author: LAMBERT, J.

text:
    Johnnie Clarence GEORGE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2190
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Johnnie Clarence George (“Appellant”) appeals from his convictions for sale or delivery of cocaine within 1000 feet of a park and conspiracy to sell or deliver cocaine within 1000 feet of a park. We affirm the conviction for the sale or delivery of cocaine without further discussion. However, we reverse the conspiracy conviction because there is a complete failure of proof to establish the commission of this crime.

Section 777.04(3), Florida Statutes (2015), provides, in pertinent part, that “[a] person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.” In this case, the State alleged that Appellant conspired with Shaun Graham (“Graham”) and “other persons known or unknown” to commit the offense of sale or delivery of cocaine within 1000 feet of a park. Viewing the sufficiency of the evidence presented at this brief trial in the light most favorable to the State, a confidential informant (“Cl”), acting on behalf of the St. Cloud Police Department, drove her vehicle up to a driveway where Appellant and Graham were standing. The Cl first attempted to purchase crack cocaine from Graham, but he did not have any. Appellant then walked up to the window of the Cl’s vehicle and began talking with the Cl. Appellant directed the Cl to pull her vehicle up to a different location and indicated to her that he could provide her with cocaine from one of his sources. Appellant then left on his bicycle, traveled to two separate houses, and came back with crack cocaine, which he proceeded to sell to the Cl for $40.

Conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. See Swindle v. State, 254 So.2d 811, 812 n.2 (Fla. 2d DCA 1971) (citing Brown v. State, 130 Fla. 479, 178 So. 153 (1938)). As we explained in Green v. State, 999 So.2d 1098 (Fla. 5th DCA 2009):

The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime. Young v. State, 940 So.2d 543, 544 (Fla. 5th DCA 2006). A conspiracy may be proven with circumstantial evidence and proof of the formal agreement is not necessary. However, evidence that a defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime is insufficient, by itself, to support a conspiracy conviction. Id. Rather, the State’s evidence must show that the defendant entered into an agreement with another to commit the crime and intended to commit the crime.

999 So.2d at 1099.

The State first argues that Appellant did not preserve for appellate review his claim that the evidence was insufficient to establish the commission of a conspiracy because Appellant failed to challenge the sufficiency of the evidence below. Appellant acknowledges that he did not move for a judgment of acquittal on this count at trial, but argues that where the evidence is insufficient to establish that a crime was committed at all, this constitutes fundamental error and need not be preserved for appellate review. See F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (stating that “argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved” for appellate review because “[s]uch complete failure of the evidence meets the requirements of fundamental error”); O’Connor v. State, 590 So.2d 1018, 1019 (Fla. 5th DCA 1991) (reversing conviction for conspiracy to traffic in cocaine because, although not argued to the trial court, the complete failure of proof to support the conspiracy charge constitutes fundamental error (citations omitted)).

Appellant’s alleged co-conspirators were Shaun Graham and other “known or unknown” persons. “[A] defendant charged with conspiracy may be convicted of conspiring with persons whose names are unknown; however, the evidence must show that an unnamed cocon-spirator did exist and that the defendant conspired with him,” O’Connor, 590 So.2d at 1020 (citing State v. Rodriguez-Jimenez, 439 So.2d 919 (Fla. 3d DCA 1983) (additional citations omitted)). Here, other than the fact that Appellant went to two houses and returned with the crack cocaine used to consummate the transaction with the Cl, there was no evidence of any meetings, conversations, or pre-arrange-ments from which the jury could infer the existence of an agreement between Appellant and unnamed or unknown persons to commit a criminal offense. As we observed in O’Connor, where there was a similar lack of evidence of any agreement to conspire, if the analysis as to whether a conspiracy to traffic in cocaine existed only required the seller to have obtained the drugs from another, then “every person who sold drugs would also be guilty of conspiracy on the rationale that he must have gotten it from someone else.” Id.

As to Appellant conspiring with Graham, our opinion in Gray v. State, 526 So.2d 1020 (Fla. 5th DCA 1988), is instructive. In Gray, the State proved at trial that an informant walked up to an individual named Burley and asked him if he was selling cocaine, 526 So.2d at 1021. Burley said no and took the informant to Gray. Id. The informant handed money to Burley, who handed it to Gray, who handed cocaine to Burley, who handed it to the informant. Id. In reversing Gray’s conviction for conspiracy to deliver cocaine, we concluded that because there was no proof of any pre-arrangement, any prior discussions or plans, or anything else done in preparation for the above-described events, there was an absence of proof that Burley and Gray conspired together to commit the crime or did anything other than engage in the one transaction. Id. In the present case, the quantum of evidence of a conspiracy between Appellant and Graham to sell or deliver cocaine is less than that in Gray.

Accordingly, we reverse Appellant’s conviction and sentence for conspiracy to sell or deliver cocaine within 1000 feet of a park. Further, because Appellant’s total sentence points on his Criminal Punishment Code scoresheet will now be reduced, and it is not clear in our record whether the trial court would have imposed the same sentence upon Appellant if he had only been convicted of sale or delivery of cocaine within 1000 feet of a park, we remand for resentencing on this conviction with a corrected scoresheet. See Fernandez v. State, 199 So.3d 500, 502 (Fla. 2d DCA 2016) (“In general, when the vacation of a conviction would result in changes to the defendant’s scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet” that utilizes only his actual convictions, (citations omitted)).

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . The deferential standard of appellate review to claims of insufficiency of the evidence asks whether there is competent substantial evidence to support the verdict and judgment after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal. F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (citing Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981)).

      . Based upon Appellant’s extensive criminal record, the trial court sentenced him to serve fifteen years in prison, designating Appellant as a habitual felony offender. While the trial court has the discretion to do so, we take no position regarding whether or not the court should impose the same sentence upon Appellant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3226
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017
    Michael Perez, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Affirmed, without prejudice to Perez’s ability to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850. See Romero v. State, 176 So.3d 1282, 1282-83 (Fla. 5th DCA 2015) (citing Johnson v. State, 60 So.3d 1045, 1052 (Fla. 2011)).

SAWAYA, BERGER and WALLIS, JJ, concur.


text:
    Marquies A. BRISBANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3223
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017
    Marquies A. Brisbane, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Marquies Brisbane appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Brisbane’s first two claims were not conclusively refuted by the record, we reverse and remand for the trial court to either attach records refuting the claim or to hold an evidentiary hearing. We affirm as to Brisbane’s other claims.

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

EVANDER, BERGER and LAMBERT, JJ., concur.


text:
    John BALDWIN, Appellant, v. Domenico M. IDONI, Appellee.
    Case No. 5D15-2933
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017
    Marjorie G. Graham, of Marjorie Gada-rian Graham, P.A., Palm Beach Gardens, and Douglas R. Beam, of Douglas R. Beam, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Appellant John Baldwin appeals the order denying his motion for attorney’s fees and costs. The trial court denied the motion, concluding that the case was an action for equitable relief. We disagree. The essence of the suit was an action for damages. See DiPompeo Constr. Corp. v. Kimmel & Assocs., Inc., 916 So.2d 17, 19 (Fla. 4th DCA 2005). Therefore, the trial court erred in denying the motion. Thus, we reverse the order under review and remand with instructions to determine the amount of attorney’s fees to which Baldwin is entitled pursuant to section 768.79, Florida Statutes (2015).

REVERSED and REMANDED.

SAWAYA and EDWARDS, JJ. and JACOBUS, B.W., Senior Judge, concur.


text:
    Robert Lavern GANDY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2424
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 27, 2017
    James S. Purdy, Public Defender, and Andrew C. Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm but remand for correction of the written sentence to include costs orally pronounced by the trial court.

AFFIRMED AND REMANDED.

PALMER, ORFINGER and TORPY, JJ., concur.


author: WINSOR, J.

text:
    STATE of Florida, Appellant, v. Clarence E. JOHNSON, Appellee.
    CASE NO. 1D15-5289
    District Court of Appeal of Florida, First District.
    Opinion filed January 31, 2017
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    David W. Collins, Montieello, for Appel-lee.
   WINSOR, J.

Facing what it accurately called “a highly unique factual scenario,” the trial court suppressed evidence officers found in Clarence Johnson’s car. This is the State’s appeal. Finding no Fourth Amendment violation on the particular facts we face, we reverse.

I.

Because “the totality of the circumstances controls in eases involving the Fourth Amendment,” State v. Baez, 894 So.2d 115, 117 (Fla. 2004), we begin with a detailed look at the facts.

Police officers went to Johnson’s house to execute an arrest warrant on charges not relevant here. Johnson was not home when they arrived, but he pulled into his driveway just as the officers were leaving. Before Johnson got out of his ear, one of the officers approached and told him the news. Johnson’s child was asleep in the car, and Johnson asked if the officers could arrest him beyond the child’s sight. The officers accommodated that request, and Johnson got out and walked behind the car. There, Johnson was placed under arrest, handcuffed, and searched.

