text:
    Walter Lee DORTLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2547.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Rehearing Denied July 18, 2013.
    Walter Lee Dortly, pro se, Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, MARSTILLER, and RAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN WOODMARK CO. d/b/a Timberlake Cabinet Co. and Broadspire, Appellants, v. Harold SIPE, Appellee.
    No. 1D12-4838.
    District Court of Appeal of Florida, First District.
    June 18, 2013.
    Rehearing Denied July 23, 2013.

      Lamar D. Oxford and Bryan A. Lowe of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Ap-pellee.
   PER CURIAM.

The “two-dismissal rule” is set forth in Florida Administrative Code Rule 60Q-6.116(2): “a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal.” Appellants argue the Judge of Compensation Claims erred, in the order on appeal, by not applying the two-dismissal rule to the instant claim for permanent total disability benefits so as to bar the claim under principles of res judicata. We agree, and reverse the order to the extent it awards such benefits.

REVERSED in part, and AFFIRMED in part.

CLARK, MARSTILLER, and SWANSON, JJ„ concur.


author: SHEPHERD, J.

text:
    Keithan Darnell BATTIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-766.
    District Court of Appeal of Florida, Third District.
    June 19, 2013.
    Keithan Darnell Battie, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, J.

On March 11, 2013, Appellant, Keithan Darnell Battie, filed a “Motion for Collateral Review and or Direct Review or any Review Necessary to Correct a Manifest Injustice” with this court. On April 15, 2013, we ordered Battie to show cause why he should not be prohibited from filing further pro se pleadings with this court concerning his January 1996 convictions and sentences arising from lower tribunal case number 94-7634. After carefully considering Battie’s response to this court’s show cause order, see State v. Spencer, 751 So.2d 47 (Fla.1999), and having reviewed the record, we now prohibit Battie from filing any additional pro se appeals, pleadings, motions, or petitions relating to these convictions and sentences.

FACTS

In January of 1996, Battie pled guilty to one count of first-degree murder and one count of second-degree murder. Battie was sentenced to consecutive life sentences, with a twenty-five-year minimum mandatory term for the first-degree murder conviction.

Since 1996, Battie has filed in excess of twenty petitions or motions for postconviction relief stemming from lower tribunal case number 94-7634. In the current appeal, Battie argues the trial court did not accept his guilty plea in open court, thereby subjecting him to a manifest injustice. In his response to this court’s show cause order, Battie contends he “only submitted this issue to this Honorable Court ... because petitioner is prohibited from presenting any pro [ ] se issues in the lower tribunal.” Battie further argues the legally dispositive issue is not frivolous, malicious or a waste of the court’s valuable time. We disagree. Of the multiple cases Battie has filed with this court, none have been found to be meritorious.

FRIVOLOUS APPEALS BY PRISONERS

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012) (quoting Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005)). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Villalobos v. State, 96 So.3d 970, 971 (Fla. 3d DCA 2012). As this court stated in Edwards v. State, 96 So.3d 1154, 1155 (Fla. 3d DCA 2012), and Middleton v. State, 95 So.3d 385, 388 (Fla. 3d DCA 2012), “there comes a point where enough is enough.” Based upon careful review of Battie’s filings in this court, we believe he has reached that point.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of Battie’s “Motion for Collateral Review and or Direct Review or any Review Necessary to Correct a Manifest Injustice.” We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court and further appeals, pleadings, motions, petitions, or other papers to Battie’s convictions and sentences in lower tribunal case number 94-7634, unless they are filed by a Florida Bar member in good standing.

Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Battie pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2010). See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

      . See Battie v. State, 77 So.3d 1268 (Fla. 3d DCA 2011) (table) (affirming order denying Florida Rule of Criminal Procedure 3.850 motion); Battie v. State, 77 So.3d 1268 (Fla. 3d DCA 2011) (table) (affirming denial of motion to withdraw a guilty plea); Battie v. State, 63 So.3d 770 (Fla. 3d DCA 2011) (affirming denial of petition for writ of habeas corpus); Battie v. State, 36 So.3d 103 (Fla. 3d DCA 2010) (affirming order denying Rule 3.850 motion); Battie v. State, 19 So.3d 317 (Fla. 3d DCA 2009) (table) (affirming order denying Rule 3.850 motion); Battie v. State, 19 So.3d 317 (Fla. 3d DCA 2009) (table) (affirming order denying Rule 3.850 motion); Battie v. State, 14 So.3d 1014 (Fla. 3d DCA 2009) (recognizing voluntary dismissal of appeal); Battie v. State, 13 So.3d 1064 (Fla. 3d DCA 2009) (granting State’s motion to dismiss appeal); Battie v. State, 13 So.3d 476 (Fla. 3d DCA 2009) (dismissing appeal for lack of appeal-able order); Battie v. State, 5 So.3d 680 (Fla. 3d DCA 2009) (denying petition for writ of habeas corpus); Battie v. State, 998 So.2d 612 (Fla. 3d DCA 2008) (affirming denial of writ of habeas corpus); Battie v. State, 990 So.2d 1070 (Fla. 3d DCA 2008) (denying petition for writ of prohibition); Battie v. State, 959 So.2d 266 (Fla. 3d DCA 2007) (table) (denying petition for belated appeal); Battie v. State, 948 So.2d 767 (Fla. 3d DCA 2007) (table) (denying motion for clarification); Battie v. State, 946 So.2d 26 (Fla. 3d DCA 2007) (table) (granting petition for belated appeal and affirming order under review); Battie v. State, 848 So.2d 325 (Fla. 3d DCA 2003) (table) (denying petition for writ of habeas corpus); Battie v. Singletary, 825 So.2d 941 (Fla. 3d DCA 2001) (denying motion for rehearing); Battie v. Singletary, 791 So.2d 1261 (Fla. 3d DCA 2001) (denying motion to reopen earlier petition for belated appeal); Battie v. State, 793 So.2d 953 (Fla. 3d DCA 2001) (table) (affirming order denying Florida Rule of Criminal Procedure 3.800 motion); Battie v. State, 766 So.2d 1053 (Fla. 3d DCA 2000) (table) (affirming order denying Rule 3.850 motion); Battie v. State, 747 So.2d 942 (Fla. 3d DCA 1999) (table) (denial of petition for writ of mandamus); Battie v. Singletaiy, 718 So.2d 323 (Fla. 3d DCA 1998) (treating petition for writ of habe-as as petition for belated appeal and denying same).


author: CLARK, J.

text:
    John SLOWINSKI and Nancy Bradberry, Appellants, v. Patrick M. SWEENEY, Appellee.
    No. 1D12-3925.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Rehearing Denied July 18, 2013.

      Terrance A. Jones, Fleming Island, for Appellant.
    Geraldine C. Hartin, Orange Park, for Appellee.
   CLARK, J.

On appeal are the trial court’s order granting Patrick M. Sweeney’s motion to intervene in the temporary custody action under chapter 751, Florida Statutes, and the order transferring jurisdiction of the cause to the Pennsylvania court system, where Appellee resides and where the minor child is currently located. Because the trial court’s orders are contrary to the law, the orders are reversed and this case is remanded.

The child was born in November 2004, while the mother was married to John Slowinski. The marriage was never dissolved. Ch. 61, Fla. Stat. There is no dispute under the facts and the law that the child was born within wedlock and is not “a child born out of wedlock.” The child resided with the maternal grandmother from birth. John Slowinski’s parental rights and the attendant responsibilities of support were never terminated under any of the applicable legal procedures. §§ 39.801, et seq., Fla. Stat.; see also §§ 63.087, 742.18, Fla. Stat.

Upon the mother’s death in September 2008, the child’s maternal grandmother filed her petition for temporary custody, pursuant to section 751.03, Florida Statutes, on September 15, 2008. Bradberry v. Slowinski, Case No.2008 DR 001829 (4th Jud. Cir. Clay Cnty.). John Slowinski, the child’s parent as defined in sections 39.01(49), 61.13001(1)(d) and 63.062(1)(b)1., Florida Statutes, executed his consent and that consent was attached to the petition. § 751.03(8)-(9), Fla. Stat. On September 22, 2008, the trial court entered an order granting temporary custody to the maternal grandmother and the child continued to reside with her.

