author: SUAREZ, C.J.

text:
    S.D., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    Nos. 3D16-1306 & 3D16-1304
    District Court of Appeal of Florida, Third District.
    Opinion filed January 4, 2017

      Herscher & Herscher, P.A. and llene Herscher, for appellant.
    Karla Perkins, for the Department of Children and Families; Laura J. Lee (Sanford), for the Guardian ad Litem Program, for appellees.
    Before SUAREZ, C.J., and LAGOA, J„ and SHEPHERD, Senior Judge.
   ON MOTION FOR CLARIFICATION

SUAREZ, C.J.

This cause is before us on Appellees’ Motion for Clarification. We grant the Department of Children and Families and the Guardian ad Litem Program’s motions for clarification, withdraw our previous opinion filed November 30, 2016, and replace it with the following clarifying opinion.

The Father, S.D., appeals from the termination of his parental rights as to Jo.D., J.D. and S.D. We find no merit in any of the points of error raised on appeal, and affirm.

Prior to the trial, both parties sought the testimony of S.D.’s adult daughter, who lives in Connecticut. S.D. initially agreed to the adult daughter testifying at the trial telephonically or via Skype but revoked his consent three days prior to the trial. At a February 2016 pretrial hearing on the matter, the court heard argument from the parties and concluded that S.D. had not shown good cause to revoke his consent so close to trial, that he had waived his right to object to the witness testifying by Skype. The trial court ruled the testimony had to occur via Skype to protect any confrontation right enjoyed by the father. The adult daughter testified via Skype to S.D.’s sexual abuse of her when she was a child. The trial court found the adult daughter’s testimony to be credible and substantial, and concluded DCF proved by competent substantial evidence that S.D. sexually abused the adult daughter when she was a minor. The court found the adult daughter’s abuse was evidence the three minor children at issue here would be at substantial risk of significant harm. The court also found S.D.’s failure to remedy the situation by his failure to complete sex offender treatment meant the children could not be safely reunified with him. Further, although the trial court found the minor child DJD.’s testimony to be troubling, the trial court ultimately found that clear and convincing evidence supported terminating S.D.’s parental rights as to Jo.D., J.D., and D.D.

The Father asserts three bases for error: his alleged lack of consent to the adult daughter testifying via electronic means; the lack of a notary to administer the oath to the adult daughter prior to her electronic testimony as required by Florida Rule of Judicial Administration 2.530(d) and Florida Rule of Civil Procedure 1.451; and alleged violation of his confrontation right.

We agree with the trial court that S.D. waived his right to object to the adult daughter’s Skype testimony prior to trial. Further, we agree with the Appellees that dependency proceedings are civil in nature, not criminal, and the constitutional right to confront witnesses is not implicated in a civil dependency proceeding. See S.B. v. Dept. of Children & Families, 851 So.2d 689 (Fla. 2003); A.B. v. Dept. of Children & Family Servs., 901 So.2d 324 (Fla. 3d DCA 2005). The adult daughter’s testimony via Skype afforded the Father ample opportunity to cross-examine the witness.

S.D. finally claims fundamental error occurred because there was no notary present in Connecticut to swear in the adult daughter prior to her Skype testimony, and where S.D. did not contemporaneously object to the lack of a notary at the time of the witness’s testimony. Any error was cured, however, when the court granted DCF’s motion to reopen the case and subsequently had a notary swear in the adult daughter by telephone from Connecticut.

“In a hearing on a petition for termination of parental rights, the court shall consider the elements required for termination. Each of these elements must be established by clear and convincing evidence before the petition is granted.” See § 39.809(1), Fla. Stat. (2016). See also In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla. 1995) (“To terminate a parent’s right in a natural child, the evidence must be clear and convincing.”); Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993), review denied, 634 So.2d 625 (Fla. 1994) (“[W]e will uphold the trial court’s finding if, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”). Based on the record and the trial court’s findings by clear and convincing evidence, we affirm the orders terminating S.D.’s parental rights as to Jo.D., J.D. (3D16-1304) and D.D. (3D16-1306).

Affirmed.

      . It appears from the record that the subpoena requiring the adult daughter to appear telephonically was originally sent by S.D.’s counsel, to which appearance all parties agreed.

      . When asked if the father ever did anything inappropriate, D.D. replied, “When my eyes open, I never seen him do anything to me.” D.D. denied the father ever touched her in a bad way. However, when asked if the father ever touched her in a sexual way, she responded, "No. Not with my eyes open for me to see.” When asked to clarify, D.D. stated, "Like with me, and like with my eyes open, like when I’m awake, and I’ve never seen anything. Him putting his hands on me. I can’t say no, I can’t say yes.” The court found there was no reason for D.D. to use those words unless they implied she could not be certain about what the father had done when her eyes were closed.

      .D.D. is in a group home and wishes to be reunited with her mother. DCF's plan is to reunite all three children with their mother.

      . The clerk of the trial court administered the oath to the adult daughter prior to her Skype testimony.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dina PORUBSKY, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    Case No. 5D16-2346
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 6, 2017
    Dina Porubsky, Brooksville, pro se.
    Cristina A. Velez, Tallahassee, for Ap-pellee.
   PER CURIAM.

Dina Porubsky appeals from a final order of the Reemployment Assistance Appeals Commission, which affirmed a referee’s decision to disqualify her from receiving unemployment benefits. Having carefully considered Ms. Porubsky’s arguments on appeal and the record before us, we affirm. See, e.g., Parker v. Unemployment Appeals Comm’n, 41 So.3d 1090, 1090 (Fla. 5th DCA 2010) (“An appeal referee’s factual determinations are ordinarily presumed to be correct ... [and thus], if there is substantial competent evidence in the record to support the appeal referee’s findings ... this court must affirm.”) (citations omitted).

AFFIRMED.

ORFINGER, EVANDER and WALLIS, JJ., concur.

      . We are unable to review the evidentiary basis for the referee’s findings because Ms. Porubsky did not include a transcript of the hearing in the record on appeal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that without record of trial proceedings, court cannot review underlying evidence so as to conclude that trial court's judgment is not supported by evidence or by alternative theory). Because there is no transcript, we must assume that the referee’s findings of work-related misconduct are supported by the evidence. See Roach v. Unemployment Appeals Comm’n, 873 So.2d 617, 618 (Fla. 5th DCA 2004).


text:
    Shawn THOMPSON, Appellant, v. Toscha GOODWIN, Appellee.
    Case No. 5D16-1834
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 6, 2017
    Shawn Thompson, Silver Springs, pro se.
    Angela C. Flowers, of Kubicki Draper, Ocala, for Appellee.
    ORFINGER, EVANDER and WALLIS, JJ., concur.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that without transcript of trial proceedings, appellate court cannot review underlying evidence so as to conclude that trial court’s judgment is not supported by evidence).


author: MAKAR, J.

text:
    Michael V. GRIMES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-782
    District Court of Appeal of Florida, First District.
    Opinion filed January 10, 2017

      Nancy A. Daniels, Public Defender, and Megan Lynne Long, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, for Appellee.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION

MAKAR, J.

We grant rehearing, withdraw our previous opinion, substitute this opinion, and affirm. Initially this appeal was dismissed without prejudice because we determined that the entrapment issue raised on appeal was not dispositive, thereby allowing Appellant to seek to withdraw his plea on remand. We did so on the basis of Morgan v. State, 486 So.2d 1356 (Fla. 1st DCA 1986), which holds that we have the power to independently review whether a motion is dispositive for purposes of establishing jurisdiction in this Court.

In response, Appellant moved for relief from our dismissal, noting that the parties had stipulated that his motion to dismiss was dispositive and that he had reserved his right to appeal the denial of his motion. He points to a line of cases in this Court that support his position that when parties stipulate to an issue or motion as being dispositive, the appellate court must accept the parties’ stipulation and review the merits of the issue preserved. See Robinson v. State, 885 So.2d 951 (Fla. 1st DCA 2004); Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998); Zeigler v. State, 471 So.2d 172 (Fla. 1st DCA 1985); see also Mylock v. State, 750 So.2d 144, 146 (Fla. 1st DCA 2000) (“Where the parties stipulate that an issue is dispositive, we will not ‘go behind the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive.’”) (citing Phuagnong). Indeed, in Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980) — a decision affirmed by the Florida Supreme Court, 392 So.2d 1324 (Fla. 1981) — we held that where the parties had stipulated that a confession was dispositive we were empowered to review the appeal on the merits.

For its part, the State argues that the state attorney below erred in stipulating that the motion to dismiss was dispositive, but simultaneously notes that “[w]hen the parties stipulate in the trial court that an issue is determinative in this sense, the state is foreclosed from arguing otherwise on appeal.” See Griffin v. State, 753 So.2d 676, 677 (Fla. 1st DCA 2000) (citing Phuagnong). It asks that we stand by our dismissal without prejudice or, alternative-' ly, if we proceed to the merits to affirm.

It is clear that two sets of precedent (Zeigler and Morgan) have coexisted for decades in this Court’s jurisprudence as to the scope of power an appellate panel has in situations involving motions to dismiss that are claimed to be dispositive or stipulated as such. See Beermunder v. State, 191 So.3d 1000, 1001 (Fla. 1st DCA 2016) (“Two lines of inconsistent cases have been cohabitating in our Court’s jurisprudence since the mid-1980s, making the answer murky” as to what a panel is to do) (Makar, J., concurring in result). Oné says we should not second-guess the stipulation and, instead, proceed to the merits' (Zeig-ler); the second says we may disagree with a stipulation and dismiss the appeal, but allow for withdrawal of the plea deal on remand (Morgan) (noting that it “need not decide whether this court is bound to consider an appeal on the merits where the state has stipulated to dispositiveness ... in spite of a record which clearly shows that the state would be able to proceed to trial regardless of the admissibility of the disputed evidence.” Morgan, 486 So.2d at 1358-59).

