text:
    Clyde Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-831.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    Baya Harrison, III, Monticello, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Clyde Edward Johnson challenges his 100-year sentence on a charge of burglary of a dwelling while armed, arguing that the sentence violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), as he was under 18 years old at the time of the offense. As our court has already rejected the argument that a term of years sentence violates Graham in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), rev. granted, 107 So.3d 405 (Fla.2012), we affirm. We certify that this decision conflicts with Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012) and Adams v. State, -So.3d - (Fla. 1st DCA 2012).

AFFIRMED; CONFLICT CERTIFIED.

TORPY, LAWSON and JACOBUS, JJ„ concur.

      . Johnson was originally sentenced to life on this charge, and to concurrent life sentences on five related charges: three counts of armed kidnapping to facilitate a felony; one count of attempted first degree murder with a firearm; and, one count of sexual battery using force or a weapon (firearm). All six life sentences were set aside following the United States Supreme Court’s decision in Graham. The 100-year sentence challenged in this appeal was imposed at Johnson's resentencing. As for the other five counts, the trial court resentenced Johnson to concurrent 40-year sentences, which are not challenged on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kyle Gregory LEATHERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3875.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Kyle Leatherwood, appeals the order of restitution rendered after his open plea of no contest to the charge of grand theft. The victim did not testify at the restitution hearing regarding her opinion of the value of the four gold pieces of jewelry that were stolen by Leatherwood and never recovered. Over Leatherwood’s objections, the State sought to introduce an appraisal letter from a jeweler to establish the value of the stolen jewelry. However, the State failed to properly qualify the letter as a business record pursuant to section 90.808(6) and section 90.902(11), Florida Statutes (2012). The State, therefore, failed to prove the amount of restitution with substantial competent evidence. See Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005) (“The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.” (internal citations omitted)); see also Fernandez v. State, 98 So.3d 730 (Fla. 2d DCA 2012) (holding that value of stolen items, which included jewelry, was not proven with substantial competent evidence and remanding for a new restitution hearing); Bellot v. State, 964 So.2d 857 (Fla. 2d DCA 2007) (holding that State failed to prove certain restitution awards by substantial competent evidence and remanding for a new hearing); Walters v. State, 888 So.2d 150 (Fla. 5th DCA 2004). We reverse the restitution order under review and remand this case to the trial court for a new hearing to determine the proper amount of restitution.

REVERSED and REMANDED.

ORFINGER, C.J. and COHEN, J., concur.

SAWAYA, J., dissents without opinion.


author: HARRIS, C.M., Senior Judge.

text:
    Reginald PRIVETTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3370.
    District Court of Appeal of Florida, Fifth District.
    March 15, 2013.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

Reginald Privette was charged with simple robbery after he was found near the scene with money and a “fake” gun and was identified by the victim as the robber. Because Privette was a Prison Release Reoffender, the robbery charge carried a minimum mandatory fifteen-year sentence. Privette pled guilty to the charge and was sentenced to fifteen years in prison.

Privette has now moved for rule 3.850 postconviction relief based on his attorney’s ineffective assistance of counsel. Everyone agrees that in order to get Pri-vette to plead to robbery, the State indicated that if he did not so plea, it would amend the charge to robbery with a weapon (a fake gun not used or threatened to be used as a weapon), thus, increasing the potential sentence by many years. Defense counsel agreed that such a charge might be successful and advised Privette to accept the plea. Privette testified that without this advice from his attorney, he would have elected to go to trial. Such an amendment would not have been justified under the facts of this case. The trial court deferred ruling on the ineffective assistance of counsel requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for the purpose of this appeal such ineffective assistance will be assumed.

The court denied the motion finding that Privette had failed to prove any prejudice resulted from counsel’s misadvice since he would have received the fifteen-year minimum sentence in any event. However, Privette was prejudiced since, by following his counsel’s improper advice, he lost his right to a jury trial. We find the plea to have been involuntary. See Shorter v. State, - So.3d -(Fla. 5th DCA 2013).

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.


text:
    Khara N. GOMES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 5D12-3225.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2013.
    Khara N. Gomes, Belleview, pro se.
    Amanda L. Neff of Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Carvalho v. Unemployment Appeals Comm’n, 51 So.3d 601 (Fla. 5th DCA 2011) (“Because there is no transcript, we must assume that the referee’s finding of work-related misconduct is supported by the evidence.”).

TORPY, LAWSON and BERGER, JJ., concur.


text:
    Randall C. WHITNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5260.
    District Court of Appeal of Florida, First District.
    March 22, 2013.
    Randall C. Whitney, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate and Monique Rolla, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

On May 6, 2002, Appellant pled no contest to sexual battery, and, based on the negotiated plea, the trial court sentenced him to 12 years’ imprisonment followed by 18 years’ probation. The court imposed a condition of probation curtailing Appellant’s ability to have contact with his wife. Appellant’s appeal from the conviction and sentence was dismissed as untimely.

In June 2012, Appellant filed a motion under Florida Rule of Criminal Procedure 3.800(a) to correct his sentence, alleging that the court’s oral and written pronouncements of the condition prohibiting contact with Appellant’s wife differ. Appellant asserted that although the court orally permitted limited contact with his wife as necessary for the couple’s divorce proceedings, the written order contains a blanket prohibition of contact. The trial court denied Appellant’s motion, finding that the oral pronouncement is clear, and that the assistant state attorney had contacted Appellant’s probation officer, who affirmed that he will permit Appellant to have contact with his wife only as needed to obtain the divorce.

“[A] written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence.” Williams v. State, 957 So.2d 600, 603 (Fla.2007). Any discrepancy between the oral and written pronouncements is resolved in favor of the oral pronouncement. See id.; Harder v. State, 14 So.3d 1291, 1293 (Fla. 1st DCA 2009). Accordingly, we reverse the order denying Appellant’s rule 3.800(a) motion, and remand for the trial court to enter a corrected order of probation clarifying the extent to which Appellant may have contact with his wife.

REVERSED and REMANDED.

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


text:
    John GARREN, Appellant, v. Anne OLIVER, Appellee.
    No. 1D12-1123.
    District Court of Appeal of Florida, First District.
    March 22, 2013.
    Natalie A. Tuttle, Waynesville, Georgia, for Appellant.
    Beth M. Terry of Law Office of Beth M. Terry, P.A., Jacksonville, for Appellee.
   PER CURIAM.

John Garren, the father, seeks review of a final judgment of paternity. He raises several issues, only one of which has merit. The father argues, and we agree, that the trial court erred in failing to reduce the father’s child-support obligation under section 61.30(ll)(b), Florida Statutes (2011), based on the time-sharing schedule the court ordered. As did the court in Buhler v. Buhler, 913 So.2d 767, 768 (Fla. 5th DCA 2005), we note that this reduction is mandatory when the time-sharing schedule provides for the child to be with the nonresidential parent for a substantial amount of time, as that concept is defined in the statute. If the father does not regularly exercise a substantial amount of time-sharing with the child, the mother may seek modification of the child-support order on that basis. § 61.30(ll)(c), Fla. Stat. (2011); Buhler, 913 So.2d at 769. At this time, however, we reverse and remand for application of the section 61.30(ll)(b) variance. In all other respects, the final judgment of paternity is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

BENTON, C.J., ROBERTS, J., and WRIGHT, WILLIAM L., Associate Judge, concur.

      The applicable version of section 61.30 became effective on January 1, 2011, during the pendency of the case before the trial court. Ch.2010-199, § 5, at 13, Laws of Fla.


author: PER CURIAM

text:
    In re Chadwick Alan TOBLER.
    No. 2012-OB-0992.
    Supreme Court of Louisiana.
    Oct. 23, 2012.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM

LThe Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Chadwick Alan Tobler, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his simultaneous enrollment in two summer law school programs and his failure to disclose a delinquent debt on his bar application. We subsequently granted petitioner permission to sit for the bar exam, with the provision that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Tobler, 11-1517 (La.7/13/11), 67 So.3d 471.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following a hearing in the matter, the commissioner filed his report with this court, recommending admission be granted. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation, the absence of any objection from the Committee, and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Kevin D. BOLDEN.
    No. 2011-K-2435.
    Supreme Court of Louisiana.
    Oct. 26, 2012.
   PER CURIAM.

It Granted. The decision of the court of appeal is reversed and defendant’s convictions and sentences are reinstated.