The same day the grandmother filed her petition, on September 15, 2008, Patrick Sweeney, of Pennsylvania, filed his petition for determination of paternity, pursuant to section 742.021, Florida Statutes, in the same circuit court (case no. 2008 DR 001834). Although Mr. Sweeney did not meet any of the statutory definitions of a parent in chapters 39, 61, or 63, Florida Statutes, he alleged that he was the biological father of the child as evidenced by DNA testing. Two years later, the trial court entered its final judgment of paternity declaring Mr. Sweeney the child’s father. The trial court declared that John Slowinski’s “paternal relationship” with the child was “severed” due to his abandonment of the child, changed the child’s surname to Sweeney, ordered that the child’s birth certificate be amended to name Mr. Sweeney as the father, and ordered the grandmother to transfer the child to Mr. Sweeney.

The grandmother complied with the paternity order and the child was relocated to Pennsylvania in September 2010, a few weeks before the child’s sixth birthday. However, on appeal, this Court reversed the trial court’s order and held that the child could not be the subject of a paternity proceeding under chapter 742, Florida Statutes, because he was born to an intact marriage, not born out of wedlock. Slowinski v. Sweeney, 64 So.3d 128 (Fla. 1st DCA 2011). Finding that it was “fundamental error for the trial court to grant relief pursuant to this nonexistent cause of action,” this Court reversed the final judgment in its entirety, including the paternity declaration, direction to change the child’s name and birth certificate, and the finding that Mr. Slowinski’s relationship to the child was “severed” due to abandonment. The cause was remanded for dismissal of the paternity action. Id. at 130.

In accordance with this Court’s mandate, the circuit court dismissed the paternity action, case number 2008 DR 001834. The court then readdressed case number 2008 DR 001829, the grandmother’s proceeding under chapter 751, “[s]o as not to leave the child in legal limbo.” The trial court acknowledged Mr. Slowinski’s original consent to temporary custody with the maternal grandmother, and reinstated temporary custody with her. This order was entered on July 20, 2011 in case number 2008 DR 001829.

Mr. Sweeney readily admitted (during the hearing on his motion to intervene, in April 2012), that when the grandmother went to Pennsylvania to retrieve the child pursuant to the Florida circuit court’s order reinstating temporary custody with the grandmother, Mr. Sweeney refused to comply. He testified that he did not abide by that order because he did not “believe it is [in the child’s] best interest, you know.... I feel its unjust.” Sweeney further testified that he did not believe the Florida circuit court’s order was constitutional. A few days after the Florida court reinstated custody with the grandmother, Mr. Sweeney began proceedings in Pennsylvania on July 25, 2011 by filing a complaint seeking a custody determination from that state’s trial court. The child has remained in Pennsylvania with Mr. Sweeney since July 20, 2011, in clear violation of the Florida court’s custody order and with no legal authority.

The maternal grandmother responded to Mr. Sweeney’s Pennsylvania proceedings by attempting to enforce the Florida court’s order in that forum. She objected to the Pennsylvania court’s exercise of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) due to the existence of her earlier-filed Florida custody case and the Florida order in force. The Pennsylvania trial court agreed that it was required to refrain from considering the action and denied Mr. Sweeney’s petition. However, a Pennsylvania appellate court reversed this denial and directed the trial court to communicate with the Florida trial court, pursuant to the UCCJEA. The record of this appeal does not contain evidence of or reference to any such communication between the state courts. See §§ 61.519, 61.522, Fla. Stat.

On March 27, 2012, Mr. Sweeney filed his motions to intervene in the Florida temporary custody case (case no. 2008 DR 001829) and to transfer jurisdiction to Pennsylvania or stay the Florida action. Throughout, he has continued to detain the child in Pennsylvania. After the evidentiary hearing on the motion to intervene, the court found that Mr. Sweeney qualified as an “extended family member” as defined by section 751.011(2)(a), Florida Statutes, because his status as the child’s biological father made him “[a] relative of a minor child within the third degree by blood or marriage to the parent.” Thus, the trial court found that as the biological father, Mr. Sweeney had a sufficient legal interest in the outcome of the case to allow him to intervene in the chapter 751 custody case. Fla. R. Civ. P. 1.230. The court noted that the child had resided with Mr. Sweeney in Pennsylvania since September 2010 and also referred to its order entered July 20, 2011 which reinstated temporary custody with the grandmother in Florida. The court never mentioned Mr. Sweeney's persistent, willful failure to comply with that order.

During the hearing on his motion to transfer jurisdiction, Mr. Sweeney denied that he was violating the circuit court’s temporary custody order in effect because “I’m still currently litigating it.” The trial court granted the motion and entered its order transferring jurisdiction to Pennsylvania on July 23, 2012. The trial court specifically found that the child had been residing in Pennsylvania with Mr. Sweeney “continuously since September 8, 2010” and thus Pennsylvania was a more convenient forum “in which to assess the best interests of the child.” The fact that during the entire year prior to entry of that order, the child’s residence in Pennsylvania was due to Mr. Sweeney’s violation of the temporary custody order in force was ignored.

The trial court erred by allowing Mr. Sweeney to intervene in the chapter 751 proceedings. As explained in Morris v. Rabara, 145 So.2d 265, 267 (Fla. 2d DCA 1962):

It is contrary to the principles of justice to permit one who has flaunted [] the orders of the court to demand judicial assistance. An appellate court is authorized to enforce an order made by the lower court and which has been violated by a party to the proceedings.

A litigant “is presumed to agree to abide by the rules when by his action the machinery of the judicial system is put in operation.” Whiteside v. Whiteside, 468 So.2d 407, 409 (Fla. 4th DCA 1985). Further, “[a] party in contempt is likewise not entitled to a hearing or a trial of his cause out of which the contempt arose until he purges himself of the contempt.” Jaffe v. Snow, 610 So.2d 482, 487 (Fla. 5th DCA 1992). In Whiteside v. Whiteside, the Fourth District Court of Appeal reversed a default judgment against a former wife who refused to transfer custody of the child to the former husband under the court’s temporary custody order. The appellate court held that while the trial court “may not permanently bar the [violator’s] assertion of her position in the instant case, it may properly refuse to consider her defenses until she has purged herself of the contempt by complying with the court’s order.” Whiteside, 468 So.2d at 409. While there has yet to be a finding by the trial court that Mr. Sweeney is in contempt of court, it follows from the reasoning in the cases cited above that before Mr. Sweeney’s motion to intervene in the pending chapter 751 custody action was considered by the trial court, the court was required to address and resolve his refusal to obey the custody order already in effect in that action.

Mr. Sweeney is not free to ignore a custody court order merely because he disagrees with it. He cannot supersede a court order with his own opinion of what is just and what is not. The trial court’s favorable consideration of Mr. Sweeney’s motion during his unabashed defiance of a custody order provides incentive for disrespect of court orders and the rule of law in general. In Stanley v. Stanley, 756 So.2d 210 (Fla. 4th DCA 2000), a favorable ruling for a former wife who refused to transfer custody of the child to the former husband was reversed. There, the appellate court held that the award of child support ar-rearages would “reward Appellee’s willful and persistent violation of the custody order by bestowing on her the title of ‘de facto custodial parent’ ” when she was the custodian for a 14-month period “only by virtue of her willful violation of the order transferring custody to appellant.” Stanley, 756 So.2d at 213. The court opined that to permit the mother “to profit from her own wrongdoing ... allows her to be the judge of the validity of the court’s order, and by her own disobedience, allows her to set it aside.” Id. Allowing a party to simply ignore a court order “would make a mockery of the judicial power.” Id.; see also Carnival Corp. v. Beverly, 744 So.2d 489, 496 (Fla. 1st DCA 1999) (violation of a direct order of the trial court is contumacious, even if the order is erroneous). The order allowing Mr. Sweeney to intervene despite his blatant and continuing violation of the temporary custody order must be reversed.

Even if Mr. Sweeney had relinquished the child, as ordered, and proceeded without the cloud of disobedience barring his claim, he does not qualify as an “extended family member” as defined by section 751.011(2)(a), Florida Statutes. Mr. Sweeney’s contribution of DNA, resulting in the birth of this child within an intact marriage — to which he was not a party — does not establish him as an “extended family member.” Section 751.011(2)(a) defines and extended family member as “a person who is ... [a] relative of a minor child within the third degree by blood or marriage to the parent.” (emphasis added). Mr. Sweeney was never married to the mother and is not related by blood to the mother or Mr. Slowin-ski. The legislature’s definition did not express an intention to include any person related to the child by blood, but related to the child due to a blood or marriage relationship to the parent.

