author: WHATLEY, Judge. KHOUZAM, J.,

text:
    Shombie S. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-571.
    District Court of Appeal of Florida, Second District.
    June 19, 2009.

      Daniel L. Castillo, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Harris appeals his judgments and sentences for possession of cocaine, possession of marijuana, and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.

Harris was driving his pickup truck in a lawful manner. Two law enforcement officers were behind Harris in separate vehicles and both officers attempted to obtain the tag number from Harris’s vehicle. Their testimony, which is supported by the evidence, was that a trailer hitch partially blocked the tag and they could not read the letters on the tag from a distance of thirty to fifty feet. The officers stopped Harris’s vehicle based on the obscured tag. After the stop, the officers smelled an odor of fresh marijuana coming from inside the vehicle. Thereafter, marijuana was found in Harris’s pocket and cocaine was found in the glove box of the truck.

Harris asserts the trial court erred in denying his motion to suppress because he was improperly stopped for violating section 316.605, Florida Statutes (2006). The relevant portion of the statute reads as follows:

[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

§ 316.605(1) (emphasis added).

The only language in the statute that would apply to the case at bar is the phrase, “other obscuring matter.” However, we conclude the doctrine of ejusdem generis causes this language to apply only to matter on the tag itself. Pursuant to the “ ‘ejusdem generis’ canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Black’s Law Dictionary 514 (6th ed. 1990). Here, a reading of the language in the statute shows that the license plate must be free from obscuring matter, be it grease, grime, or some other material placed over the plate. However, it would not include a trailer hitch that is properly attached to the truck’s bumper.

The dissent reads the “plainly visible” from 100 feet language as if such language was separate from “defacement, mutilation, grease, and other obscuring matter.” We believe that section 316.605(1), which is all one sentence and contains 196 words, is neither clear nor concise, and therefore, the doctrine of ejusdem generis is applicable. Further, the “plainly visible” language applies to license plates obstructed by defacement, mutilation, grease, or “other obscuring matter.” The sole issue is the meaning of “other obscuring matter.” This phrase, under the doctrine of ejusdem generis applies to obstructions “on” the tag such as grease, grime or rags. Matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like are not covered by the statute. If the legislature chooses to bring such items external to the license plate within the statute, simple and concise language can accomplish the task.

We are not unmindful that Florida now has a variety of different license plates of various colors and design. Some of these place letters in the middle of the tag, where the trailer hitch was located in this case, and some place a symbol, such as an orange, in the middle of the tag where a trailer hitch might not obscure letters or numerals.

Although there are no cases on point in Florida, in State v. Ronau, 2002 WL 31743012 (Ohio Ct.App.2002), the court held that the trial court did not err in finding that the stop of a truck was improperly based on the fact that the trailer hitch was blocking a portion of the license plate. We recognize that Ronau appears to be the minority position. See People v. White, 93 Cal.App.4th 1022, 1026, 113 Cal.Rptr.2d 584 (Cal.Ct.App.2001) (holding that license plate that is partially obstructed from view by a trailer hitch violates law, which provides that plates must be maintained in a condition so as to be clearly legible, and such violation provided officer with a lawful basis to stop vehicle); State v. Hill, 131 N.M. 195, 34 P.3d 139, 147 (N.M.Ct.App.2001) (where law required plate to be “maintained free from foreign material and in a condition to be clearly legible,” truck’s plate was in violation of law where truck’s trailer hitch obscured plate’s renewal sticker); State v. Smail, 2000 WL 1468543 (Ohio Ct.App. 2000) (concluding that pursuant to law, which provided that “license plates ... shall not be covered by any material that obstructs their visibility,” the middle numbers of a license plate were not in “plain view” and stop of truck was lawful where license was obstructed by a ball hitch).

We conclude that Harris’s vehicle was improperly stopped pursuant to section 316.605. Accordingly, we reverse Harris’s judgments and sentences.

Reversed and remanded.

WILLIAMS, CHARLES E., Associate Judge, Concurs.

KHOUZAM, J.,

dissents with opinion.

I respectfully dissent. The majority relies on the phrase “other obscuring matter” as the only language in the statute that would apply to the obstruction of the alphanumeric designation of the tag in this case. I do not read the statute to be limited to matter on the tag itself. In my view, the construction of the statute in the majority opinion disregards other critical terms and phrases contained in the statute as emphasized below:

[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.

§ 316.605(1) (emphasis added).

Based on a plain reading of the statute, I read the foregoing to require the alphanumeric designation on the plates to be plainly visible and legible at all times 100 feet from the rear or the front of the vehicle. This would include obstructions caused by items placed in front of license tags, such as trailer hitches.

If a statute is unambiguous, we do not resort to statutory construction. See State v. Hobbs, 974 So.2d 1119, 1122 (Fla. 5th DCA 2008) (opining that for purposes of statutory interpretation, the maxim ejus-dem generis should only come into play when it is necessary to construe an ambiguous statute, not to create an ambiguity in a clearly worded statute). Further, it is inappropriate to use the maxim ejusdem generis “if, as a result, the court fails to give meaning to all of the words used by the legislature.” Id. at 1121. The interpretation of section 316.605 set forth in the majority opinion now before us for rehearing disregards the terms “clear” and “distinct” and the phrase “so that they will be plainly visible and legible at all times 100 feet from the rear or front.” In my view, there is no need to apply the maxim ejus-dem generis to interpret this unambiguous statutory provision.

“A statute should not be construed to bring about an unreasonable or absurd result, but rather to effectuate the obvious purpose and objective of the legislature. The law favors a rational and sensible construction of statutes so as to avoid an unreasonable or absurd result.” George v. State, 203 So.2d 173, 175-76 (Fla. 2d DCA 1967) (citations omitted). It would be unreasonable to read section 316.605(1) as meaning that a plate is visible if it cannot be read by an officer following safely in his or her patrol car.

To follow the reasoning in the majority opinion, items displayed in front of the license tag that obscure the plate would not be in violation of the statute and would not provide law enforcement with a lawful basis to stop the vehicle, so long as the items are not affixed to the tag itself. This is neither a plain nor reasonable interpretation of the statute.

Law enforcement officers should not be precluded from stopping a vehicle when they are unable to read a license plate because such a restriction would hinder them in fulfilling their duties to carry out the significant state interest of protecting citizens. I find Wright v. State, 471 So.2d 155 (Fla. 3d DCA 1985), instructive. In Wright, an officer noticed that the license plate on the rear of a parked vehicle was partially obscured by a dirty rag. Id. at 156. The officer approached and asked the defendant to exit the vehicle. Id. at 157. The court found that the officer had the authority, even the duty, to investigate why the license tag was obscured in violation of the motor vehicle statute. Id. Like the rag in Wright, the trailer hitch here obscured the critical alphanumeric designation of the tag. In fact, in this case the officers testified they were in separate vehicles travelling together, parallel to each other, when they first saw Harris’s truck. Both officers testified that they attempted to determine the tag number from the rear and were unable to do so because the tag was obscured by a trailer hitch. As in Wright, I would find that the officers had the authority to investigate why Harris’s tag was obscured.

In light of the foregoing, I would affirm the trial court’s denial of the motion to suppress. The trial court correctly applied the plain language of the statute and properly determined that Harris was in violation of the statute because the license plate was partially obscured by a trailer hitch and was not plainly visible at distances well under 100 feet.

      . It is clear the rag in Wright v. State, 471 So.2d 155 (Fla. 3d DCA 1985), was in contact with the vehicle's license plate.

      . It appears that the rag in Wright was not affixed to the face of the license plate. The defendant told the officer that the rag was being used because the gas tank leaked, and that the rag must have blown over the license plate. 471 So.2d at 157. The defendant lifted the license plate and the officer observed that the gas tank had a regular cap in place. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth M. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-1455.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    Kenneth Robinson, Tavares, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court’s failure to rule upon Petitioner’s motion to disqualify within 30 days of its service resulted in the motion being deemed granted by rule. See Fla. R. Jud. Admin. 2.330(j) (“If not ruled on within 30 days of service, the motion [to disqualify] shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.”). Petitioner is entitled to the reassignment of his case to a different judge, which, at this point, constitutes nothing more than a ministerial duty of the lower court. See Schisler v. State, 958 So.2d 503 (Fla. 3d DCA 2007); see also Berube v. State, 978 So.2d 893 (Fla. 2d DCA 2008) (reversing denial of rule 3.850 motion; trial court had no authority to hear motion because appellant’s prior motion to disqualify had been deemed granted by trial court’s failure to timely rule upon same). Accordingly, the matter is remanded to the lower court with instruction to reassign the case to a different judge.

PETITION GRANTED.

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    SCHOOL BOARD OF BAY COUNTY, Florida, Appellant, v. FLORIDA STATE BOARD OF EDUCATION, Appellee.
    No. 1D07-6014.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Franklin Harrison, and Kevin D. Obos of Harrison, Sale, McCloy, Panama City, for Appellant.
    Deborah K. Kearney, General Counsel, Department of Education, Timothy Oster-haus, Deputy Solicitor General, Office of the Attorney General, and Daniel J. Woodring of Woodring Law Firm, Tallahassee, for Appellee.
   PER CURIAM.