The officer searching Johnson found an unbound bundle of cash — some $1,188 — in Johnson’s pocket. The officer initially laid the cash on the trunk of Johnson’s car but then “dumped” it through Johnson’s open driver-side door onto the driver’s seat, concerned the cash might otherwise blow away.

Not long after, and while Johnson and the officers were still in the driveway, Johnson’s friend showed up to take care of Johnson’s child and property. An officer asked Johnson to choose between entrusting the friend with the cash and returning the cash to Johnson’s pocket, where it would be inventoried at the jail. Johnson chose the former, and an officer reached into Johnson’s still-open car door to retrieve the cash. As he reached inside, the officer noticed “just basically sitting there was a white powdery substance” in a baggie. The officer recognized the substance as cocaine and removed the baggie. The State charged Johnson with possession, and Johnson moved to suppress the evidence.

II.

Johnson has not challenged the officers’ authority to arrest him or to search him pursuant to that arrest. His complaint is with the officer’s intrusion into his car to retrieve the cash — an intrusion Johnson contends required a warrant or probable cause. The trial court granted the motion to suppress. It recounted the facts, concluded that the “baggie was not in plain view,” and ultimately determined that “this was a warrantless illegal search and seizure.” ■

On appeal, the State does not argue that the officers had authority to search Johnson’s car for evidence; its argument is that under the circumstances, the officer’s intrusion into the car was to protect Johnson’s property, meaning no warrant or probable cause was required. Accordingly, the State argues there was no Fourth Amendment violation. Furthermore, the State argues, even if there were a violation, the exclusionary rule would not apply.

III.

“The ultimate standard set forth in the Fourth Amendment is reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In a series of cases evaluating reasonableness, the United States Supreme Court has recognized that some “searches” are conducted in connection with police’s “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441, 93 S.Ct. 2523. In those circumstances, an intrusion that might otherwise violate the Fourth Amendment can be lawful.

In Cady, for example, a police officer was detained for drunk driving. Id. at 436, 93 S.Ct. 2523. The officer’s service revolver was not on him, and other officers checked to see if it was in his car — they feared if it was unsecured, it might wind up in the wrong hands. Id. at 436-37, 443, 93 S.Ct. 2523. While in the car, they found evidence of the officer’s involvement in another crime. Id. at 437, 93 S.Ct. 2523. The officer sought to suppress that evidence based on the warrantless intrusion. See id. But because the intrusion was to protect the public from an unsecured service revolver— not to look for evidence of a crime — the Court held “that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.” Id. at 448, 93 S.Ct. 2523.

Similarly, in Harris v. United States, the Supreme Court found no Fourth Amendment violation when an officer discovered evidence while securing a defendant’s car. 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The defendant was in custody; his car was impounded. Id. at 235, 88 S.Ct. 992. An officer had opened a car door to roll up an open window, and he found evidence (a robbery victim’s registration card) laying “face up on the metal stripping over which the door closes.” Id. at 235-36, 88 S.Ct. 992. Under the particular circumstances of that case, “the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody.” Id. at 236, 88 S.Ct. 992. “Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances.” Id.; see also Cooper v. California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (finding search of vehicle for safety of custodians not unreasonable).

This court applied these same principles in State v. Oglesby, 397 So.2d 714 (Fla. 1st DCA 1981). Lawrence Oglesby, a corrections officer, suffered a medical emergency and was rushed to the hospital. Id. at 714. Another officer went to put some of Ogles-by’s personal items in his car, where the officer discovered a gun. Id. Other officers then removed the gun, along with bullets, mace, a knife, and a radio; they removed them for safekeeping because the car was in an area accessible to inmates. Id. It turned out the radio was stolen property, so Oglesby was charged with theft. Id. at 715. The trial court suppressed the evidence, concluding that the officers found the radio through an illegal search. Id. But this court reversed because the “good faith action of taking into custody for storage and safekeeping” the radio and other items “was not constitutionally unreasonable under the reasoning of Cady v. Dombrowski and Harris v. United States.” Id. (citations omitted); see also Cobb v. State, 378 So.2d 82, 83 (Fla. 3d DCA 1979) (finding no unlawful intrusion, noting the undisputed fact “that the officer opened the door, not in order to search the car or even to look into it, but rather only in the process of securing the vehicle against theft, vandals and the elements during the time that it was to be left unattended on the public streets while its owner was in jail”).

Consistent with these cases, the officer’s intrusion into Clarence Johnson’s car was not unreasonable under the Fourth Amendment. It is undisputed that the officer reached into Clarence Johnson’s open car door to retrieve Johnson’s cash for safekeeping, not to search for evidence of a crime. The limited intrusion “was no more than a routine and good faith attempt, in the exercise of reasonable caution, to safeguard the defendant’s own property.” Cobb, 378 So.2d at 83.

Because the officer’s reach into the car did not violate the Fourth Amendment, the only remaining question is whether the officer’s seizure of the cocaine once inside the car was lawful. “Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” State v. Cash, 275 So.2d 605, 606 (Fla. 1st DCA 1973); accord Harris, 390 U.S. at 236, 88 S.Ct. 992. The trial court found that the officer who reached into the car to recover the money “observed a baggie located at the back of the driver’s seat toward the driver’s door.” This finding is consistent with both the hearing testimony and Johnson’s representation in his motion to suppress. The officer necessarily would have had a clear view of the driver’s seat when he reached in to retrieve cash from the driver’s seat. Accordingly, if the officer had a right to reach into the car (and we hold he did), he had a right to seize the cocaine.

The trial court therefore should not have suppressed the evidence.

REVERSED AND REMANDED.

OSTERHAUS, J., CONCURS; LEWIS, J., CONCURS IN RESULT WITHOUT OPINION.

      . Nor does the State support the intrusion as a search incident to arrest. The trial court's observation that Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), did not support the officers’ actions is therefore beside the point. Indeed, Gant recognized that a search incident to arrest is not the only-way to justify the warrantless entry into an automobile. See id. at 338, 346-47, 129 S.Ct. 1710; see also United States v. Frasher, 632 F.3d 450, 455 (8th Cir. 2011) (‘‘Frasher’s argument that the search was not proper under Arizona v. Gant is misplaced because the search was not conducted incident to arrest, but rather was an inventory search.... Gant acknowledges that a search of a vehicle may still be allowed if it is shown that another warrant exception applies.”).

      . Even if the officer's intent was disputed, the Supreme Court has made it clear that an "officer’s subjective motivation is irrelevant,” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). “An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer’s state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.’ ” Id. (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

      . The trial court’s order also found that "[t]he baggie was not in plain view and had not been seen initially when the money was placed into the vehicle for unknown reasons,” and we must accept all fact findings supported by competent, substantial evidence, Vaughn v. State, 176 So.3d 354, 355-56 (Fla. 1st DCA 2015). To the extent the trial court meant the baggie was not in plain view from outside the vehicle — or to the officer who dumped the cash into the vehicle — it is supported by the record. If the baggie was at the back of the driver’s seat and toward the door (as the trial court found), it would not necessarily be in plain view to someone passing by, or to an officer tossing cash inside.


text:
    Timothy BROOKS, Appellant, v. TAYLOR COUNTY, FLORIDA, Appellee.
    CASE NO. 1D16-5217
    District Court of Appeal of Florida, First District.
    Opinion filed January 31, 2017.
    Timothy Brooks, pro se, Appellant.
    Matthew G. Hawk of McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order granting, summary judgment as to his counterclaim. The underlying action to foreclose a lien remains pending. The Court has determined that the order on appeal is not “one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Fla. R. App. P. 9.110(k). Therefore, the order does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is dismissed as premature.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


author: SUAREZ, C.J.

text:
    T.C., the Child, Petitioner, v. STATE of Florida, Department of Children and Families, et al., Respondents.
    No. 3D17-118
    District Court of Appeal of Florida, Third District.
    Opinion filed January 31, 2017
    Douthit Law, LLC, and Mare Anthony Douthit, for petitioner.
    Karla Perkins, for Department of Children & Families; Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for Y.M., the mother; Laura J. Lee (Sanford), for Guardian ad Litem Program, for respondents.
    Before SUAREZ, C.J., and SALTER and LOGUE, JJ.
   CONFESSION OF ERROR

SUAREZ, C.J.

The minor Petitioner, T.C., petitions for certiorari review of the lower court’s order entered January 9, 2017, pursuant to a termination of services [TOS] hearing in the dependency case, which ordered Petitioner to be involuntarily placed in a residential treatment facility at Family Center for Recovery. On consideration of the confessions of error by Respondents, the Department of Children and Families and the Guardian ad Litem, we grant the petition and quash the January 9, 2017 order on appeal. The January 9, 2017 hearing was only noticed for a termination of services, but the Department of Children and Families proceeded to have heard the placement of the Petitioner into a residential treatment program. The Respondents concede that the Petitioner’s due process rights were violated because she was not provided prior notice that the TOS hearing would result in the order for residential treatment to address substance abuse and mental health issues.