On appeal of defendant’s convictions and sentences on two counts of aggravated rape in violation of La.R.S. 14:42, the court of appeal determined that an error under the Confrontation Clause of the Sixth Amendment occurred when the state’s DNA expert testified, over defendant’s objection, that the DNA profile developed from a blood sample taken from defendant matched the DNA profile developed by other technicians who did not testify at trial from biological samples taken from the victims after they were sexually assaulted. The samples were taken from the victims nearly 10 years before a search of the CODIS data base identified defendant as the donor of the samples. One profile was developed by the Acadiana Criminalis-tics Laboratory; the other by a private laboratory in Tennessee under contract with Acadiana to test the sample using the same protocols and computer |2software. The results of the victims’ tests were used as a basis of comparison to a profile of defendant’s DNA but the reports themselves were not introduced into evidence under the provisions of R.S. 15:499 (certificates of criminalistics laboratories). The court of appeal further determined that without the DNA testimony, the state’s evidence was not sufficient to support defendant’s conviction on either count because the victims were unable to identify their assailant. The court of appeal therefore reversed defendant’s convictions and sentences and ordered him discharged from custody. State v. Bolden, 11-0237 (La.App. 3 Cir. 10/5/11), 103 So.3d 377

However, even assuming that a Confrontation Clause error occurred, the court of appeal erred in conducting review of the sufficiency of the evidence by subtracting the evidence provided by the state’s DNA expert, on the premise that it should not have been admitted in the first place, and concluding that the remaining evidence did not support the jury’s verdicts. Review of the sufficiency of the evidence as a matter of the Due Process Clause under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), encompasses all of the evidence introduced at trial, inadmissible as well as admissible. See State v. Hearold, 603 So.2d 731, 734 (La.1992) (“[W]hen the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial ... but is not entitled to an acquittal even if the admissible evidence, considered alone, was insufficient.”) (citing Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)). In the present case, the opinion testimony of the ^state’s DNA expert, found credible by the jury, provided direct scientific evidence linking defendant to both crimes and satisfied the state’s burden of negating any reasonable probability of misidentification. State v. Long, 408 So.2d 1221, 1227 (La.1982). If trial court error occurred with respect to the admission of the DNA testimony, a remand for retrial, not acquittal and discharge of the defendant, was the appropriate remedy.

However, no Confrontation Clause error in fact occurred in the present case. The court of appeal issued its opinion before the United States Supreme Court rendered its decision in Williams v. Illinois, 567 U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a bare majority of the court determined that no violation of the Confrontation Clause occurred when the state’s DNA expert testified, on the basis of the report of another DNA expert who did not appear at trial, that the DNA profile developed from a blood sample taken from defendant matched the DNA profile developed from biological samples taken from the victim of a sexual assault. There was no agreement on any single rationale among the five Justices subscribing to the proposition that the DNA profile developed by the non-testifying technician who examined the biological samples from the victim was not a “testimonial” statement for purposes of the Confrontation Clause and the decision may have uncertain compass. Williams, 567 U.S. at -, 132 S.Ct. at 2265 (Kagan, J., dissenting)(“That creates five votes to approve the admission of the [DNA report by the non-testifying technician], but not a single good explanation.”). We therefore read Williams no more broadly than the particular circumstances that led to the convergence of the votes of five Justices to uphold the judgment of the Illinois appellate courts affirming the defendant’s conviction and that are substantially similar to those in the | ¿present case. No error under the Confrontation Clause occurs when a DNA expert testifies that in his or her opinion the DNA profile developed from a sample taken from defendant matches the DNA profile developed by other, non-testifying technicians from biological samples taken from the victim of a sexual assault if: the tests on the victim’s samples were conducted before the defendant was identified as the assailant or targeted as a suspect, Williams, 567 U.S. at -, 132 S.Ct. at 2242-48 (Alito, J., joined by Roberts, C.J., and Kennedy, J.) (“The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions.... Here, the primary purpose of the [laboratory] report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial.... its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time.”); the tests are conducted by an accredited laboratory, id., 567 U.S. at -, 132 S.Ct.at 2244 (Alito, J.) (“In short, the use at trial of a DNA report prepared by a modem, accredited laboratory bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.”)(internal quotation marks and citation omitted), and id., 567 U.S. at -, 132 S.Ct. at 2248-49 (Breyer, J., concurring) (Reports of modern accredited laboratories encompassing a broad range of “technical or professional data, observation, and judgments” “presumptively fall outside the category of ‘testimonial’ statements that the Confrontation Clause makes ^inadmissible.”); and the report of the test results itself is not introduced as a certified declaration of fact by the accredited laboratory. Id., 567 U.S. -, 132 S.Ct. at 2260 (Thomas, J., concurring in judgment) (“[The laboratory] report is not a statement by a ‘witnes[s]’ within the meaning of the Confrontation Clause [because it] lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact.”).

In addition, as a matter of Louisiana law, the computer printouts of the profiles developed from the victims’ samples by the two laboratories using the same software did not constitute statements of a declarant for purposes of La. C.E. art. 801 (defining a statement as an oral or written assertion by a declarant, or “a person who makes a statement”), cf. State v. Armstead, 432 So.2d 837, 839 (La.1983) (distinguishing between computer stored human statements which are hearsay and computer generated statements which are nonhearsay), and the factual assertions made by the technicians that the profiles related to the specific samples delivered to the laboratories were admissible despite their hearsay character under the business or public records exceptions to the hearsay rule in La.C.E. art. 803(6) and 803(8). Cf. Williams, 567 U.S. at -, 132 S.Ct. at 2249 (Breyer, J., concurring) (“Statements of this kind fall within a hearsay exception that has constituted an important part of the law of evidence for decades.”) (citing Fed. Rule Evid. 803(6) (“Records of Regularly Conducted Activities”); 2 J. Wigmore, Evidence §§ 1517-1533, pp. 1878-1899 (“Regular Entries”)).


text:
    STATE of Louisiana v. Bruce CAUSEY.
    No. 2012-KK-1485.
    Supreme Court of Louisiana.
    Oct. 26, 2012.
   PER CURIAM.

| granted. The trial court’s judgment granting defendant’s motion to suppress is vacated and this case is remanded for further proceedings.

It appears from the transcript of the hearing on the motion that after lawfully stopping defendant’s vehicle for traffic infractions, and after the passenger threw a large wad of cash held in her hand into her pocketbook and then handed over an open container of alcohol from the cup holder in the center console, the police officer removed the passenger from the car and observed through the open door some marijuana gleanings on top of the center console. Large amounts of currency are associated with narcotics trafficking, State v. Hearold, 603 So.2d 731, 736 (La.1992); State v. Henry, 08-658, pp. 9-10 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 943, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269; State v. Jordan, 489 So.2d 994, 997 (La.App. 1 Cir.1986), and the officer was aware from his experience in the field that “numerous times we’ve found marijuana and other drugs underneath the cup holders in similar vehicles.” In determining probable |2cause for a search, or “‘a fair probability that contraband or evidence of a crime will be found,’ ” State v. Thompson, 02-0333, p. 8 (La.4/9/03), 842 So.2d 330, 336 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)), the police may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person,’ ” State v. Johnson, 01-2081, p. 3 (La.4/26/02), 815 So.2d 809, 811 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (internal quotation marks and citations omitted)). Given the totality of the circumstances, the officer’s observation of the marijuana gleanings on the center console gave him probable cause to conduct a warrantless search of the vehicle’s interior as broad as a magistrate could have authorized. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (“Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s ‘ready mobility,’ an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear.”); see also State v. Tatum, 466 So.2d 29, 31 (La.1985) (presence of exigent circumstances coupled with probable cause underpins “automobile exception” to warrant requirement, which allows police to “‘conduct a warrantless search of the [particular] vehicle as thoroughly as a magistrate could authorize’ ”) (quoting United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 2159, 72 L.Ed.2d 572 (1982)). The officer therefore lawfully retrieved the cocaine and handgun concealed under the center console after lifting out the cup holders and the trial court erred in concluding otherwise.


text:
    In re Kent Anthony SMITH.
    No. 2013-OB-0313.
    Supreme Court of Louisiana.
    March 8, 2013.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

|¶ This proceeding arises out of an application for reinstatement filed by petitioner, Kent Anthony Smith, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In March 2008, petitioner began working as an assistant district attorney in the Orleans Parish District Attorney’s Office. Nevertheless, he continued to represent defendants in criminal cases in Orleans Parish. Furthermore, petitioner was declared ineligible to practice law for failing to remain current in his bar obligations. In March 2010, the court suspended petitioner from the practice of law for one year and one day for the aforementioned misconduct. In re: Smith, 09-2447 (La.3/5/10), 29 So.3d 1232.