The School Board of Bay County challenges the constitutionality of section 1002.335, Florida Statutes (2006), alleging it violates article IX of the Florida Constitution. We hold section 1002.335 is facially unconstitutional. See Duval County Sch. Bd. v. State Bd. of Educ., 998 So.2d 641 (Fla. 1st DCA 2008).

The Final Order of the State Board of Education is hereby set aside.

HAWKES, C.J., ALLEN, and CLARK, JJ., concur.


text:
    The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellant, v. The STATE BOARD OF EDUCATION, In the Matter of District School Board of Miami-Dade County’s Application to Retain Exclusive Authority, Appellee.
    No. 1D08-0050.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Melinda L. McNichols, Office of School Board, Miami, for Appellant.
    Deborah K. Kearney, General Counsel, Department of Education, Timothy Oster-haus, Deputy Solicitor General, Office of the Attorney General, and Daniel J. Woodring of Woodring Law Firm, Tallahassee, for Appellee.
   PER CURIAM.

The School Board of Miami-Dade County appeals the State Board of Education’s denial of the School Board’s application for exclusive authority to sponsor charter schools within Miami-Dade County, pursuant to section 1002.335(5), Florida Statutes (2006). In addition, the School Board challenges the constitutionality of section 1002.335, Florida Statutes (2006).

In Duval County Sch. Bd. v. State Bd. of Educ., 998 So.2d 641 (Fla. 1st DCA 2008), this court found section 1002.335, Florida Statutes (2006) facially unconstitutional because the statute presented a “total and fatal conflict with article IX, section 4 of the Florida Constitution.” Duval County Sch. Bd. v. State Bd. of Educ., 998 So.2d at 644. We hold section 1002.335 is facially unconstitutional.

The Final Order of the State Board of Education is hereby set aside.

HAWKES, C.J., ALLEN, and CLARK, JJ., concur.


text:
    Dishaun QUARTERMAN, Appellant, v. Carmen PINKNEY, Appellee.
    No. 1D08-3601.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Michael M. Giel of McGuire Woods LLP, and Marcellina Spigner, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    Carmen Pinkney, pro se, Appellee., for Appellee.
   PER CURIAM.

Dishaun Quarterman appeals a final judgment of injunction for protection against repeat violence. We find that the final judgment is supported by competent substantial evidence that Carmen Pinkney experienced an incident of stalking. See Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008). However, we reverse the provision in the final judgment directing Quarterman to pay damages of $1,770.44 to Carmen Pinkney as Quarterman was not given notice that a claim for damages would be heard or an opportunity to present her own case. Shocki v. Aresty, 994 So.2d 1131, 1134 (Fla. 3d DCA 2008).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


text:
    SHANDS TEACHING HOSPITAL AND CLINICS, INC., Petitioner, v. Michael K. BALDWIN and Stephanie C. Baldwin, Respondents.
    No. 1D09-0914.
    District Court of Appeal of Florida, First District.
    June 24, 2009.
    Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Petitioner.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso, Spier & Connolly, P.A., Miami, for Respondents.
   PER CURIAM.

The petition for writ of prohibition is granted. Shands Teaching Hospital and Clinics, Inc. v. Sarmuel, 926 So.2d 441 (Fla. 1st DCA 2006). On remand, a new judge shall be assigned only for proceedings relating to and disposition of Shands’ motion for protective order.

HAWKES, C.J., ALLEN and CLARK, JJ., concur.


text:
    Alexandra HIAEVE, Appellant, v. Gedalla FENSTER, Appellee.
    No. 3D08-1865.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Mai’k R. Osherow, Boca Raton; Lawrence J. Shapiro, Pompano Beach, for appellant.

      Ginsberg and Schwartz and Arnold R. Ginsberg, Miami; Zarco Einhorn Salkow-ski & Brito and Alejandro Brito, Miami; Leo Manzanilla, Miami, and Allen J. Smith, for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 718.503(2), Fla. Stat. (2006).


author: ROTHENBERG, J.

text:
    Maria MOSKOVITS, Petitioner, v. CRYSTAL HOUSE, INC., Respondent.
    No. 3D09-1705.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Maria Moskovits, in proper person.
    Ron Campbell, West Palm Beach, for respondent.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

The petitioner, Maria Moskovits, seeks a writ of prohibition to prevent the trial judge from presiding over this case. We have reviewed the verified motion to disqualify, and conclude that the motion was legally sufficient, and therefore, it should have been granted. See Fla. R. Jud. Admin. 2.330(d)(l)-(2). Accordingly, we grant the writ of prohibition, but are confident that it will be unnecessary to formally issue the writ.

Petition granted.


text:
    Angel CARMONA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-541.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Carlos J. Martinez, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    Gustavo Javier GUERRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2939.
    District Court of Appeal of Florida, Third District.
    June 24, 2009.
    Carlos A. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and WELLS, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 998 So.2d 516 (Fla.2008); see also Fla. R. Crim. P. 3.216; Chestnut v. State, 538 So.2d 820, 821 (Fla.1989).


text:
    Bernard R. PEREZ, Appellant, v. Carmen E. PEREZ, Appellee.
    No. 2D08-2918.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.

      David A. Maney and Patricia F. Kuhl-man of Maney, Damsker, Jones & Kuhl-man, P.A., Tampa, for Appellant.
    Mark S. Howard of Mark S. Howard, P.A., Tampa, for Appellee.
   PER CURIAM.

Bernard Perez, the Husband, appeals a temporary support award encompassing both temporary alimony and temporary child support. He also appeals the award of the temporary exclusive use and possession of the marital home to Carmen Perez, the Wife. We affirm the award of the temporary exclusive use and possession of the marital home without comment. However, we conclude the trial court abused its discretion by entering the temporary support award that virtually exhausted all of the Husband’s net monthly income.

The parties were married in December 1988 and separated in February 2008. During the marriage, the parties had three children. The Wife filed her petition for temporary support on February 21, 2008. The trial court conducted a hearing on the petition.

In her “temporary relief hearing memorandum” and at the hearing, the Wife asserted that the Husband’s income was really higher than what was reflected in his financial affidavit. Specifically, the Wife alleged the Husband received an additional $10,000 a month beyond what was reported in his financial affidavit; the allegations were based on the Husband’s American Express business account which reflected that some of the items purchased were for personal use.

The Wife’s financial expert testified that she reviewed three American Express statements from November and December 2007 and January 2008, which were the only statements the Husband had produced. These statements reflected charges for personal items averaging $8399 per month. By multiplying this amount by twelve, she estimated that the Husband had an additional $100,000 in annual income from the use of the American Express card that should be added to his W-2 salary of $314,864. However, on cross-examination, the expert admitted she did not know if the amounts charged on the American Express card were included as part of the Husband’s reported income on his W-2. She also acknowledged that her formula for deriving the amount spent by the Husband on personal expenditures for an entire year was a “best guess” because she did not have documentation for an entire twelve-month period. Finally, she acknowledged that a $500,000 home equity line of credit (HELOC), which the parties had obtained, could have provided sufficient funds to make up the difference between the parties’ expenses and their reported income, thereby implying that the Husband would not have needed to rely on the American Express card for income on a continuing basis. However, she did not consider that possibility when preparing her opinion because no documentation had been provided to her showing that the HELOC had been advanced.

The Husband’s financial expert testified that he too was unaware of whether the Husband had reported personal expenditures on the American Express card as income on his W-2. He also acknowledged that the HELOC payments were not included in the Husband’s financial affidavit but testified it was merely an oversight. He further testified that he had been informed that the HELOC had been fully advanced and used in a three-year period and that the payments on the HELOC were a little over $2000 a month.

The trial court determined the Husband’s net monthly income was $26,545. This figure was based on the Husband’s W-2 income together with the additional income attributed to the American Express card charges. Based on this finding, the trial court awarded temporary alimony in the amount of $6000 per month and temporary child support in the amount of $2500 per month. The trial court also ordered the Husband to continue paying the monthly mortgage payments of $9624 on the marital residence and $2200 on the HELOC as well as $2700 monthly private school tuition for the children. Thus, the Husband’s monthly financial obligations totaled $23,024.

We begin our review of the trial court’s rulings by questioning the imputation of the additional $100,000 income. Courts have discretion to impute income in appropriate circumstances, but the imputation must be based on competent, substantial evidence. See Griffin v. Griffin, 906 So.2d 386, 387 (Fla. 2d DCA 2005). However, “guesses or assumptions about facts cannot constitute evidence that would reasonably support a factual conclusion.” Holden v. Holden, 667 So.2d 867, 869 (Fla. 1st DCA 1996).

In this case, the evidence presented to support the imputation of additional income consisted of three American Express statements that the Wife’s expert relied upon to assume that the Husband used the American Express business card for personal expenditures every month. The reasonableness of this assumption is undermined by the expert’s acknowledgment that she did not know whether the amounts charged were reported as part of the Husband’s W-2 income, and further, she did not take into consideration the fact that proceeds from the HELOC were sufficient to cover living expenses that otherwise exceeded the parties’ W-2 incomes. Thus, we conclude the imputation of the additional $100,000 income is not supported by competent, substantial evidence.