Likewise, Mr. Sweeney’s DNA test results do not establish him as the father of this child for purposes of custody, support, inheritance, or other legal consequence. Under the facts of this case, his DNA is legally insignificant. The Florida Supreme Court has defined the “legal father” as the man to whom the mother was married when the child was born and whose name appears on the birth certificate (here, the original certificate). Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993). Only one man may be designated the child’s “legal father” (with the rights and responsibilities thereof) at any given time. G.F.C. v. S.G., 686 So.2d 1382 (Fla. 5th DCA 1997). Florida does not recognize “dual fathership.” R.H.B. v. J.B.W., 826 So.2d 346, 350 (Fla. 2d DCA 2002) (reversing temporary child support order against putative biological father when child was born to intact marriage and husband of child’s mother remained married to her). Accordingly, this child has one father and that is the man to whom his mother was married when the child was born, Mr. Slowinski.

Finally, we note that in the order on appeal transferring jurisdiction, the trial court states that it had “established that Mr. Slowinski abandoned [the child] approximately two weeks after his birth and did not contact him or support him in any way for years.” However, the record before this Court contains no judicial termination of Mr. Slowinski’s parental rights after proper notice and the other procedures required by section 39.801, et seq., Florida Statutes. See F.M. v. State Dep’t of Children & Families, 95 So.3d 378 (Fla. 3d DCA 2012) (§ 39.801(3)(a) requires that “prior to termination of a parent’s parental rights, the court must ‘provide notice of the date, time and place of the advisory hearing for the petition to terminate parental rights’ ”). In addition, the trial court stated that Mr. Slowinski was only “technically still married to [the child’s] mother at the time of her death.” The court does not refer to any evidence that the mother’s marriage to Mr. Slowinski was not ceremonially entered into or otherwise unqualified for the presumption that the marriage was legal and valid and that the child born into such marriage was legitimate. The marriage of the mother to Mr. Slowinski and the legal effects thereof may not be brushed aside so casually — and certainly not retroactively dissolved — in the limited context of the action for temporary custody under chapter 751, as the pleadings currently define the action.

The order granting Mr. Sweeney’s motion to intervene is REVERSED due to Mr. Sweeney’s persistent refusal to comply with the current, valid temporary custody order in effect; the erroneous determination that Mr. Sweeney is an “extended family member” as defined by section 751.011(2), Florida Statutes; and because the parental rights of the man married to the mother at the time the child was born have not been terminated in accordance with Florida law, which does not recognize dual or concurrent fathers. Accordingly, Mr. Sweeney is not a proper party to the trial court proceedings and the order transferring jurisdiction to Pennsylvania is likewise REVERSED. This case is remanded for further proceedings consistent with this opinion, including immediate enforcement of the current Florida temporary custody order.

MARSTILLER, J., and BOLES, W. JOEL, Associate Judge, concur.

      . At oral argument, Mr. Sweeney’s attorney was unable to explain by what authority Mr. Sweeney had enrolled the child in school in Pennsylvania. The reversal of the paternity order erased the erroneous declaration that Mr. Sweeney was the child's father, with the legal rights and responsibilities attendant to that status.

      . Mr. Sweeney’s refusal to transfer the child and attempt to avoid the Florida order by seeking a more favorable judicial audience in Pennsylvania is just the type of forum shopping the UCCJEA was designed to prevent. The Pennsylvania court, as the second forum to consider custody of this child, was obligated by the UCCJEA to stay its exercise of jurisdiction until it made contact with the Florida circuit court. Mondy v. Mondy, 428 So.2d 235, 238 (Fla. 1983). The parties, with counsel, are entitled to participate in this communication. § 61.511(2), Fla. Stat.

      . Pennsylvania's codification of the UCCJEA is located at section 5401, et seq., Pennsylvania Consolidated Statutes.

      . [ ] Undoubtedly, the Court meant "flouted” the orders of the court.


author: VILLANTI, Judge.

text:
    Earnest MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-708.
    District Court of Appeal of Florida, Second District.
    July 3, 2013.
    Rehearing Denied July 3, 2013.

      Howard L. Dimmig, II, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Earnest Morgan appeals his convictions and sentences in circuit court case number 05-CF-21005 for one count of violating the Florida Racketeer Influenced and Corrupt Organizations (RICO) Act, one count of conspiracy to violate the Florida RICO Act, and one count of felon in possession of a firearm. Because the record on appeal is inadequate to allow this court to determine whether the State met its burden to present legally sufficient evidence to sustain Morgan’s convictions for violating RICO and conspiracy to violate RICO, we must reverse these convictions and remand for a new trial on those charges. In all other respects, we affirm.

In July 2005, the City of Tampa Police Department initiated an investigation into an alleged narcotics ring that was operating in East Tampa. Through confidential informants, the police identified Maurice Walton as a member of the alleged ring, and they obtained permission to intercept his telephone calls. Between July 2005 and October 2005, Walton made and received numerous calls from a telephone number beginning with area code 321, and the State ultimately connected the 321 telephone number to Morgan.

On October 24, 2005, Walton called the 321 telephone number and arranged a meeting for the next day with the person who received the call. On the day of the meeting, Walton became aware of a significant police presence surrounding the house where he was processing a large amount of powder cocaine into crack cocaine, and he called the 321 telephone number and warned the person who answered of this police presence. Walton was arrested later that day, and he identified Morgan as his cocaine supplier. With police assistance, Walton then made a controlled call to the 321 telephone number to arrange to purchase additional cocaine. The person who received the controlled call selected the place and time for this additional purchase, and Morgan subsequently arrived at the scheduled place and time. Although the alleged purpose of this meeting was for Walton to purchase additional cocaine, no cocaine was found in Morgan’s car or on his person. Nevertheless, Morgan was arrested when he arrived at the scheduled meeting place at the scheduled time.

As to the other members of the alleged narcotics ring, the State linked Jesse Viverette to the house where Walton was producing the crack cocaine. Further, the State discovered that both Demarte Epps and Eric Blue regularly purchased both powder and crack cocaine from Walton during 2004 and 2005. Epps took orders from people on the street and filled those orders by purchasing cocaine from Walton. Blue bought kilogram quantities of cocaine from Walton and then distributed it to his buyers. However, the police never connected Morgan with these other members of the alleged narcotics ring nor found any evidence that he knew of their activities.

Based on the information gathered by the Tampa police, the State charged Morgan, Walton, Viverette, Epps, Blue, and several other individuals with violating RICO, conspiracy to violate RICO, trafficking in cocaine, and conspiracy to traffic in cocaine. To link Morgan to the racketeering activity and the conspiracy, the State presented testimony from some of the investigating police officers, and it played audio recordings of some of the telephone calls from Walton to the 321 telephone number. The substance of these telephone calls allegedly showed that Morgan was an active participant in both the racketeering activity and the conspiracy.

At the conclusion of the State’s case, Morgan moved for a judgment of acquittal on both the RICO and conspiracy to violate RICO charges, arguing that the State had not presented sufficient evidence to establish that he was involved in a pattern of racketeering activity or to link him to the conspiracy. The trial court denied this motion, and Morgan was subsequently convicted of these offenses. In this appeal, Morgan argues that the trial court erred by denying his motion for judgment of acquittal on these two charges because the State’s evidence was legally insufficient.

To prove a violation of the Florida RICO Act, the State must establish the defendant’s “(1) conduct or participation in an enterprise through (2) a pattern of racketeering activity.” Lugo v. State, 845 So.2d 74, 97 (Fla.2003) (citing Gross v. State, 765 So.2d 39, 42 (Fla.2000)). To prove the “pattern of racketeering activity” element, the State must present evidence that the defendant engaged in at least two predicate acts that have the same or similar intents, results, accomplices, victims, or methods of commission. Gross, 765 So.2d at 42 n. 1; Sanchez v. State, 89 So.3d 912, 914 (Fla. 2d DCA 2012). Similarly, to prove that a defendant is guilty of participating in a conspiracy to violate RICO, the State must prove that either (1) the defendant knew of the overall objectives of the criminal enterprise and agreed to further its purpose or (2) the defendant personally committed at least two predicate acts. See Sanchez, 89 So.3d at 916; Mese v. State, 824 So.2d 908, 912 (Fla. 3d DCA 2002).