In deciding this case, we find instructive that our supreme court affirmed this Court’s decision in Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), which used an approach — subsequently adopted in Zeigler and its progeny — that focuses on whether the parties’ stipulation as to dis-positiveness brings an end to the case, regardless of whether the motion might later be deemed legally non-dispositive. Most district courts follow this approach, one that is consistent with Florida Supreme Court precedents. See Beermunder, 191 So.3d at 1003 (“the approach most district courts follow is consistent with Zeigler; it is also consistent with the Florida Supreme Court’s decision in Brown v. State, 376 So.2d 382 (Fla.1979), and this Court’s decision in Jackson”) (Makar, J., concurring in result). We note that Morgan explicitly avoided addressing whether a panel must consider the merits of an appeal where a stipulation exists. Morgan, 486 So.2d at 1358-59. Thus, rather than dismiss this appeal, we address the merits of the confession issue that Appellant and the State deemed dispositive in this case. In doing so, we find no basis for error and affirm. Because of the recurring nature and uncertainty as to cases in which the State and a defendant have stipulated to dispositiveness as the basis for an appeal, we certify the following question as being one of great public importance:

WHETHER AN APPELLATE COURT MUST CONSIDER THE MERITS OF A ■ MOTION ■ WHERE A STIPULATION EXISTS THAT THE MOTION IS DISPOSITIVE OR MAY IT MAKE ITS OWN INDEPENDENT DETERMINATION OF WHETHER THE MOTION IS DISPOSITIVE AND DECLINE REVIEW IF IT DISAGREES WITH THE STIPULATION?

BILBREY and M.K. THOMAS, JJ., CONCUR.

      . See § 924.06 (3), Fla. Stat. (2016) ("A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.”); Pamphile v. State, 65 So.3d 107, 108 (Fla. 4th DCA 2011) (''[W]ithout both an express reservation of the right to appeal and a finding that the issue is dispositive, through either a trial court’s ruling or a stipulation by the state, a defendant who pleads guilty or nolo conten-dere has no right to a direct appeal.”)


text:
    Willie THOMAS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4451
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 11, 2017
    Corey Cohen, of Law Office of Corey I. Cohen, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Willie Thomas petitions our court for a writ of habeas corpus. The State charged Thomas with attempted second-degree murder with a firearm, possession of a firearm by a convicted felon, carrying a concealed firearm, and possession of cocaine. After two separate hearings, the trial court denied Thomas’s requests for bond. Thomas argues the trial court erred by denying bond because the State never filed a motion for pretrial detention. We agree and grant the petition.

Florida Rule of Criminal Procedure 3.131(a) provides, “Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.” If the State does not move for pretrial detention, or if its motion is facially insufficient, “the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b).” Fla. R. Crim. P. 3.132(a).

Here, none of the charged offenses are capital felonies or life felonies. Under these circumstances, if the State fails to move for pretrial detention, a trial court may not deny a defendant’s motion for bond. See Jenkins v. State, 86 So.3d 1273, 1274 (Fla. 5th DCA 2012); Kelly v. State, 939 So.2d 1150, 1151 (Fla. 5th DCA 2006). Accordingly, we grant Thomas’s petition and direct the trial court to conduct a pretrial release hearing pursuant to rule 3.131 no later than three business days following the issuance of this opinion. We note that our decision is without prejudice to the State’s ability to file a motion for pretrial detention, if it so chooses. See Fla. R. Crim. P. 3.132(a) (“A motion for pretrial detention may be filed at any time prior to trial.”).

PETITION GRANTED.

SAWAYA, ORFINGER and WALLIS, JJ., concur.


text:
    William F. SHERWOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2841
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017
    William F. Sherwood, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

William F. Sherwood appeals the post-conviction court’s summary denial of his Motion for Postconviction Relief under Florida Rule of Criminal Procedure 3.850. We find that Sherwood’s claim in Ground One is not conclusively refuted by the record and warrants remand for an evidentia-ry hearing. See Freeman v. State, 616 So.2d 181, 182 (Fla. 2d DCA 1993). We affirm the trial court’s denial of the remaining grounds without further discussion.

AFFIRMED in Part; REVERSED in Part; REMANDED.

SAWAYA, BERGER and WALLIS, JJ., concur.-


author: ORFINGER, J.

text:
    Travis BALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-625
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017

      James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After pleading guilty to one count of vehicular homicide, Travis Ball appeals his sentence. Ball argues that the trial court erred in sentencing him as a prison releas-ee reoffender (PRR). We affirm.

At sentencing, Ball conceded that he qualified as a habitual felony offender (HFO), but objected to the PRR classification. The trial court sentenced Ball to twenty-two years in the Department of Corrections as an HFO and PRR, the first fifteen of which is the mandatory sentence resulting from being classified as a PRR pursuant to the catchall provision found in section 775.082(9)(a)l.o., Florida Statutes (2013). The PRR statute in effect at the time of the offense defined a PRR as a defendant who committed, or attempted to commit, one of several enumerated offenses within three years of being released from a state correctional facility. § 775.082(9)(a)l, Fla. Stat. (2013). Of relevance to this case, the definition also included a defendant who had committed or attempted to commit “[a]ny felony that involves the use or threat of physical force or violence against an individual” within the requisite time period. Id. § 775.082(9)(a)l.o.

Because vehicular homicide is not a specifically enumerated offense under the PRR statute, the trial court could not classify Ball as a PRR unless that offense fell under the catchall provision, section 775.082(9)(a)l.o. — “[a]ny felony that involves the use or threat of physical force or violence against an individual.” Whether it does is a pure question of law that we review de novo. Sutton v. State, 975 So,2d 1073, 1076 (Fla. 2008), Ball argues physical force or violence is not a necessary element of vehicular homicide. We disagree.

“If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.” State v. Hearns, 961 So.2d 211, 215 (Fla. 2007). A crime “involves the use or threat of physical force or violence against any individual” if that use or threat is a “necessary element of the crime.” Perkins v. State, 576 So.2d 1310, 1313 (Fla. 1991) (emphasis omitted). The U.S. Supreme Court has defined “physical force” to mean “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Black’s Law Dictionary similarly defines “actual force” and “physical force” as “[floree consisting in a physical act.” Force, Black’s Law Dictionary (10th ed. 2014).

To determine whether an unenu-merated offense falls within the catchall provision, courts consider only the statutory elements of the offense, “not whether in the particular case the evidence showed that force or violence had been used.” Ellis v. State, 135 So.3d 478, 480 (Fla. 2d DCA 2014). Vehicular homicide is “the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2013). The elements are: (1) the death of the victim, (2) the death was caused by the operation of a motor vehicle by the defendant, and (3) the defendant operated the motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another person. In re Standard Jury Instructions in Criminal Cases-No. 2006-1, 946 So.2d 1061, 1067 (Fla. 2006).

“Vehicular homicide cannot be proven without also proving the elements of reckless driving,” Berube v. State, 6 So.3d 624, 625 (Fla. 5th DCA 2008), which involves driving with a “willful or wanton disregard for the safety of persons or property.” § 316.192(l)(a), Fla. Stat. (2013). “Wanton” means “with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” Fla. Std. Jury Instr. (Crim.) 28.5; D.E. v. State, 904 So.2d 558, 561 (Fla. 5th DCA 2005); W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989). A person convicted of vehicular homicide need not have foreseen the specific consequences of his or her actions, but must have “reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another.” D.E., 904 So.2d at 562.

Applying this analysis, we conclude vehicular homicide is a qualifying PRR offense because it requires the death of an individual without any nonforce alternatives. Physical force or violence is “necessary as a condition or result” of vehicular homicide, see Perkins, 576 So.2d at 1313, because it requires the death of a person caused by a defendant who “knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another.” State v. Lebron, 954 So.2d 52, 55 (Fla. 5th DCA 2007) (quoting D.E., 904 So.2d at 562).

AFFIRMED.

BERGER and EDWARDS, JJ., concur.

      . In interpreting the catchall provision in the PRR statute, we are guided by case law analyzing the catchall provision included in the definition of “forcible felony” in section 776,08, Florida Statutes (2013), because the critical language of the two provisions is the same. See State v. Hearns, 961 So.2d 211, 217 (Fla. 2007) ("[Wjhere the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply.”).

      , For this reason, we decline to address the scenarios that Ball posited in support of his position that a death may occur by vehicular homicide that does not involve physical force or violence.

      . For this reason, vehicular homicide is different from the offense of aggravated fleeing and eluding, which is not a forcible felony, because while the offense of aggravated fleeing and eluding poses a great risk of physical harm to others, it can be committed without the use of physical force or violence against an individual by merely driving at a high speed or by driving in a manner showing wanton disregard for property. See § 316.1935(3)(a), Fla. Stat. (2013); Bynes v. State, 127 So.3d 556, 558 (Fla. 4th DCA 2012). Unlike aggravated fleeing and eluding, vehicular homicide requires reckless driving resulting in death.


text:
    STATE of Florida, Appellant, v. Michael Nguyen LY, Appellee.
    Case No. 5D15-4261
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock Mcguigan, Assistant Attorney General, Daytona Beach, for Appellant.
    Corey Cohen, The Law Office of Corey Cohen, Orlando, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order withholding adjudication for Michael Nguyen Ly’s third-degree felony conviction. The withhold of adjudication was entered after Ly entered a guilty plea to possession of more than twenty grams of cannabis. The State correctly argues that the trial court erroneously withheld adjudication for the third-degree felony because Ly had two or more prior withholdings of adjudication for felonies that did not arise from the same transaction as the current felony offense. See § 775.08435(1)(c)2, Fla. Stat. (2015); State v. Jean, 114 So.3d 451, 452 (Fla. 4th DCA 2013); State v. Cook, 14 So.3d 1155, 1156 (Fla. 4th DCA 2009).