On September 26, 2012, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC concurred in petitioner’s reinstatement, subject to a two-year period of probation with the following conditions:

1. Petitioner shall fulfill the terms of any payment plans, credit agreements, promissory notes, and payment schedules related to any and all present and future financial obligations;
|⅞2. Petitioner shall submit quarterly reports to the ODC demonstrating his efforts to satisfy his financial obligations. Such reports are due on March 31, June 30, September 30, and December 31 of each year for the duration of the probation period;
3. Petitioner shall acknowledge that any failure to make a good faith effort to satisfy his financial obligations during the period of probation may result in termination of his right to practice law or other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement;
4. Petitioner shall not incur additional debt in significant amounts, with the exception of necessary medical expenses or residential real estate mortgage, without notice to the ODC;
5. Petitioner shall provide a current consumer report to the ODC every six months, as of June 30 and as of December 31, of each year for the duration of the probation period;
6. Petitioner shall submit reports of his professional activities to the ODC on June 30 and December 31 or each year during the term of his conditional reinstatement;
7. Petitioner shall acknowledge that the ODC may hereafter deem it necessary and appropriate to assign a practice monitor to oversee his professional activities;
8. Petitioner shall comply with all bar membership requirements, including maintaining current knowledge in the law by satisfying all mandatory continuing legal education requirements, timely paying all Louisiana State Bar Association membership dues, and paying all Louisiana Attorney Disciplinary Board assessments;
[s9. Petitioner shall provide waivers of confidentiality to the ODC as deemed necessary to enable the ODC to monitor his compliance with the Rules of Professional Conduct and this probation agreement;
10. Petitioner shall promptly respond to all requests of the ODC;
11. Petitioner shall acknowledge that any violation of the Rules of Professional Conduct and/or this probation agreement may result in the revocation of the right to practice law in this state and/or such other action as may be appropriate under the Rules of Professional Conduct and Supreme Court Rule XIX;
12. Petitioner shall promptly inform the ODC of any change of address or employment during the period of probation; and
13. Petitioner shall, within ten days of the expiration of the probation period, submit to the ODC an affidavit attesting to his compliance with the conditions of probation and payment of all costs of these proceedings.

After reviewing the matter, the disciplinary board’s adjudicative committee chair recommended that the petition for reinstatement be granted.

DISCUSSION

Petitioner has served the one year and one day suspension imposed by this court in 2010, and no objections were received to his application for reinstatement. Based upon the record before us, we find petitioner has met his burden of proving that he is entitled to be reinstated to the practice of law. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J). Accordingly, we will order that petitioner be conditionally reinstated, subject to a two-year period of probation governed by the conditions set forth above. Should petitioner fail to comply with these conditions, or should he commit any |4misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the recommendation of the disciplinary board’s adjudicative committee chair, and considering the record, it is ordered that Kent Anthony Smith, Louisiana Bar Roll number 25506, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.


text:
    In re Philip M. KLEINSMITH.
    No. 2013-B-0283.
    Supreme Court of Louisiana.
    March 8, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1,Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Philip M. Kleinsmith, an attorney licensed to practice law in the States of Louisiana, Utah, and Arizona, among others, based upon discipline imposed by the Third Judicial District Court in and for Salt Lake County, State of Utah, and the Supreme Court of Arizona.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In March 2012, the Supreme Court of Arizona reprimanded respondent and placed him on probation for one year in In the Matter of an Active Member of the State Bar of Arizona, Philip M. Kleinsmith, Bar No. 0127755, PDJ-2012-9019, No. 11-2745. Respondent had consented to discipline in Arizona based upon stipulations that he failed to keep his client adequately informed, failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, charged an unreasonable fee, and failed to adequately protect the client’s interests upon termination of the representation. In October 2012, reciprocal discipline in the form of a public reprimand was imposed upon respondent in Utah. \9In re Kleinsmith, Civil No. 120906297 on the docket of the Third Judicial District Court in and for Salt Lake County, State of Utah.

After receiving notice of the Utah order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Certified copies of the decision and order of the Third Judicial District Court in and for Salt Lake County, State of Utah were attached to the motion. On January 30, 2013, we rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. On February 8, 2013, respondent filed a response in which he consented to the imposition of reciprocal discipline.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems ^appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

Applying the factors set forth in Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed against respondent in Utah and Arizona. Considering that we share authority over respondent with those jurisdictions, this court will defer to their determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Furthermore, respondent has consented to the imposition of reciprocal discipline.

Accordingly, we will impose reciprocal discipline in the form of a public reprimand.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Philip M. Kleinsmith, Louisiana Bar Roll number 27250, be publicly reprimanded.

      . According to the documents attached to the ODC’s petition, respondent is licensed to practice law in the following states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming.


text:
    Cynthia BRIDGES, Sec., Dept. of Rev., State of Louisiana v. NELSON INDUSTRIAL STEAM CO.
    No. 2013-C-0171.
    Supreme Court of Louisiana.
    March 8, 2013.
   PER CURIAM.

hThe rulings of the lower courts granting plaintiffs motion for summary judgment are vacated; plaintiffs motion for summary judgment is denied as genuine issues of material fact exist. La. C.C.P. Art. 966. The matter is remanded to the trial court for further proceedings pursuant to this Order.

WRIT GRANTED; REVERSED; REMANDED.


text:
    STATE of Louisiana v. Darrius R. WILLIAMS.
    No. 2012-KO-1766.
    Supreme Court of Louisiana.
    March 8, 2013.
   PER CURIAM.

_JjWrit granted in part. Defendant is presently serving a sentence of life imprisonment without possibility of parole for a second degree murder committed in 2008 when he was 17 years old. The sentence was mandated by the penalty provision of the statute establishing the offense. The court of appeal affirmed defendant’s conviction and sentence in State v. Williams, 47,146 (La.App. 2 Cir. 6/20/12); 93 So.3d 830, and defendant applied to this Court for discretionary review. While defendant’s application was pending, the United States Supreme Court held in Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juveniles offenders.” However, the Miller court did not establish a categorical prohibition against life without parole for juveniles. Instead, the court required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles: “Although we do not foreclose a senteneer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at -, 132 S.Ct. at 2469. Defendant’s case was pending on direct review when Miller was decided. Therefore, we grant to remand to the district court to reconsider the sentence after conducting a new sentencing hearing in accordance with the principles enunciated in Miller v. Alabama. The applications are otherwise denied.


author: HUGHES, J.

text:
    STATE ex rel. Daniel Shane DOUSAY v. STATE of Louisiana.
    No. 2012-KH-1779.
    Supreme Court of Louisiana.
    March 8, 2013.
   In re Dousay, Daniel Shane; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 276,621; to the Court of Appeal, Third Circuit, No. KH 10-00380.

|! Denied.

HUGHES, J., would grant and assigns reasons.

HUGHES, J.

dissenting.

LI respectfully dissent and would grant the writ.

The ruling of the district court presents relator with an unconstitutional dilemma: take the stand and have his testimony used against him at trial, or refrain and fail to carry his burden of proof on the motion to withdraw his plea. This is an “intolerable situation;” one constitutional right should not have to be surrendered in order to assert another. As with a motion to suppress, the hearing to withdraw a plea is limited in scope and the defendant’s testimony is inadmissible at trial absent certain exceptions such as perjury.

La.C.E. art. 410(8) specifically provides that “any statement” made in the course of “any court proceeding” concerning a plea of guilty or nolo contendere is not admissible against the party who made the plea.

The United States Supreme Court and the Louisiana Supreme Court have both held the fact of a withdrawn plea may not be used against the defendant at trial. How then may his testimony in furtherance of the withdrawal be admissible? These are old and settled constitutional issues and it is disheartening to see them reoccur.

      . This situation is often referred to as a "Hobson's Choice” (take it or leave it) but is perhaps a "Morton’s Fork,” where both alternatives presented lead to undesirable consequences (between the devil and the deep blue sea).

      . In Simmons v. United States, 390 U.S. 377, 391-94, 88 S.Ct. 967, 975-76, 19 L.Ed.2d 1247 (1968), the Supreme Court stated that to require a defendant, who wishes to establish a constitutional deprivation, to make a choice between accepting a risk that the words that he utters may later be used to incriminate him or to refrain from testifying and forego the benefit is an intolerable situation — that one constitutional right should have to be surrendered in order to assert another — and held that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt.

      . Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, 71 L.Ed. 1009, (1927)

      . State v. Joyner, 228 La. 927, 84 So.2d 462 (La.1955)


text:
    STATE ex rel. Noel DEAN v. STATE of Louisiana.
    No. 2012-KH-2187.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Dean, Noel; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 403-447; to the Court of Appeal, Fourth Circuit, No. 2012-K-1362.

Denied.


text:
    STATE ex rel. Bryant Zefrem DAVIS v. STATE of Louisiana.
    No. 2012-KH-2186.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Davis, Bryant Zefrem; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 505-470; to the Court of Appeal, Fourth Circuit, No. 2012-K-1035.

Denied.


text:
    STATE ex rel. Ezekiel Maurice McGinnis v. STATE of Louisiana.
    No. 2012-KH-2160.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re McGinnis, Ezekiel Maurice;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 282536; to the Court of Appeal, Third Circuit, No. KH 11-01593.

Denied.


text:
    STATE ex rel. Cleveland HARRIS v. STATE of Louisiana.
    No. 2012-KH-2312.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Harris, Cleveland; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 498-050; to the Court of Appeal, Fourth Circuit, No. 2012-K-1326.

Denied.


text:
    STATE ex rel. John HARRISON v. STATE of Louisiana.
    No. 2012-KH-2268.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Harrison, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 409-642; to the Court of Appeal, Fourth Circuit, No. 2012-K-1010.

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. Rene BRADFORD v. STATE of Louisiana.
    No. 2012-KH-2267.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Bradford, Rene; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 366-630; to the Court of Appeal, Fourth Circuit, No. 2012-K-1242.

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. Theodore SMITH v. STATE of Louisiana.
    No. 2012-KH-2266.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Smith, Theodore; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 274151; to the Court of Appeal, First Circuit, No. 2012 KW 0769.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Nickey A. LANDOR v. STATE of Louisiana.
    No. 2012-KH-2259.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Landor, Nickey A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 423940; to the Court of Appeal, First Circuit, No. 2012 KW 1121.

Denied.


text:
    STATE ex rel. Clarence RANDOLPH, Jr. v. STATE of Louisiana.
    No. 2012-KH-2257.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Randolph Jr., Clarence; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 327872 C/W 327873; to the Court of Appeal, First Circuit, No. 2012 KW 1280.

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. Edmond D. SPENCER v. STATE of Louisiana.
    No. 2012-KH-2224.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Spencer, Edmond D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 96-CR1-064076; to the Court of Appeal, First Circuit, No. 2012 KW 1253.

Denied.


text:
    STATE ex rel. Calvin HORTON v. STATE of Louisiana.
    No. 2012-KH-2222.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Horton, Calvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 190,120; to the Court of Appeal, Second Circuit, No. 47,-710-KH.

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


text:
    STATE ex rel. David Wayne POYDRAS v. STATE of Louisiana.
    No. 2012-KH-2221.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Poydras, David Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 52685; to the Court of Appeal, Third Circuit, No. KH 11-00838.

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.

KNOLL, J., recused.


text:
    STATE ex rel. Preston RUSSELL v. STATE of Louisiana.
    No. 2012-KH-2219.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Russell, Preston; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 405-773; to the Court of Appeal, Fourth Circuit, No. 2012-K-1365.

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 of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. LAURICELLA LAND COMPANY, L.L.C., et al.
    No. 2013-C-0094.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re State of Louisiana Department of Transportation and Development; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 656-827; to the Court of Appeal, Fifth Circuit, No. 12-CA-384.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana in the Interest of M.L.W. a/k/a M.M.
    No. 2013-CJ-0093.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Department of Children and Family Services; — Other; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, Juvenile Court for the Parish of Jefferson, No. ll-PP-06 C/W 10-CC-98 C/W ll-TP-17; to the Court of Appeal, Fifth Circuit, No. 12-CA-331 C/W 12-CA-332 C/W 12-CA-333.

Denied.


text:
    STATE of Louisiana v. Marie JOHNSON.
    No. 2013-KK-0015.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Johnson, Marie; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 475-765; to the Court of Appeal, Fourth Circuit, No. 2012-K-1678.

Denied.

KNOLL, J., would grant.


text:
    Kayla BRIGNAC v. TRAVELERS COMMERCIAL INSURANCE COMPANY, et al.
    No. 2012-CC-2769.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Travelers Commercial Insurance Company, et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 116-566; to the Court of Appeal, Fourth Circuit, No. 2012-C-0848.

Denied.

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


text:
    Brendyia FORD, Individually and on Behalf of her Minor Child, Derrick Ford v. Milton Lee MOSBY, Jr., Lowe’s Home Centers, Inc. and American Home Assurance Company.
    No. 2012-C-2749.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Ford, Brendyia; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 563,561; to the Court of Appeal, First Circuit, No. 2011 CA 2358.

Denied.

HUGHES, J., would grant.


text:
    The BASS PARTNERSHIP, BEPCO, L.P. and BOPCO, L.P. v. Robert R. “Bobby” GRAVOLET, Assessor, Plaquemines Parish, Louisiana; I.F. “Jiff’ Hingle, Sheriff and Ex Officio Tax Collector for Plaquemines Parish, Louisiana and Pete Peters, Chairman, Louisiana Tax Commission and Other Consolidated Cases.
    No. 2012-C-2741.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re BEPCO, L.P.; BOPCO, L.P.; Hil-corp Energy Company; Hilcorp Energy I, L.P.; Stone Energy Corporation; Stone Energy Offshore, L.L.C.; The Bass Partnership; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. A, Nos. 57-316, 57-911, 57-326, 57-917; to the Court of Appeal, Fourth Circuit, Nos. 2012-CA-0024, 2012-CA-0025, 2012-CA-0026, 2012-CA-0027, 2012-CA-0304, 2012-CA-0305, 2012-CA-0306, 2012-CA-0307, 2012-CA-0308, 2012-CA-0309.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES v. Travis Scott YOUNG.
    No. 2012-C-2738.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Young, Travis Scott; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 10,749; to the Court of Appeal, Third Circuit, No. CA 12-242.

Denied.


text:
    Brady ARCENEAUX v. The SHAW GROUP, INC.
    No. 2012-C-2732.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re The Shaw Group, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. 5, No. 07-06144; to the Court of Appeal, First Circuit, No. 2012 CA 0135.

Denied.


text:
    Debra GOUTIERREZ v. Octa GOUTIERREZ.
    No. 2012-C-2655.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Goutierrez, Octa; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. K, No. 87110; to the Court of Appeal, Third Circuit, No. 12-428.

Denied.

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


text:
    Charles BILQUIST v. CUSTOM CRAFT HOMES, INC.
    No. 2012-C-2648.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Custom Craft Homes, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District Seven, No. 10-00603; to the Court of Appeal, Fourth Circuit, Nos. 2012-CA-0469, 2012-CA-0469.

Denied.


text:
    The SHAW GROUP INC. v. Dean L. McINNIS.
    No. 2013-C-0135.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re The Shaw Group, Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 526,217; to the Court of Appeal, First Circuit, No. 2012 CA 0012.

Denied.

VICTORY, J., would grant.

HUGHES, J., recused.


text:
    Billy Wayne SINCLAIR v. LOUISIANA PAROLE BOARD.
    No. 2013-C-0129.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Sinclair, Billy Wayne; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 604,-179; to the Court of Appeal, First Circuit, No. 2012 CA 0646.

Denied.


text:
    Lee W. RAND, Jeremy D. Boyce, Keisha M. Guichard, and Edmond J. Harris v. CITY OF NEW ORLEANS.
    No. 2013-C-0119.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re City of New Orleans; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2011-07094; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0348.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. William A. MONTELEONE, et al.
    No. 2013-C-0118.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re State of Louisiana Department of Transportation and Development; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. D, No. 31,923; to the Court of Appeal, Fifth Circuit, No. ll-CA-1013.

Denied.

VICTORY, J., would grant.


text:
    Arnold RICHARD v. PARISH ANESTHESIA ASSOCIATES, LTD. and Dr. Jayachandra Induru.
    No. 2013-C-0116.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Induru, Dr. Jayachandra; Parish Anesthesia Associates, LTD; Defendants); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2008-05151; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0513.