In this case, however, the record on appeal does not establish that Morgan engaged in the requisite predicate acts of racketeering, that he knew of the objectives of the alleged conspiracy and agreed to further its purpose, or that he personally committed two predicate acts in furtherance of the alleged conspiracy. While the record contains some evidence to establish that Morgan arranged for a delivery of cocaine to Walton on October 25, this constitutes evidence of only one predicate act. There is no evidence in the record to support a finding of any other predicate act or any other act in furtherance of the alleged conspiracy. Further, there is no evidence in the record that Morgan knew of the conspiracy and agreed to act in furtherance of its purposes. Hence, if the record accurately reflects all of the evidence presented at trial, the lack of evidence of Morgan’s knowledge of the conspiracy and/or his participation in a second predicate act would have required the trial court to grant his motion for judgment of acquittal.

In this appeal, however, the State contends that it did present evidence to prove these elements in the form of the audio recordings of the calls from Walton to the 321 telephone number that it connected to Morgan. The State asserts that these recordings, which were properly before the jury, established that Morgan was fully aware of the conspiracy and its objectives and that he was involved in other sale or delivery transactions that constituted other predicate acts. The State asserts that Morgan’s motion for judgment of acquittal was properly denied based on this evidence. However, the record on appeal does not contain a transcript of these recordings.

At trial, the State played the recordings for the jury. The jury was not given a transcript of the recordings, and the recordings themselves were not introduced into evidence. Instead, the parties relied on the court reporter to later transcribe these recordings for appellate purposes. However, the court reporter has reported that the recordings were “unintelligible” except for a few isolated words. Thus, the record on appeal does not contain the substance of the disputed recordings, which would prove or disprove the State’s contention. In an effort to facilitate review of the issue raised in this appeal, this court relinquished jurisdiction to the trial court so that the parties could attempt to reconstruct the record with the content of these recordings, but the parties were unable to do so. In the absence of any transcript of these recordings, the record on appeal is simply inadequate to permit us to determine whether in fact those recordings provided evidence of Morgan’s knowledge of the conspiracy and/or his commission of a second predicate act. And because we have no way to determine whether the State’s evidence was legally sufficient to prove all of the elements of the disputed charges, we have no way to determine whether the trial court properly denied Morgan’s motion for judgment of acquittal.

Given this deficiency in the record on appeal, the final question is what, if any, remedy is proper. We recognize that not all omissions from a trial transcript require a new trial. See Velez v. State, 645 So.2d 42, 44 (Fla. 4th DCA 1994). However, when a portion of the trial transcript is missing through no fault of the defendant and when that missing portion is necessary for a complete review of the issues raised by the defendant, a new trial is required. See McKenzie v. State, 754 So.2d 851, 852 (Fla. 2d DCA 2000); Thomas v. State, 828 So.2d 456, 457 (Fla. 4th DCA 2002). Here, through no fault of Morgan, the deficiencies in the record on appeal prevent this court from determining whether the State’s evidence was legally sufficient to prove that Morgan violated RICO and conspired to violate RICO. Under these circumstances, we must reverse Morgan’s convictions for these offenses and remand for a new trial on those two charges. Morgan’s remaining conviction for felon in possession of a firearm is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS, C.J., and MORRIS, J., Concur.

      . Morgan also entered a plea to a separate count of conspiracy to traffic in cocaine in circuit court case number 09-CF-6904. Because the notice of appeal in this case refer-enees only circuit court case number 05-CF-21005, neither Morgan’s conviction nor his sentence in case number 09-CF-6904 are before this court in this appeal.

      . While not entirely clear from the record, it appears that Morgan was initially arrested on a charge of felon in possession of a firearm based on a handgun found in the car he drove to the meeting.

      . While we appreciate the parties’ invitation to have the record supplemented with the recordings so that this court could listen to them and determine whether the evidence on the recordings was sufficient to support Morgan’s convictions, we decline to do so. Such an action would place this court in the position of being the finder of fact-a role not permitted to be performed by this court.


text:
    Ronald Gary MOORE, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D12-231.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Ronald Gary Moore, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Ronald G. Moore appeals the circuit court’s order denying his petition for a writ of mandamus. The petition addressed Moore’s public records demand to the State Attorney for copies of various documents related to his 2003 convictions on three counts of capital sexual battery. The State concedes that Moore was entitled to receive a response to his public record demand. Accordingly, we reverse the circuit court’s order and remand for further proceedings.

REVERSED and REMANDED.

TORPY, C.J., PALMER and ORFINGER, JJ., concur.


author: GRIFFIN, J.

text:
    Jose GOMEZ-FELICIANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4201.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Jose Gomez-Feliciano, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Jose Gomez-Feliciano, appeals the trial court’s summary denial of his “Motion to Correct Illegal Sentence” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We find no merit in any issue raised by appellant and affirm. We do, however, note a scrivener’s error in the written sentence on Count II. Although appellant was adjudicated a habitual violent felony offender [“HVFO”] on several of the counts of which he was convicted (Counts I, III, IV and V), the sentencing transcript shows that he was not sentenced as an HVFO on Count II. We accordingly remand for removal of the HVFO designation on Count II only.

AFFIRMED; sentence remanded for correction.

ORFINGER and WALLIS, JJ., concur.


text:
    Carlos RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1168.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Carlos Rivera, Wewahitcka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the trial court’s order denying Petitioner’s rule 3.800(a) motion on January 15, 2013, in Case No.2011-03421-CFAWS, in the Circuit Court in and for Volusia County, Florida. See Fla.R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and BERGER, JJ., concur.


text:
    Joe SMITHWICK, IV, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1548.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.
    Joe Smithwick, IV, DeFuniak Springs, pro se.
    No Appearance for Respondent.
   PER CURIAM.

On February 18, 2013, Joe Smithwick, IV, filed a petition for writ of habeas corpus with the Florida Supreme Court. In his petition, Smithwick essentially asked the supreme court to perform a second review of the circuit court’s February 7, 2013 “Order Denying Defendant’s Motion to Vacate Sentence/Petition for Writ of Habeas Corpus” (“summary denial order”). The reason the supreme court’s review would have been a “second review” is because Smithwick had previously appealed the same summary denial order in this Court’s case number 5D13-1022, which this Court per curiam affirmed. See Smithwick v. State, 112 So.3d 497 (Fla. 5th DCA 2013).

Notwithstanding this Court’s decision to affirm the summary denial order, the supreme court elected to treat Smithwick’s petition in case number SC13-496 as a notice of appeal, then transferred the matter to this Court for disposition. The supreme court instructed this Court to “treat the notice as if it had been originally filed there on the date it was filed in this Court.”

We have done so and dismiss Smithwick’s petition. The appeal in the instant case represents a second appeal of the very same summary denial order that was already affirmed in case number 5D13-1022. No posteonviction movant is entitled to two appeals, in separate proceedings, of the very same order. See generally Fla. R.Crim. P. 3.850(m) (barring frivolous collateral criminal pleadings). We caution Smithwick that any future frivolous pro se pleadings might result in the imposition of sanctions. See, e.g., Oakley v. State, 21 So.3d 76, 77 (Fla. 5th DCA 2009) (warning defendant that filing any additional successive and frivolous pro se petitions or appeals attacking his convictions and sentences would result in issuance of order to show cause why he should not be denied further access to court).

PETITION DISMISSED.

SAWAYA, LAWSON and COHEN, JJ., concur.


text:
    George SPERDUTI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2076.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.

      George Sperduti, Sneads, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 27, 2012 denial of Petitioner’s rule 3.850 motion, filed in Case No. 06-2246-CF, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, C.J., ORFINGER and WALLIS, JJ., concur.


author: PER CURIAM. JOHNSON, C J.,

text:
    STATE of Louisiana v. Jody BUTLER.
    No. 2012-K-2359.
    Supreme Court of Louisiana.
    May 17, 2013.
   PER CURIAM.

| /Writ granted. The decision of the court of appeal is reversed and this case is remanded for consideration of errors pre-termitted on original appeal.