Accordingly, we reverse that portion of the judgment and sentence withholding adjudication for the third-degree felony and remand for resentencing.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.


author: OSTERHAUS, J.

text:
    James and Melanie NIPPER, Appellants, v. WALTON COUNTY, FLORIDA, a Political Subdivision of the State of Florida, Appellee.
    CASE NO. 1D16-512
    District Court of Appeal of Florida, First District.
    Opinion filed January 17, 2017.

      Matthew L. Gaetz, II of Keefe, Anchors & Gordon, Fort Walton Beach, for Appellant.
    Mark D. Davis and Sidney N. Noyes of the Office of the County Attorney, DeFun-iak Springs, for Appellee.
   OSTERHAUS, J.

James and Melanie Nipper appeal an order permanently enjoining them from operating a skydiving business on their 290-acre farm in Walton County. After the Nippers won a zoning enforcement case initiated by Walton County before the county code enforcement board, the County sought and received a permanent injunction in circuit court to halt the business. The Nippers appealed and we now reverse. An injunction is available to enforce local zoning regulations where there is a “clear legal right” to the relief. In this case, the County didn’t demonstrate a clear legal right to enjoin the Nippers’ skydiving business.

I.

The Nippers own and operate a large farm in Walton County and began supplementing their income in 2008 by operating a skydiving business. The Nippers twice sought permission from the Walton County Planning Department to operate the skydiving business on their property. But they were denied and told by the Director of Planning and Development that it violated the County’s zoning code. The County cited the Nippers when they continued operating their business. And in 2015, the County initiated a code enforcement action before the Walton County Code Enforcement Board (CEB). After holding a hearing, the CEB rejected the County’s position and concluded that the Nippers’ business did not violate the County’s zoning code. Walton County didn’t appeal.

Meanwhile, prior to the CEB’s decision, the Nippers sought a declaration in circuit court that they could run their business pursuant to a state law exempting agri-tourism from local land use regulations. The Nippers’ state law claim failed, but Walton County filed a cross-claim in that case for a permanent injunction to stop the skydiving business. After the CEB had ruled for the Nippers in the separate county enforcement action, the circuit court proceeded to grant the injunction sought by Walton County based on the Planning Director’s view that the Nippers’ business violated the zoning code: “It is clear that Walton County determined that the use of the Plaintiffs’ property as a commercial skydiving business violated those uses allowed in a Large Scale Agricultural District which the Plaintiffs’ property is located.” The circuit court’s decision did not give weight to the CEB’s prior decision in the enforcement action. The Nippers then appealed the injunction to this court.

II.

We review a trial court’s decision to grant an injunction based on a mixed standard. If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo. Smith v. Coal. to Reduce Class Size, 827 So.2d 959, 961 (Fla. 2002). The parties agree on all the relevant facts here: the Nippers operate a skydiving business at their farm, which the County considers to violate the zoning code. The central question we address on appeal is whether the County satisfied the legal requirements for receiving an injunction.

“The authority of a county to seek injunctive relief to enforce its zoning code cannot go beyond its basic power to regulate the use of land.” Henry v. Bd. of Cnty. Comm’rs of Putnam Cnty., 509 So.2d 1221, 1223 (Fla. 5th DCA 1987). To obtain an injunction against someone who is violating the zoning code, a county must show (1) a clear legal right to the relief, (2) inadequacy of a legal remedy, and (3) irreparable injury if the relief isn’t granted. See E. Fed. Corp. v. State Office Supply Co., Inc., 646 So.2d 737, 741 (Fla. 1st DCA 1994). The resolution of this appeal squarely depends on the first prong of the test because “where the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed.” Ware v. Polk County, 918 So.2d 977, 979 (Fla. 2d DCA 2005) (citing Metro. Dade County v. O’Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995)). To win the injunction here, Walton County had to show a “clear legal right” to enjoin the Nippers from running the skydiving business at their farm.

A county demonstrates a clear legal right to injunctive relief by showing that a party has violated a law, code, or ordinance. Ware, 918 So.2d at 980. But here it isn’t clear that the Nippers’ skydiving operation violated Walton County’s zoning code. In fact, the CEB vindicated the Nippers’ business in the code enforcement action previously brought by Walton County. Walton County’s Land Development Code sets forth the CEB’s “jurisdiction to hear and decide alleged violations of all codes and ordinances in force in the County including ... [the] Land development code.” Walton Cnty. Land Dev. Code § 9.05.04(A) (2010) (emphasis added). At the 2015 CEB hearing, the parties fully debated the Nippers’ case and their interpretations of the zoning code related to the commercial skydiving operation at the Nippers’ property. The County failed to prove the alleged zoning violation before the CEB, which decided that the Nippers’ operation didn’t violate the code:

The Board finds that the activities conducted on the subject property by the Respondents [do] not violate the LDC as alleged by Walton County .... The Board imposes no penalties and requires no corrective action by the respondent.

The County did not appeal the CEB’s decision.. And, now, the Nippers’ victory before the CEB undermines the County’s claim of a “clear legal right” to enjoin the Nippers’ business.

After the CEB had vindicated the Nippers’ ability to run their business, the circuit court’s order enjoined it. The circuit court’s subsequent order disregarded the CEB outcome and deferred instead to the Planning Director’s views, as though his opinion alone established the County’s “clear legal right” to prohibit the Nippers’ business. This wasn’t correct. The Planning Director’s views do not override a final enforcement decision by the CEB, which has “jurisdiction to ... decide alleged violations.” The Land Development Code gave the CEB authority to decide the issue once the Planning Director initiated the case there. And, at that point, the circuit court’s order could not simply rely on the Planning Director’s views to make the County’s case for the injunction. Cf. Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001) (preventing a party who lost before the CEB from bringing a separate circuit court action).

What is more, the language of Walton County’s zoning code itself is ambiguous and doesn’t establish the County’s case for the injunction. If the zoning code clearly prohibited the Nippers’ skydiving operation, we could easily affirm. See Ware, 918 So.2d at 979-80 (finding a clear legal right to relief where a property owner ignored a county ordinance that obviously applied against him). But, here, the text of the zoning code doesn’t clearly prohibit skydiving. Walton County Comprehensive Plan Policy L-1.4.1(B)5 allows the following commercial activities on designated Large Scale Agricultural areas of Walton County like the Nippers’ farm:

(B) Uses allowed: Land uses supportive of, and functionally related to, agricultural ... activities; ...
* * *
5. Supporting agriculture, aquacultural, and silviculture commercial uses shall be limited to the following: Farm equipment sales and repair, kennels and veterinary services, sale of agricultural chemicals and supplies, rural neighborhood general or grocery store, feed sales, blacksmith and wood working shops, processing, storage, or sale of agricultural products; outdoor recreational activities such as hunting or fishing camps, bait and tackle shops, shooting ranges, and golf courses; travel trailer parks or campgrounds connected to outdoor recreational uses, riding or boarding stables; cemeteries, communications facilities, small engine repair, and welding shops.

(Emphasis added). This provision doesn’t specifically include (or exclude) skydiving on its list of permissible land uses. Rather, the “outdoor recreational activities such as” clause indicates that skydiving may be permissible. No one denies that skydiving is an outdoor recreational activity. And the code gives the Nippers the right to use their land for commercial “outdoor recreational activities such as ... golf courses.” Golf courses allow for outdoor fun, but aren’t used for agricultural, aquacultural, or silvicultural purposes — golfers cannot hit six-irons very well from fairways of corn stalks, hayfields, or peanut and pine tree rows; nor are golf-ball-dodging fish and plants mass-harvested from the water hazards of golf courses. So the fact that skydiving isn’t inherently agricultural, aquacultural, or silvicultural isn’t a disqua-lifier. In fact, nothing textually, or argued by the County, seems to set skydiving apart from the list of permissible outdoor activities. One board member’s question to the Planning Director at the CEB hearing sums up the interpretive challenge here pretty well: “What I don’t understand Mr. Dyess, is what you base [your] opinion on? ... What exactly makes [skydiving] different from an activity like golf balls flying through the air?” In response, the Planning Director provided no textual basis for prohibiting skydiving. He said simply: “In my opinion, I do not feel that that [the] skydiving operation ... fit within those uses that are prescribed.” We likewise see nothing compelling in the text of the code that advances the County’s claim of a “clear legal right” to enjoin the Nippers’ skydiving business.

III.

We thus reverse the judgment entered below because the County did not show a clear legal right to the injunctive relief granted by the circuit court.

REVERSED and REMANDED.

B.L. THOMAS and RAY, JJ., CONCUR.

      . Before retiring from the military to their farm near Paxton, in north Walton County, Mr. Nipper had a distinguished career as a U.S. Army Paratrooper and member of the elite Golden Binights parachute team from 1981-1997. Ms. Nipper was an Army pilot.

      . We reject Appellants’ argument that the circuit court lacked jurisdiction to enter the judgment below. See § 162,21(8), Fla. Stat,; Walton Cnty. Ord. 9.05.04(B).

      . The County claims here that the CEB only addressed whether the Nippers could run a commercial airport at their farm, not whether they could operate a skydiving business. But the CEB hearing transcript and final order doesn't support this claim. In fact, the County’s Planning Director testified explicitly at the CEB hearing that “the issue at hand tonight is a skydiving operation .... [W]hen I say airport and skydiving, 1 think they're almost the same as far as the land development code,”

      .In the wake of a code enforcement process finding no violation and assessing no penalty, we are mindful that Florida’s landowners possess explicit due process rights, guaranteed by Article I, section 9, of the Florida Constitution, with respect to their property. See, e.g., Dep't of Cmty. Affairs v. Moorman, 664 So.2d 930, 933 (Fla. 1995) (stating that "article I, section 9 guarantee^] the right to enjoy property. Within limits, that right can include decisions regarding the improvement of property-”).


text:
    Demetrius DALLAS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0133
    District Court of Appeal of Florida, First District.
    Opinion filed January 17, 2017
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Demetrius Dallas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, the state concedes that the trial court should not have relied upon both a prior felony conviction and a violation of probation of that same conviction as the two qualifying convictions necessary to support habitual felony offender (“HFO”) enhancement of the appellant’s instant sentence. It further agrees that the appellant must be resentenced.