We decline to quash the September 26, 2016 order derived from the Marchman Act petition as the Minor failed to timely challenge that order within thirty days of rendition. We do not reach the minor’s conflict of interest arguments regarding the Office of Regional Counsel. We therefore quash the trial court’s January 9, 2017 Order and remand for further proceedings consistent herewith.


text:
    Dana Lynn MCQUADE, Appellant, v. Landon Bruce HOLROYD, Appellee.
    Case No. 5D16-3009
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017
    Jennifer A. Englert, of The Orlando Law Group, P.L., Orlando, for Appellant.
    Hal Roen, of Hal Roen, P.A., Maitland, for Appellee.
   PER CURIAM.

Because we do not have a transcript of the proceedings below, we cannot resolve the underlying factual issues in order to determine whether the trial court’s judgment on the issue of child support is without evidentiary support. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). In the absence of a transcript, we will only reverse where the error appears on the face of the judgment. See Monacelli v. Gonzalez, 883 So.2d 361, 362 (Fla. 4th DCA 2004); Hoirup v. Hoirup, 862 So.2d 780, 782 (Fla. 2d DCA 2003). Appellant has made no such showing in this case.

AFFIRMED.

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


author: PALMER, J. COHEN, J.,

text:
    HERNANDO HMA, LLC, d/b/a Bayfront Health Spring Hill, f/k/a Spring Hill Hospital, Petitioner, v. Robert T. ERWIN, Jr., as Personal Representative of the Estate of Patricia Erwin, Respondent.
    Case No. 5D16-2835
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017

      Amy L. Dilday and Gerald R. DeVega, of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, and J. David Gallagher and Scott Albee, of Fulmer, LeRoy & Albee, PLLC, of Tampa, for Petitioner.
    Wil H. Florin and Eric P. Czelusta, of Florin Roebig, P.A., Palm Harbor for Respondent.
   PALMER, J.

Petitioner, Hernando HMA, LLC, d/b/a Bayfront Health Spring Hill, f/k/a Spring Hill Hospital, has filed a petition seeking a writ of certiorari to quash the trial court’s order granting Respondent’s motion to amend its complaint to assert a claim for punitive damages. Because Petitioner seeks relief on a ground not raised below, we deny the petition.

Respondent, Robert Erwin, filed suit against Petitioner alleging medical malpractice. He later filed a motion seeking to add a claim for punitive damages. After a hearing, the trial court granted the motion, citing Estate of Despain v. Avante Group, Inc., 900 So.2d 637 (Fla. 5th DCA 2005).

In seeking certiorari relief, Petitioner argues that the trial court erred in relying on Despain because that decision was based on a prior version of the punitive damages statute, see § 768.72, Fla. Stat. (1999), which has since been amended to heighten the burden of proving an employer’s fault from ordinary negligence to gross negligence. See § 768.72, Fla. Stat. (2016). However, Petitioner made no such argument below.

At the hearing, Petitioner’s main argument focused on a statute of limitations issue not relevant here. The only arguments unrelated to the statute of limitations issues were an attack on an affidavit as hyperbole and an objection to the admission of a letter because it had not been disclosed during discovery. Petitioner’s written “Response and Objection to Plaintiffs Motion to Add Punitive Damages and Plaintiffs Proffer” also did not include the argument now raised in this petition. Petitioner, in fact, cited the Despain decision in support of its objection. Although the Response noted that Respondent recited the definition of gross negligence in his motion to amend the complaint, the Response did not argue that Respondent failed to state a claim for punitive damages. Instead, the Response argued that (1) Respondent’s expert affidavit was insufficient and should be stricken, (2) a letter relied upon by Respondent should be disregarded because it had not been produced during discovery, (3) the claim for punitive damages was barred by the statute of limitations, and (4) the motion to amend was untimely filed.

We deny the instant petition because “ [generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below.” Watkins v. State, 159 So.3d 323, 325 (Fla. 1st DCA 2015) (quoting First Call Ventures, LLC v. Nationwide Relocation Servs., Inc., 127 So.3d 691, 693 (Fla. 4th DCA2013)).

PETITION DENIED.

TORPY, J., concurs.

COHEN, J., dissents with opinion.

COHEN, J.,

dissenting.

The panel agrees that the trial court relied on the incorrect legal standard in granting Respondent’s motion to amend the complaint to add a claim for punitive damages. Our disagreement is whether Petitioner preserved that issue for appellate review. I would hold that Petitioner preserved the issue and grant the petition.

In granting Respondent’s motion to amend, the trial court relied on this Court’s opinion in Estate of Despain v. Avante Group, Inc., 900 So.2d 637 (Fla. 5th DCA 2005), which, pursuant to section 768.72, Florida Statutes (1999), allowed a plaintiff to establish the vicarious liability of an employer based on 1) willful and wanton misconduct by the employee, and 2) “some fault” by the employer rising to the level of “ordinary negligence.” 900 So.2d at 640-41 (citing Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla. 1981)) (additional citations omitted). The current statute sets forth a significantly different standard. See § 768.72(3), Fla. Stat. (2016). It requires that the plaintiff establish 1) “intentional misconduct” or “gross negligence’’ by the employee, and 2) knowing participation, approval, or gross negligence on the part of the employer. Id.

While Petitioner cited Despain in its response to the motion to amend, it cited Despain for a procedural point about the type of evidence admissible to show entitlement to assert a claim for punitive damages. Petitioner argued the correct standard to assert a claim for punitive damages, albeit inartfully, throughout the proceedings below. From the time of the response to the motion to amend through the hearing, Petitioner maintained that Respondent failed to demonstrate either intentional misconduct or conscious disregard, as required by the statute. In my view, this suffices to preserve the issue for appellate review.

It is true that most of the hearing was spent debating whether the statute of limitations precluded the claim for punitive damages. Yet, in granting Respondent’s motion to amend, the trial court did not determine whether the now-applicable requirements of section 768.72 were met. Rather, the court cited Despain and stated that, accepting Respondent’s proffered evidence as true, “I think that is a basis for punitive damages ... it allows it to go forward.” Because the trial court relied on Despain and failed to address whether Respondent’s punitive damages claim satisfied the applicable standard set forth in section 768.72(3), I would grant the petition. Cf. HCA Health Servs. of Fla., Inc. v. Byers-McPheeters, 201 So.3d 669, 670 (Fla. 4th DCA 2016) (granting petition when the “trial court failed to fully comply with the procedural requirements of section 768.72”).

      . When the trial court announced its ruling and reasoning therefor at the conclusion of the hearing, Petitioner urged the court to reconsider its ruling, but not based on the court’s improper reliance on Despain. Had Petitioner done so, the trial court could have addressed the issue immediately.

      . Footnote three of Despain acknowledges that the court applied an anachronistic ver-sipn of the statute. See 900 So.2d at 641 n.3 (noting that an amended evidentiary standard became effective October 1, 1999).

      . In its response to the motion to amend the complaint, Petitioner argued that Respondent's claim of "gross negligence” pursuant to section 768.72 failed to state a claim for punitive damages. Additionally, at the hearing, Petitioner contended that Respondent’s proffered evidence to support the claim for punitive damages was legally insufficient because it did not demonstrate "gross negligence” on the part of Petitioner’s employees, nor did it demonstrate "intentional or conscious disregard.” Respondent’s motion to amend also cited the appropriate version of section 768.72 and acknowledged that Respondent "must make a reasonable showing by proffered evidence that the parties against whom punitive damages are sought were guilty of either intentional misconduct or gross negligence.” However, Respondent argued at the hearing that for Petitioner to be vicariously liable, there only needed to be “some fault” on its behalf.


text:
    Milovan ZEKANOVIC, Appellant, v. AMERICAN II, CORP., and Gallagher Bassett Services, Inc., Appellees.
    CASE NO. 1D16-3669
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Bill McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for Appellant.
    Thomas P. Vecchio of Vecchio, Carrier, Feldman & Johannessen, P.A., Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in finding that the Employer/Carrier (E/C) retained the right to select his one-time change of physician, even though the E/C agreed they failed to respond to his request within five days of its receipt, as required by paragraph 440.13(2)(f), Florida Statutes (2013). For the following reasons, we agree.

The parties are in agreement on the relevant underlying facts. On December 23, 2016, Claimant faxed a formal grievance to the E/C and to their attorney requesting a one-time change in physician from Dr. Pagano, his authorized treating orthopedic surgeon. The E/C did not respond to the request until January 5, 2016. On January 13, 2016, Claimant filed a petition for benefits requesting authorization of Dr. Hassan, a pain management physician, as his one-time change. The E/C declined to authorize Dr. Hassan; rather, Dr. Pagano remained authorized. As of the date of the hearing, Claimant had not sought treatment with Dr. Hassan or any other a physician of his choice.

In the appealed order, the JCC found that Claimant was entitled to his onetime change of physician because the E/C failed to timely respond to his request. Nevertheless, because Claimant had not actually obtained treatment with a physician of his choice prior to the entry of the appealed order, the JCC found that the E/C retained the right to choose Claimant’s onetime change “without regard to that physician’s specialty in medicine.”