However, even if we assume the imputation was correct, we would still conclude that the trial court abused its discretion in entering the temporary support award. “ ‘[A] trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.” ’ ” Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004) (alteration in original) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980) (citation omitted)). This court and other courts have long held that

[a] financial award which requires one party to pay alimony or marital obligations in excess of that party’s ability to pay constitutes an award which is not supported by substantial, competent evidence. Hence, “a trial court cannot enter a temporary [financial] award that exceeds or nearly exhausts a party’s income” because it would abuse its discretion by doing so.

Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007) (quoting Bolton v. Bolton, 898 So.2d 1084, 1084 (Fla. 4th DCA 2005)); see also Vega, 877 So.2d 882 (reversing alimony award which started off consuming 80% of Husband’s income and then was reduced to consuming 64% of Husband’s income); Dennison v. Dennison, 852 So.2d 422 (Fla. 5th DCA 2003) (reversing alimony and child support awards which consumed 83% of Husband’s income); Gandul v. Gandul, 696 So.2d 466 (Fla. 3d DCA 1997) (reversing rehabilitative alimony award which consumed 70% of Husband’s income).

The trial court’s order requires the Husband to pay monthly financial obligations in the amount of $23,024, which equates to approximately 86% of his monthly net income of $26,545. The Husband is left with $3521. Such an award nearly exhausts the Husband’s- income, which as noted herein, constitutes an abuse of discretion.

We therefore reverse the support awards and remand with instructions to redetermine the Husband’s financial obligations after further evidentiary proceedings. See Hotaling, 962 So.2d at 1052. On remand, the trial court should base the temporary support awards on the current circumstances of the parties and not on possibilities which have not yet been realized, such as the prospect of refinancing the marital home. See LaSala v. LaSala, 806 So.2d 602, 604 (Fla. 4th DCA 2002); Hollinger v. Hollinger, 684 So.2d 286, 288 (Fla. 3d DCA 1996).

Affirmed in part; reversed in part; remanded for further proceedings.

FULMER, WHATLEY, and KHOUZAM, JJ., Concur.

      . In the original temporary support order, the trial court determined the Husband's net monthly income was $23,000. However, the court subsequently entered an order on the Husband's motion for rehearing revising that figure to $26,545, based on mathematical corrections submitted by the Husband's counsel.


text:
    Travis Devincey SMITH, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D09-170.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2009.
    Travis D. Smith, Blountstown, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order denying his petition for writ of habe-as corpus. He contends that the. trial court improperly dismissed the petition on procedural grounds without addressing the merits. We agree with Appellant and reverse.

Appellant was charged with second-degree murder in an information filed by the statewide prosecutor. In his petition for habeas corpus, Appellant challenged the jurisdiction of the statewide prosecutor, and thus, the jurisdiction of the trial court to adjudicate the charges. The trial court did not reach the merits of the petition, concluding that Appellant waived the issue by not pursuing it in a direct appeal or in a post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850. The State initially urged that the trial court was correct, but after we ordered supplemental briefing the State acknowledged that the trial court should have addressed the merits of Appellant’s claim that it lacked jurisdiction. Spaulding v. State, 965 So.2d 350 (Fla. 4th DCA 2007); Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005). The State now urges that the trial court’s ruling could be affirmed under the “Tipsy Coachman” doctrine. We are unable to confirm on this record that affir-mance is appropriate and decline to apply the doctrine.

On remand, the trial court shall address the merits of Appellant’s petition.

REVERSED and REMANDED.

TORPY and LAWSON, JJ., and COBB, W., Senior Judge, concur.


text:
    STATE of Louisiana v. Roberto BALSANO.
    No. 2009-KK-0735.
    Supreme Court of Louisiana.
    June 19, 2009.
   PER CURIAM.

11 The state has charged defendant with a violation of La.R.S. 14:98, operating a vehicle while intoxicated, fourth offense, on the basis of three prior guilty pleas to driving under the influence conducted in a single proceeding on August 10, 2004, in Tennessee. Defendant moved to quash the bill of information on grounds that the available contemporaneous records of the pleas, ie., the transcript of the guilty plea colloquy conducted by the trial judge with defendant, revealed that the trial court had failed to advise him of his privilege against self-incrimination, and that the pleas were therefore invalid for enhancement purposes. After conducting a hearing on the motion on December 4, 2008, the trial court denied the motion to quash on grounds that, considering the totality of the circumstances, defendant had been “afforded all of the constitutional protections and safeguards that [are] required certainly under the laws of the State of Tennessee, but more importantly under the laws of the State of Louisiana.” Defendant sought review and the court of appeal reversed on the basis that the state had failed to make an “independent, |2affirmative showing to support the proposition that the trial court informed the defendant of his right against self-incrimination.” State v. Balsano, 09-0005 (La. App. 5th Cir.2/27/09).

The court of appeal specifically rejected the state’s attempt to import into the guilty plea colloquy the advice with respect to the privilege against self-incrimination he had received nearly a year earlier when he signed a form waiving his right to a preliminary hearing. Balsano, 09-0005 at 3 (“This form advised the defendant of his right against self-incrimination during the course of the preliminary hearing, not during sentencing or any other judicial proceeding.”). We need not reach that question because we find that the Fifth Circuit panel erred in reversing the trial court’s judgment and granting the defendant’s motion to quash the indictment solely on the basis of the perceived defect in the plea colloquy relating to defendant’s Fifth Amendment privilege. While the available contemporaneous record of the guilty plea shows that defendant did not receive advice with respect to his privilege against self-incrimination, the record also reveals that he otherwise entered knowing and voluntary guilty pleas that would likely withstand scrutiny on collateral attack in their home state. Under these circumstances, enforcing Louisiana’s rules for taking guilty pleas against these out-of-state convictions would neither advance the policies underlying the requirements for a knowing and voluntary guilty plea in this state nor promote the fundamental fairness that this Court’s jurisprudence regarding collateral attacks on guilty pleas used to enhance a defendant’s sentence has sought to protect.

According to the transcript of the plea colloquy on August 10, 2004, the trial judge in the Criminal Court of Tennessee at Memphis reviewed the charges to Iswhich defendant was entering pleas of guilty, the factual bases for the pleas, and the sentences negotiated with the state as part of a plea bargain. Thereafter, the court conducted the following exchange with defendant:

Q. You understand you don’t have to plead guilty?
A. Yes, sir.
Q. All right. [Defense counsel] presented you with two documents for you to sign, one a petition for waiver of trial by jury. That’s this document. It explains your rights, right to a jury trial, l'ight to confront witnesses, right to bring in witnesses to testify for you, right to testify yourself, tell your side of it.
If you were convicted by a jury, the Court would fix your punishment and you could appeal it. If you didn’t have a lawyer, the Court would appoint a lawyer for you. All of the rights I have explained are in that document.
And he presented you with a notice of enhanced punishment, which puts you on notice that if you pick up another DUI, they may treat it as a second or third, I don’t know, but the punishment will be greater on a second. You have to serve at least 45 days in jail. And on the third, a minimum of 120 days in jail and the appropriate fines. Do you understand that.
A. Yes, sir.
Q. Knowing all that, you still want to plead guilty?
A. Yes, sir.
Q. Are you satisfied with [defense counsel’s] representation?
A. Yes, sir .... [but] if I had gone to trial, what would the maximum punishment have been?
Q. Well, didn’t he go over that with you and explain it to you? I told you in this document that you signed, notice of enhanced punishment, it points out that the punishment for a DUI first offense is from $350 to $1500 in fines and 48 hours. Second offense up to 11 months and ... 45 days in jail, $600 to $3500 in fines. Your third offense would be $1100 to $10,000 in fines and a minimum of 120 days in jail.
A. I understand now.... That’s all.
Q. All right. Are you sure you understand everything?
14A. Yes, sir.
Q. All right. I’ll accept Mr. Balsano’s pleas.

When the state requested a transcript of this guilty plea colloquy, it also asked Tennessee officials for a Boykin or waiver of rights form or court minutes reflecting the waiver of defendant’s rights. The Tennessee officials supplied the transcript of the plea colloquy and the waiver of a preliminary hearing executed by the defendant but did not provide either the guilty plea form to which the colloquy referred or the contemporaneous minutes of the plea. Thus, as the Fifth Circuit panel emphasized in its decision, the available contemporaneous records from Tennessee failed to establish that defendant received advice with respect to his privilege against selfin-crimination at trial, advice required not only by Louisiana but also by Tennessee law.