We therefore reverse and remand for the appellant to be resentenced. See State v. Collins, 985 So.2d 985 (Fla. 2008) (explaining that allowing the state a second opportunity to prove qualification for HFO enhancement does not violate double jeopardy, and that as long as the sentence imposed at resentencing is not more severe there is no presumption of vindictiveness). As the resentencing will not be a ministerial act and involves court discretion, the appellant must be present and represented by counsel. See Jordan v. State, 143 So.3d 335, 339 (Fla. 2014) (explaining that where the trial court has discretion regarding sentence imposition a defendant must be present); cf. Pucker v. State, 197 So.3d 1095, 1096 (Fla. 1st DCA 2016) (Anders appeal in which the court stated that upon remand the appellant need not be present because the court’s actions of correcting scrivener’s errors would be purely ministerial). The state may choose to again attempt to prove that the appellant meets the criteria for HFO enhancement. See Collins at 994.

REVERSED AND REMANDED.

ROBERTS, C.J., JAY and WINSOR, JJ., CONCUR.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The record indicates that although counsel improperly conceded that the felony offense and the violation of probation for the same offense could serve as the two necessary qualifying prior felony convictions, the appellant, himself, argued that they could not.


text:
    Johnny Lee REMBERT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3047
    District Court of Appeal of Florida, First District.
    Opinion filed January 19, 2017.
    Johnny Lee Rembert, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Atwell v. State, 197 So.3d 1040 (Fla. 2016).

No motion for rehearing will be entertained by the court.

WOLF, B.L. THOMAS, and KELSEY, JJ., CONCUR.


text:
    Juana DELACRUZ, Appellant, v. WELLS FARGO BANK, N.A., et al., Appellees.
    Case No. 5D15-2481
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017

      Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant.
    Sara F. Holladay-Tobias, Gabriel M. Hartsell and Emily Y. Rottmann, of McGuirewoods, LLP, Jacksonville, for Ap-pellee, Wells Fargo Bank, N.A.
    No Appearance for Other Appellees.
   PER CURIAM.

In this foreclosure case, on the threshold of the scheduled oral argument, Appellee conceded error, based in part on our recently released opinion in Palma v. J.P. Morgan Chase Bank, N.A., No. 5D15-3358, — S.W.3d -, 2016 WL 7176754 (Fla. 5th DCA Dec. 2, 2016). Palma settled the primary issue framed in this appeal— whether Appellant properly pled Appel-lee’s failure to comply with a precondition to acceleration as a defense. Appellant denied with specificity that Appellee had conducted a “face-to-face” interview, as required by the terms of the mortgage, but she did not label this defensive assertion as an “affirmative defense.” The trial court accepted Appellee’s argument that the unlabeled defense was not properly pled and deemed it waived. Although Palma settled the largely semantic issue upon which the trial court based its ruling, it failed to emphasize that pleading labels (or lack thereof) seldom control. Work v. Provine, 632 So.2d 1119 (Fla. 1st DCA 1994). Where, as here, the factual basis for the defense provides sufficient notice to apprise the plaintiff of the precise basis for the defense, the failure to affix the correct label is not an impediment to a determination on the merits. Appellee also rightfully concedes that its failure to move into evidence the modification agreement was error on this record.

Accordingly, we reverse and remand the judgment with instructions that the trial court enter an order of involuntary dismissal.

REVERSED AND REMANDED.

ORFINGER, TORPY, JJ., and THOMPSON, E. R., Senior Judge, concur.


author: PER CURIAM: WEIMER, J.,

text:
    STATE of Louisiana v. Teddy CHESTER
    No. 2015-KP-2304
    Supreme Court of Louisiana.
    12/16/2016
   PER CURIAM:

11 Writ denied. In 1996, Chester and co-defendant Elbert Ratcliff were charged by grand jury indictment, each with first degree murder, arising from the shooting death of taxi driver John Adams. A Jefferson Parish jury found Chester guilty as charged and unanimously agreed to impose a sentence of death based on the aggravating circumstance that he committed the murder during an armed robbery or attempted armed robbery. This Court affirmed the conviction and sentence, State v. Chester, 97-2790 (La. 12/1/98), 724 So.2d 1276, after which the United States Supreme Court denied certiorari. Chester v. Louisiana, 528 U.S. 826, 120 S.Ct. 75, 145 L.Ed.2d 64 (1999), reh’g denied, 528 U.S. 999, 120 S.Ct. 457, 145 L.Ed.2d 377 (1999).

The evidence at Chester’s trial showed that during the early morning hours of December 27, 1995, Adams was found in his taxi with one gunshot wound to |athe back of the head. A pool of blood had gathered on the floorboard and there was blood spatter on surfaces within the driver’s side of the vehicle. Adams’s business cards were scattered around his body, just under $300 cash was left in his pockets, and a white plastic bag containing a Guess brand shirt was hanging from the handle of the rear driver’s side door. Police discovered co-defendant Ratcliffs fingerprints on some of the business cards and arrested him on March 6, 1996. Ratcliffs statements led investigators to identify Teddy Chester as a person of interest.

On March 18, 1996, police received a disturbance call from a female later identified as Kaprice Pollard who reported that her sister’s boyfriend was refusing to leave her apartment. She also told police that the man had been involved in a recent homicide. When the deputy arrived, he met outside the apartment with Kaprice and her sister, Quinice Pollard. Kaprice stated that the man inside the bedroom of the apartment was Teddy Chester, Quin-ice’s boyfriend, and that he was involved in the recent homicide of a taxi driver. As the officer entered the apartment he saw someone jump out through the bedroom window. Chester was apprehended and arrested shortly thereafter.

Quinice told police that Chester came to see her on the night of Adams’s murder and told her that he and Ratcliff had been involved in a robbery and that Ratcliff shot the victim. Later, while doing Chester’s laundry, she noticed blood on his pants. When she questioned Chester, he replied that he had been in a fight. Her sister Kaprice told police that Chester came to the apartment on the night of the murder and took Quinice into the bathroom to talk. Kaprice reported that she listened at the door and had overheard Chester telling Quinice that he shot a taxi driver. Based on these conversations, and while Chester was being held by police, police obtained a warrant to search the house where Chester’s sister lived and he Issometimes stayed. Pursuant to the search, police seized a baseball cap with blood stains on it and a pair of jeans. DNA analysis later determined that neither Adams nor Chester could be excluded as the source(s) of the blood on the baseball cap.

After execution of the search warrant, Chester was advised of his rights and interviewed, giving two statements. In the first, he related that on December 27, 1995, he met with Ratcliff who was seeking to sell or trade a Guess shirt in a plastic bag for money or crack cocaine. Chester walked down the street until he saw Adams’s taxi, entered the taxi on the rear passenger side, and asked Adams if he wanted to buy some crack. Adams declined and Chester exited the taxi. Chester stated that he then saw Ratcliff flag down the taxi, enter the rear driver’s side, and press a revolver to Adams’s head. After a brief struggle, Ratcliff disconnected the taxi radio and shot Adams in the head. While Chester hid behind a tree, Ratcliff exited and opened the driver’s door. Ratcliff threatened to kill Chester if he told anyone.

After this first statement, investigators told Chester about the baseball cap with blood on it. Chester then gave a second statement in which he admitted he was inside the taxi when Adams was shot. He again stated that he had entered on the rear passenger side, keeping one leg outside on the ground. He stated that Ratcliff then entered on the rear driver’s side. Chester asked Adams if he wanted to buy drugs and the victim declined. Chester admitted he would have sold Adams a fake rock of cocaine if he had been interested. Ratcliff then asked Adams if he wanted to buy anything and Adams again declined. Ratcliff told Adams, “well, Mother F**ker give it up” and placed a revolver to the back of Adams’s head, whereupon Adams said, “oh, lord not this, not this. Oh lord not this.” Ratcliff then disconnected the taxi radio and shot Adams. Chester noticed blood spattered on him. The taxi, which had been moving forward, hit a pole and stopped. Chester Lexited from the driver’s side and ran behind a tree. After Ratcliff threatened Chester not to tell anyone, the two parted ways.

At trial, the state presented the DNA analysis of the blood on Chester’s cap. Prosecution witnesses testified that blood spatter was found in and around the rear driver’s side, but none was found on the rear passenger side, which indicated the shooter was seated in the rear driver’s side, not the passenger side, and further that Chester had been dishonest when he stated he was in the rear passenger side, because no blood was found there and Chester’s clothing and cap contained blood.

The jury also heard testimony from the Pollard sisters. Quinice testified that she initially told police that Chester told her Ratcliff shot the taxi driver; however, she changed her testimony two weeks before trial to state that Chester had confessed to her that he was the shooter. She stated that she changed her account because her conscience was bothering her. When questioned by defense counsel why she initially told police that Ratcliff killed Adams, she stated that she was afraid of Chester and he told her to say these things. The prosecution also introduced portions of letters that Quinice received from Chester while he was incarcerated and awaiting trial. In the letters, Chester urged Quinice to change her testimony and to convince Ka-price to do so also, or not attend trial. One of the letters contained a threat .to Quinice that he could still get to her from prison.