Because resolution of this issue requires statutory interpretation, our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Under paragraph 440.13(2)(f), a claimant who sustains a compensable injury is entitled to a one-time change in treating physician as an absolute right if a written request is made during the course of treatment. See Providence Prop. & Cas, v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008). If the E/C fails to respond to that request within five calendar days, the claimant may select the physician and that physician shall be considered authorized if the treatment provided is compensable and medically necessary. See Hinzman v. Winter Haven Facility Operations LLC, 109 So.3d 256, 257 (Fla. 1st DCA 2013).

The JCC’s reasoning here, which is that Claimant’s failure to timely exercise his right to select his physician returned that right to the E/C, runs afoul of this court’s case law. Most recently, in Gadol v. Masoret Yehudit, Inc., 132 So.3d 939, 940 (Fla. 1st DCA 2014), the JCC interpreted the statute “to give the claimant the right to select his or her change of physician immediately upon expiration of the 5 days and claimant maintains that right up until the moment the E/C authorizes an alternative physician at which time that right is lost.” The Gadol court reversed, holding that the JCC’s interpretation went beyond the plain language of the statute. Noting that a claimant may waive his or her right to select the physician if he or she subsequently accedes to the E/C’s choice, the Gadol court explained the E/C’s selection of a physician before or at the same time as the claimant makes his or her selection does not constitute a waiver by the claimant, so long as the claimant has not attended any appointment scheduled by the E/C. Id. at 941. See also Harrell v. Citrus Cty. Sch. Bd., 25 So.3d 675, 677 (Fla. 1st DCA 2010) (holding that where response to request was untimely, claimant remained entitled to select her own physician even though the E/C advised claimant of specific authorization nineteen days after request).

Further, the JCC’s pronouncement that the E/C was entitled to select the onetime change “without regard to that physician’s specialty in medicine” is not in accord with the plain language of the statute. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008) (holding that, when construing statute, courts must first look to its plain language). This court, in Retail-first Insurance Co. v. Davis, No. 1D16-2310 (Fla. 1st DCA Jan. 23, 2017), recently addressed this question and concluded that, when dealing with a one-time change, the change must be within the same specialty regardless of who makes the selection.

Finally, we note that Claimant submitted his request on December 23, just prior to the holidays, giving the E/C a little more than one business day to respond. There is no question that the request was clear, not obscured, but it nevertheless smacks of gamesmanship. This illustrates the concerns noted by this court in Hinzman, 109 So.3d at 257, when contrasting “calendar” days with “business” days. As we explained in Hinzman, however, this is a policy consideration that should be directed to the Legislature, not this court. Id.

Accordingly, the order is REVERSED and REMANDED for proceedings consistent with this opinion.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.


text:
    Christopher Michael ARGUELLES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4645
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.
    Christopher Michael Arguelles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 19, 2015, judgment and sentence in Escambia County Circuit Court ease number 2014-CF-004502-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


author: BILBREY, J.

text:
    Jakari Okalawon CLARK, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1255
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   BILBREY, J.

Appellant Jakari Clark was convicted of attempted armed robbery and aggravated battery. With respect to both offenses, the jury found that Appellant actually possessed a firearm. But as to the attempted armed robbery count, the jury found that Appellant did not discharge the firearm. For each- offense, Appellant was sentenced to fifteen years imprisonment with a mandatory minimum term of ten years for possession of a firearm; the trial court ordered the sentences to be served consecutively. We affirm Appellant’s conviction, but for the reasons set forth below, we vacate the sentences and remand for re-sentencing.

Appellant argues the trial court erred in denying his objection and motion to strike a portion of the testimony of a police officer who was asked during redirect examination whether Appellant made any statement when police arrived at the crime scene. Appellant has maintained that the question and response was an improper comment on Appellant’s right to remain silent. However, reading the testimony of the officer in its entirety, it is plain that the redirect examination was invited by Appellant’s cross-examination which opened the door regarding Appellant’s comments, or lack thereof, to law enforcement.

Appellant is correct, as the State concedes, that the consecutive sentences are improper here. As the Florida Supreme Court has explained, “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.” Williams v. State, 186 So.3d 989, 993 (Fla. 2016). The two offenses for which Appellant was convicted arose from the same criminal episode, and as noted, the jury specifically found that Appellant possessed, as opposed to discharged, a firearm. See Mobley v. State, 197 So.3d 648 (Fla. 1st DCA 2016). Accordingly, we AFFIRM the convictions, but we VACATE the sentences and REMAND for resen-tencing. See Gartman v. State, 197 So.3d 1181 (Fla. 1st DCA 2016).

OSTERHAUS and WINOKUR, JJ., CONCUR.


text:
    CRESTVIEW HOSPITAL CORPORATION, INC., d/b/a North Okaloosa Medical Center and David Fuller, Appellants, v. COASTAL ANESTHESIA, P.A. and Michael P. Ederer, D.O., Appellees.
    CASE NO. 1D16-1182
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL; William K. Thames of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellants.
    Jason W. Peterson and James R. Green of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola; Louis K. Rosenbl-oum of Louis K. Rosenbloum, P.A., Pensacola; David R. Swanick, III of Powell & Swanick, Niceville, for Appellees.
   PER CURIAM.

Because appellants have prevailed in the main appeal from the final judgment in Crestview Hospital Corporation v. Coastal Anesthesia P.A., 203 So.3d 978 (Fla. 1st DCA 2016), the trial court’s award of attorney’s fees and costs in appellee’s favor must also be reversed. See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (“[A]n award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.”).

Appellee’s motion for appellate attorney’s fees is denied.

REVERSED and REMANDED.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


author: PER CURIAM:

text:
    STATE of Louisiana v. Rogers LACAZE
    No. 2016-KP-0234
    Supreme Court of Louisiana.
    12/16/2016
   PER CURIAM:

11Writ denied. The Fourth Circuit correctly reversed the district court’s order for a new trial.

In 1995, an Orleans Parish jury found Rogers LaCaze, and separately, co-defendant Antoinette Frank, guilty of three counts of first degree murder for the March 4, 1995 armed robbery and triple homicide of siblings Cuong Vu and Ha Vu, employees of the family-owned Kim Anh Vietnamese restaurant in New Orleans East, and New Orleans Police Officer Ronnie Williams, who was at the time working a paid security detail at the restaurant. Antoinette Frank (“Frank”), herself a New Orleans Police Officer, was Ofc. Williams’s former partner and sometimes also worked security at the restaurant.

After finding LaCaze guilty as charged on all three counts, jurors unanimously voted to impose the death sentence. This Court affirmed his convictions and sentence. State v. LaCaze, 99-0584 (La. 1/25/02), 824 So.2d 1063, cert. denied, LaCaze v. Louisiana, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002).

IgThe state’s case was premised on the survivors’ identifications of both LaCaze and Frank, in addition to other evidence which showed, inter alia, that after Frank met LaCaze in November 1994, the pair established a routine of acting in concert while Frank was on duty, with LaCaze accompanying her as she responded to calls. Just hours before the murders, the two were seen together at a Wal-Mart store, Frank in full uniform, shopping for the same caliber ammunition that was used to kill all three victims. The state also presented LaCaze’s custodial statements in which he placed himself inside the restaurant during the massacre, albeit while denying he killed anyone.

LaCaze took the stand to repudiate his custodial statements, instead claiming he was at the time with his brother Michael, playing pool at Mr. C’s Pool Hall, an alibi Michael repeated when called to testify. The defense timeline offered at trial, however, was internally inconsistent: LaCaze conceded he was still in Frank’s company when she ordered food from the restaurant, which phone records established occurred at 12:51 a.m., roughly 20 minutes after LaCaze and Michael claimed they were en route to the pool hall. Further, the pool hall’s manager testified unequivocally that Michael had played pool that night loithout his brother.

Ultimately, the jury rejected LaCaze’s defense in which he insisted his inculpato-ry statements were the result of coercion, and instead accepted the state’s theory that, although it appeared the same gun was used to kill all three victims, it was immaterial whether Frank or LaCaze had pulled the trigger because the evidence showed that both were present and specifically intended to kill, and therefore equally guilty as principals.

In 2002 or 2003, LaCaze filed a pro-se shell application for post-conviction relief, followed by a counseled supplement. After protracted delays, the district court conducted a multi-day evidentiary hearing in 2013, at which the parties called over 20 witnesses in total. Nearly two years later, the district court issued a 13128-page ruling addressing LaCaze’s claims in detail and ultimately vacating his convictions and death sentence based on its determination that juror David Settle was seated after he failed to disclose his law enforcement experience during voir dire, an error it found constituted a structural defect warranting a new trial.

The Fourth Circuit granted the state’s writ and reinstated the convictions and death sentence, State v. LaCaze, 15-0891 (La. App. 4 Cir. 1/6/16) (unpub’d), having found the district court “erred in finding that the seating of Mr. Settle on [the] jury was a structural error entitling him to a new trial,” and that the district court had not erred in dismissing the remaining claims.