Denied.


text:
    Lazarn C. WATSON, et al. v. BARD ACCESS SYSTEMS, INC., et al.
    No. 2013-CC-0115.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Pendleton Memorial Methodist Hospital; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2003-14542; to the Court of Appeal, Fourth Circuit, No. 2012-C-1287.

Denied.


text:
    Beverly LEBOUEF v. Dr. Joseph O’DONNELL, et al.
    No. 2013-C-0103.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Dr.' Joseph O’Donnell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2008-3946; to the Court of Appeal, Third Circuit, No. 12-514.

Denied.

VICTORY, GUIDRY and CLARK, JJ, would grant.


text:
    Michael RAY v. Scott WOLFE, Sr.; La Air L.L.C.; Wolfman Construction Company; and Wolf World, L.L.C.
    No. 2013-C-0097.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re La Air, L.L.C.; Wolfe Sr., Scott et al.; Wolfe World, L.L.C.; Wolfman Construction Company; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2007-06499; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0599.

Denied.


text:
    Victor DIAZ, et al. v. Robert C. MARTELL, et al.
    No. 2013-CC-0095.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Certain Underwriters at Lloyds; Johnson, Johnson, Barrios & Yacoubian, P.L.C.; Martell, Robert C. et al.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 95-16491 C/W 03-15066; to the Court of Appeal, Fourth Circuit, No. 2012-C-0990.

Denied.


text:
    STATE of Louisiana v. Edward W. BUSBY.
    No. 2013-KK-0137.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Busby, Edward W.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. G, No. 12-CR8-116668; to the Court of Appeal, First Circuit, No. 2012 KW1867.

Denied.


text:
    STATE ex rel. Romonde HENRY a/k/a Romond Henry v. STATE of Louisiana.
    No. 2013-KH-0299.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Romonde Henry a/k/a Romond Henry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 505-283; to the Court of Appeal, Fourth Circuit, No. 2013-K-0102.

Denied.


text:
    In re Dawn G. CHADWICK v. LOUISIANA LICENSED PROFESSIONAL COUNSELORS BOARD OF EXAMINERS.
    No. 2013-C-0198.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Chadwick, Dawn; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 596,330; to the Court of Appeal, First Circuit, No. 2012 CA 0562.

Denied.


text:
    Joseph Ned HENRY, Jr., et al. v. UNION PACIFIC RAILROAD COMPANY.
    No. 2013-C-0179.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Union Pacific Railroad Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Natch-itoches, 10th Judicial District Court Div. B, No. 82,540; to the Court of Appeal, Third Circuit, No. 12-694.

Denied.


text:
    Michael X. ST. MARTIN, Louis Roussel, III, William A. Neilson, et al. v. STATE of Louisiana; and Cynthia Bridges, in her capacity as Secretary of the Louisiana Department of Revenue.
    No. 2013-C-0177.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Neilson, William A.; Roussel III, Louis; St. Martin, Michael X.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 162,701; to the Court of Appeal, First Circuit, No. 2012 CA 0373.

Denied.


text:
    Brigham BREDNICH v. BOURBON NITE-LIFE, LLC d/b/a Razzoo Company, Brevort Entertainment Enterprises, LLC, Eddie Robinson, Gaetana Edin, Essex Insurance Company and Mark Weathers.
    No. 2013-C-0168.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Uson, Philippe; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2006-06144; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1209.

Denied.


text:
    The COTTONPORT BANK v. Raymond GARRETT.
    No. 2013-C-0165.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Garrett, Raymond; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. C, No. 40,059; to the Court of Appeal, First Circuit, No. 2012 CA 0688.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Aaron RICHARDS.
    No. 2013-KK-0152.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Richards, Aaron; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 130590; to the Court of Appeal, Third Circuit, No. KW 12-01063.

Denied.


text:
    Barbara Ann Thibodeaux RANDO v. Troy D. FURR and State Farm Mutual Automobile Insurance Company and Progressive Security Insurance Company.
    No. 2013-C-0149.
    Supreme Court of Louisiana.
    March 1, 2013.
   In re Rando, Barbara Ann Thibo-deaux; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 556,756; to the Court of Appeal, First Circuit, No. 2012 CA 0537.

Denied.

HUGHES, J., recused.


author: JOY COSSICH LOBRANO, Judge.

text:
    Ernest RODNEY v. ZURICH AMERICAN INSURANCE COMPANY.
    No. 2012-CA-1163.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Salvador M. Brocato, III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Plaintiff/Appellant.
    Cherrell R. Simms, Richard E. King, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| plaintiff, Ernest Rodney, appeals the February 13, 2012 judgment, granting the exception of prescription filed by Assurance Company of America. We hereby vacate the judgment appealed from, and remand this matter to the trial court for reconsideration in light of the recent Louisiana Supreme Court opinion in Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 2011-2835 (La.11/2/12), — So.3d -, 2012 WL 5374248.

JUDGMENT VACATED; REMANDED.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Willie S. ISAAC, III.
    No. 12-KA-593.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Matthew Clauss, David Wheeler, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2On March 12, 2012, defendant, Willie S. Isaac, III, pled guilty to armed robbery with a knife in violation of LSA-R.S. 14:64. Defendant was sentenced to 18 years imprisonment at hard labor to be served without benefit of parole, probation, or suspension of sentence. This sentence was ordered to run concurrently with the sentence in case number 11-2888 as well as any and all other sentences that defendant may be serving.

On April 11, 2012, defendant filed a motion for reconsideration of his sentence and a motion to withdraw his plea of guilty. Also on this date, defendant filed a motion for appeal. His appeal was granted on the following date. Thereafter, on May 7, 2012, defendant’s motion to reconsider sentence was | ¡¡denied. Also, defendant’s motion to withdraw his plea of guilty was denied. Defense counsel’s oral request for an evidentiary hearing made that day (May 7, 2012) was likewise denied. Defendant’s appeal follows.

Because defendant pled guilty and did not proceed to trial, the following facts were taken from the bill of information: On or about August 16, 2011, defendant robbed Danielle Oddo while armed with a knife.

In his sole assignment of error, defendant contends that the trial court erred by failing to grant his oral motion for an evidentiary hearing that would have shown that he was prosecuted for the wrong charge. Defendant argues such an evidentiary hearing would enable him to show that he was prosecuted for the wrong charge since defendant and the alleged victim knew each other and conspired to commit a theft. He contends that the crime was staged and that the victim knew he would enter the store dressed like a woman and pretend to rob her. Therefore, defendant argues that there was no taking by use or force, which was a necessary element for an armed robbery charge.

The state responds that jurisdiction was vested with this court when the trial court granted defendant’s motion for appeal on April 12, 2012; therefore, the trial court had no jurisdiction to conduct a hearing on the motion to withdraw the guilty plea or to entertain the request for an evidentiary hearing made for the first time at the May 7, 2012 hearing. Furthermore, the state argues that there are no grounds to invalidate defendant’s guilty plea, noting that once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be -withdrawn by appeal or post-conviction relief.

Initially, defendant is arguing on appeal that he should have been granted an evi-dentiary hearing for the opportunity to show that he was prosecuted for the Dwrong charge of armed robbery, when the crime was actually a staged theft. His motion to withdraw his guilty plea did not make reference to such an evidentiary hearing, and only suggests that he be granted a hearing and after the hearing he be allowed to withdraw his guilty plea. The motion contends that defendant was advised to plead guilty by his attorney despite the fact that he told them he was innocent, and that he pled guilty because he was “scared.” The motion further contends that if defendant was allowed to withdraw his plea, he could present evidence that he did not take property by “force or intimidation” and that the alleged victim misrepresented crucial facts, causing defendant to be charged with armed robbery. Defendant was allowed a hearing on his motion to withdraw (as well as his motion for reconsideration of sentence) on May 7, 2012, during which he made his oral motion for an evidentiary hearing. Considering defendant’s oral motion for an evidentiary hearing, we find that the trial court lacked jurisdiction to entertain such a request after granting defendant’s motion for appeal on April 12, 2012.

LSA-C.Cr.P. art. 916 provides the following regarding divesting of jurisdiction:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per cu-riam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
| s(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

Thus the trial court lacked jurisdiction to hear defendant’s motion to withdraw his guilty plea, because jurisdiction vested in the appellate court when the trial court granted defendant’s motion for appeal. See State v. Craft, 94-411, pp. 2-3 (La.App. 5 Cir. 12/14/94), 648 So.2d 958, 959-60.