Kaprice’s trial testimony was similar to her initial statement, that on the night of the murder she overheard Chester tell Quinice that he shot a taxi driver. She further testified that Quinice later told her that Chester was trying to rob a taxi driver and he shot him because the driver was trying to pull off with his drugs.

Chester filed his first post-conviction application in 2000 and has since filed numerous additional pleadings, including counseled supplements raising substantive claims and. pro-se motions to terminate counsel and/or proceed pro se, Rto waive further review, and/or to expedite these proceedings. Amidst the litany of his prose requests, the District Court reviewed and dismissed all pending substantive claims for post-conviction relief on July 21, 2010, and .subsequently denied a request to reconsider its ruling. The District Court stated specifically that it was dismissing all claims that were litigated on appeal but that it would remain open to further non-repetitive claims. In October 2011, Chester filed additional pro-se pleadings, followed by counseled supplements in 2012 and 2014. The state responded with procedural objections and substantive answers, and the District Court ordered an evidentiary hearing to resolve the limited issue of Chester’s alleged intellectual disability.

After a multi-day intellectual disability hearing in November 2013 (the “Atkins hearing”), the District Court dismissed that claim because it found Chester failed to demonstrate that he suffers from impaired adaptive skills or that his intelligence, as indicated by at least one IQ score of 95, is substantially below average. Subsequently, the District Court conducted a contradictory hearing to assess the need for further evidentiary hearings, after which it issued a -20-page ruling summarily dismissing all remaining claims.

We have reviewed Chester’s claims and the District Court’s reasons for rejecting them and have found no reason to disturb the District Court’s ruling.

Ineffective assistance of counsel. Chester maintains that trial counsel rendered ineffective assistance and urges the District Court erroneously rejected his numerous complaints about her performance.

RTo demonstrate an entitlement to post-conviction relief based on counsel’s ineffectiveness, a petitioner must show both that (1) counsel’s performance fell below objective standards of reasonableness according to prevailing professional norms; and (2) the inadequate performance prejudiced him to the extent trial was rendered unfair and the verdict suspect. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Chester urges that counsel erred in litigating the motion to suppress his custodial statements, in which he admitted his presence during the shooting, because she failed to show the statements were not made pursuant to a valid waiver. He asserts he was a scared 18-year-old with intellectual disabilities, circumstances which should have prompted counsel to argue that he could not have understood his rights well enough to knowingly and intelligently waive them.

The state bears the burden of proving that a defendant knowingly and intelligently waived his privilege against self-incrimination, but the defendant bears the burden of proving any mental abnormality which he alleges rendered his statement per se involuntary. State v. Green, 94-0887, p. 6 (La. 5/22/95), 655 So.2d 272, 279; State v. Brooks, 92-3331, p, 12 (La. 1/17/95), 648 So.2d 366, 373. At the suppression hearing, Detective Sacks testified that he advised Chester of his Miranda rights and read a waiver form, which Chester signed after verifying that he understood. Chester, 97-2790, p. 6, 724 So.2d at 1281. Thus, because Chester expressly waived his rights, the question is whether his waiver was knowing and intelligent under the totality of the circumstances, including his “background, experience, and conduct;” his alleged diminished capacity is but one factor to consider. Green, 94-0887, pp. 10-11, 655 So.2d at 280 (internal citation omitted, quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983) and Solem v. Stumes, 465 U.S. 638, 647, 104 S.Ct. 1338, 1344, 79 L.Ed.2d 579 (1984)).

Detective Sacks testified that Chester appeared completely coherent and, before giving his second statement in which he placed himself inside the taxi, was again advised of his rights and waived them once more. Chester’s conduct thus indicated he made a knowing and intelligent waiver. His assertion that it was nevertheless invalid because of his youth and low intellect, as evinced by his reading and language comprehension deficits, without more, is insufficient to vitiate his waiver. See State v. Brown, 414 So.2d 689, 696 (La. 1982) (“Moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession.”) (citations and internal quotes omitted); see also State v. Holmes, 06-2988, pp. 20-21, 43 (La. 12/2/08), 5 So.3d 42, 59-60, 72-73 (defendant with IQ of 77 and fetal alcohol syndrome made knowing and intelligent waiver); Green, 94-0887, pp. 7-19, 655 So.2d at 278-84 (mildly retarded defendant’s waiver was knowing and intelligent, despite psychologist’s testimony that he was unable to comprehend his rights, because psychologist also testified he was educable and could be made to understand, and officers testified he understood, at least partially because of his criminal history); compare State v. Istre, 407 So.2d 1183, 1186-87 (La. 1981) (19-year-old with IQ of 68 who did not know his own age intelligently waived his rights, which were explained in simplistic terms); and State v. Anderson, 379 So.2d 735, 736 (La. 1980) (fact that defendant was an illiterate, unemployed 17-year-old with the mental age of 8 and an IQ between 50 and 69, coupled with ambivalent police testimony about whether |8he understood the rights, supported conclusion he was incapable of executing a valid waiver). Under the circumstances, we find that the state would have carried its burden of proving that Chester’s waiver was knowing and intelligent, had trial counsel attacked the statements’ admissibility on these grounds. Thus, Chester cannot show that his motion to suppress would have been granted but for trial counsel’s omission. See generally Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (petitioner must show the overlooked motion would have been meritorious and a reasonable probability of a different verdict absent the alleged error) (citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)).

Next, Chester claims counsel erred by failing to move for exclusion of the letters he sent his girlfriend, Quinice, on the ground that he was prejudiced by their redacted format. Specifically, he urges the redacted versions gave the impression that he sought to intimidate Quinice before trial, whereas in their entirety the letters would have shown he was trying to ensure that she continued to tell the truth, i.e. that Ratcliff was the shooter.

As the District Court found, this Court addressed a similar claim on appeal. See Chester, 97-2790, p. 17, 724 So.2d at 1287. In State v. Lee, 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638, another capital post-conviction case, we explained that an attempt to re-litigate a claim previously disposed of, by couching it as an ineffective assistance of counsel claim, will generally fail because the underlying issue has already been fully litigated. La.C.Cr.P. Art. 930.4(A); see also State v. Blank, 16-0213, pp. 2-3 (La. 5/13/16), 192 So.3d 93, 96-97. However, in this case, the appellate analysis of this issue was truncated because trial counsel failed to proffer the omitted portions of the letters. Chester, 97-2790, pp. 19-20, 724 So.2d at 1287-88. Thus, this discrete ineffective assistance of counsel claim cannot be fairly characterized as having been fully litigated on appeal. Nevertheless, even a claim erroneously dismissed on procedural grounds is generally unworthy of remand if it appears legally or factually weak. See La.S.Ct.R. X, § 1(a)(4) (writ grant based on lower court’s erroneous interpretation or application of law generally not warranted unless the error “will cause material injustice or significantly affect the public interest.”); Blank, 16-0213, p. 2, 192 So.3d at 96 (citing State v. Singer, 09-2167, pp. 1-2 (La. 10/1/10), 45 So.3d 171, 171-72).

As for the letters being presented in redacted form, in State v. Duke, 97-3059 (La. 10/30/98), 724 So.2d 730, this Court explained the rule of completeness, see R.S. 15:450, which guards against the manipulation of an accused’s statement:

... R.S. 15:450 provides that “[ejvery confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.” The statute embodies “a rule of fairness observed in American jurisdictions.” The principle derives from the common-law rule of completeness. Although opinions differed over the question of “whether the proponent in the first instance must put in the whole” of a statement, there was “and could be no difference of opinion as to the opponent’s right, if a part only has been put in, himself to put in the remainder.” The rule applies to the cross-examination of a witness on the basis of his prior statement as well as to the introduction of a statement in the opposing party’s case in chief....
[T]he rule of completeness serves two purposes: (1) it “secure[s] for the tribunal a complete understanding of the total tenor and effect of the utterance,” and (2) it guards against “the danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material.”

Id., 97-3059, 724 So.2d at 731 (internal citations and quotations omitted); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171, 109 S.Ct. 439, 451, 102 L.Ed.2d 445 (1988) (“[Wjhen one party has made use of a portion of a document, such that misunderstanding or distortion can be averted, only through presentation | inof another portion, the material required for completeness is ipso facto relevant and therefore admissible....”).

Chester asserts the portions admitted at trial indicated he wrote to Quinice to coerce her to perjure herself and defend him, whereas at least one redacted portion would have shown that he was, in fact, asking her to remain strong despite prose-cutorial pressure to change her statement and inculpate him. In particular, he excerpts one passage jurors did not see:

Bay I want you to understand these people can’t do you anything, if they say they can, [they’re] just trying to [scare] you so they can get me for something I didn’t do. Also I love you and my love for you isn’t getting any smaller but grew every day, & bay I hope, pray & wish that [yours] for me is doing the same.

(emphasis added).

Even granting that Louisiana law disfavors the piecemeal presentation of an accused’s statement, we find trial counsel’s decision not to draw further attention to the letters and seek their admission in full form was strategic. Although Chester now offers one redacted portion which would have aligned with his defense, the damaging nature of much of the content that was admitted suggests that other redacted portions — which cannot clearly be ascertained from the grainy and largely unintelligible copies provided to this Court — may have been harmful to the defense. Chester has therefore not shown that counsel unprofessionally erred by failing to introduce the letters in complete form. Cf. La.C.Cr.P. Art. 930.2.

Next, Chester claims counsel erred at voir dire by failing to expose potential jurors’ racial bias. He claims there can be no justification for this omission, considering the cross-racial nature of the crime. However, even assuming arguendo that counsel unreasonably failed to pursue this line of questioning, Chester fails to show entitlement to relief because he does not point to evidence that any juror harbored bias or was incapable of serving impai’tially.

^J^jNext, he asserts counsel’s investigation was deficient because she failed to present witnesses whose accounts would have contradicted the state’s case and failed to present evidence that would have undermined the state’s blood spatter theory and demonstrated Ratcliff was the shooter.