As a result of LaCaze’s failure to file a writ application in the Fourth Circuit, the parties now dispute the scope of the issues before us. As the state sees it, his failure to seek writs in the court below caused the district court’s ruling as to all remaining claims to become final and no longer subject to review. However, this Court has recognized that a “party who does not seek modification, revision, or reversal of a judgment” may “in an appellate court, including the supreme court,” assert in support of that judgment any argument for which the record contains support “although he has not appealed, answered the appeal, or applied for supervisory writs.” State v. Butler, 12-2359, pp. 4-5 (La. 5/17/13), 117 So.3d 87, 89 (emphasis added) (citing La.C.C.P. art. 2133(B)). Although LaCaze did not file a cross-application below, he did file an opposition in which he re-urged claims the district court dismissed as alternate grounds for upholding the order for a new trial, and thereby preserved those claims, as contemplated in Butler. In any event, considering the need for heightened scrutiny in capital penalty proceedings, see Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117, 124 L.Ed.2d 306 (1993), we have considered whether exercise of our supervisory jurisdiction is warranted in light of any claim now raised and upon which the district court passed judgment.

|4The district court vacated LaCaze’s convictions and death sentence based exclusively on the seating of juror David Settle. LaCaze urges the district court correctly ordered a new trial as a result of Mr. Settle’s presence on the jury because Mr. Settle failed to respond during voir dire when asked whether any panelists were related to anyone in law enforcement, although he had a history of law enforcement experience and other venire members disclosed their connections to law enforcement personnel. Specifically, LaCaze asserts he has discovered post-conviction that Mr. Settle’s employment history includes past service as a police officer for railroad companies in other states and that, at the time of LaCaze’s trial, he was “a Field Officer for the Louisiana State Police.”

The district court credited the argument, finding “simply no excuse” for Mr. Settle’s failure to respond when his panel of prospective jurors was asked if anyone was related to someone in law enforcement, especially after fellow panelists volunteered their more tenuous connections. The district court determined that Mr. Settle was a “badge-wearing law enforcement officer” who, but for his failure to respond, would have been subject to a meritorious challenge for cause, citing State v. Simmons, 390 So.2d 1317 (La. 1980), and therefore found his inclusion on the jury a structural error which prevented the verdicts from being rendered by an impartial jury.

As the Fourth Circuit determined, the district court erred in this regard. Louisiana law is settled that there is no per se bar to law enforcement personnel serving as jurors. Although at the time of trial, our jurisprudence provided that the guarantee of a fair trial “is offended by the presence on a jury of a badge-wearing law enforcement officer,” Simmons, 390 So.2d at 1318, courts interpreting Simmons construed it narrowly and carved out exceptions for law enforcement personnel not actively engaged in making arrests. See, e.g., State v. Valentine, 464 So.2d 1091, 1095 (La. App. 1 Cir. 1985), writ denied, 468 So.2d 572 (La. 1985) (DQC correctional officer not incompetent to serve although she also had four first cousins who worked for the sheriff); State v. Henderson, 566 So.2d 1098, 1103-04 (La. App. 2 Cir. 1990) (field sergeant at Wade Correctional Institute competent to serve). Further, as even the district court acknowledged, while LaCaze’s appeal was pending, this Court overturned Simmons, reasoning that because law enforcement officers are sworn to uphold the law, including the guarantee of a fair trial, a district judge has discretion to determine whether an officer is speaking the truth when he states under oath that he can remain fair and impartial. State v. Ballard, 98-2198 (La. 10/19/99), 747 So.2d 1077, 1079. Thus, the Simmons ban does not apply, given that it was overruled it while LaCaze’s appeal was pending. See Griffith v. Kentucky, 479 U.S. 314, 828, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (“... [A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”).

Even assuming arguendo that Simmons did apply, Mr. Settle would not have been subject to a meritorious challenge for cause. LaCaze maintains Mr. Settle was an “active duty officer,” but has put forth no evidence that he was at the time of trial the sort of badge-wearing officer Simmons deemed unfit for jury service. Instead, La-Caze has shown that although Mr. Settle was previously a police officer in other states with patrols limited to railroad property, when he was selected as a juror in this case he was working for the Bureau of Motor Vehicles mthout arrest powers— in an apparent desk position. Mr. Settle testified at the post-conviction hearing that “he was ‘not a field officer’ at the time of LaCaze’s trial, that he ‘[did not] have 'arrest powers,’ and that his job was to ‘clear up driver’s license for people under suspicion.” Such circumstances hardly give rise to the sort of bias that disqualified the juror in Simmons. See Simmons, 390 So.2d at 1318 (juror with ^graduate degree in law enforcement who was employed by sheriffs office and working closely with the district attorney’s office, must have been affected by her employment to an extent that would influence her verdict).

Even having acknowledged that Simmons was overturned before LaCaze’s convictions' and sentences were affirmed, the district court found Mr. Settle’s presence on the jury a reversible error because his non-disclosures precluded the parties from exploring whether his employment experience would affect his deliberations. For.the following reasons, this view is untenable.

The United States Supreme Court has found that a petitioner who collaterally attacks his conviction based on alleged juror dishonesty during voir dire must demonstrate (1) that the juror failed to honestly answer a material question and (2) that a correct response would have provided a meritorious basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 860, 78 L.Ed.2d 663 (1984). Under La.C.Cr.P. art. 797, the grounds for challenging a prospective juror for cause include, inter alia, that the “juror is not impartial, whatever the cause of his partiality,” or that he has a “relationship, whether by blood, marriage, employment, friendship, or enmity” with persons involved in the case “such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” Applying McDonough, the 10th Circuit has explained the standard as requiring that:

A party who seeks a new trial because of non-disclosure by a juror during voir dire must show actual bias, either by express admission or by proof of specific facts showing such a close connection to the circumstances at hand that bias must be presumed.

Burton v. Johnson, 948 F.2d 1150, 1156 (10th Cir. 1991) (citations and quotations omitted).

Thus, in addition to showing that Mr. Settle failed to honestly answer a material question, LaCaze must also show that he harbored actual bias, or at least point to specific facts from which bias must be presumed. For example, in Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), another post-conviction capital case, the Supreme Court remanded for an evidentiary hearing based on allegations that a juror concealed relationships with a prosecution witness and the prosecutor — and that prosecutor was so aware but stood mute. On remand, the district court found the juror intentionally misled the court and granted relief. Williams v. Netherland, 181 F.Supp.2d 604 (E.D. Va.), aff'd, 39 Fed.Appx. 830 (4th Cir. 2002) (unpub’d). In Burton, supra, the defendant obtained relief because issues of domestic abuse were central to the case and a juror failed to disclose her own experiences as a victim of similar abuse, yet later discussed it with other jurors. Similarly, in United States v. Scott, 854 F.2d 697 (5th Cir. 1988), the Fifth Circuit reversed the defendant’s convictions because a juror failed to disclose that his brother was a deputy sheriff in an office involved in the case.

Here, Mr. Settle testified as a post-conviction witness and, as LaCaze urges, his testimony detailing his own law enforcement experience indicates he had good reason to respond when his voir dire panel was asked whether they had any such connections. However, as the state urges, it is not clear that his lack of candor can be fairly characterized as outright dishonesty: the only indication he may have been questioned about his own experience is a truncated query in which the trial judge asked those in the second row if any were “involved or know anybody in law enforcement? — any close personal friends or anything like that?”, and it appears Mr. Settle was not seated in the second row. Nevertheless, because several ^questions were aimed at whether panelists had any connections with law enforcement, the inquiries were sufficient to have prompted a reasonable person in Mr. Settle’s position to disclose his employment experience.

However, even assuming Mr. Settle failed to honestly answer a material question, thereby satisfying McDonough’s first prong, LaCaze has not shown that he would have been subject to a meritorious challenge for cause. See Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (“[E]ven an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality.”). The avenue to resolve allegations of concealed juror bias is to conduct a hearing at which a defendant has the opportunity to prove bias. Burton, 948 F.2d at 1156. LaCaze has been afforded precisely such an opportunity) yet, despite having called Mr. Settle as a post-conviction witness, he has offered neither an express admission of bias from Mr. Settle nor pointed to any specific facts from which Mr. Settle’s bias or partiality must be inferred. Unlike in Williams, 529 U.S. 420, 120 S.Ct. 1479 and Scott, 854 F.2d 697, where jurors concealed relationships with a state witness, a prosecutor, and a sheriffs deputy, and distinguishable from Burton, where a juror failed to disclose her experience as a victim of abuse similar to the abuse at issue, LaCaze neither alleges nor shows that Mr. Settle had any relationships or experience which affected or must be presumed to have affected his view of the evidence in this case. Accordingly, the Fourth Circuit correctly reversed the order for a new trial on this ground.

| sLaCaze’s related claim that trial counsel rendered ineffective assistance during voir dire is also meritless. A petitioner claiming counsel rendered ineffective assistance must show that (1) counsel erred and (2) the error rendered the proceedings unfair and the conviction suspect. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel’s decisions during voir dire lie at the core of trial strategy, see generally Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997) (“An attorney’s actions during voir dire are considered to be matters of trial strategy.”) (citing Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995)), and even assuming counsel’s voir dire questions should have been more searching, because LaCaze has not shown that any seated juror would have been subject to a meritorious challenge for cause, he has not shown that counsel’s performance rendered the proceedings fundamentally unfair or his convictions suspect. The district court correctly rejected this claim.