Defendant argues that LSA-C.Cr.P. art. 559 should apply in this case, even though the motion to reconsider sentence was filed a minute after the motion to withdraw the guilty plea. He contends that the sentence had not been finalized until the trial court denied the motion to reconsider the sentence.

Under LSA-C.Cr.P. art. 559(A), the trial court may permit a defendant to withdraw his guilty plea “at any time before sentence.” (Emphasis added). We find that this article simply says “before sentence” and does not provide that sentencing must be finalized. In the present case, defendant attempted to withdraw his guilty plea after sentencing. This court has recognized that LSA-C.Cr.P. art. 559 does not apply to attempts to withdraw a guilty plea after sentencing. See State v. Stewart, 04-1231, p. 11 (La.App. 5 Cir. 4/26/05), 902 So.2d 440, 447, writ denied, 05-1584 (La.1/27/06), 922 So.2d 545.

^Nevertheless, despite the language of LSA-C.Cr.P. art. 559, which provides that a trial court may permit the withdrawal of a guilty plea at any time prior to sentencing, a trial court can properly vacate a guilty plea after sentence if it determines that the facts surrounding a guilty plea rendered it constitutionally deficient. State v. Otkins, 11-563, p. 9 (La.App. 5 Cir. 12/13/11), 81 So.3d 150, 155; State v. Hall, 26,006, 26,007, 637 So.2d 645, 646 (La.App. 2 Cir.1994), writ denied, 94-1373 (La.9/30/94), 642 So.2d 868.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra. Even if a defendant has not filed a motion to withdraw his guilty plea, he is not prohibited from challenging a constitutionally infirm guilty plea either by means of appeal or post-conviction relief. Id.

Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily. State v. Kron, 07-1024, p. 5 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, 120, writ denied, 08-0813 (La.10/24/08), 992 So.2d 1039. A mere change of heart or mind by the defendant as to whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. Id., 07-1024 at 6, 983 So.2d at 120. Without fraud, intimidation or incompetence of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel. Id.

|7We find that, after reviewing the record in this case, there is no evidence to indicate that defendant’s guilty plea was constitutionally infirm. In fact, defense counsel even conceded at the May 7, 2012 hearing that this was “a constitutionally sound plea.” Counsel added that defendant “says all the right things in it, and therefore he shouldn’t be allowed to” [withdraw his plea]. Counsel believed, however, “the plea is just the tip of the iceberg of what goes on before you get to the plea” and therefore there was evidence to be heard in conjunction with defendant’s motion to withdraw his guilty plea which needed to be heard.

The record reflects that the trial judge told defendant at the beginning of the guilty plea colloquy to stop him with any questions. The record does not reflect that defendant questioned the judge during the colloquy. The judge questioned defendant about his age and learned that defendant had some college education. Defendant was advised that he was pleading guilty to an armed robbery that had occurred on August 16, 2011. Defendant confirmed this. Defendant was advised that for this crime he faced a sentence up to 99 years imprisonment at hard labor, but that he would be sentenced to 18 years imprisonment at hard labor. Defendant indicated that he understood this.

The trial court advised defendant of his right to a jury trial or trial by the court alone, the right to be presumed innocent until the District Attorney proved his guilt beyond a reasonable doubt, the right to force the District Attorney to call witnesses who under oath would have to testify against him at trial, and to have his attorney ask questions of each of those witnesses, the right to testify at trial if he chose to do so or remain silent if he chose not to testify and not have his silence held against him or considered as evidence of his guilt, the right to present witnesses to testify for him and/or present evidence or witnesses helpful or favorable to him, and the right to appeal any verdict of guilty that may be returned | Sagainst him at trial. Defendant indicated that he understood that by pleading guilty he was giving up these rights. As such, defendant was properly advised of his Boykin rights prior to entering his guilty plea.

In addition, defendant signed a waiver of rights form indicating that he understood his rights as well as the consequences of his guilty plea. The form reflects the crime to which defendant was pleading, the maximum 99-year sentence with the Department of Corrections that he faced, and the 18-year sentence with the Department of Corrections without benefit of parole, probation, or suspension of sentence that he would receive if his guilty plea was accepted. The form also included the Boy-kin rights which defendant was waiving by pleading guilty. Defendant’s initials are reflected next to each right in the form. Defendant indicated that he was satisfied with the way in which his attorney and the court handled his case and denied being forced, coerced, or threatened to plead guilty. Defendant signed the form and acknowledged during the colloquy that the form contained his signature. Defendant’s counsel also signed the form. The trial court accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

We find that defendant’s guilty plea was not constitutionally infirm. Defendant was informed of his rights and the consequences of his plea, and the plea was entered into voluntarily. Additionally, defendant was sentenced in conformity with the plea agreement. Defendant’s assignment of error lacks merit. We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find no errors patent in this case.

Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . It is noted that the motion to withdraw the guilty plea was filed at 3:01 p.m., the motion for reconsideration of sentence was filed at 3:02 p.m., and the motion for appeal was filed at 3:03 p.m.

      . Even though defendant’s appeal had been granted, LSA-C.Cr.P. art. 916(3) allows the trial judge to take "appropriate action pursuant to a properly made or filed motion to reconsider sentence.”

      . In Craft, the defendant filed a motion to withdraw his plea of guilty after he was sentenced. On the same date, the defendant filed a motion for reconsideration of sentence and a motion for appeal. Thereafter, the court granted the motion for appeal and denied the other two motions. This Court determined that when the trial court granted the defendant’s motion for appeal and denied the motions, jurisdiction over the defendant’s case vested in this Court and the trial court was without jurisdiction to consider or rule on the motion to withdraw the guilty plea presented by the defendant at the later hearing. This Court concluded that it could not properly consider the ruling as part of the appeal. Craft, 94-411 at 5, 648 So.2d at 961. However, this Court decided that since the defendant’s appeal was timely filed it would address the defendant’s argument in his motion to withdraw his guilty plea that he did not understand the plea bargain agreement. Craft, 94-411 at 6, 648 So.2d at 961. This Court went on to find that the trial court conducted a satisfactory Boykin hearing and the record did not show a legal basis for the withdrawal of the defendant’s guilty plea. This Court concluded that the defendant voluntarily entered his guilty plea with a full understanding of the consequences. Craft, 94-411 at 7, 648 So.2d at 961-62.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Charles SHAW.
    No. 12-KA-686.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Scott U. Schlegel, Jeffrey G. Lagarde, Assistant District Attorneys, for Plaintiff/Ap-pellee, State of Louisiana.

      Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, for Defen-danVAppellant, Charles Shaw.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Judge.

12Charles Shaw appeals his ten-year sentence following a conviction of possession of a firearm by a convicted felon. We affirm and remand for correction of patent errors.

On April 4, 2011, Charles Shaw was charged by bill of information with violation of La. R.S. 14:95.1, possession of a firearm by a convicted felon. He was arraigned on April 15, 2011, and pleaded not guilty. On March 28, 2012, the bill of information was amended to correct the statutory citation of the prior felony conviction. As amended, the bill of information alleged the defendant had been previously convicted of burglary of a building, in violation of Texas Penal Code sec. 30.02, under case number 117-1383 in the 182nd District [Court] of Harris County, Texas.

The defendant filed pretrial omnibus motions, including motions to suppress, but the record does not reflect rulings on all these pre-trial motions. On March 28, 2012, the defendant proceeded to trial. A 12-person jury found him guilty as charged. On April 18, 2012, the defendant filed a motion for new trial, arguing that the verdict was contrary to the law and evidence and that the ends of justice |srequired he be granted a new trial. On the same date, the defendant filed a motion for reconsideration of sentence, alleging his sentence was constitutionally excessive, and a motion for appeal.

On April 19, 2012, the trial court denied the defendant’s motion for new trial. He then was sentenced to imprisonment at hard labor for a term of ten years, to be served without benefit of parole, probation, or suspension of sentence. The court later also recommended that the defendant be admitted to any youthful offender programs available to him while in the custody of the Department of Corrections.

After noting that a motion to reconsider sentence had been filed, defense counsel stated that the motion would be filed again since the defendant had been sentenced. The defendant’s motion to reconsider sentence thereafter was denied. Defense counsel then mentioned that a motion for appeal had been “clocked in” and asked that the motion be lodged, that counsel be allowed to withdraw, and that the Louisiana Appellate Project be appointed. The court granted the motions and this appeal ensued.