Even if this Court agreed with Chester on some independent review of the omitted evidence, counsel’s strategy is unsound only if she failed to adequately investigate the evidence bearing on culpability — taking into account both admissibility and relevance. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065-66. Thus, counsel was obligated to conduct a thorough investigation or to make a reasonable decision that a particular avenue of investigation was unnecessary under the circumstances. Although Chester has shown that counsel failed to interview the omitted witnesses, and it is not apparent that counsel’s actions were the product of a reasonable and sound strategy, because we are not convinced that any of the omitted evidence would have affected the verdict, we cannot find this claim warrants relief. Strickland, 466 U.S. at 691,104 S.Ct. at 2066.

Chester next claims he was prejudiced by counsel’s stipulation that the DNA sample from his baseball cap contained a combination of his and the victim’s DNA, and by counsel’s failure to expose the inaccuracy of the state’s DNA results with an opposing expert opinion. According to his post-conviction expert, who has reviewed the state’s DNA data and results (the state’s testing consumed the only sample), contrary to the evidence presented, Chester can be excluded as a contributor to the sample tested, and the statistical likelihood that the victim was a contributor is so low as to render the results presented at trial “a nullity.”

The District Court correctly dismissed this claim, however, given that Chester does not show he was prejudiced by the alleged missteps. That he can be excluded from a sample collected from his own cap does not exculpate him. |iaNotably, he does not dispute his ownership of the cap. Moreover, his assertion that there is low a statistical probability that the victim was the other contributor is too imprecise to warrant relief in a case in which Chester admitted he was inside the taxi during the shooting.

Finally, Chester claims counsel erred at the penalty phase by failing to present a comprehensive explanation of his mental deficits, including his “significant cognitive impairments” and history of substance abuse. Chester complains that the psychiatrist called, Dr. Sarah Deland, was hampered because counsel failed to give her all the necessary information. Chester acknowledges that Dr. Deland provided jurors an extensive overview of his frailties, including: learning disabilities, unstable home environment, lack of supervision as a child, and use of drugs to self-medicate; but nevertheless faults counsel for permitting the state’s undermining of Dr. Deland on cross-examination and for failing to present more information about his substance abuse problems.

Although a defendant at the capital penalty phase is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life, see State v. Fuller, 454 So.2d 119, 124 (La. 1984), by advancing a vague 113argument about counsel’s failure to ensure Dr. Deland made a more compelling case, Chester altogether fails to show that counsel’s penalty phase performance fell below objective professional norms or that, had counsel ensured jurors knew more about Chester’s struggles with substance abuse, they would have reached a different verdict.

Prosecutorial misconduct. Next, Chester claims the prosecution violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), according to which it must disclose evidence favorable to the accused (including impeachment material), by failing to disclose the Pollard sisters’ initial statements which demonstrate that Quinice initially told police that Ratcliff was the shooter and that Kaprice gave inconsistent accounts as to whether it was Chester or Quinice who told her Chester was the shooter. The District Court found this claim should have been raised on appeal because Chester was aware of the sisters’ initial statements and, further, that any undisclosed portions of their statements were immaterial.

Chester acknowledges that in fact the state disclosed the portion of Quinice’s statement in which she initially told police he informed her that Ratcliff was the shooter (which view she had changed by trial). Thus, Chester fails to show that any suppression occurred as to the portion of Quinice’s statement that would have been suitable for impeachment. Moreover, even assuming the state withheld the remainder of both sisters’ initial statements, Chester fails to show it did so in violation of Brady. The only other inconsistencies he points to do not rise to a level capable of undermining the verdict because they pertain to the sisters’ particular recollections about when and how they learned Chester was the shooter — ie., on |uthe night of the crime or the next day — not to the material issue of whether they learned Chester was the shooter.

Next, Chester claims the state knowingly presented perjury from Quinice. He offers a statement from her friend, Sheryl Nelson, asserting Quinice has admitted she lied at trial because “... prosecutors told her they would put her in jail and take away her child.” However, because the courts must view recantations “with utmost suspicion,” State v. Clayton, 427 So.2d 827, 833 (La. 1982), and Nelson’s statement does not rise even to the level of an actual recantation from Quinice but is rather merely a third party assertion that she has since claimed she gave false testimony, Chester has not shown the District Court erred in dismissing this claim.

Chester also claims the prosecutor made prejudicial statements in the penalty phase closing argument, including asking jurors to apply “Biblical law” and calling for “an eye for an eye” retribution. As the District Court found, this Court rejected this claim on appeal, Chester, 97-2790, unpub’d appx., pp. xxii-xxiii, because it was not “firmly convinced” any of the allegedly inflammatory comments contributed to the verdict. Chester fails to show that the interest of justice requires the Court to revisit the issue. La.C.Cr.P. Art. 930.4(A).

Chester next complains of the state’s spoliation or destruction of potentially exculpatory evidence. Specifically, he asserts he was prejudiced by the loss of blood spatter and other evidence in the taxi. As the District Court found, however, this claim is speculative and therefore falls short of the rule articulated in Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), because he does not show that the evidence was lost as a result of demonstrable bad faith by the state. Moreover, the District Court could have dismissed this claim |1fion the ground that Chester possessed knowledge of it but failed to raise it on appeal. La. C.Cr.P. Art. 930.4(B).

Finally, Chester complains that the DNA results to which the parties stipulated were false because a post-conviction analyst has asserted that he can be excluded as a source of a DNA sample taken from inside his cap. However, as discussed above in connection with his similar ineffective assistance of counsel claim (failure to expose errors in DNA evidence), Chester shows no prejudice as a result, given that — regardless of whether his DNA was detected on an isolated sample taken from the hat, he does not dispute that he owned the hat. To be sure, the probative value of the cap was not that Chester’s DNA was present, but rather that the victim could not be excluded as a source of another DNA profile on it. Although Chester now takes issue with the allegedly low statistical probability that the other profile was in fact the victim’s, he does not sufficiently show that the results presented at trial incorrectly included the victim as a possible contributor. Accordingly, he has shown no prejudice and no ground for relief. The District Court correctly dismissed these claims.

Actual innocence. Next, Chester asserts the District Court erred in dismissing his actual innocence claim, premised on: his view that the DNA evidence was inaccurate; his post-conviction expert’s opinion discrediting Detective Thornton’s blood spatter opinion; and statements of omitted witnesses who would have contradicted the state’s theory.

His attempt to overturn his conviction and sentence by presenting evidence which in his view casts doubt on his guilt falls short of the high standard contemplated in State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, and |1fifurther articulated in State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403, pursuant to which a petitioner must present “new material, noncumulative and conclusive evidence” which “un-dermin[e]s the prosecution’s entire case.” Comway, 01-2808, p. 1, 816 So.2d at 290-91. In evaluating the actual innocence claim in Pierre, this Court clarified that such a free-standing claim must rest on new evidence so compelling that no reasonable juror could have voted to convict with knowledge thereof. Pierre, 13-0873 p. 4, 125 So,3d at 409.

Chester’s new evidence — that his DNA was not detected on the sample taken from his own hat; that Detective Thornton’s opinion about the blood spatter has been undermined by a competing opinion; and that omitted witnesses would have testified to various details indicating Ratcliff was the shooter — is insufficient to satisfy this exacting standard because, even collectively, it does not show that no reasonable juror could have voted to convict. The District Court reached the correct result when it dismissed this claim.

Juror misconduct. Next, Chester asserts that now-deceased juror Iris Grav-lee, who was allegedly visibly conflicted during the penalty phase deliberations, reached her sentencing decision after consulting a Bible. Chester urges the District Court erred when it found this claim not subject to review under the jury shield law (and harmless, in any event). He also maintains he was prejudiced by the jury conducting experiments during guilt phase deliberations using a mannequin that was introduced at trial to explore bullet trajectories.

Under La.C.E. Art. 606(B), the juror shield law, only evidence related to “outside influences improperly brought to bear upon any juror” or “extraneous prejudicial information improperly brought to the jury’s attention” is fit for ^consideration. In conformity therewith, this Court has found juror testimony and affidavits admissible to prove “well-pleaded allegations of juror misconduct” and the resulting prejudice. State v. Ingram, 10-2274, p. 8 (La. 3/25/11), 57 So.3d 299, 303; see also State v. Hernandez, 14-863, p. 21 (La.App. 5 Cir. 9/23/15), 177 So.3d 342, 356 (“Outside influence” about which juror is permitted to testify to determine whether misconduct deprived defendant of constitutional rights, refers to factor originating outside courtroom proceedings which influences deliberations, such as statement made by a bailiff to the jury or introduction of prejudicial newspaper account into jury room).

Applying this rule, the District Court erred in finding the evidence pertaining to a juror’s consultation of the Bible inadmissible but reached the correct result in declining to consider evidence to support Chester’s claim that jurors engaged in “unauthorized experiments” using the mannequin shown during closing argument.

In urging that jurors’ manipulation of the mannequin constituted a prejudicial extraneous influence, subject to exploration, Chester cites United States v. Beach, 296 F.2d 153, 158-59 (4th Cir. 1961), for the proposition that “a case must be decided upon evidence submitted in court during the trial and not upon private experiments of the jurors.” However, a review of Beach reveals that the rule discussed therein is more nuanced than Chester portrays. The court in that case explained that although jurors “may not conduct experiments which have the effect of putting them in possession of evidence not offered at the trial,” the “mere making of a more critical examination of an exhibit than was made during the trial is not objectionable” so long as the effect is not to place the jury in possession of evidence not introduced at trial. Beach, 296 F.2d at 158-59. Because Chester does not allege that jurors conducted any experiment which effectively gave rise to 11sevidence other than that presented at trial, he fails to show any basis for examining the jury’s deliberations as to this issue. La.C.E. Art. 606(B).