In reversing defendant’s conviction and sentence for simple possession of cocaine in violation of La.R.S. 40:967(C), State v. Butler, 11-0985 (La.App. 4 Cir. 10/3/12), 101 So.3d 121, the court of appeal conducted a multi-tiered analysis of circumstances during which, at the approach of a three-unit police caravan, a SUV with illegally tinted windows sped away from curbside. Meanwhile, defendant, who had been leaning inside the passenger window of the vehicle, then took to the sidewalk and pedaled away on his bicycle as several bystanders on the corner retreated inside a neighborhood store. The appellate court determined that the police lacked either probable cause to make an arrest or reasonable suspicion to make an investigatory stop when they ordered defendant to return to the scene and place his hands on one of the police units, at which point “no reasonable person ... could have believed he was free to leave,” id., 11-0985, p. 10, 101 So.3d at 129, and at which point one of the officers then pulled up defendant’s sagging pants to get a better feel of his groin area during a patdown search and fortuitously brought into view a small packet of marijuana stuffed into one of defendant’s socks. The court of appeal further observed that, even assuming the police had reasonable suspicion for an investigatory stop, and further assuming “arguendo that being in a reputedly high crime area of the city is enough to justify a frisk of any individual stopped for questioning by the police,” id., 11-0985 at 13, 101 So.3d at 130, no authority existed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or its progeny for the officer to pull up defendant’s pants as part of a self-protective frisk for weapons. On that premise, the court of appeal held that the fortuitous discovery of the marijuana packet did not fall within the plain view doctrine justifying the lawful acquisition of probable cause. The trial court had therefore erred in denying defendant’s motion to suppress the marijuana and the rocks of cocaine subsequently found concealed in the band of his baseball cap and the coin pocket in his pants after the officer continued and intensified the search. The court of appeal accordingly reversed and remanded.

The state seeks review of that decision on the premise that, in fact, there was probable cause to arrest defendant, who, by using the sidewalk to pedal away on his bicycle, violated a municipal ordinance defining a 60-day misdemeanor offense. See New Orleans Municipal Code 154-1416 (“No person 15 or more years of age shall ride a bicycle upon any sidewalk in the city nor will bicycles be allowed on sidewalks in the business district.”); La. C.Cr.P. art. 213(A)(1) (police officer may arrest without a warrant for a misdemeanor offense committed in his presence); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe an individual has committed even a very minor criminal- offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”). Thus, although the officers involved thought they were executing a “suspicious person Lstop” as part of a proactive patrol of the area in which they were looking for “high profile criminals,” the state argues that in reality they were conducting a seizure based on probable cause, tantamount to an arrest for Fourth Amendment purposes, and could therefore subject defendant to a full body search for weapons or contraband incidental to that seizure without particularized concern for officer safety, although the offense for which the officers ultimately arrested defendant was not the offense for which they stopped him on probable cause.

The state relies on this Court’s decision in State v. Sherman, 05-0779, p. 11 (La.4/4/06), 931 So.2d 286, 293, which adopted the rule, under somewhat similar circumstances, that “if probable cause to arrest plus the making of a custodial arrest justifies a search of the person, then a search should be allowed when there is probable cause to arrest but no arrest.” Sherman thus upheld a search conducted by experienced narcotics officers who happened upon defendant standing next to his stalled motorcycle parked partially on the roadway in violation of one or more traffic regulations. The officers did not arrest defendant for any traffic violation, including his failure to have an operator’s license for his motorcycle, but nonetheless went inside his pocket and then arrested him for possession of the cocaine they found on his person. In upholding the search, we underscored that “the subjective intentions of the officers does not determine the reasonableness of a warrantless search incidental to arrest, where the officer did not have an intent to arrest for the offense for which probable cause objectively existed.” Sherman, 05-0779 at 15, 931 So.2d at 296 (discussing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (“[T]he fact that the officer does not have the state of mind which is hy-pothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.... Subjective | intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”) (internal quotation marks and citation omitted)); cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966) (“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”); Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than visa versa.”); State v. Melton, 412 So.2d 1065, 1068 (La.1982) (“When there is probable cause but no formal arrest, a limited search to preserve evidence is justified.”) (citing Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973)).

The court of appeal did not address the state’s argument because it was made for the first time on appeal and not advanced in the trial court as a reason for denying the motion to suppress. Butler, 11-0985 at 10, n. 3,101 So.3d at 129. It is settled that a new basis for an objection may not be urged for the first time on appeal, State v. Stoltz, 358 So.2d 1249, 1250 (La.1978), and the rule encompasses a new basis for suppressing evidence urged for the first time on appeal as a reason for overturning a trial court’s denial of a motion to suppress. State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967 (“Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress.”) (citations omitted). The rule does not, however, preclude the proponent of a ruling on a motion to suppress from offering additional reasons for sustaining the result on review that do not require going outside of the record in the trial court. Cf. La.C.C.P. art. 2133(B) [,(“A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert in support of the judgment, any argument supported by the record although he has not appealed, answered the appeal, or applied for supervisory writs.”); State v. Neisler, 93-1942 (La.2/28/94), 633 So.2d 1224, 1233 (court of appeal “reached the right result, but for the wrong reasons”); State v. Welch, 615 So.2d 300, 302 (La.1993) (same). An appellate court does not go outside of the record when it takes judicial notice of the statutes of this state and the ordinances of its political subdivisions. La.C.E. art. 202(B)(c) (court shall take judicial notice when requested, and may take judicial notice without request of a party, of “[o]rdi-nances enacted by any political subdivision of the State of Louisiana.”); cf. Word of Life Christian Center v. West, 04-1484, p. 7 (La.4/17/06), 936 So.2d 1226, 1232 (“Ascension Parish requested that this court take judicial notice of five local ordinances and provided this court with the information needed to comply with the request. Therefore, we take judicial notice of the Ascension Parish’s local ordinances which form the basis of this suit, pursuant to La.C.E. art. 202(B).”).

In the present ease, we may assume that the police officers had no actual subjective intent to arrest defendant for riding his bicycle on the sidewalk in violation of the city ordinance because they were looking for “high profile criminals.” In light of Sherman, we nevertheless agree with the state that purely as an objective matter, the officers ultimately did nothing more than what the law entitled them to do by detaining defendant after observing him commit a misdemeanor offense in their presence and searching him for weapons and evidence, without regard to whether they had an articulable and particularized concern for their safety, and then arresting him, albeit not for the offense for which they initially had probable cause.

IfiWe therefore find no error in the trial court’s denial of the motion to suppress and thus no basis for reversing defendant’s conviction and sentence.

JOHNSON, C J.,

dissents and assigns reasons.

I would deny the State’s writ application. In my view, the state lacked reasonable suspicion to detain the Defendant, Jody Butler. I believe that the Court of Appeal was correct in its review of the State’s evidence and correctly applied the principles set forth in State v. Porche, 06-0312, p. 6 (La.11/29/06), 943 So.2d 335, 338-39, State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), and its progeny, before reversing Mr. Butler’s adjudication.

When Officer Goines ordered the defendant to stop and put his hands in the air, Mr. Butler was seized for Fourth Amendment purposes. The officers did not witness an exchange, nor any criminal activity, crime in progress, or other furtive conduct when they first observed Mr. Butler at the passenger side window of the SUV. It was the driver of that vehicle who fled at the approach of the police. Mr. Butler merely gave a startled look at the caravan of patrol units and then got on his bicycle to ride away. Mr. Butler was otherwise unknown to the officers and they had no specific reports of criminal activity in the area. The officers thus lacked reasonable suspicion to detain Mr. Butler. Moreover, Officer Goines lacked a reasonable, objective, and particularized basis for conducting a self-protective frisk of Mr. Butler for weapons. State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471 (“The relevant question is not whether the police officer subjectively believes he is in danger or whether he articulates that subjective belief in his testimony at a suppression hearing ... [but whether] a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of other[s] was in danger.”) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)).

The state’s argument in brief was that the officers had probable cause to arrest Mr. Butler for violating a municipal ordinance prohibiting the riding of bicycles on a public sidewalk. Neither Officer Goines nor his partner offered that rationale at the suppression hearing in the trial court, and the state did not argue it as a basis for upholding the stop. The court of appeal therefore declined to “consider issues raised for the first time on appeal.” State v. Butler, 11-0985, p. 11, n. 2 (La.App. 4 Cir. 10/3/12), 101 So.3d 121, 129. The court of appeal properly found in the present case that the tactics employed by the New Orleans police exemplified concerns expressed by the U.S. Justice Department, and conceded by the City of New Orleans, as to whether officers “have been adequately trained regarding the constitutional boundaries of search and seizure.” Id., 11-0985, p. 14,101 So.3d 121 (citing United States Department of Justice, Investigation of the New Orleans Police Department (3/26/2011)).