FACTS

On March 1, 2011, Detective Derrick Leggett and Sergeant Anthony Synigal of the Jefferson Parish Sheriffs Office were working in the street crimes division patrolling the Beechgrove area in Westwego. Detective Leggett described “street crimes” as an enforcement division that works in high crime areas. He testified that the Beechgrove area was an area of high crime and drug activity.

Sergeant Synigal also testified that Bee-chgrove was a high crime area. He said that in the past, anonymous complaints were received about subjects carrying guns and selling drugs in the Beechgrove area. Sergeant Synigal admitted, [ 4however, that the complaints were not received on the same day that they were patrolling the area.

As they drove, they observed a subject who was walking while wearing a jacket on a hot day. Based on his training, Detective Leggett suspected the subject might be carrying a weapon, because he was wearing a jacket in the summer in a high crime area. Sergeant Synigal thought that the jacket and the subject’s hand in his waistband were suspicious. As a result, Detective Leggett and his partner elected to observe the subject further. Detective Leggett drove their vehicle into a parking lot near a building in the Bee-chgrove complex and they continued to watch the subject.

Detective Leggett and Sergeant Synigal noticed the subject’s right hand in his front waistband area as he walked. The subject turned around and looked at Detective Leggett and Sergeant Synigal in their unmarked unit. Detective Leggett explained that the unit had lights on its dashboard, so the subject could probably detect that they were police. Detective Leggett also described what he was wearing and said he looked like an officer. As the officers stopped their vehicle, the subject fled on foot, running away from them. The subject kept his right hand in his waistband, even while running. Detective Leggett and Sergeant Synigal identified the defendant in court as the subject who fled.

Detective Leggett and Sergeant Synigal exited their vehicle and chased the defendant. Sergeant Synigal, who was the passenger in the vehicle, exited the vehicle first. The chase began around “the 953 building.” They yelled at the defendant to stop and identified themselves as police officers. During the chase, the defendant removed his right hand from his waistband area and discarded a firearm to the ground near a back porch on the “east side of 973.” The defendant tossed the firearm with his right hand and continued to run. Sergeant Synigal | ^passed the firearm while he chased defendant, knowing that his partner was behind them.

Detective Leggett retrieved the firearm with an extended clip from the ground for safety, unloaded the weapon, placed it in his waistband, and then continued to chase defendant. Detective Leggett caught up with the defendant and Sergeant Synigal, who had the defendant on the ground around “building 973.” Sergeant Synigal explained that the defendant was caught on the “south side of 973.” The defendant struggled briefly, but Detective Leggett and Sergeant Synigal gained control of him and handcuffed him.

Detective Leggett patted the defendant down for other weapons, and felt an object in his jacket pocket. A gun magazine with six live rounds was removed from the defendant’s right pocket. The defendant was advised of his Miranda rights. The defendant said he lived in the area with his mother.

Lieutenant Kelly Carrigan of the Jefferson Parish Crime Lab, an expert in the field of latent print analysis, testified there were no usable latent prints present on the firearm with the extended magazine examined in this case. He explained that it is not uncommon to fail to obtain fingerprints from guns.

At trial the State and the defense stipulated that the defendant had pleaded guilty to violating Texas Penal Code 30.02, burglary of a building, on July 25, 2008, that the Texas conviction is an enumerated felony conviction under La. R.S. 14:95.1, and that it took place within the requisite ten-year time period. A certified copy of the conviction was also admitted for record purposes.

| .-ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, the defendant asserts the sentence is unconstitutionally excessive.

The defendant argues that his mandatory minimum sentence is unconstitutional in that it is excessive as applied to him, because he was a youthful offender who was 19 years old and may have shown bad judgment, but was not engaged in any other crimes on the day he was arrested. He requests that his sentence be vacated.

The State responds that the defendant has failed to rebut the presumption of constitutionality of his sentence and that his sentence should be upheld. Further, the State notes an error patent regarding the sentence, failure to impose a mandatory fine, and requests remand for correction of the omission.

“Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.C.Cr.P. art. 881.1(E).

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Ragas, 07-3, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008). See also La.C.Cr.P. art. 881.1.

Although the defendant filed a motion for reconsideration of sentence on April 18, 2012, the defendant was not actually sentenced until the following date. La.C.Cr.P. art. 881.1(A)(1) states, “In felony cases, within thirty days following |7the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.” (Emphasis added.) La.C.Cr.P. art. 881.1(B) further provides, “The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.” (Emphasis added.) An objection to a sentence or a motion to reconsider sentence filed before the sentence is imposed is premature. State v. Hunter, 10-552, p. 6 (La.App. 5 Cir. 1/11/11), 59 So.3d 1270, 1273.

Nevertheless, immediately after the defendant was sentenced, defense counsel acknowledged that a motion to reconsider sentence had been filed prematurely, and that it would be filed again since the defendant had been sentenced. Counsel stated that the sentence was excessive, although the court had imposed the mandatory minimum sentence with the comment that “the legislature has decided that 10 years is the mandatory minimum.” The court denied the motion to reconsider sentencing, explaining that it had considered “many factors” in sentencing and believed the mandatory minimum sentence was appropriate in this case.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial | ¡judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id., 07-311 at 7-8, 973 So.2d at 109.

In reviewing a trial court’s sentencing discretion, the reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate; Warmack, 07-311 at 8, 973 So.2d at 109. “Sentence review under La. Const, art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case.” State v. Williams, 07-1111, p. 1 (La.12/7/07), 969 So.2d 1251, 1252 (per curiam).

A trial court is authorized to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Williams, 10-265 p. 8 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 103 (citing State v. Dorthey, 623 So.2d 1276, 1281 (La.1993)). This review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. Williams, 10-265 at 8, 54 So.3d at 103 n. 3.

While a court has the authority to depart from a legislatively-mandated sentence, “the Legislature’s determination of an appropriate minimum sentence should be afforded great deference by the judiciary.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. The decision in Dor-they “did not purport to grant |3a district court the power to usurp ... legislative prerogative or to impose what the court believes is the most appropriate sentence for a particular offender in a particular case.” State v. Celestine, 12-0241, p. 3 (La.7/2/12), 92 So.3d 335, 336 (per curiam) (quotation omitted).

This Court has recognized that a mandatory minimum sentence is presumed to be constitutional. State v. Hernandez, 03-424, p. 4 (La.App. 5 Cir. 10/15/03), 860 So.2d 94, 97. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. Id. A court may depart from the mandatory sentence only if it finds clear and convincing evidence in the case that would rebut the presumption of constitutionality. Id.

To rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”

Williams, 10-265 at 8, 54 So.3d at 104 (citation omitted). Downward departures from a mandatory minimum sentence should occur only in rare cases. Id.

The defendant did not specifically argue for a downward deviation during sentencing or when he moved for reconsideration of his sentence. Such an argument may be implied, however, because he was asking for reconsideration of a mandatory minimum sentence. Nevertheless, this Court has found that a Dorthey claim is encompassed in the Court’s review for constitutional exeessiveness. State v. Horne, 11-204, p. 10 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-0556 (La.6/1/12), 90 So.3d 437.

In this case, the defendant was sentenced pursuant to La. R.S. 14:95.1, which provides for mandatory imprisonment of not less than ten years at hard labor |!0without the benefit of probation, parole, or suspension of sentence, and a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). The defendant contends that the mandatory minimum sentence he received was excessive in light of his youth and the fact that there was no evidence he was engaged in any other crimes at the time he was found to be in possession of the firearm.

The record, however, reflects that the trial judge was aware of and considered many factors regarding the defendant and this case before determining that the mandatory minimum sentence was appropriate.

When the defendant was sentenced, the judge explained he had considered the entire record and the defendant’s youth. The judge further said he had considered the sentencing guidelines in accordance with La.C.Cr.P. art. 894.1. The judge believed there was an undue risk that during any period of the sentence without incarceration the defendant would commit another crime, and he found the defendant in need of correctional treatment. The defendant then received the mandatory minimum imprisonment term of ten years.

The trial judge denied the defendant’s motion for reconsideration of sentence, which was re-urged once the defendant was sentenced. The judge explained he had considered many factors in sentencing and believed the mandatory minimum sentence was appropriate.