As to the substance of the Bible consultation claim, this Court, along with a majority of federal courts, has taken the position that a juror crosses a line by actively consulting a Bible during deliberations, particularly in cases in which they use Biblical injunctions governing conduct similar to the conduct at issue. See State v. Langley, 95-1489, p. 40 (La. 4/14/98), 711 So.2d 651, 675 (denying relief because Langley “[did] not suggest that the Bible was used to find justification for sentencing the defendant to death.”); see also Oliver v. Quarterman, 541 F.3d 329, 331, 336-40 (5th Cir. 2008) (collecting cases); Fields v. Brown, 503 F.3d 755, 795 (9th Cir. 2007) (collecting cases) (“As to the procedural propriety of consulting the Bible during deliberations, federal and state appellate courts generally agree when engaging in de novo review, that a jury engages in the unconstitutional consultation of extrinsic material by introducing the Bible into deliberations during a capital trial.”). However, a petitioner advancing such a claim does not enjoy a presumption of prejudice but must show that the Bible (or other outside influence) had a “substantial and injurious” bearing upon a juror’s verdict. La.C.E. Art. 606(B).

11 sHere, Chester fails to make the required showing of a substantial and injurious effect on the verdict because, although he asserts his post-conviction interviews with Foreperson Guillot and Juror Lawson contained detailed descriptions of their observations of Gravlee’s consultation of a Bible after an overnight recess, which allegedly led Gravelee to decide her penalty phase vote, Chester has not provided the necessary proof to substantiate his allegations. Even setting aside whatever practical concerns may arise from the fact that Gravlee has since passed away, no affidavits from Guillot or Lawson were attached as exhibits to the instant application. Because Chester has not substantiated his assertions, he fails to show any grounds for remand.

Intellectual disability. Next, Chester claims the District Court erred when it found he failed to prove he is intellectually disabled and therefore exempt from capital punishment. Chester asserts he has satisfied all three prongs of the intellectual disability standard; the Social Security Administration diagnosed him as mentally retarded at age 14; he reported an IQ score of 68 when he applied for continuing Social Security benefits in 1996; and his post-conviction expert, Dr. Stephen Greenspan, has opined he is intellectually disabled.

Whatever the merits of this claim, because Chester failed to timely seek review of the District Court’s December 5, 2013, ruling dismissing it, it is no longer subject to review. The time for filing an application for review of a judgment is “within thirty days of the mailing of the notice of the original judgment,” and “[n]o extension of time therefor will be granted.” La.S.Ct.R. X, § 5(a). This Court considers the rule jurisdictional in nature and enforces it strictly against counseled applicants. State v. Matthews, 02-1121 (La. 2/13/04), 868 So.2d 21.

|2nIn any event, even assuming ar-guendo that the claim was properly before the Court, Chester has failed to show that the District Court erred. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the United States Supreme Court held that the execution of mentally retarded persons (now referred to as intellectually disabled) constitutes excessive punishment, and therefore violates the Eighth Amendment. As implemented in Louisiana, intellectual disability is a three-part condition shown by establishing: (1) sub-average intelligence and (2) significant impairment in several areas of adaptive skills which (3) manifested during the developmental stage. State v. Williams, 01-1650, pp. 22-24 (La. 11/1/02), 831 So.2d 835, 853-54.

The District Court conducted Chester’s Atkins hearing on November 12-15, 2013, during which it heard testimony from several defense witnesses (including friends, relatives, and Dr. Greenspan) and two state experts. Providing detailed reasons for dismissing the claim, the District Court found:

The family witnesses who testified as to Petitioner’s childhood did not relay sufficient evidence to support a finding of mental retardation. The examples of Petitioner’s childhood behavior (not voluntarily bathing, inability to fry food or cook at a young age, not able to use tools, etc...) did not indicate that Petitioner was mentally retarded nor reveal any atypical behavior of a young boy. Furthermore, the reliability of the testimony is suspect as these witnesses were asked to relay situations that occurred some [20 to 30] years ago at times when some of the witnesses themselves were children.... The credibility of these witnesses is also questionable, as Petitioner’s family members are likely motivated to testify to enable Petitioner to be spared the death penalty.
As to Petitioner’s testifying expert witnesses, thefy] failed to perform any testing or conduct any interviews of Petitioner. The adaptive testing performed was based solely upon family members’ telephone | ⅞1 interview responses. Again, the reliability and credibility of the information provided is questionable.
Moreover, Petitioner’s expert witness agreed that [his] IQ to date is in the average range (estimated IQ 95). As to the non-testifying expert report relied upon by Petitioner’s testifying experts, the court found Dr. Young’s reported conclusions about Petitioner’s abilities not credible and inconsistent with the evidence and the court’s own observations of Petitioner....

Having found some of Chester’s witnesses lacking credibility, the District Court credited the state’s “ample evidence that Petitioner is not mentally retarded,” in particular Dr. Katie Ard’s testimony that, based on her testing, Chester has an IQ of 96, and Dr. Raphael Salcedo’s testimony that Chester has demonstrated “no significant limitations -with respect to intellectual and adaptive functions.”

Recently in Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 2411, 195 L.Ed.2d 781 (2016), the Fifth Circuit reviewed and affirmed a federal District Court’s determination that another Louisiana death row inmate, Kevan Brumfield, was intellectually disabled, explaining at the outset:

[W]hether a defendant is intellectually disabled is inherently an intensively factual inquiry. Because intellectual disability is a factual finding, this court reviews a district court’s determination that an individual is intellectually disabled for clear error. A finding is clearly erroneous only if it is implausible in the light of the record considered as a whole. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. The Supreme Court has explained that: When a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. This court cannot second guess the district court’s decision to believe one witness’ testimony over another’s or to discount a witness’ testimony, and is thus reluctant to set aside findings that are based upon a trial judge’s determination of the credibility of witnesses.

Brumfield, 808 F.3d at 1057 (internal citations and quotations omitted).

|22Here, post-conviction counsel're-urges the supporting evidence and asks this Court to find it more persuasive than the District Court did. Chester emphasizes that the District Court “unreasonably rejected the testimony of all of [his] family members,” and discredited his lower IQ score because it was obtained for the sole purpose of applying for Social Security benefits. After asking this Court to reevaluate credibility issues resolved by the District Court, post-conviction counsel further asserts that, even if this Court finds Chester’s deficits do not show he is intellectually disabled, “they nonetheless constitute such significant impairments that [his] execution would violate the Eighth Amendment’s prohibition against cruel and unusual punishment” because Chester, who was just 18 at the time of the offense had less capacity to control his conduct and is therefore not deserving of the harshest punishment available. Despite these urgings, however, this Court is not convinced it should break with convention and “second guess the district court’s decision to believe [the state’s expert witnesses] over [his].” Brumfield, 808 F.3d at 1057.

| ¾¾Cumulative error. Finally, Chester claims this Court should grant relief in light of the cumulative effect of the errors discussed herein. The District Court rejected this catch-all argument as repetitive under La.C.Cr.P. Art. 930.4(A) because this Court rejected a similar argument on appeal, Chester, 97-2790, unpub’d appx., p. xxxv, but, even assuming the claim was not repetitive, it warrants no further attention. Though this Court has often reviewed cumulative error arguments, it has never endorsed them. Instead, it has universally found harmless errors, however numerous, do not aggregate to reach the level of reversible error. See, e.g., State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 239; State v. Taylor, 93-2201, (La. 2/28/96), 669 So.2d 364 (unpub’d appx.); State v. Tart, 93-0772, p. 55 (La. 2/9/96), 672 So.2d 116, 164; State v. Copeland, 530 So.2d 526, 544-45 (La. 1988) (citing State v. Graham, 422 So.2d 123, 137 (La. 1982); State v. Sheppard, 350 So.2d 615, 651 (La. 1977)). Other courts have reached the same conclusion. See, e.g., Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (court rejects cumulative error claim and finds that “twenty times zero equals zero”); Foster v. State, 639 So.2d 1263, 1303 (Miss. 1994) (finding no “near errors” and so rejecting cumulative error analysis). We find no basis to depart from our established policy.

Chester has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. Art. 930.4. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Chester’s claims have now been fully litigated in accord with La.C.Cr.P. Art. 930.6, and this denial is final. Hereafter, |g4unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, he has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., dissents and assigns reasons.

HUGHES, J., dissents for reason assigned by Weimer, J.

WEIMER, J.,

dissenting.

hi dissent because I believe relator established justification for an evidentiary hearing, and I would remand for such. In my view, two of relator’s claims of ineffective assistance of counsel require a remand for an evidentiary hearing: (1) that trial counsel’s investigation was deficient because of a failure to interview and/or present several witnesses whose testimony would have bolstered a purely argumentative defense; and relatedly, (2) that counsel erred by not presenting any evidence to undermine the state’s amateur blood spatter expert, whose opinion testimony put relator in the “shooter’s seat” in the murder of a taxi driver.

According to the record presently before this court, trial counsel failed to interview a number of witnesses who could support the defendant’s claim that another individual, Elbert Ratcliff, not relator, was actually the shooter. With no witnesses to support that claim, trial counsel presented no evidence in the guilt phase, instead offering a purely argumentative defense and cross-examining some of the state’s witnesses.

|gThe standard for effective assistance of counsel was set forth in the seminal case: Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court held: “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id., 466 U.S. at 691, 104 S.Ct. 2052. Notably, although counsel’s pre-trial decisions can impact later trial strategy, the Court’s analysis distinguished counsel’s duty to investigate from counsel’s strategic approaches to the trial, explaining “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id., 466 U.S. at 690, 104 S.Ct. 2052. The Supreme Court has recently affirmed this principle, explaining in a unanimous opinion that it was not a strategic or excusable choice for counsel to turn a blind eye to the need for procuring expert testimony to rebut the prosecution’s theory that the defendant shot three victims. See Hinton v. Alabama, — U.S. -, 134 S.Ct. 1081, 1088, 188 L.Ed.2d 1 (2014).