Only four months after this Court adopted its three-right rule following the decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)(waiver of the right to trial encompasses waiver of the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers), see State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), we acknowledged that the rule reflected a minority view, that a majority of state decisions required “only that the trial judge canvass the matter with the defendant to verify that the plea is freely and understandingly made,” and that the rule was not constitutionally required. State ex rel. LeBlanc v. Henderson, 261 La. 5315, 259 So.2d 557, 563 (1972). We thus observed that “ ‘[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.’ ” LeBlanc, 259 So.2d at 560 (quoting Brady v. United States, 397 U.S. 742, 747, n. 4, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)). Nevertheless, while recognizing that in the majority of state jurisdictions “the failure to articulate all three rights (jury trial, confrontation, and self-incrimination privilege) does not invalidate the conviction,” LeBlanc, 259 So.2d at 563, the Court resolved to apply the three-right rule adopted in Jackson as an interim measure until “the state and federal jurisprudence solidifies.” Id., 259 So.2d at 563. However, because Jackson’s rule was not constitutionally required, this Court made it prospective only from the date of Jackson’s finality, December 8, 1971. On collateral attack of those Louisiana guilty pleas entered before December 8, 1971, the Court resolved in LeBlanc to apply constitutional standards for determining the validity of the plea according to whether “the defendant made a voluntary and intelligent choice among available courses of action.” LeBlanc, 259 So.2d at 564. On that basis, the Court found that the guilty plea entered by the defendant in 1970, as | ¿reconstructed at the evidentiary hearing conducted in post-conviction proceedings, appeared voluntary although he had apparently received only advice with respect to his right to a trial by jury. LeBlanc, 259 So.2d 565 (Barham, J., dissenting) (“The trial judge does not pretend that he explained that a guilty plea was self-incriminating, and that a guilty plea foreclosed the possibility of confrontation of accusers and witnesses.”).

Over the course of the following 40 years, Jackson’s interim rule became a major facet of this Court’s jurisprudence and is now a part of statutory law. La. C.Cr.P. art. 556.1. However, instead of solidifying, the jurisprudence fractured along fault lines giving rise to what has been described as a “stuttering approach to the application of federal constitutional law to state court proceedings in Louisiana,” State v. Lewis, 367 So.2d 1155, 1159 (La.1979), in an area of law “confused almost beyond understanding.” State v. Nelson, 379 So.2d 1072, 1075 (La.1980)(Dennis, J., concurring). Thus, in the compass of those 40 years, a relatively obscure rule adopted by this Court for cases in which the defendant sought post-conviction relief from remote guilty pleas (of more than six years), and which required him to show more than violation of Jackson’s three-right rule, see State v. Cusher, 400 So.2d 601, 602 (La.1981)(“If the pleas are set aside and a new trial required, it is probable that the state’s case, no matter how strong six years ago, would be impossible of proof.... Because of the length of time between the pleas and the habeas corpus application, the state is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement.”) (citations omitted), which the Court then applied in the context of habitual offender proceedings under La.R.S. 15:529.1, 7State v. Johnson, 404 So.2d 239, 247 (La.1981), applications later described by the Court as “an aberration,” State v. Shelton, 621 So.2d 769, 774, n. 11 (La.1993), has now become the rule for collateral attacks in post-conviction proceedings for all final guilty pleas no matter when they occur. State v. Harris, 97-1352, pp. 1-2 (La.10/31/97), 702 So.2d 678, 679 (a district court’s failure to abide by Jackson’s three-right rule “does not alone discharge the inmate’s burden in post-conviction proceedings of showing, as a basis for vacating that conviction, a constitutional defect in his guilty plea.”) (citations omitted). With respect to the issue in the present case, advice regarding the Fifth Amendment privilege against compelled self-incrimination has been deemed essential to a valid guilty plea in Louisiana, State v. Age, 417 So.2d 1183, 1189 (La.1982)(on reh’g); State v. Robicheaux, 412 So.2d 1313, 1317 (La.1982), except when it is not. State v. Bosworth, 415 So.2d 912, 924 (La.1982)(on reh’g)(trial court’s failure to mention that defendant was waiving his privilege against self-incrimination did not invalidate the plea colloquy when defendant, a practicing attorney, had actual knowledge of his privilege against self-incrimination); State v. Bowick, 403 So.2d 673, 675 (La.1981)(Boykin “was not designed ... to serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea, as did the trial judge in this case.... The trial court’s failure to advise defendant expressly that his privilege against self incrimination applied to the trial as well as to the plea (a rather obvious matter of which defendant was possibly aware as a result of his trial counsel’s advice) was not fatal to his plea.”)(footnote omitted).

| Jiowever, this Court has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings under La.R.S. 15:529.1, Shelton, 621 So.2d at 774-80, or in habitual offender D.W.I. prosecutions. State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. These challenges are not true collateral attacks in the sense that they seek to vacate the prior conviction and sentences but are in the nature of “a defense in a proceeding designed to enhance ... sentence.” Lewis, 367 So.2d at 1160. At least initially, this case thus implicates this Court’s decision in Carlos, which established a three-step analysis for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. Adopting the Court’s prior opinion in Shelton, and acknowledging the presumption of regularity that attaches to prior final convictions, Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), Carlos placed on the state the initial burden of proving the existence of the prior guilty pleas and that defendant was represented by counsel when the pleas were taken. Carlos, 98-1366, p. 6, 738 So.2d at 559. If the state meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Id., 98-1366 at 6-7, 738 So.2d at 559. If the defendant makes the required showing, the burden reverts to the state to produce a “perfect” Boykin transcript, i.e., one “‘which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boy-kin.’” Carlos, 98-1366 at 7, n. 4, 738 So.2d at 559 (quoting Shelton, 621 So.2d at 775, n. 12.). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Id., 98-1366 at 7, 738 So.2d at 559. | sAlthough Carlos did not further define what prejudice to a defendant’s Boykin rights entailed, this Court made clear in Shelton what this third stage requires, ie., a showing “that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780. Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemean- or offenses as to which the defendant does not have the right to a jury trial, shrinking Jackson’s three-right rule to two rights. State v. Jones, 404 So.2d 1192 (La.1981).

In the present case, the first two stages of Carlos coalesced. The transcript of the guilty plea colloquy conducted on August 10, 2004, satisfied both the state’s burden of establishing the fact of the prior convictions and defendant’s representation by counsel, and the defendant’s burden of then showing an apparent infringement of his rights, ie., the failure of the trial court to advise him of his privilege against compelled self-incrimination at trial. Because the state did not, or could not, supplement this “imperfect” transcript with waiver forms or minutes from Tennessee which might have made up the difference, Carlos apparently dictated the decision of the Fifth Circuit panel in overruling the trial court and quashing the bill of information charging defendant with fourth offense DWI.

However, Carlos, and its progenitor Shelton, addressed prior Louisiana guilty pleas taken after December 7, 1971. Enforcement of Jackson’s three-right rule in that context was therefore related to the policies underlying the rule of facilitating the taking of voluntary guilty pleas in Louisiana and of providing an adequate record for review, thereby forestalling the need for later evidentiary proceedings and eliminating post-plea attacks. Bowick, 403 So.2d at 675. [ inHowever, the present case involves guilty pleas taken in another state as to which enforcement of Jackson’s three-right rule serves none of those purposes.

This case therefore also implicates the Court’s decision in State v. Holden, 375 So.2d 1372 (La.1979), which involved a defendant’s collateral attack on a 1972 federal conviction by way of a guilty plea then used to enhance his sentence under La. R.S. 15:529.1 following his conviction of a subsequent crime. Holden sought to reconcile the Court’s prior decision in Lewis with the Supreme Court’s then recent opinion in United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979). In Lewis, the Court had held that prior guilty pleas used to enhance sentence under La.R.S. 15:529.1 were subject to collateral attack according to Jackson’s three-right rule, although the guilty plea at issue in Lewis had been taken in Louisiana in 1970 and thus appeared governed by the exception to Jackson’s three-right rule carved out by Le-Blanc for Louisiana pleas taken before December 8, 1971. Lewis conceded as much but observed that LeBlanc created its exception in a case on true collateral attack, i.e., in post-conviction proceedings aimed at setting aside the conviction and sentence. The Court declined in Lewis to extend the LeBlanc exception to cases “in which the collateral effect of a plea of guilty is the issue,” ie., to cases in which the prior conviction is used to enhance sentence in habitual offender proceedings. Lewis, 367 So.2d at 1160. Lewis held that the failure of the trial court to advise the defendant in his 1970 plea that he was waiving his right of confrontation rendered the plea invalid for habitual sentencing purposes. The decision thereby sanctioned a result that a defendant who could not set aside his guilty plea as invalid could nevertheless escape the consequences of it for subsequent sentencing enhancement on the basis of the Jackson rule not in effect at the time the plea was entered.

| nFour months later, the Supreme Court ruled that the validity of a federal guilty plea may not be collaterally attacked in habeas proceedings under 28 U.S.C. § 2255 on the basis of violations of Fed. R.Crim.P. Rule 11 which are “neither constitutional nor jurisdictional.” Timmreek, 441 U.S. at 783, 99 S.Ct. 2087. The error in Timmreek did not involve advice with respect to trial rights waived by a guilty plea but failure to advise defendant of a mandatory minimum parole term as required under the extant, 1975 version of Fed.R.Crim.P. 11.