The defendant argues that being in possession of the firearm was the sole offense he was committing when he was arrested. However, the trial judge may not have considered this mitigatory under the circumstances, when the defendant’s criminal behavior could have been interrupted by police intervention and in itself was criminal in nature. Further, the judge was aware that the defendant had a prior conviction for burglary of a business.

|nWe find that the defendant has failed to rebut the presumption of constitutionality of his sentence. The defendant has not presented clear and convincing evidence to suggest his situation is the kind of rare situation that warrants a downward departure. The defendant was carrying a loaded weapon with an extra magazine in his pocket. He disregarded police authority by refusing to stop when advised to do so and by struggling with the officers once he was detained.

In Warmack, 07-311 at 8, 973 So.2d at 109, this Court concluded the trial court did not abuse its vast discretion in imposing the maximum 15-year sentence for the defendant’s conviction of being a felon in possession of a firearm, when the defendant had three prior convictions for drug offenses. In doing so, this Court noted that the defendant ran from the police, demonstrating a complete disregard for police authority, and the gun he pulled from his waistband was loaded and had a bullet in the chamber ready to be discharged.

Although the defendant argues that his youth should warrant a downward departure, this Court has recognized that age is an insufficient justification for a downward departure in a sentence. State v. Lee, 09-37, p. 8 (La.App. 5 Cir. 5/12/09), 15 So.3d 229, 233-34.

In addition, the defendant claims he was only in possession of the firearm and was not engaged in any other crimes on the day he was arrested. In State v. Becnel, 04-1266, p. 12 n. 8 (La.App. 5 Cir.5/31/05), 904 So.2d 838, 849 n. 8, the Court pointed out, “[T]he reason for possessing a firearm is irrelevant to the offense of possession of a firearm by a convicted felon since the law does not require that the convicted felon possess the firearm with the intent to use it in an illegal manner.”

|12In State v. Wilson, 09-170, pp. 7-8 (La.App. 5 Cir. 11/10/09), 28 So.3d 394, 401-02, writ denied, 09-2699 (La.6/4/10), 38 So.3d 299, this Court found the maximum 15-year sentence pursuant to La. R.S. 14:95.1 was not constitutionally excessive. In doing so, we noted the seriousness of the defendant’s actions in leaving a loaded weapon on the seat of an unlocked car.

In the present case, the defendant discarded a loaded firearm on the ground as he attempted to flee from the police. In the context of the record, it appears the firearm was near a back porch and what was believed to be a child’s chair.

In addition, although defendant argues he received the mandatory minimum sentence, we note that the trial court did not impose the mandatory fine set out in La. R.S. 14:95.1.

Accordingly, we find the trial court did not abuse its sentencing discretion in imposing the mandatory minimum term of imprisonment under the circumstances of this case.

ERROR PATENT DISCUSSION

Examination of the record for errors patent on its face is a routine part of this Court’s review. See La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find several patent errors, but not all of them require correction.

Errors Not Requiring Correction

The bill of information in this case was amended to change the statutory citation for the prior felony conviction used as the basis for the La. R.S. 14:95.1 charge. The defendant was not re-arraigned when the State amended the bill to change the citation to the statute for the prior felony offense. Even if re-arraignment were required after the amendment, however, the defendant proceeded 1 ]Sto trial without objection; therefore, he waived any irregularity. La.C.Cr.P. art. 555; Warmack, 07-311 at 8-9, 973 So.2d at 109.

In addition, the defendant’s written motions for appeal and for reconsideration of sentence were premature, because they were filed on April 18, 2012, although the defendant was not sentenced until April 19, 2012.

The commitment and the transcript reflect that the defendant’s motion to reconsider sentence was denied after sentencing. According to the order, the motion for appeal was granted on April 19, 2012, the same date as sentencing. The commitment and the transcript indicate that the motion for appeal was granted after sentencing.

A premature appeal need not be dismissed when a sentence is imposed after the motion for appeal is filed. See State v. Proctor, 04-1114, p. 10 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 484 n. 4. Further, defense counsel admitted that the motion to reconsider sentence was filed prior to sentencing; but after sentencing, counsel said the motion was being re-filed and he made oral arguments for reconsideration of the sentence. We find the premature motions require no corrective action.

Finally, the defendant received an illegally lenient sentence. La. R.S. 14:95.1(B) provides for a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. In this case, neither the commitment nor the transcript reflects the imposition of the mandatory fine required under the statute.

The State has raised the absence of the mandatory fine in its response on appeal.

An appellate court has the authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. State v. Campbell, 08-1226, p. 8 (La.App. 1,45 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. This authority is permissive rather than mandatory. State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376.

This Court has used that authority to notice the failure of the trial court to impose a mandatory fine and to remand the matter for imposition of a mandatory fine. In indigent defendant matters, however, we often have decided not to use that authority. See Horton, 09-250 at 10, 28 So.3d at 376, where this Court declined to remand the matters for imposition of the mandatory fine due to the indigent status of the defendants. We noted that the defendants were represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. See also State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, writ denied, 10-1141 (La.12/10/10), 51 So.3d 725.

In the present case, the defendant is represented by the Louisiana Appellate Project.

In State v. Caffrey, 08-717, p. 10 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 205, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297, this Court recognized in its error patent review that the trial judge failed to impose the fine of “not less than one thousand dollars nor more than five thousand dollars” as mandated by La. R.S. 14:95.1(B), noting that the judge did not impose an excessive sentence, but rather an illegally lenient sentence. We explained that although the State noted the error in its brief on appeal, it neither objected at the time of sentencing nor appealed the error. We recognized our authority to correct an illegally lenient sentence on our own motion as permissive rather than mandatory, but refrained from taking such action.

11BIn this case, we elect to follow Caffrey and Horton, and we refrain from ordering imposition of the mandatory fine. Due to the defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

Errors Requiring Correction

There are other patent errors that require corrective action, however, due to discrepancies between the transcript and the commitment.

Generally, where there is an inconsistency between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

First, the commitment states, in pertinent part:

Plea was acceptable to the State.
The Court advised the Defendant of his/ her rights. The right to a trial by judge/jury. The right to confront his/ her accusers. The right against self-incrimination. The Defendant waived these rights and a waiver of rights form was executed and filed into this record. Note of evidence taken.

Thus, the commitment suggests the defendant’s conviction was based on a guilty plea, when instead the defendant was convicted after a trial by a jury. The commitment also suggests that a note of evidence was taken, but the transcript included in the record does not reflect this. The transcript reflects that the sentencing delays were waived after the motion for new trial was denied, but that is not reflected in the commitment. In addition, the commitment reflects only that the defendant was convicted of “CONVICTED FELON WITH A WEAPON.”

In State v. Turner, 10-995, p. 7 (La.App. 5 Cir. 9/27/11), 75 So.3d 491, 494, writ denied, 11-2379 (La.4/27/12), 86 So.3d 625, this Court noted that the commitment reflected that the defendant pleaded guilty to “CONVICTED FELON WITH A WEAPON” when, more accurately, he pleaded guilty to “felon in | ^possession of a firearm.” In Turner we remanded the matter for the limited purpose of clarifying the commitment.

Finding that the commitment in this case requires amendment, we shall remand this case for correction of the commitment regarding the previously discussed errors. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

DECREE

For the foregoing reasons, the conviction and sentence are affirmed. The case is remanded and the district court is ordered to amend the minute entry and commitment to describe properly the crime of which the defendant was convicted, since he actually was charged with and convicted of being a convicted felon in possession of a firearm. The district court is further ordered to amend the minute entry to remove the language that indicates the conviction was based on a guilty plea.

We further order the district court to direct the clerk of court to transmit the minute entry to the officer in charge of the institution to which the defendant has been sentenced,.as well to the legal department of the Department of Corrections.

AFFIRMED AND REMANDED

      . Nevertheless, when a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived. State v. Wise, 05-221, p. 7 (La.App. 5 Cir. 10/6/05), 916 So.2d 290, 293.

      . The minute entry for the jury trial does not include the verdict returned and instead reflects “In progress!)]” However, the transcript and written jury verdict reflect that defendant was found guilty as charged of possession of a firearm by a convicted felon.

      . The weapon was loaded with a magazine inserted into it. One round was in the chamber of the .380 handgun and there were 15 rounds in an extended magazine. As such, there were a total of 16 rounds.

      . Another officer "ran” the gun and conducted an "NCIC check” on the defendant. After the defendant was arrested, it was learned that he had traffic attachments.

      . We note the maximum term of imprisonment under La. R.S. 14:95.1 has been increased to 20 years. See La. R.S. 14:95.1(B).

      . See Error Patent discussion, below.