      . Investigation of the New Orleans Police Department, U. S Department of Justice, Civil Rights Division, (March 16, 2011). A copy can be found on the U.S. Department of Justice website: http:/www.justice.gov/crl/about/ spVnopd_report.pdf


text:
    STATE of Louisiana v. Kendall PHILLIPS, et al.
    No. 2013-KK-763.
    Supreme Court of Louisiana.
    May 17, 2013.
   PER CURIAM.

12Writ granted. The court of appeal was correct in reversing the suppression of the evidence seized from the automobile because there was reasonable suspicion to stop the automobile. See State v. Clausen, 97-0885 (La.App. 4 Cir. 7/2/97), 697 So.2d 1066, 1069, writ denied, 97-2420 (La.3/20/98), 715 So.2d 1207. Thereafter, consent to search the automobile was given. After finding crack cocaine under the hood of the automobile, exigent circumstances justified the detention of defendant Kendall Phillips before he could re-enter the premises at 2301 Marigny Street, which was the prior location of the drugs found under the hood of the automobile. See State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923, 927-28; State v. Neuman, 01-1066 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 185. Without entering the premises, the officers observed from the threshold of 2801 Marigny contraband in plain view. See State v. Abadie, 390 So.2d 517, 518 (La.1980).

Regarding the 2305 Marigny Street premises, no search or seizure occurred until after defendant Grant Baham had been given his Miranda rights and questioned and admitted the location of the contraband. See Strange, 876 So.2d at 42; State v. Jarell, 07-1720 (La.App. 1 Cir. 9/12/08), 994 So.2d 620, 627.

The ruling of the trial court is reversed, and the ruling of the court of appeal is reversed in part; the motion to suppress is denied in its entirety. This matter is remanded for further proceedings.

JOHNSON, C.J., dissents.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    In re CONFIDENTIAL PARTY.
    No. 2013-B-0786.
    Supreme Court of Louisiana.
    May 17, 2013.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Gregory Ross RUBIN.
    No. 2013-B-0845.
    Supreme Court of Louisiana.
    May 17, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that he negligently practiced law while ineligible to do so. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Gregory Ross Rubin, Louisiana Bar Roll number 31536, be publicly reprimanded.

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


text:
    In re Melanie Smith DALEY.
    No. 2013-B-0846.
    Supreme Court of Louisiana.
    May 17, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that she knowingly neglected legal matters, failed to communicate with clients, failed to refund unearned fees, and failed to return client files. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Melanie Smith Daley, also known as Melanie S. Smith, Louisiana Bar Roll number 27888, be suspended from the practice of law for a period of two years, retroactive to September 28, 2011, the date of her interim suspension. It is further ordered that respondent shall make full restitution to all former clients.

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


text:
    In re Hilliard Charles FAZANDE, III.
    No. 2013-B-0847.
    Supreme Court of Louisiana.
    May 17, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account by allowing the account to become overdrawn. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15(a), 1.15(b), and 1.15(f) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Hilliard Charles Fazande, III, Louisiana Bar Roll number 26638, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


text:
    In re Russell W. BEALL.
    No. 2013-B-1122.
    Supreme Court of Louisiana.
    June 14, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that he improperly split fees with a disbarred attorney. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Russell W. Beall, Louisiana Bar Roll number 27374, be publicly reprimanded.

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


text:
    LEBEOUF REAL ESTATE COMPANY v. Barbara Q. LEBEOUF, Troy M. Lebeouf, Charmaine Lebeouf, Catherine Lebeouf Moore, and the Succession of Elmo F. Lebeouf, Jr.
    No. 2013-CC-0898.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

| granted. Although the Articles of Partnership contain detailed provisions for selection of a certified public accountant to value the withdrawing partner’s interest, the articles are silent with regard to the partners’ right to contest the valuation. Therefore, we see no error in the judgment of the district court “reserving to defendants the right to initiate proceedings to challenge the value of their interests, as determined by the Certified Public Accountant previously selected by the parties.”

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


text:
    STATE of Louisiana v. Jody D. HAMILTON.
    No. 2013-K-0104.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

|TGranted. The decision of the court of appeal in State v. Hamilton, 12-204 (La.App. 3 Cir. 11/7/12), 103 So.3d 705, is vacated and this case is remanded for further consideration. The court of appeal is directed to supplement the record with the jury strike sheet which the state requested in its application for rehearing, and to reconsider defendant’s assignments of error relating to denial of his cause challenges by the trial judge and denial of his right to full review on appeal because of the incomplete record.

In its original brief on appeal, the state took the position, to which the dissent ultimately subscribed, id., 12-204 at 1, 103 So.3d at 713 (Amy, J., dissenting), that the court of appeal could resolve defendant’s claims regarding jury selection on the basis of the full transcript of voir dire examination, not made part of the original appellate record but filed evidently in response to a motion to supplement made by defendant. The state further noted, however, that the trial judge had in fact maintained the jury strike sheet in his trial binder and that the sheet was therefore readily available if the court of appeal determined it was necessary to identify and review the peremptory challenges made by both the State Land the defense, and all challenges for cause, to address defendant’s assignments of error. The state thus timely brought the matter to the court of appeal’s attention before the court considered the case and rendered a decision. It appears from the affidavit accompanying the state’s application for rehearing that the jury strike sheet exists, that the district court personnel have access to it, although the sheet had been omitted inadvertently from the original record on appeal, and that it is immediately available for review by the court of appeal if requested.

An appellate court possesses the inherent discretion to order supplementation of the record on appeal with additional portions of the record in the district court, particularly when supplementation will conform the record to the court’s own rules. See Uniform Rules — Courts of Appeal, Rule 2-1.5 (record on appeal in a criminal case shall include a list of peremptory and cause challenges and petit jurors selected); cf. La.S.Ct. Rule 1, § 6(b) (same). An appellate court should exercise that discretion in light of its express authority conferred by La.C.Cr.P. art. 914.1 to order additional portions of the record below “which it feels are necessary for full and fair review of the assignments of errors.”


text:
    STATE of Louisiana v. Reginald YOUNG, et al.
    No. 2013-KK-1069.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

1 tWrit granted. The trial court erred in finding that there was “good cause” to subpoena a victim to testify at a pre-trial hearing on the identification of the two defendants. La. R.S. 46:1844(C)(3), which outlines rights for victims and witnesses, provides in part:

The victim and the victim’s family may refuse any requests for interviews with the attorney for the defendant or any employee or agent working for the attorney for the defendant.... Before any victim may be subpoenaed to testify on behalf of a defendant at any pretrial hearing, the defendant shall show good cause at a contradictory hearing with the district attorney why the subpoena should be issued.

In instant case, the testifying officer said that the victim was able to describe the gold car that was driven by the assailants, that one of the defendants moved from the passenger seat to the driver’s seat when the gold car was parked and was dressed all in black, and that the gold car followed the victim’s car. Within hours after the crime occurred, the victim identified the two defendants as the man who got into his car and began driving and the man who followed behind in the gold car. The relevant information needed to determine if an identification is reliable under Manson v. Brathwaite has been adduced. 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Importantly, there is a high degree of corroboration between the identification and the physical evidence recovered by police. Police used OnStar to locate the stolen vehicle at an apartment complex where the two defendants were | ¿found inside one of the apartments. The keys to the vehicle were found in the apartment.

In this case, the identification was reliable and was corroborated by other evidence. Thus, there is no good cause to subpoena the witness in the case to testify at a pre-trial hearing.


text:
    STATE of Louisiana v. Tyrone JONES.
    No. 2013-KK-1100.
    Supreme Court of Louisiana.
    June 28, 2013.
   PER CURIAM.

| Writ granted. The decision of the court of appeal is vacated and the ruling of the trial court, which denied the defendant’s motion to suppress, is reinstated. The trial court, which is afforded discretion in deciding a motion to quash, found that under the circumstances of this case the victim had authority to consent to the search of the premises. See Illinois v. Rodriguez, 497 U.S. 177, 186-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (warrantless entry is valid when based on consent of a third party whom police, at the time of entry, reasonably believed to possess common authority over premises but who in fact does not).

      . See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1206 (“[bjecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion").


text:
    STATE ex rel. Carroll HAMILTON v. STATE of Louisiana.
    No. 2013-KH-0058.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Hamilton, Carroll; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. G, No. 96485; to the Court of Appeal, Third Circuit, No. KH 11-01592.