In Holden, a majority of the Court read Timmreek to mean that “[wjhile waiver of the Boykin-listed constitutional rights arguably presents a more fundamental deficiency ... at the least ... in a collateral attack upon a federal guilty plea in an enhanced-punishment proceeding, the burden is upon the accused to show that plea was taken without a waiver of the Boykin-listed rights.” Holden, 875 So.2d at 1374 (emphasis added). However, the Court took from Timmreek the broader rule that “federal constitutional law does not require us, on collateral attack, to consider a plea as unknowingly made simply because the record does not affirmatively show waiver of Boykin-listed rights.” Holden, 375 So.2d at 1374. To that extent, we overruled Lewis (while maintaining Lewis for Louisiana state court guilty pleas taken after December 8, 1971 as a matter of this state’s policy) and held that “upon collateral attack the accused has the affirmative burden of showing that he was in fact not advised, either by the court or through his counsel, of the particular consequences of his plea that were not touched upon in an otherwise sufficient colloquy.” Holden, 375 So.2d at 1374. Holden thus obliterated the distinction drawn in Lewis between collateral attacks on prior pleas in post-conviction proceedings as opposed to collateral attacks mounted in habitual offender proceedings. Holden also equalized non-Louisiana guilty pleas 112and Louisiana guilty pleas taken before December 8,1971 when they are used to enhance a defendant’s sentence upon conviction of a subsequent crime. For the latter, and thus for the former, the standard has been not the three-right rule of Jackson but the constitutional rule of voluntariness applied in LeBlane and in the majority of state jurisdictions at that time, i.e., “the proper standard for determining the validity of a guilty plea is whether it represents a voluntary and intelligent choice among alternative courses of action.” LeBlanc, 259 So.2d at 563 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)).

However, in later decisions, this Court treated Holden as merely a burden-shifting case which placed the burden on the defendant to prove on the basis of contemporaneous records that he did not receive his Jackson three-right advice and thereby relieved the state of an initial burden of proving that he did receive his three Jackson rights. State v. Bolton, 379 So.2d 722, 723 (La.1979)(as to non-Louisiana and federal pleas the defendant “has the burden of proving that the plea was involuntary or that (if taken subsequent to Boykin) he did not waive Boykin rights”). Thus, in State v. McGinnis, 413 So.2d 1307, 1311 (La.1981)(on reh’g), this Court invalidated guilty pleas in the state of Washington to grand larceny because neither the plea colloquy nor the waiver form referred to the defendant’s privilege against self-incrimination. Similarly, in State v. Cressy, 440 So.2d 141, 143-44 (La.1983), the Court invalidated a federal guilty plea to distribution of heroin in 1972 because the district judge failed to inform defendant of his | lsprivilege against self-incrimination, although he did so in a jurisdiction that did not require the advice under Fed. R.Crim.P. 11 as it read in 1972.

In the present case, we now return Holden to its original substantive aspect: that for guilty pleas entered in Louisiana before December 8, 1971, and for all non-Louisiana guilty pleas, used to enhance sentence following a subsequent conviction, a defendant does not satisfy his burden of proof on collateral attack merely by presenting contemporaneous records revealing a violation of Jackson’s three-right rule. He must show, as he must now show under Harris in a collateral 114attack mounted in post-conviction proceedings initiated to set aside the prior conviction and sentence, that his guilty plea was not voluntary as a constitutional matter, ie., that it did not represent a knowing and voluntary choice among available alternatives. Thus, in a particular case, all three of the Carlos steps may coalesce when the prior guilty pleas are from another state. An “imperfect” Boykin transcript, i.e., one revealing a violation of Jackson’s three-right rule, may satisfy the state’s initial burden of proving the fact of the conviction and defendant’s representation by counsel at the plea taking, the defendant’s burden of then proving an apparent defect in the plea colloquy, and the state’s ultimate burden of proving, for the non-Louisiana conviction, that the plea was nevertheless voluntary as a constitutional matter and therefore valid for purposes of enhancing the defendant’s sentence.

In the present case, we think it clear that the extensive colloquy conducted by the Tennessee judge on August 10, 2004, fully discharged the state’s ultimate burden in the present case despite the court’s failure to advise defendant specifically that he was waiving his privilege against compulsory self-incrimination at trial. The trial court confirmed on the record the details of his plea bargain with the state regarding sentence, delved into the factual bases of the pleas, spoke with the defendant extensively regarding his understanding of the sentencing consequences carried by the charged crimes, impressed upon him that his guilty pleas would resolve all matters with the state except for sentencing, and 11smformed him that if he persisted in pleading guilty, he would not be coming back to court for a trial in which he could select a jury, challenge the state’s witnesses by confronting them before the fact finder, and present his defense by calling in his own witnesses and taking the stand to testify in his own right. The trial court thus advised defendant that his guilty plea waived four specific and essential constitutional trial rights, not only the right to a jury trial and to confront his accusers, but also his right to compulsory process, Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)(“The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.”), and his right to take the stand to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 2708-09, 97 L.Ed.2d 37 (1987)(“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that are essential to due process of law in a fair adversary process.”)(internal quotation marks and citation omitted).

In the context of all of the advice given, the trial court’s failure to mention specifically a fifth constitutional right, the privilege protecting a defendant from compelled self-incrimination at trial, cannot support a finding that defendant entered each of his guilty pleas without “a full understanding of what the plea connotes and of its consequences.” Boykin, 395 U.S. at 244, 89 S.Ct. at 1712. We note in this regard that unlike Louisiana and federal statutory law, see La.C.Cr.P. art. 556.1(E) and Fed.R.Crim.P. 11(h), Tenn. R.Crim.P. Rule 11 does not contain a harmless-error provision. However, Tennessee courts apply harmless-error analysis to Rule 11 errors, specifically with regard to the failure to advise 11fidefendant of his privilege against compulsory self-incrimination. Blankenship v. State, 858 S.W.2d 897, 903-05 (Tenn.1993); Clark v. State, 800 S.W.2d 500, 503-04 (Tenn.Cr.App.1990). Thus, we would be particularly reluctant to endorse the Fifth Circuit panel decision in the present case to invalidate a conviction that would likely survive collateral attack in the jurisdiction in which it occurred.

Accordingly, the decision of the Fifth Circuit is reversed, the trial court’s denial of defendant’s motion to quash is reinstated, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

DECISION OF THE FIFTH CIRCUIT REVERSED; DENIAL OF MOTION TO QUASH REINSTATED; CASE REMANDED.

KIMBALL, C.J., would deny the writ.

      . See Tenn.R.Crim.P. 1 l(b)(l)(the court shall personally inform defendant in open court of his: (D) right to plead not guilty or, having already so pleaded, to persist in that plea; (E) right to a jury trial; (F) right to confront and cross-examine adverse witnesses; (G) right to be protected from compelled self-incrimination; and (H) that if he pleads guilty or nolo contendere, "there will not be a further trial of any kind except as to sentence.”)

      . This aspect of LeBlanc left the dissenters, Dixon, Barham, and Summers, JJ., completely nonplussed. LeBlanc addressed two issues. First, whether, in the absence of a verbatim transcript of the plea colloquy, a trial court faced with a defendant's collateral attack on his final conviction had the authority to conduct evidentiary proceedings in an attempt to reconstruct the plea. This Court answered that question in the affirmative. LeBlanc, 259 So.2d at 260 (''[W]hen a complete, verbatim transcript of the plea proceeding is unavailable, competent testimony may be used to reconstruct the crucial procedure.”). The Court then addressed the standard by which the determination of the plea's voluntariness would then be addressed and decided, in effect, that it would not hold trial judges accountable for complying with the rule adopted in Jackson in taking pleas before Jackson was decided. The dissenters viewed that decision as an outright rejection of Boy-kin, decided in June 1969, and warned trial courts in this state of the dire consequences that might follow from this Court's apparent defiance of the Supremacy Clause. LeBlanc, 259 So.2d at 566 (Barham, J., dissenting). However, for the majority of the Court, because Boykin did not announce a three-right constitutional rule of practice applicable to the states, the decision to make Jackson’s three-right rule prospective only as a matter of policy in this state posed no problems under the Supremacy Clause.

      . The 1966 version of Fed.R.Crim.P. 11 in effect at the time the Supreme Court decided Boykin, and at the time of the federal guilty plea at issue in Cressy, was far simpler than the extant version of the rule today. The 1966 Rule 11 was only four sentences long and made no mention of any specific constitutional right waived by a guilty plea, as it required only that the district court judge address the defendant personally and determine "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” See McCarthy v. United States, 394 U.S. 459, 462, n. 4, 89 S.Ct. 1166, 1169, 22 L.Ed.2d 418 (1969). Thus, in Holden, which also involved a 1972 federal guilty plea, the colloquy reflected "only that the trial judge ascertained from the defendant’s attorney that he was satisfied that the defendant fully understood the (unspecified) consequences and that the trial judge accepted the attorney's assurance that he had discussed the consequences at great length with the defendant and that he understood them.” Holden, 375 So.2d at 1375, n. 3. However, because the state had not submitted the transcript at trial, and it was therefore not a formal part of the record on appeal, this Court pretermitted the question of whether the colloquy "amounts only to a formal defect in the proceedings which cannot form the basis of a collateral attack under Timmreck." Id. By pretermitting the question, Holden thereby indicated that such a determination would necessarily take place outside the compass of Jackson's three-right rule.
      Rule 11 did not begin to elaborate on the advice federal district courts must give a defendant with respect to the rights waived by entering a guilty plea until the comprehensive revision of the Federal Rules of Criminal Procedure by Congress in 1975. The amended Rule 11 adopted by Congress went far beyond the Supreme Court's own proposed revision of Rule 11, part of a package of proposed revisions of the rules sent by the Court to Congress in 1974. The Court's own Rule 11 would have required the district court to determine only whether the defendant understood the nature of the charge to which he was pleading, the penalties which the offense carried, "that he has the right to plead not guilty,” and "that if he pleads guilty there will be no further trial." See H.R.Rep. No. 94-247, 94th Cong., 1st Sess. 21-22, 1975 U.S.Code Cong. & Admin. News 674; see also United States v. Henry, 713 F.Supp. 1182, 1187-90 (N.D.Ill.1989) (describing the Supreme Court's proposed rule, Congress's amendment of the rule, and observing that the Advisory Committee Notes to the Supreme Court's version indicated that the Court "takes the position that the defendant's right not to incriminate himself is best explained in terms of his right to plead not guilty and to persist in that plea...."). By specifying that there would be no future trial of any kind, the Supreme Court sought in its proposed revision of Rule 11 to make "this fact clear to those defendants who, though knowing they have waived trial by jury, are under the mistaken impression that some kind of trial will follow." Henry, 713 F.Supp. at 1187. Notably, the Supreme Court's proposed Rule 11 did not mention a single specific constitutional trial right waived by a guilty plea, although the same CourL had decided Boykin only four years earlier.