LaCaze next asserts he is entitled to relief because Judge Marullo presided over trial despite an appearance of impropriety. LaCaze asserts recusal was necessary in light of information adduced at co-defendant Frank’s subsequent trial; specifically, that months before the murders, Frank, then a New Orleans Police Officer, obtained — pursuant to a release purportedly signed by Judge Marullo — a 9 mm Beretta semi-automatic handgun from the NOPD Evidence and Property |inRoom. That weapon, which Frank reported stolen before the murders, was of the same caliber and perhaps the same gun used to kill the victims. As LaCaze sees it, Judge Ma-rullo’s failure to disclose that he was questioned in an internal police investigation as to how Frank obtained the weapon obstructed his ability to make an informed decision about moving for recusal.

It is well-settled that a judge is presumed impartial. State v. Edwards, 420 So.2d 663, 673 (La. 1982). La.C.Cr.P. art. 671(A) lists the grounds for recusal in a criminal case, providing in part that a judge shall be recused if he is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial or “would be unable for any other reason, to conduct a fair and impartial trial.” The latter catch-all includes circumstances which clearly indicate the judge cannot remain impartial, although no specified ground for recusal exists. La.C.Cr.P.art. 671, Cmt. The code article thus underscores a judge’s duty to avoid even the appearance of impropriety. See State v. LeBlanc, 367 So.2d 335, 341 (La. 1979) (“[E]ven the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused by recusal of the trial judge.”) (citing State v. Lemelle, 353 So.2d 1312 (La. 1977)).

A review of the parties’ competing views shows that even if Judge Marullo had disclosed his possible connection with the weapon’s release to Frank — and thereby led LaCaze to move for his recusal on that basis — LaCaze has pointed to no evidence that the judge harbored any bias, prejudice, or personal interest in the case, let alone to such an extent that it rendered him unable to conduct a fair trial. As a post-conviction witness, Judge Marullo emphatically denied any bias on his part. Further, LaCaze fails to show “any other reason” why Judge Marullo was | nunable to conduct a fair trial. La.C.Cr.P. art. 671(A)(6). The suggestion that he became entangled in the facts at issue, purely because he was possibly involved in an administrative release of a weapon that may have been later used to commit the crimes, is baseless and hardly sufficient to rebut the presumption of impartiality.

There has been considerable inquiry, to no avail, as to whether the signature is genuine. Even assuming it is, meaning Judge Marullo in fact authorized the weapon’s release to Frank — a practice which for all that appears was routine, subject to established NOPD procedures — none of the issues in dispute at trial pertained to the means by which the murder weapon was procured. Whether months earlier Judge Marullo approved the release has no bearing on the evidence indicating LaCaze killed Ofc. Williams while Frank gathered the others in the kitchen and that both co-defendants were equally guilty under the law of principals. LaCaze, 99-0584, p. 10, 824 So.2d at 1071-72. As the district court put it, whether Frank obtained the murder weapon “pursuant to a bogus court order” is “immaterial and irrelevant since it did not address any issue that needed to be proved in the case nor did it have a tendency to make the existence of any fact of consequence [] more or less probable.”

LaCaze next claims his convictions were secured by the suppression of evidence and the presentation of misleading testimony. Specifically, he claims the state had a duty to disclose that Frank obtained a 9 mm Beretta from NOPD evidence, as discussed above; that her brother, Adam Frank (“Adam”), possessed motive because he often spent time at the restaurant until he was banned for making unwanted advances toward an employee; that Adam was at one point a person of interest; and that survivor Chau Vu did not, contrary to her trial testimony, see LaCaze during the shooting.

According to the rule in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) and its progeny, the state’s failure to disclose | t2evidence violates due process only if the withheld evidence is exculpatory or fit for impeachment use and is material to guilt or punishment. As discussed in connection with the claim that Judge Marullo was subject to recusal, any evidence pertaining to the release of the likely murder weapon in no way exculpates LaCaze. He makes the dubious contention that any evidence indicating it was Frank who obtained the murder weapon would have contradicted the state’s theory that he was the dominant party. However, evidence that his accomplice obtained the same type of gun that was used to kill the victims, in a case in which the state presented evidence that he and Frank had been acting in concert under the guise of her authority and together premeditated the murders and were equally culpable, would have only supported the state’s theory and was therefore not subject to disclosure.

Evidence that Adam harbored ill will toward the restaurant employees and Ofc. Williams — because he had been banned from the premises — and that Adam was at some point a person of interest is insufficient to undermine the verdict in a case in which the state presented substantial evidence of LaCaze’s guilt, including, notably, his own custodial statement acknowledging his presence inside the restaurant during the murders and relating details only a perpetrator could have known that early in the investigation. LaCaze has not pointed to any evidence indicating Adam was involved which the state possessed but failed to disclose. | ^Accordingly, he fails to show that, without the information about Adam, he received an unfair trial or a verdict not worthy of confidence. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) (“The question is ... whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”).

LaCaze also fails to show the state suppressed anything of impeachment value by withholding Chau Vu’s initial statement. As LaCaze tells it, immediately after the shootings Chau told police, contrary to her trial testimony, that she did not see La-Caze during the shooting. LaCaze claims he should have been able to impeach Chau with this prior inconsistent statement, which he presumably would have urged was more likely accurate than her testimony positively identifying him, given its temporal proximity to the crimes. As the district court found, however, contrary to LaCaze’s characterization, Chau did not tell officers that she did not see LaCaze during the crimes. Rather, her initial statement was consistent with her trial testimony: in her statement she described the male perpetrator as a short African-American whom she met earlier that evening— introduced to her and other employees as Frank’s “nephew.” The state had no duty to disclose this initial statement because nothing therein contradicts her trial testimony in which she positively identified La-Caze as Frank’s accomplice.

LaCaze’s claim that the state suborned perjury is similarly without merit. He asserts prosecutors possessed a duty to correct Ofc. Stanley Morlier’s misleading testimony when the defense called him as a witness in an effort to depict Adam as a likely alternate suspect. LaCaze claims Ofc. Morlier misled jurors when, in response to a line of questioning aimed at showing Adam and Frank harbored ill will after Adam was banned from the restaurant (a directive which was apparently carried out with Ofc. Williams’s enforcement), Ofc. Morlier testified that he never witnessed Frank threaten to kill Ofc. Williams within Ofc. Williams’s presence.

|14As the district court found, although the state possesses a duty to correct false or misleading testimony, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), a petitioner is only entitled to relief on that basis if the testimony “could ... in any reasonable likelihood have affected the judgment of the jury .... ” Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959)). Even assuming Ofc. Morlier’s testimony created a false impression that Frank never threatened Ofc. Williams — when in fact there was evidence she had, outside his presence — LaCaze fails show the testimony was reasonably likely to affect the jury’s judgment in a case in which there was no dispute as to Frank’s involvement (the party who either threatened Ofc. Williams or not) and there existed no evidence to connect Adam to the murders. Cf. United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968) (“We do not, however, automatically require a new trial whenever ‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict ....’); see also State v. Schilling, 92-3312 (La. 4/13/94), 637 So.2d 459 (denying relief to inmate who showed important state witness lied about agreement to dismiss pending charges in return for testimony because “given other evidence against him, there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial.”). The district court correctly dismissed this claim.

LaCaze next claims trial counsel, Mr. Willie Turk, rendered ineffective assistance. He asserts counsel was woefully unprepared, it being his first capital | atrial, and that his deficient performance “pervaded the proceedings.” He claims the Fourth Circuit erred when it refused to leave intact the district court’s order for a new trial in light of counsel’s errors, so numerous were they, he asserts, that post-conviction counsel has opted herein to present them by way of a numbered list, rather than with supporting discussion. Instead of advancing specific arguments as to why each alleged error rendered the proceedings unfair, see Strickland, swpra, post-conviction counsel offers a general proposition that the jury was deprived of a “wealth of evidence” as a result of trial counsel’s omissions.

Among the listed errors is that counsel failed to call Peter Williams and Angela Walker, whom LaCaze asserts would have supported his alibi by testifying — as his brother Michael did — that he was with them at a pool hall during the shootings. However, LaCaze has failed to address the district court’s finding that a decision not to call these witnesses was reasonable, given that Peter’s account “was incongruent with [LaCaze’s] version of the alibi time-line” and Angela’s was imprecise as to the timing of events.