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


text:
    STATE ex rel. George Floyd MICK v. STATE of Louisiana.
    No. 2013-KH-0059.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Mick, George Floyd;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 11-WCR-259; to the Court of Appeal, First Circuit, No. 2012 CW 1210.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Stanley REED v. STATE of Louisiana.
    No. 2013-KH-0061.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Reed, Stanley;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. D, No. 08-F-0703; to the Court of Appeal, Second Circuit, No. 47 964-RH.

Denied. La.CCr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.CCr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State ex rel. Brown v. State, 03-2568, (La.3/26/04) 870 So.2d 976


text:
    STATE ex rel. Paul FARINAS v. STATE of Louisiana.
    No. 2013-KH-0062.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Farinas, Paul;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 05-1792; to the Court of Appeal, Fifth Circuit, No. 12-KH-801.

Denied.


text:
    STATE ex rel. Russell PAYTON v. STATE of Louisiana.
    No. 2013-KH-0064.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Payton, Russell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 11—94—0047; to the Court of Appeal, First Circuit, Nos. 2012 KW 1219, 2012 KW 1723, 2012 KW 1723.

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

WEIMER, J., recused.


text:
    STATE ex rel. Christopher J. WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-0067.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Williams, Christopher J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 56197; to the Court of Appeal, First Circuit, No. 2012 KW 1727.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.

HUGHES, J., recused.


text:
    Freddie R. LEWIS v. Timothy WILKINSON, Warden, Winn Correctional Center, Corrections Corporation of America and Secretary, LA Department of Public Safety & Corrections, et al.
    No. 2013-CI-0069.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Lewis, Freddie R.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 585,902; to the Court of Appeal, First Circuit, No. 2012 CA 0205.

Denied.


text:
    Joseph V. FOSTER, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, through LOUISIANA STATE PENITENTIARY.
    No. 2013-CI-0070.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Foster Jr., Joseph V.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 588,133; to the Court of Appeal, First Circuit, Nos. 2012 CA 0349, 2012 CA 0349.

Denied.


text:
    STATE ex rel. James GRIFFIN v. STATE of Louisiana.
    No. 2013-OK-0071.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Griffin, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. C-2012-430; to the Court of Appeal, Third Circuit, No. CW-12-01213.

Denied.

HUGHES, J., would grant.


text:
    Michael David THOMPSON v. Yetta Emma Fernandez CONCINA.
    No. 2013-C-0741.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Concina, Yetta Emma Fernandez;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. C, No. 83,402; to the Court of Appeal, Third Circuit, No. 12-1334.

Denied.

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


text:
    Shanelle CHAPMAN v. COUSHATTA TRIBE OF LOUISIANA, et al.
    No. 2013-C-0754.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Chapman, Shanelle; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 03, No. 06-05787; to the Court of Appeal, Third Circuit, No. 12-1168.

Denied.

HUGHES, J., would grant.


text:
    Lisa MULVIHILL v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2.
    No. 2013-C-0765.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Mulvihill, Lisa;—Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 10-1272; to the Court of Appeal, Fifth Circuit, No. 12-CA-432.

Denied.


text:
    STERBCOW DEVELOPMENT GROUP, LLC v. YEAR ROUND HEATING AND AIR CONDITIONING COMPANY, INC., and Lafayette Insurance Company.
    No. 2013-CC-0768.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re United Fire & Casualty Company; Year Round Heating and Air Conditioning Company, Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 705098; to the Court of Appeal, Fifth Circuit, No. 13-C-83.

Denied.


text:
    STATE of Louisiana v. Shante WHITLEY.
    No. 2013-KK-0779.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Whitley, Shante; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 508-407; to the Court of Appeal, Fourth Circuit, No. 2012-K-1711.

Denied.

HUGHES, J., would grant.


text:
    Laura Kelley GHOLSTON v. Robert Matthew GHOLSTON.
    No. 2013-CC-0781.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Gholston, Robert Matthew; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, No. 722-587; to the Court of Appeal, Fifth Circuit, No. 13-C-265.

Denied.


text:
    Lisa MULVIHILL v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2.
    No. 2013-C-0798.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Jefferson Parish Hospital Service District No 2; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 10-1272; to the Court of Appeal, Fifth Circuit, No. 12-CA-432.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Lamar DUFFY.
    No. 2013-KK-0801.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Duffy, Lamar;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 27599; to the Court of Appeal, First Circuit, No. 2013-KW-0088.

Denied.

WEIMER and HUGHES, JJ., would grant.


text:
    Patricia BENVENUTI v. WAL-MART STORES, INC.
    No. 2013-CC-0803.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Wal-Mart Stores Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 706-198; to the Court of Appeal, Fifth Circuit, No. 13-C-113.

Denied.

VICTORY, and GUIDRY, JJ., would grant.


text:
    Rachel BABIN, Wife of/and Royal Babin v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Matthew N. DeSalvo.
    No. 2013-C-0804.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re DeSalvo, Matthew N.; State Farm Mutual Automobile Insurance Company;—Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 636-586; to the Court of Appeal, Fifth Circuit, No. 12-CA-447.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Rachel BABIN, Wife of/and Royal Babin v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Matthew N. DeSalvo.
    No. 2013-C-0808.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re State Farm Mutual Automobile Insurance Company in its U/M Capacity;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 636-586; to the Court of Appeal, Fifth Circuit, No. 12-CA-447.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    CUSTOM CABINET SPECIALTIES, L.L.C. v. EX-FACTORY, INC.
    No. 2013-CC-0809.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Ex-Factory, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 713-293; to the Court of Appeal, Fifth Circuit, No. 12-C-908.

Denied.


text:
    STATE of Louisiana v. LaMondre TUCKER.
    No. 2013-KK-0814.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Tucker, LaMondre;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 295-498; to the Court of Appeal, Second Circuit, No. 48,-297-KW.

Denied.


author: THIBODEAUX, Chief Judge. THIBODEAUX, Chief Judge.

text:
    Grady P. GALLAND v. Heidi Mahl GALLAND.
    No. 12-1075.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.
    Rehearing Denied May 1, 2013.
    Opinion on Rehearing May 1, 2013.
    Cory Paul Roy, Law Offices of Cory P. Roy, Marksville, LA, for Plaintiff/Appellee Grady P. Galland.
    Laura Bishop Knoll, Knoll Law Firm, LLC, Marksville, LA, for Defendant/Appellant Heidi M. Galland.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

|,In this domestic dispute, Heidi Mahl Galland appeals the trial court’s grant of primary domiciliary status of her two minor children, Colin and Cadence, to her ex-husband, Grady Galland. She also appeals the trial court’s judgment finding that both children should attend St. Mary’s School in Cottonport, Louisiana. Heidi argues that the issue of custody was not properly before the trial court; thus, the trial court erred by granting primary domiciliary status to Grady. She also asserts that the trial court abused its discretion by imper-missibly intertwining the issue of school choice with the issue of custody and by ignoring evidence favoring Nachman Elementary School in Alexandria. For the following reasons, we reverse the judgment of the trial court.

I.

ISSUES

We will consider whether the trial court erred:

(1) by awarding primary domiciliary status of Colin and Cadence to Grady;
(2) by determining that both children should attend St. Mary’s.

II.

FACTS AND PROCEDURAL HISTORY

Heidi and Grady married in 2004 and have two children together, Colin, age 8, and Cadence, age 3. In 2009, the parties divorced, citing irreconcilable differences. Neither party disputes that both parents are loving, fit parents.

|2The parties entered into a stipulated Consent Judgment dated December 23, 2009, awarding them joint custody and co-domiciliary status. The parties shared physical custody on a week-by-week (7/7) basis. At the time of the divorce, both parties lived in Plaucheville, Avoyelles Parish, Louisiana. Heidi subsequently moved to Alexandria, Louisiana. Shortly after Heidi moved, Grady sought and obtained an order from the trial court that Colin would attend St. Mary’s for the 2010-2011 school year. Colin attended St. Mary’s for the 2010-2011 school year. The parties continued to share custody on a 7/7 basis despite the increased distance between their homes.

