2d 1219, writ denied, 2006-0631 (La.6/2/06), 929 So.2d 1253; Jeanmarie v. Butler, 2005-1439 (La.App. 4th Cir.10/11/06), 942 So.2d 578. Accordingly, because Thomas’s claims had prescribed and were | fiperempted, he had no right of action against Roberts. Thus, the trial court properly sustained Roberts’s exceptions of prescription and no right of action.

Conclusion

For the foregoing reasons, the judgment in favor of Joel H. Roberts, Jr., granting his exceptions of prescription and no right of action are affirmed. All costs of this proceeding are to be assessed to Joel H. Thomas.

AFFIRMED.