      . However, the Court's subsequent decisions in Shelton and Carlos changed one aspect of Holden, which agreed with Lewis that collateral attack on a prior guilty plea used to enhance sentence was confined to the contemporaneous records of the guilty plea colloquy. Holden, 375 So.2d at 1376; Lewis, 367 So.2d at 1160. However, in Shelton, the Court overruled that aspect of Lewis (and that aspect of Holden by implication) and held that a defendant "can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence.” Shelton, 621 So.2d at 779, n. 24.

      . This Court has not yet resolved whether the harmless-error provision of La.C.Cr.P. art. 556.1(E) applies to violations of art. 556.1(A)(3), specifying the trial rights waived by a guilty plea that a trial court must explain to a defendant before it accepts the plea, and incorporating Jackson’s three-right rule. Cf. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158 (failure to advise defendant of sentencing range provided by the offense to which he plead guilty as required by art. 556.1(A)(1), and of enhanced penalties for subsequent offense as required by (then) art. 556.1(E) (rewritten to present form in 2001 La. Acts 243) harmless). However, as does Tennessee, federal courts subject errors with respect to so-called Boykin defects to harmless-error analysis as a matter of Fed. R.Crim.P. 11(h). See, e.g., United States v. Gomez-Cuevas, 917 F.2d 1521, 1525-26 (10th Cir.1990)(failure to advise defendant of his right to confrontation and his privilege against self-incrimination harmless); United States v. Stead, 746 F.2d 355, 356-57 (6th Cir.1984)(same); see also United States v. Johnson, 1 F.3d 296, 301-02 (5th Cir.1993)(application of harmless-error test under Rule 11(h) does not distinguish between "core" and non-core violations of the rule).


text:
    In re Craig J. MORDOCK.
    No. 2008-B-1389.
    Supreme Court of Louisiana.
    June 19, 2009.
   I,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Craig J. Mordock, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Attorney Ramon J. Fonseca, Jr. represented Valerie Tabor (“Valerie”) in ongoing litigation with her ex-husband, Cornelius Tabor (“Cornelius”), over community property and custody and visitation of their daughter. During the representation, Mr. Fonseca and Valerie were involved in a personal relationship. Eventually, Mr. Fonseca voluntarily withdrew from the representation.

In March 2003, Cornelius filed a disciplinary complaint against Mr. Fonseca. In July 2003, Cornelius filed suit against Mr. Fonseca, alleging intentional misconduct and abuse of process in the underlying litigation between Cornelius and Valerie. Mr. Fonseca hired respondent to represent him in the matter.

In March 2004, respondent filed a recon-ventional demand on behalf of Mr. Fonse-ca, alleging, among other things, the following:

li>On or about March 25, 2003 CORNELIUS J. TABOR, maliciously and without probable cause, filed a complaint (hereinafter “complaint”) with the Louisiana Attorney Disciplinary Board against RAMON J. FONSECA, JR., wherein MR. TABOR made defamatory allegations against MR. FONSECA knowing them to be false.
* * *
The complaint filed by MR. TABOR with the Louisiana Attorney Disciplinary Board constitutes libel, defamation, malicious prosecution, abuse of rights, and an abuse of the attorney disciplinary process, causing severe injury to MR. FONSECA. MR. TABOR’s complaint was specifically calculated to defame the character of MR. FONSECA and to harass an adverse party to litigation in which he was involved.

In response to the reconventional demand, Cornelius’ attorney, Robert Matthews, filed exceptions of no cause of action, no right of action, and prematurity based upon absolute immunity pursuant to Supreme Court Rule XIX, § 12 A. Mr. Matthews also filed a disciplinary complaint against respondent.

In April 2004, the trial court signed a judgment on exceptions containing the following orders:

1. That the exceptions of no cause and right of action with respect to the claim for libel and defamation based on the filing of the disciplinary complaint [by Cornelius against Mr. Fonseca] be and the same is hereby granted, with prejudice;
2. That the exceptions of no cause and right of action with respect to the claim for malicious prosecution, abuse of process and abuse of right based on the filing of the disciplinary complaint [by Cornelius against Mr. Fonseca] be and the same is hereby denied.

3In May 2004, respondent filed an amended reconventional demand meant to remove the claims for libel and defamation. However, the claims for malicious prosecution, abuse of process, and abuse of rights remained despite notice to respondent by both Mr. Matthews and the ODC that the claims violated Supreme Court Rule XIX, § 12 A.

DISCIPLINARY PROCEEDINGS:

In September 2006, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Supreme Court Rule XIX, § 12 A as well as the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent answered the formal charges and denied any misconduct. This matter then proceeded to a formal hearing on the merits.

During the hearing, respondent testified that by the time he was retained, Mr. Fonseca had already decided to file a re-conventional demand against Cornelius. He claimed that Mr. Fonseca drafted the reconventional demand, and after doing some research, respondent agreed to include the claims based on Cornelius’ disciplinary complaint “just to preserve them at that point, even if we later determined that they may or [may] not be meritorious.” He contended that Cornelius’ petition for damages against Mr. Fonseca disclosed the existence of the disciplinary complaint and the allegations made therein, given that the allegations in the petition for damages mirror |4the allegations in the disciplinary complaint. Respondent also stated that the ODC, after investigating Cornelius’ disciplinary complaint, found no misconduct on Mr. Fonseca’s part. Respondent did not oppose the dismissal of the libel and defamation claims because of Supreme Court Rule XIX, § 12 A. However, he did not think § 12 A applied to the malicious prosecution, abuse of process, and abuse of rights claims because of Goldstein v. Serio, 496 So.2d 412 (La.App. 4th Cir.1986). He felt that Mr. Matthews filed the disciplinary complaint against him to gain leverage in Cornelius’ civil suit against Mr. Fonseca.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the committee found that respondent filed the re-conventional demand on behalf of Mr. |fiFonseca knowing that it asserted a claim for damages based upon the filing of a disciplinary complaint by Cornelius. However, Mr. Fonseca testified that he forwarded a copy of the reconventional demand to the ODC prior to filing same because he was concerned about taking these steps. He also stated that he did not receive a response from the ODC.

Based on these finding, the committee determined that respondent violated the spirit of Supreme Court Rule XIX, § 12 A. The committee believed that Supreme Court Rule XIX, § 9, which states that it shall be grounds for discipline to violate or attempt to violate the Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers, is broad enough to include respondent’s conduct. The committee further noted the purpose of Supreme Court Rule XIX, § 12 A is to avoid the “chilling effect” that would result from parties, or their attorneys, initiating legal action against complainants or witnesses relating to communications given to the disciplinary board, hearing committees, or the ODC relating to lawyer misconduct in disciplinary proceedings. Finally, the committee determined that respondent violated Rules 8.4(a) and 8.4(d) of the Rules of Professional Conduct.

The committee determined that there was no direct harm to Cornelius. As an aggravating factor, the committee found respondent’s refusal to acknowledge the wrongful nature of the conduct. In mitigation, the committee found that respondent has no prior disciplinary record.

Under these circumstances, the committee recommended that respondent be publicly reprimanded and be ordered to attend Ethics School.

Respondent filed an objection to the hearing committee’s recommendation.

| ¿Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board found respondent’s conduct violated Rules 8.4(a) and 8.4(d) of the Rules of Professional Conduct. Furthermore, the board determined respondent engaged in conduct that was in direct violation of Supreme Court Rule XIX, § 12 A.

Regarding respondent’s reliance on Goldstein, the board noted that the Gold-stein decision was rendered prior to the promulgation of Supreme Court Rule XIX, § 12 A, which became effective April 1, 1990. Furthermore, respondent’s original claim was based upon alleged defamation, a cause of action that would not be subject to exemption from § 12 A requirements even if the Goldstein rationale were accepted.

The board determined that respondent knowingly violated duties owed to the legal system. He caused harm to Cornelius in the form of the unquantified time for additional research and appearances regarding the exceptions raised to the reconventional demand. He also caused potential harm to the disciplinary system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found a refusal to acknowledge the wrongful nature of the conduct. In mitigation, the board found the absence of a prior disciplinary record.