In January 2011, Grady filed a Motion to Compel Psychological Evaluations of both parties and their children to determine the optimal custodial and school arrangements. In June 2011, Grady filed a Motion for Contempt because Heidi was contemplating enrolling Colin in Nachman despite the previous judgment allowing him to attend St. Mary’s until further order of the court. In July 2011, Heidi filed a Rule for Declaration on School Attendance (“Rule to Declare School”), seeking an order allowing Colin to attend Nachman for the 2011-2012 school year. The trial court deferred these various motions and rules pending the results of the independent psychological evaluation ordered by court. Indeed, the trial court ordered Dr. Daniel Lonow-ski to evaluate the parents and the children in the fall of 2011.

While the trial court motions were pending, Heidi and Grady reached a verbal agreement whereby Colin would attend Nachman for the 2011-2012 school year. The parties also verbally agreed to modify the shared 7/7 custody plan such that the children remained with Heidi during the school week. The parties sought to minimize travel time and maximize stability for the children. At | ¡¡that time, Colin attended Nachman, and Cadence attended Calvary Daycare in Alexandria. Grady later changed his mind about Colin’s schooling, feeling that Colin “would be more comfortable at St. Mary’s.” Nevertheless, Colin finished the school year at Nachman, achieving the A/B Honor Roll.

Dr. Lonowski conducted the psychological evaluations over several sessions in October and November 2011. In December 2011, he issued a written report containing his recommendations for school choice and custody. With regard to school choice, Dr. Lonowski recommended that Colin remain at Nachman. Specifically, he concluded that remaining at Nachman afforded Colin the most stability. Moreover, he adjudged Nachman an academically superior school to St. Mary’s.

At the start of trial, the parties stipulated that the only issues before the court were the two contempt rules filed by Grady and the Rule to Declare School filed by Heidi. With regard to the Rule to Declare School, the parties presented evidence as to the reputations and quality of the two schools as well as competing evidence as to which school would be best for Colin.

Heidi called Dr. Lonowski to testify, and on direct examination, Dr. Lonowski began to outline his recommendations as to custody. Grady objected on the grounds that the issue of custody was not before the court. The trial court sustained Grady’s objection, limiting Dr. Lonowski’s testimony to his opinions about where Colin should attend school. Dr. Lonowski then testified that his research revealed that Nachman was superior academically to St. Mary’s, and the teacher-student ratios were more favorable at Nachman than at St. Mary’s. He |4opined that Colin should remain at Nachman. He conceded, however, that a transition back to St. Mary’s would not be difficult because Colin had previously attended St. Mary’s. Heidi also introduced evidence of Colin’s success at Nachman. He achieved the A/B Honor Roll and made numerous friends.

Grady testified that St. Mary’s would be the best educational choice for Colin. He pointed to the size of the school, Colin’s familiarity with the school, and the proximity of Colin’s extended family to St. Mary’s.

In its written Reasons for Ruling, the trial court rendered a Considered Decree, granting the parties joint custody on a “9/3 split” and appointing Grady the primary domiciliary parent. Specifically, the trial court ordered the children to reside with Grady during the school week, with Heidi receiving visitation every other weekend, with an additional two evenings during the month for dinner. The trial court granted Heidi increased visitation during the summer months. The Considered Decree further ordered both children to attend St. Mary’s in Cottonport.

Heidi appeals the trial court’s judgment.

III.

LAW AND DISCUSSION

Standard of Review

Where there has been an error of law, a de novo review is required in a child custody case. In Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 781, the supreme court discussed the appellate review standard where the trial court has committed legal error. It stated:

[Wjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no |filonger applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

Evans, 708 So.2d at 735 (citations omitted).

Improper Unilateral Expansion of the Pleadings by the Trial Court

Heidi contends that the trial court committed legal error by changing domiciliary status because that issue was not pled by either party. We agree. In Domingue v. Bodin, 08-62, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (alterations in original), we evaluated a similar issue and explained the powers of the trial court:

Pursuant to La.Code Civ.P. art. 191 “[a] court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” From that grant of power, trial courts are vested with authority, under La.Code Civ.P. art. 862 to grant relief to the party in whose favor the final judgment rendered was entitled, even if the party has not demanded such a relief in his pleadings and the latter contain no prayer for general and equitable relief. Accordingly, “under proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted.” La.C.C.P. Art. 1154. (emphasis supplied). Ussery v. Ussery, 583 So.2d 838, 841 (La.App. 2 Cir.1991) (citing Guillory v. Butter, 398 So.2d 43 (La.App. 3 Cir.1981)). However, notwithstanding this authority, “nothing in the article [art. 862] is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it.” Id,. Otherwise, “[a] judgment beyond |f,the pleadings is a nullity.” Id. at 841, citing Romero v. State Farm Fire & Casualty Co., 479 So.2d 694 (La.App. 3 Cir.1985).

Here, neither party requested nor was granted permission to amend the pleadings to request a change in domiciliary status. Indeed, the parties stipulated at the beginning of trial that the only issues before the court were the contempt issues and the issue of school choice. The trial court clearly recognized this stipulation when it sustained Grady’s objection to Dr. Lonowski’s testimony regarding custody. Thus, the trial court went beyond the scope of the pleadings to unilaterally expand them to award Grady primary domiciliary custody of the children, which is clearly “a controversy which the parties have not regularly brought before it.” Ussery, 583 So.2d at 841. The trial court exceeded its authority by awarding primary domiciliary status to Grady.

School Choice

Heidi argues that the trial court abused its discretion by concluding that both children should attend St. Mary’s school in Cottonport. Upon de novo review, we find that the trial court inextricably intertwined the issue of school choice with the issue of custody determination. In its reasons for judgment, the trial court states:

Ms. Mahl asserts, and the court does not contest, that Nachman Elementary is a ‘better’ school than the St. Mary [sic] parochial school which exists in Cotton-port. However, this court does not grant custody solely on one 17factor, such as one school out rating [sic] another by some third parties [sic] grading scale.

It is clear that the trial court made the decision about school choice based upon its ruling regarding custody, an issue that was not properly before the court. In doing so, the trial court ignored several relevant pieces of evidence favoring Nachman.

The record indicates that Colin transferred to Nachman Elementary after both parties met and decided that Nachman was a better academic choice. Once there, he thrived. Specifically, he made the A/B Honor Roll, and he adjusted well socially. Nothing in the record suggests that attending Nachman has had a deleterious effect on Colin.

To the contrary, the evidence suggests that Nachman is an excellent school and a supportive environment for Colin. The court-appointed expert, Dr. Lonowski, testified that Nachman was the highest rated school in the district, and “[i]n most ways superior to most of the schools in Louisiana.” Moreover, Dr. Lonowski noted that the teacher-student ratio is more favorable at Nachman, and fewer students are placed in each classroom than at St. Mary’s.

Because we find that custody was not at issue before the court, we conclude that the trial court erred in linking the two issues and ignoring the overwhelming evidence supporting Nachman Elementary as the better choice for Colin.

J¿V-

CONCLUSION

For the reasons articulated above, we reverse the judgment of the trial court as to both custody and school choice. Costs of this appeal are assessed against Grady Galland.

REVERSED.

ON REHEARING

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

hBoth parties apply to this court for rehearing. We grant rehearing to Ms. Heidi Mahl Galland for the sole purpose of clarifying our previous judgment which reversed the judgment of the trial court. It is ordered that, effective immediately, the parties shall have eo-domiciliary status and shall share physical custody on a week-by-week (7/7) basis. At the start of the 2013-2014 school year, Colin and Cadence Gal-land shall be enrolled in Nachman Elementary in Alexandria, Louisiana.

REVERSED AND RENDERED.

      . The trial court absolved Heidi of any allegations of contempt. The contempt rules were not appealed, and we will not discuss them here.

      . Grady cites Barham & Arceneaux v. Kozak, 02-2325 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, writ denied, 04-930 (La.6/4/04), 876 So.2d 87, for the proposition that a timely objection to an attempt to enlarge the pleadings coupled with a failure to move to amend the pleadings is fatal to an issue not raised in the pleadings. While we agree with the holding in Barham, we note that it was Grady who objected to an enlargement of the pleadings by seeking to sustain Dr. Lonowski’s statements regarding custody. Thus, Grady’s argument supports Heidi’s cause. Grady’s actions proved fatal to the custody issue.

      . If Cadence does not meet the minimum age requirement to attend Nachman Elementary for the 2013-2014 school term, she shall be enrolled in her prior school, Calvary Daycare, in Alexandria, Louisiana.