Here, relator identifies eight people who could either testify to Ratcliffs role as the lone shooter or could even serve as potential leads to others with that information. Trial counsel, however, interviewed none of them. Most notably, Anthony Curtis, who was present immediately after the shooting, would apparently have testified that he saw Ratcliff exit the taxi holding a gun, while relator exited and ran, and Rat-cliff remained nearby bragging about shooting the taxi driver.

If counsel had obtained witnesses who could provide direct evidence that Ratcliff was the shooter, that could have eliminated the need to procure an expert who might refute the prosecution’s presentation of a police detective as a purported blood spatter expert. The detective opined that the presence of a drop of blood on relator’s hat, along with evidence that “blow back matter” was “confined to the left side of the car,” meant that the defendant was the shooter. The prosecution’s reliance on the 1 «¡detective to establish so many predicates for placing the defendant in the shooter’s seat in the taxi seems to lack scientific validity and seems somewhat amateurish, given the gravity of the question of who was the actual shooter. Thus, without interviewing the potential witnesses who would establish Ratcliff as the shooter, trial counsel instead compounded the significance of her own failure to procure “knowledgeable” expert testimony under her duty as described in Hinton, 134 S.Ct. at 1088.

Trial counsel’s failure to even interview the potential witnesses cannot be justified as a trial strategy. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; strategic choices made after less than complete investigation are reasonably precise to the extent that reasonable professional judgments support the limitations on investigation.”). Recalling that counsel ultimately presented no witnesses at trial to support the defense’s theory that defendant was not the shooter, it is reasonable to infer that had even several of the eight potential witnesses testified in support of that theory, such could have dissuaded the jury from the imposition of the death penalty. See State v. Louviere, 00-2085, p. 19 n.15 (La. 9/4/02), 833 So.2d 885, 899 n.15 (“the issue of moral culpability remains one of the significant issues in capital sentencing.”) (citing, inter alia, Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982): “For purposes of imposing the death penalty, [defendant’s] criminal culpability must be limited to his participation ..., and his punishment must be tailored to his personal responsibility and moral guilt.”).

In conclusion, I find that there are serious questions in this death penalty case as to whether trial counsel’s performance was inadequate and prejudiced relator to the extent that trial was rendered unfair and the verdict suspect. Pursuant to La. C.Cr.P. |4art. 930, “[a]n evidentiary hearing for the taking of testimony or other evidence shall be ordered whenever there are questions of fact which cannot properly be resolved” on the documentary evidence. See also La. C.Cr.P. arts. 928 and 929. Because the right to effective counsel is constitutionally guaranteed, I find the district court abused its discretion in declining to hold an evidentiary hearing. See La. Const. art. I, C 13; see also State v. Paul, 15-2278, p. 1 (La. 11/2/16), 202 So.3d 995 (granting writs to remand post-conviction petitioner’s actual innocence claim for consideration after an evidentiary hearing; implicitly concluding the district court abused its discretion when it declined to order a hearing to assess the merits of the claim), and State ex rel. Rice v. State, 99-0496, p. 1 (La. 11/12/99), 749 So.2d 650, 650 (mem.) (appellate courts review district court procedural decisions on post-conviction applications for abuse of discretion).

Accordingly, I would remand for an evi-dentiary hearing at which relator would have the burden of proving that counsel rendered ineffective assistance pursuant to the well-settled standard set out in Strickland, 466 U.S. at 668,104 S.Ct. 2052. Thus, I respectfully dissent.

Hughes, J., dissents for the reasons assigned by Weimer, J.

      . After Chester was convicted and sentenced to death, the state reduced the pending first degree murder charge against Ratcliff to second degree murder. Another Jefferson Parish juiy found Ratcliff guilty as charged and the court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . Consistent with La. Const. Art. V, § 5(D), which grants this Court exclusive appellate jurisdiction in cases in which a death sentence has been imposed, and considering that capital cases qualify as “extraordinary” for purposes of La.S.Ct.R. X, § 5(b), this Court has invariably entertained writ applications after a death sentence has been imposed and the petitioner has bypassed the intermediate court of appeal.

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L,Ed.2d 694 (1966), the Supreme Court declared that a condition precedent to obtaining an admissible custodial statement is that the suspect be informed of his right to remain silent and consult with an attorney and that he gave the statement only after knowingly and intelligently waiving those rights.

      . The District Court did not err in dismissing his remaining complaints about counsel’s guilt phase performance because, as the District Court found, the following issues were addressed on appeal:
      • Counsel labored under a conflict of interest because she worked for the same public defender's office that represented Rat-cliff;
      • Counsel erred in opening the door to Rat-cliff's statement indicating Chester was present in the taxi;
      • Counsel failed to object to the evidence of his flight when police arrived at the Pollard residence;
      • Counsel failed to protect Chester from the forcible collection of a sample for DNA testing;
      • Counsel failed to object to presentation of victim impact evidence during the guilt phase; and
      • Counsel erred when she failed to object to the state’s opening and closing arguments on the basis that they exceeded the scope of the evidence presented.

      . Chester's trial pre-dated the Supreme Court's decision in Atkins that mentally retarded (or intellectually disabled defendants, as they are now termed) are exempt from capital punishment. Thus, counsel’s failure to more specifically argue intellectual disability was not contrary to law or professional norms.

      . As the District Court found in rejecting this claim, Chester contested the reliability of the methodology of the DNA testing on appeal. Chester, 97-2790, unpub’d appx., pp. xi-xii.

      . Post-conviction counsel has deduced this is the juror at issue because those who have recounted her actions and statements have consistently described her as “an older female;” of the jurors, Gravlee best fit that description.

      . Moreover, Chester does not show any extraneous influence in asserting that Foreperson Guillot knew “a lot about ballistics” and therewith prejudicially affected the verdict, because Guillot’s personal knowledge is precisely the sort of information upon which jurors are called to draw in making findings of fact. See, e.g., United States v. Gonzales, No. 92-2118, 1993 WL 185718 at *7 (5th Cir. 1993) (verdict may be impeached only by evidence that it was influenced by outside sources; juror’s knowledge of Spanish, which allowed him to translate part of an audiotape in evidence, stemmed from personal experience and was therefore not from an extrinsic source); Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994) (jurors may bring to the jury room knowledge gained from ordinary experience, such as knowledge that "Times Square is busy all night or that there are doormen along stretches of Park Avenue”); United States v. Holck, 398 F.Supp.2d 338, 364-67 (E.D. Pa. 2005) ("jurors can and should draw upon prior life experiences and use them in the course of deliberations,” and “[sjuch conduct does not amount to bringing in extraneous information”); see also Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) (juror’s personal experience training police dogs not "extraneous prejudicial information.”).

      . This Court applied Atkins in Williams, 01-1650, 831 So.2d 835, and thereafter, the Louisiana legislature promulgated La.C.Cr.P. Art. 905.5.1 to provide a procedure when a defendant facing capital punishment claims to be intellectually disabled, before trial. The dictates of Williams still govern post-conviction intellectual disability claims in cases, like this, in which the death sentence pre-dates Atkins. See State v. Dunn, 07-0878, p. 6 (La. 1/25/08), 974 So.2d 658, 662 (because the legislature has not enacted a procedure for post-sentencing Atkins claims, the law in such cases remains as it was when Williams was decided),

      . Further, because of his diminished mental capacity, Chester asserts his maturity is less than his chronological age and therefore his death sentence is cruel and unusual. However, in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), in which the Supreme Court held that "the death penalty cannot be imposed upon juvenile offenders, 543 U.S. at 575, 125 S.Ct. at 1198, the Supreme Court drew the line between juvenile and adult offenders at the age of 18. 543 U.S. at 574, 125 S.Ct. at 1197. Because Chester was 18, he was not legally a juvenile. Nonetheless, he claims that because of his immaturity there is little difference between himself and an offender who committed murder before age 18. However, when the Supreme Court drew the line at age 18, it was well aware that "objections [are] always raised against categorical rules,” id., 543 U.S. at 574, 125 S.Ct. at 1197, and, although Chester cannot benefit from the categorical prohibition in Roper, he had an opportunity to present his immaturity as a mitigating circumstance at the penalty phase. See United States v. Mitchell, 502 F.3d 931, 981 (9th Cir. 2007) (finding it “may well be true that [defendant] is less mature than the average 20 year old. But whether true or not, and whether that mitigates against his crime, is a question the Constitution permits to be answered on a case-by-case basis.”). This Court rejected substantially the same argument in State v. Tucker, 13-1631, p. 52 (La. 9/1/15), 181 So.3d 590, 628 ("Defendant, in essence, argues that his two near misses at qualifying for the categorical prohibitions established in Roper v. Simmons and Atkins v. Virginia, when viewed together, should qualify him for a new categorical prohibition under the Eighth Amendment, as yet unestablished by the U.S. Supreme Court, against executing those who are less culpable because of their immaturity in conjunction with their below average intelligence. As noted above, those considerations are indeed mitigating circumstances that are relevant to the jury’s determination in the penalty phase. But defendant’s argument by post-verdict motion and on appeal that he is less culpable for these reasons is not sufficient to override the jury’s determination that death was the appropriate penalty in this instance.”).

      . Relator has supported his claims of ineffective assistance with an affidavit in which trial counsel has conceded her failure to interview witnesses and has candidly admitted her lack of confidence in the only investigator assigned to help her prepare for the trial in the guilt phase. Trial counsel attested that this was just her second capital trial, which occurred at a time when she was admittedly "very busy.”

      . At the time of writing, an application for rehearing in Paul is pending in this court.