Considering these circumstances, the board recommended that respondent be suspended from the practice of law for six months, with all but one month deferred. The board further recommended that respondent be placed on unsupervised probation for five months following the active period of the suspension, subject to the condition 17that any misconduct during this period may be grounds for making the deferred suspension executory or imposing additional discipline, as appropriate. The board also recommended that respondent be required to attend the Louisiana State Bar Association’s Ethics School. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on May 27, 2009, this court ordered briefing addressing the issue of an appropriate sanction. The parties were specifically directed to address our recent decision in In re: Raspanti, 08-0954 (La.3/17/09), 8 So.3d 526. Both parties filed a brief in response to the court’s order. In its brief, the ODC conceded that Raspanti controls our decision in this case; respondent adopted the ODC’s argument and agreed that a public reprimand is warranted for his misconduct.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

The record supports the factual findings made by the hearing committee. Based on these findings, we conclude respondent violated Supreme Court Rule XIX, § 12 A and the Rules of Professional Conduct as charged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high | ^standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In In re: Raspanti, 08-0954 (La.3/17/09), 8 So.3d 526, we addressed for the first time the interpretation and application of Supreme Court Rule XIX, § 12 A, which provides, in part, that communications to the disciplinary board, the hearing committee, and the ODC “shall be absolutely privileged” and that “no lawsuit predicated thereon may be instituted against any complainant or witness.” After reviewing in depth the history of the provision, we concluded that “violation of Rule XIX § 12(A) can subject an attorney to discipline and a finding of professional misconduct, which in turn supports the imposition of sanctions.” Raspanti, 08-0954 at p. 8, 8 So.3d 526, 536. For his misconduct in forcing his former client to defend the defamation claim filed against her and in taking retaliatory action that threatened to undermine the disciplinary system, Mr. Raspanti was publicly reprimanded by this court. We noted that although Mr. Raspanti’s conduct was knowing, there were several factors in mitigation of his violation, which warranted the public reprimand. First, no lawyer had ever been sanctioned for a violation of Rule XIX, § 12 A, and there were conflicting statements in the jurisprudence regarding the proper interpretation of the rule. Second, Mr. Raspanti had a principled belief that he was not engaging in inappropriate behavior. Third, he had no prior disciplinary record since being admitted to the bar in 1975. Next, Mr. Raspanti was represented by |9counsel in his lawsuit. Finally, Mr. Raspanti’s client was his sister, whom he had represented only because his parents urged him to do so.

Like Mr. Raspanti, we find respondent in the instant matter knowingly violated duties owed to the legal system, causing actual injury to Cornelius. Further, as we noted in Raspanti, the filing of lawsuits prohibited by Rule XIX, § 12 A “has a chilling effect on complaints against attorneys and is prejudicial to the administration of justice within the arena of attorney discipline.”

In mitigation, we recognize the absence of a prior disciplinary record and inexperience in the practice of law at the time of the misconduct (admitted 2000). There are no aggravating factors supported by the record.

Considering our prior holding in Ras-panti, we find the imposition of a public reprimand is the appropriate discipline in this case. Accordingly, we will reject the disciplinary board’s recommendation of an actual period of suspension and publicly reprimand respondent for his violation of Supreme Court Rule XIX, § 12 A and the Rules of Professional Conduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Craig J. Mordock, Louisiana Bar Roll number 27014, be and he hereby is publicly reprimanded. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Valerie and Mr. Fonseca have since married.

      . Before filing the reconventional demand, Mr. Fonseca sent the ODC a copy of the pleading during its investigation of Cornelius’ disciplinary complaint. When the ODC did not respond to Mr. Fonseca, respondent advised him that the ODC’s silence was "acceptance of our position." Mr. Fonseca agreed the ODC’s silence meant they could proceed to file the reconventional demand.

      . Supreme Court Rule XIX, § 12, entitled "Immunity,” provides in pertinent part as follows:
      A. From Civil Suits. Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness ....

      . The claims for malicious prosecution, abuse of process, and abuse of rights based on Cornelius’ disciplinary complaint against Mr. Fonseca were not dismissed until December 2005 when Mr. Fonseca filed a pro se motion and order to dismiss them. At that time, respondent was still evacuated from New Orleans due to Hurricane Katrina and was not in contact with Mr. Fonseca.

      .The only mention of a disciplinary complaint in Cornelius’ petition for damages is the following passage:
      Mr. Tabor informed Mr. Fonseca that he was going to file a complaint with the Louisiana Office of Disciplinary Counsel concerning his harassing conduct. Mr. Fonse-ca told Mr. Tabor that if he did not file a complaint he would see that [Valerie] paid Mr. Tabor back child support owed. Several weeks later Mr. Tabor received a money order from [Valerie] for $1,000.00 toward back child support owed. When Mr. Tabor told Mr. Fonseca that he still intended to file the disciplinary complaint, no subsequent child support payments were made. This sequence of events further evidences Mr. Fonseca's deliberate and intentional misconduct since Mr. Fonseca has essentially retaliated against an individual charging him with misconduct in violation of the Rules of Professional Conduct for the Louisiana State Bar Association.

      . Cornelius' disciplinary complaint against Mr. Fonseca was resolved in May 2006, more than two years after respondent filed the re-conventional demand.

      . In Goldstein, attorneys filed a lawsuit against former clients after the Louisiana State Bar Association’s Committee on Professional Responsibility dismissed the former clients' complaints against the attorneys. The lawsuit sought damages for defamation, malicious prosecution, and abuse of process. The trial court held that the complaints to the Louisiana State Bar Association were absolutely privileged and maintained the exception of no cause of action. The court of appeal affirmed the trial court's ruling with respect to the defamation claim. However, it reversed the ruling with respect to the malicious prosecution and abuse of process claims, finding that absolute privilege is not an affirmative defense when "the crux of the action is not the statements made but the fact that a proceeding was maliciously and/or illegally pursued.”


text:
    STATE of Louisiana v. Patrick U. ONYEMECHARA.
    No. 2009-KK-1363.
    Supreme Court of Louisiana.
    June 22, 2009.
   In re Onyemechara, Patrick U.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 09-F1478; to the Court of Appeal, Second Circuit, No. 44832-KW.

Denied.

JONES, J., recused.

WEIMER, J., would grant.


text:
    Terrell STIPE v. STATE of Louisiana.
    No. 2009-KK-1378.
    Supreme Court of Louisiana.
    June 23, 2009.
   In re Stipe, Terrell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. B, Nos. 4788, 4789, 4790; to the Court of Appeal, Fifth Circuit, No. 09-K-459.

Denied.


text:
    In re Barry S. RANSHI.
    No. 2009-OB-1344.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Ranshi, Barry S.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Jarred Patrick BRADLEY.
    No. 2009-OB-1345.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Bradley, Jarred Patrick; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re James GRAHAM.
    No. 2009-OB-1356.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Graham, James; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Vincent Piazza SCALLAN.
    No. 2009-OB-1370.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Scallan, Vincent Piazza; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Erica L. ANDREWS.
    No. 2009-OB-1373.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Andrews, Erica L.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Frank R. FLASPOHLER.
    No. 2009-OB-1376.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Flaspohler, Frank R; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    Blaise DIBENEDETTO v. NOBLE DRILLING COMPANY, et al.
    No. 2009-CC-1321.
    Supreme Court of Louisiana.
    June 24, 2009.
   In re Eagle Inc.; OneBeacon Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2008-07754,; to the Court of Appeal, Fourth Circuit, No. 2009-C-0253.

Denied.

VICTORY, J., would grant.

GUIDRY, J., would grant.

JONES, J., would grant.


text:
    Toni Swain ORRILL, et al. v. LOUISIANA CITIZENS FAIR PLAN, et al.
    No. 2009-OC-1390.
    Supreme Court of Louisiana.
    June 25, 2009.
   In re Orrill et al., Toni Swain; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2005-11720; to the Court of Appeal, Fourth Circuit, No. 2009-C-0791.

Denied.


text:
    W. Thomas ANGERS, Individually and on Behalf of the Minor, Austen John Angers v. LAFAYETTE CONSOLIDATED GOVERNMENT and the Roicy Duhon Animal Shelter.
    No. 2009-CD-1409.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Angers, W. Thomas; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. A, No. C 2007-2903.

Granted for the sole purpose of transferring the application to the court of appeal for its expedited consideration.


text:
    STATE of Louisiana v. Justin MALONE.
    No. 2008-KP-2253.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Malone, Justin;- — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, Lake Charles City Court, No. DA06-1565; to the Court of Appeal, Third Circuit, No. KW 08-00761.

Granted.


text:
    Katrina WYMAN and Jason Wyman v. DUPEPE CONSTRUCTION, Monteforte’s Roofing & Siding, Robert Monteforte, Bankers Insurance Co., and USAA Insurance.
    No. 2009-C-0817.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Wyman, Jason; Wyman, Katrina et al.; — Plaintiff®; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 647-260; to the Court of Appeal, Fifth Circuit, No. 08-CA-477.

Granted.


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. 2009-C-0935.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Neilson, William A. et al.; Roussel III, Louis; St. Martin, Michael X; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 147826; to the Court of Appeal, First Circuit, No. 2008CA 1403.