LaCaze also re-urges that counsel erred by failing to file a motion to suppress the survivors’ identifications, which he claims were obtained by highly suggestive procedures; especially Chau’s identification at the preliminary hearing. Just after the crimes, Chau gave a statement in which she described the male perpetrator (a description consistent with LaCaze’s appearance) and later positively identified LaCaze. This Court can find no logic in the assertion that Chau’s identification should have been excluded as the product of an impermissibly suggestive “show up” merely because she verified her earlier statement at the preliminary hearing while LaCaze was present. As the district court found, “the law does not require attorneys to engage in vain and useless acts” and counsel’s failure to file a motion to suppress on this ground “does not meet the threshold for ineffective assistance of counsel.”

I ir,By merely repeating allegations of counsel error, which the district court provided thorough reasons for rejecting, and absent any convincing argument as to why the district court’s conclusions were flawed, LaCaze fails to show the district court erroneously dismissed these claims. La.C.Cr.P. art. 930.2; see also La.S.Ct.R. X, § 4(3)(d) (requiring “argument of each assignment of error on the facts and the law....”); La.S.Ct.R. VII, § 6 (assignments of error made but not briefed considered abandoned); State v. Bay, 529 So.2d 845, 851 (La. 1988).

Finally, LaCaze claims he is actually innocent and asserts he has made the required showing, as contemplated in State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291, with “new material, noncumulative and conclusive evidence which meets an extraordinarily high standard, and [undermines] the prosecution’s entire case.” Specifically, he revisits the theory that Adam was the male perpetrator, based on post-conviction testimony from Ofc. Perry Fleming, who testified that “a known, reliable confidential informant told him that Keith Jackson (an alias of Adam’s) had boasted about killing a policeman in New Orleans;” evidence that Adam was apprehended in 1998 with a weapon matching the description of the Beretta used in this case; and testimony from a former fellow inmate of Adam’s, Darren Reppond, who asserted Adam confessed to having shot an NOPD officer in the head at a restaurant because the officer was “shaking him and his sister down for money.” Adam testified below and, not surprisingly, denied having made such a confession.

The district court weighed this evidence and rejected LaCaze’s theory, specifically noting the weaknesses in his new evidence, including that Reppond’s retelling of Adam’s alleged confession was incomplete as to the offense circumstances; that Rep-pond did not inform LaCaze’s attorneys of Adam’s confession when they initially contacted him, an omission the district court found indicative of fabrication; and that Reppond — who attributed his ability to recall the confession to it having been “so definite about the details” — “suffered a memory failure” when asked for those details at the post-conviction hearing.

1 X7As set out above this Court has opined that a non-DNA actual innocence claim, if cognizable, requires new material, noncumulative and conclusive evidence which meets an extraordinarily high standard and undermines the state’s entire case, Conway, 01-2808, 816 So.2d at 291. More recently, in State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403, the Court further articulated that the new facts must be so compelling that no reasonable juror could have voted to convict with knowledge thereof. Id., 13-0873, pp. 9-10,125 So.3d at 409 (adopting the standard for federal ha-beas relief set out in McQuiggin v. Perkins, 569 U.S. -, 133 S.Ct. 1924, 1933, 185 L.Ed.2d 1019 (2013)).

The district court was within its discretion to find LaCaze’s evidence fell short. See State v. Mussall, 523 So.2d 1305, 1310 (La. 1988) (fact finder makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; reviewing courts may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.”). The evidence that Adam boasted about the murders appears entirely insufficient to prove that “no reasonable juror could have voted to convict” LaCaze, had it been presented at trial, in a case in which the state presented evidence that LaCaze accompanied Frank to Walmart to shop for 9 mm ammunition within hours of the murders; that survivors (who saw LaCaze with Frank twice earlier that same evening) positively identified LaCaze as the male perpetrator who rummaged through their property after the gunfire ceased; that LaCaze’s initial statements contained details only the perpetrators could have known; that LaCaze’s trial testimony admitted his presence in the restaurant earlier that night, contradicting his alibi in which he claimed he was at the pool hall; and that LaCaze was observed within an hour of the murders using Ofc. Williams’s stolen credit eard to purchase gas at a Chevron station near his brother’s apartment. The district court’s conclusion is further bolstered by evidence that LaCaze and hsAdam had such different physical appearances that for the surviving victims to have confused Adam — whom they had known for some time — with LaCaze would have been nearly impossible, even under the traumatic conditions: The survivors identified Frank’s accomplice as a black male with gold teeth across the top, less than 20 years of age, and just over five feet tall. LaCaze was 18 years old, 5’3" in height, and had gold teeth. Adam was 24 years of age and 6’5" in height. LaCaze, 99-0584, p. 3 n.4, 824 So.2d at 1066 n.4.

For the foregoing reasons, the Fourth Circuit correctly reversed the order for a new trial.

      . The district court contrasted the instant case with State v. Deruise, 98-0541, p. 12 (La. 4/3/01), 802 So.2d 1224, 1235, which was also pending on appeal when Simmons was overturned, and in which the Court rejected the defendant’s claim that an NOPD officer was erroneously seated on the jury, because in ' Demise the juror at issue disclosed his law enforcement experience and thereby enabled the parties to question him about possible bias. In Demise, this Court found the lack of clarity in the record as to whether the defense issued a challenge for cause to that juror was immaterial given that, "[e]ven assuming the defense unsuccessfully challenged [the officer] for cause, the trial court’s denial of that challenge would not have constituted reversible error,” because the courts no longer presume police officers are incompetent to serve as jurors. Id.., 98-0541,p. 12, 802 So.2d at 1235.

      . LaCaze also fails to make the required showings as to the seating of jurors Victoria Mushatt and Lillian Garrett. He asserts Ms. Mushatt failed to disclose that she "felt like [she] knew” victim Ofc. Williams through her employment as a 911 dispatcher; that she was "present in the dispatch room” when 911 calls came through reporting the murders; and that she attended Ofc. Williams’s funeral. However, as the district court found, La-Caze’s assertion that Ms. Mushatt “knew” Ofc. Williams and was thereby biased is unfounded: rather than implying that she had any sort of relationship with the slain officer, Ms. Mushatt testified that she had never met Ofc. Williams but was familiar with his name, as she was with other officers' names, from repeatedly hearing it over the dispatch. She explained that she attended his funeral along with the entire department only because it was “expected” they would. As for LaCaze’s assertion that Ms. Mushatt became privy to sensitive details because she was working when the shooting was reported, he altogether fails to show that she — who was not the dispatcher to accept the related 911 calls— was aware of any prejudicial information, let alone specify those prejudicial details. LaCaze also shows no ground for relief based on Lillian Garrett’s presence on the jury. He claims Ms. Garrett deceived the court during voir dire when, after being asked whether any close relations had been a victim of a crime, she failed to respond, although two of her brothers were murdered. Even if Ms. Garrett failed to honestly answer the question, La-Caze has not shown she would have been subject to a meritorious challenge for cause if she had. As the district court found, LaCaze offers no evidence that Ms. Garrett consciously withheld the information about her brothers to get onto the jury (for the purpose of avenging her brothers' murders, or otherwise). See Dryer v. Calderon, supra (even intentionally dishonest answers are not fatal, as long as the falsity does not bespeak a lack of impartiality). As with the other two jurors he complains of, LaCaze offers no evidence that Ms. Garrett harbored any bias and points to no specific facts from which bias must be presumed. Her post-conviction affidavit was apparently devoid of any admissions to this effect, and LaCaze’s bare assertions in lieu thereof are insufficient. La.C.Cr.P. art. 930.2. The district court correctly rejected these claims.

      . The district court’s minute entry indicates defense counsel orally moved for Judge Ma-rullo’s recusal during the trial, although it is unclear on what basis. Judge James McKay denied the motion after a hearing. See Minute Entry for 7/17/95. Subsequently, post-conviction, Judge Marullo recused himself in advance of being called to testify in connection with this claim at LaCaze’s evidentiary hearing. See Minute Entry for 6/18/10,

      . For example, the day of the murders, "a uniformed Frank and a young African-American male with gold teeth were in Wal-Mart inquiring about 9 mm cartridges. They left without making a purchase.” LaCaze, 99-0584, p. 8, 824 So.2d at 1070.

      . LaCaze also urges — by way of a bullet-point list accompanied by scant argument — that other items were suppressed. His terse presentation is insufficient to show that any of the alleged suppressions warrant this Court’s intervention. See La.S.Ct.R. X, § 4(3)(d) (requiring "argument of each assignment of error on the facts and the law...La.S.Ct.R. VII, § 6 (assignments of error made but not briefed considered abandoned); State v. Bay, 529 So.2d 845, 851 (La. 1988). For example, he claims the state was required to disclose that two surviving victims reported seeing him carrying a cell phone earlier on the evening of the crimes, evidence he claims was material because it supports his theory that, if he possessed his cell phone some hours before the crime, he was not with Frank when she committed the murders because his phone records show he called her at that time. This claim fails the Brady materiality standard because LaCaze has not shown that without the statements, he received an unfair trial resulting in a verdict not worthy of confidence, and more closely resembles an attempt to re-litigate the sufficiency of the evidence. The district court’s detailed assessment finding these claims meritless was well-founded.