Granted.


text:
    Robert H. TITUS, II v. IHOP RESTAURANT, INC., et al.
    No. 2009-CC-0951.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re IHOP Restaurant Inc. et al.; Na-dar Lafayette Inc. d/b/a; Powell Insurance Agency Inc.; Republic Fire and Casualty Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. 20083685-B; to the Court of Appeal, Third Circuit, No. CW 09-00048.

Granted.


text:
    Theodore E. FILIPSKI, III v. IMPERIAL FIRE AND CASUALTY INS. CO., et al.
    No. 2009-CC-1013.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Imperial Fire & Casualty Ins. Co. et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. A, No. 2002-005465-A; to the Court of Appeal, Third Circuit, No. CW 08-431.

Granted for summary docket.


text:
    STATE of Louisiana v. Jeffery WINN.
    No. 2008-K-0858.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Winn, Jeffery a/k/a; Winn, Jeffrey; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 244,964; to the Court of Appeal, Second Circuit, No. 43,114-KA.

Denied. Untimely.


text:
    Max PREJEAN v. MAINTENANCE ENTERPRISES INC., et al.
    No. 2009-CC-0892.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Murphy Oil USA Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 104-162; to the Court of Appeal, Fourth Circuit, No. 2008-C-0364.

Denied.

VICTORY, J., would grant.

WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Coley Lance BROUSSARD.
    No. 2009-KK-0928.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Broussard, Coley Lance; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. 0, Nos. 50262, 50263, 50417; to the Court of Appeal, Third Circuit, No. KW 09-00343.

Denied.

GUIDRY, J., would grant.


text:
    Denise Oden Nee HOWARD v. Fredrick L. ODEN, Jr.
    No. 2009-CJ-0965.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Howard, Denise Oden Nee;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. F, No. 2005-39; to the Court of Appeal, Second Circuit, No. 44,191-CA.

Denied.

JOHNSON, J., would grant.


text:
    SUCCESSION OF Rodney Anthony BURAS.
    No. 2009-CC-0996.
    Supreme Court of Louisiana.
    June 26, 2009.
   In re Franklin, Sandra Buras; — Other; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2008-30328; to the Court of Appeal, First Circuit, No. 2008 CW 2554.

Denied.


text:
    Michael GINART, Jr., et al. v. St. Bernard Parish Councilman-At-Large Wayne J. LANDRY, et al.
    No. 2009-CC-1415.
    Supreme Court of Louisiana.
    June 30, 2009.
   In re Cavignae, George; Landry et al, Wayne J.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 113-757; to the Court of Appeal, Fourth Circuit, No. 2009-C-0837.

Denied.


text:
    In re Ben E. MOTAL.
    No. 2009-OB-1431.
    Supreme Court of Louisiana.
    July 1, 2009.
   In re Motal, Ben E.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    L.E.P.S. v. R.G.P.
    No. 2009-CJ-1429.
    Supreme Court of Louisiana.
    July 1, 2009.
   In re R.G.P.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Catahoula, 7th Judicial District Court Div. B, No. 19,698; to the Court of Appeal, Third Circuit, Nos. 08-1349, 08-01349.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Kenya GUY.
    No. 2009-KK-1434.
    Supreme Court of Louisiana.
    July 1, 2009.
   In re Guy, Kenya; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 485-214; to the Court of Appeal, Fourth Circuit, No. 2009-K-0852.

Stay denied. Writ denied.


text:
    STATE in the Interest of J.E.T.
    No. 2009-CK-1245.
    Supreme Court of Louisiana.
    July 1, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. I, No. 21511; to the Court of Appeal, Third Circuit, No. JAK 09-67.

Denied.

VICTORY, J, would grant.


text:
    In re Eric C. CAMP.
    No. 2009-OB-1446.
    Supreme Court of Louisiana.
    July 2, 2009.
   In re Camp, Eric C.; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    Elvis JACKSON v. ALLSTATE INSURANCE COMPANY, et al.
    No. 2009-CC-1382.
    Supreme Court of Louisiana.
    July 2, 2009.
   In re Alstate Insurance Co. et al.; Cooper, Johnny; Cooper, Loretta; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 556,817; to the Court of Appeal, First Circuit, No. 2009 CW 0401.

Stay denied; writ denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Steven SPILLMAN.
    No. 2009-KK-1463.
    Supreme Court of Louisiana.
    July 6, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 484-907; to the Court of Appeal, Fourth Circuit, No. 2009-K-0774.

Denied.

KNOLL, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Clarence L. TAYLOR.
    No. 2009-KK-1369.
    Supreme Court of Louisiana.
    July 7, 2009.
   In re Taylor, Clarence L.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR-973-2008; to the Court of Appeal, Third Circuit, No. KW 09-00286.

Denied.


text:
    STATE ex rel. Royal CLARK v. STATE of Louisiana.
    No. 2008-KH-2271.
    Supreme Court of Louisiana.
    July 8, 2009.
   In re Clark, Royal; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 02-895.

Relator represents that the court of appeal has failed to act timely on a supervisory writ filed on or about October 7, 2007. If relator’s representation is correct, the court of appeal is ordered to consider and act on the wilt. ■ If relator’s representation is incorrect, the court of appeal is ordered to accept, file and act upon the pleading which is herewith transferred to the court of appeal. The court of appeal is ordered to provide this Court with a copy of its judgment.


text:
    David M. MARCOTTE, Individually and on Behalf of His Minor Child, Taylor Rene Marcotte v. Gordon M. JONES and ABC Insurance Company.
    No. 2009-CC-1427.
    Supreme Court of Louisiana.
    July 8, 2009.
   In re Jones et al., Gordon M.; Trinity Universal Insurance Co.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 84,257; to the Court of Appeal, First Circuit, No. 2009 CW 0881.

Writ denied. Stay denied.

GUIDRY, J, would grant.

JONES, J., would grant.


text:
    Clarence HENRY, et al. v. SBA SHIPYARD, INC., et al.
    No. 2009-CC-1405.
    Supreme Court of Louisiana.
    July 9, 2009.
   In re Pulmosan Safety Equipment Co.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-55-98; to the Court of Appeal, Third Circuit, No. CW 09-00426.

Granted. The case is remanded to the court of appeal en banc for briefing, argument and opinion. In its opinion, the Court shall address the apparent internal conflict in the circuit concerning whether Act 361 of 2007, which amended La.Code Civ. P. art. 561, can be applied retroactively-

KNOLL, J., would grant and docket.


text:
    In re Leslie BURGESS.
    No. 2009-OB-1546.
    Supreme Court of Louisiana.
    July 13, 2009.
   In re Burgess, Leslie; — Other; Applying For Permission to Take Bar Examination.

Granted.

IT IS HEREBY ORDERED that Petitioner, Leslie Burgess, be allowed to use a personal computer during the July 2009 Louisiana Bar Examination in accordance with the guidelines set forth by the Louisiana Supreme Court Committee on Bar Admissions.

VICTORY, J., would deny the request.

KNOLL, J., would deny the request.

JONES, J., would deny the request.


text:
    STATE of Louisiana in the Interest of D.H.
    No. 2009-CK-1563.
    Supreme Court of Louisiana.
    July 13, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2009-118-02-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2009-K-0904.

Stay denied. Writ denied on the showing made.

KNOLL, J., would grant the writ.

WEIMER, J., would grant the writ.

GUIDRY, J., would grant the writ.


text:
    STATE of Louisiana v. Milton HUNT.
    No. 2009-KK-1589.
    Supreme Court of Louisiana.
    July 14, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 484-800; to the Court of Appeal, Fourth Circuit, No. 2009-K-0882.

All proceedings stayed pending further orders of this Court. Writ granted.


text:
    In re Byard EDWARDS, Jr.
    No. 2009-OB-1605.
    Supreme Court of Louisiana.
    July 14, 2009.
   In re Edwards Jr., Byard; — Plaintiff; Applying For Supervisory Writ From Hearing Committee Chair.

Writ granted in part. Although the respondent was ordered to show cause, this order did not shift the burden of proof from the Office of Disciplinary Counsel to the respondent. Accordingly, the order of the Hearing Committee Chair shifting the burden of proof to the respondent is vacated. In all other respects, the writ is denied, and the stay is denied.


text:
    STATE of Louisiana v. James GREEN.
    No. 2009-KK-1588.
    Supreme Court of Louisiana.
    July 14, 2009.
   In re Green, James; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 470-137; to the Court of Appeal, Fourth Circuit, No. 2009-K-0855.

Stay denied. Writ denied.


text:
    STATE of Louisiana in the Interest of R.J.
    No. 2009-CK-1606.
    Supreme Court of Louisiana.
    July 14, 2009.
   In re R.J. Interest of; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2009-042-02 DQ B; to the Court of Appeal, Fourth Circuit, No. 2009-C-0914.

Stay denied. Writ denied. Relator has an adequate remedy on appeal.


text:
    In re William Scott SILVEY.
    No. 2009-OB-1616.
    Supreme Court of Louisiana.
    July 16, 2009.
   In re Silvey, William Scott; — Plaintiff; Applying For Permission to Use A Laptop at July 2009 Bar Exam.

Petition denied.

JOHNSON, J., would grant the petition.

WEIMER, J., would grant the petition.

GUIDRY, J., would grant the petition.