        . This claim was also subject to dismissal for the reason that the witness who allegedly gave misleading testimony was, at the time of the testimony complained of, a defense witness. The jurisprudence condemning presentation of false and misleading testimony generally pertains to the state, given that such testimony contravenes a defendant’s due process rights, rights he presumably cannot himself violate. See Napue, 360 U.S. at 269, 79 S.Ct. at 1177 (“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.”).

      . Because Mr. Turk is deceased, he did not testify at the hearing below.


text:
    STATE of Louisiana v. David Q. DAVIS
    No. 2016-KP-0305
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| granted. The court of appeal’s ruling is reversed and the district court’s ruling in which it summarily denied post-conviction relief is reinstated. The court of appeal erred when it granted writs and ordered the district court to conduct an evidentiary hearing to resolve a claim of ineffective assistance for failing to object to the jury charge, which the district court acted within its discretion in summarily dismissing. See La.C.Cr.P. art. 929(A); State ex rel. Tassin v. Whitley, 602 So.2d 721, 722 (La. 1992). The district court also correctly dismissed an additional claim of ineffective assistance of counsel at the habitual offender adjudication, which is a sentencing claim not cognizable on collateral review. State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030 (“[A] habitual offender adjudication ... constitutes sentencing for purposes of Melinie and La.C.Cr.P. art. 930.3, which provides no vehicle for post-conviction consideration of claims arising out of habitual offender proceedings, as opposed to direct appeal of the conviction and sentence.”); State v. Thomas, 08-2912, (La. 10/16/09), 19 So.3d 466 (claims of “ineffective assistance of counsel at sentencing are not cognizable on collateral review pursuant to La.C.Cr.P. art. 930.3 and State ex rel. Melinie v. State”). We attach hereto and make a part hereof the District Court’s written reasons denying respondent’s application.

Respondent 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 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Respondent’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, respondent has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

Guidry, J., would deny.

|sAttachment

GUIDRY, J.

h GUIDRY, J., would deny.


author: JOHNSON, Chief Justice,

text:
    STATE of Louisiana v. Morris JAMES
    No. 2015-K-2059
    Supreme Court of Louisiana.
    01/09/2017
    JOHNSON, C.J., would grant and assigns reasons.
   JOHNSON, Chief Justice,

would grant the writ application and assigns reasons.

hi would grant the writ application, finding defendant’s 25-year sentence excessive and a violation of the Eighth Amendment. Under our jurisprudence, a sentence is unconstitutionally excessive when it is grossly disproportionate to the severity of the offense or constitutes nothing more than a needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La. 1980). In this case, defendant’s record does not demonstrate that he is or has ever been a drug dealer. Rather, the facts indicate defendant clearly has a substance abuse problem. We would reduce Louisiana’s prison population substantially if drug dependency was treated as an addiction rather than solely in a criminal context. Imposition of a 25-year term of imprisonment on this non-violent offender who is 40 years of age and suffers from a drug addiction which motivated his involvement in the activity for which he has been convicted is clearly “grossly out of proportion to the severity” of the offense, and it amounts to nothing more than the “purposeful imposition of pain and suffering” which renders this sentence on this particular defendant unconstitutional. See State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274; La. Const, art. 1 § 20; State v. Sepulvado, 367 So.2d 762, 767 (La. 1979).


text:
    STATE EX REL. Edward L. ODOM, Jr. v. STATE of Louisiana
    No. 2015-KH-1971
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

h Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the District Court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated two applications 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 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against | ^successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Cornell MORRIS v. STATE of Louisiana
    No. 2015-KH-1925
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| iDenied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator 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 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive |2application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Marvin W. DAVIS v. STATE of Louisiana
    No. 2015-KH-1458
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| ] Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. Moreover, his claim was inexcusably omitted from the proceedings leading to his conviction. Cf. La.C.Cr.P. art. 930.4(B).

Relator 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 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Robert GRAHAM v. STATE of Louisiana
    No. 2015-KH-1442
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

| iDenied. The application was not timely filed in the district court, and relator fails to cany his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s application is repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the District Court’s written reasons denying relator’s application.

Relator has now fully litigated more than thirteen applications 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 and within the limitations period as set out in La. C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state | ¡.collateral review. The District Court is ordered to record a minute entry consistent wit is per curiam.

| .^Attachment


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Alphonse MOORE
    No. 2016-KP-0257
    Supreme Court of Louisiana.
    01/09/2017
    HUGHES, J., would grant.
   CRICHTON, J.,

additionally concurs and assigns reasons:

_JjTo demonstrate an entitlement to relief based on counsel’s alleged deficient performance, defendant, convicted of armed robbery, must show that (1) counsel erred and (2) that the error prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Examination of the habitual offender law in conjunction with the facts in this case demonstrates that the court of appeal reached the correct result in reversing the district court’s ruling, albeit perhaps for the wrong reason. Whereas the parties’ arguments and lower courts’ analyses turned on Strickland’s second prong (i.e., whether this defendant can prove prejudice) as a result of counsel’s alleged failure to prove that that the cleansing period had expired, they largely bypassed the threshold issue of whether applicant’s counsel in fact erred.

After an exhaustive review of defendant’s application, including the attached records of the Department of Public Safety and Corrections, I find that the 10-year “cleansing period” set forth by R.S. 15:529.1(C) did not elapse in the approximately 11 years between the commencement of the of the cleansing period and the instant armed robbery because defendant spent at least four of those years incarcerated, Time spent in a penal institution does not accrue towards the required 10 years. See R.S. 15:529(C) (“[A]ny period of servitude by [the defendant] in a|2penal institution, within or without the state ...” must not be included when computing the 10 years).

Accordingly, because defendant’s circumstances do not exempt him from habitual offender status, there is no defect in his adjudication as a second felony offender, and defendant raised no other meritorious basis upon which his counsel should have contested his adjudication' — thus, counsel committed no error. The finding of no error ends the Strickland inquiry and obviates any need to conduct the second-prong prejudice analysis.

In a broader context, this case highlights a discrepancy between the circuits’ treatment of the state’s burden of proof at habitual offender adjudications as it relates to the cleansing period. The First, Second, and Fifth Circuits have held that the state must prove the cleansing period has not lapsed as an element of the habitual offender adjudication, and now recognize the lack of such proof as an error patent. See, e.g., State v. Robinson, 47,427, p. 7 (La.App. 2 Cir. 10/3/12), 105 So.3d 751, 755 (state’s failure to prove that the cleansing period has not expired is error patent on the face of the record); State v. Abdul, 11-863 (La.App. 5 Cir. 4/24/12), 94 So.3d 801, 820-21 (since the sufficiency of the proof of the cleansing period bears on defendant’s due process rights, courts can review the issue on appeal as an error patent); State v. Baker, 452 So.2d 737, 745-46 (La. App. 1 Cir. 1984) (defendant’s claim that second felony offender sentence was improper without demonstrating the cleansing period; “Since this allegation, if proved, would be error patent on the face of the record under La.C.Cr.P. art. 920, we find it necessary to review this additional allegation.”). The failure to adopt this approach, particularly in the Fourth Circuit, has generated many claims of ineffective assistance of counsel for failing to assert the expiration of the cleansing period as a defense. Further complicating matters, when the state fails to prove in the district court that the cleansing period has not elapsed, and the Rissue is not raised until the matter is before a reviewing court, the record is often inadequate to resolve the question. While I feel that this case does not present the optimal forum to resolve this circuit split, it is my view that the judicial system would benefit from the implementation of error patent review of this issue.


text:
    Hazel JACKSON and Clarence Jackson v. JANSSEN PHARMACEUTICALS, INC.; Johnson & Johnson, Inc.; and Pervez Musarat, M.D.; Florida Parishes Human Services Authority; Rosenblum Mental Health Center, LLC; Ann Arretteig, M.D.; Sharon Hoffman, M.D.; and Greenbrier Hospital, LLC
    No. 2016-CC-1767
    Supreme Court of Louisiana.
    01/09/2017
    JOHNSON, C.J., would grant and assigns reasons.
    HUGHES, J., would grant.
    GENOVESE, J., would grant.
   JOHNSON, Chief Justice,

would grant the writ application.

hi find the district court correctly denied defendants’ motion for summary judgment in this case. I agree with the district court that a disputed issue of material fact exists concerning whether plaintiffs prescribing physicians were adequately warned of Risperdal’s potential side effects, particularly in non-schizophrenic, elderly patients such as Ms. Jackson. Additionally, as plaintiffs effectively argue, the credibility of the prescribing physicians is clearly at issue in this case thereby rendering summary judgment premature.

Accordingly, I would grant the plaintiffs’ writ application.


text:
    STATE EX REL. Eric Maurice GLYNN, Jr. v. STATE of Louisiana
    No. 2016-KH-2119
    Supreme Court of Louisiana.
    01/09/2017
   PER CURIAM:

1, WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court of appeal before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. See La.S.Ct.R. X § 5(b) (application seeking review of the action or inaction of a trial court in a case in which the court of appeal has supervisory jurisdiction but the applicant seeks to file directly in this court “will not ordinarily be considered by this court absent extraordinary circumstances”).