author: ROTHENBERG, C.J.

text:
    DDRA, LLC, Appellant, v. JARM, LLC, et al., Appellees.
    No. 3D16-2631
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2017.

      Levine & Partners, P.A., and Allan S. Reiss, for appellant.
    Gary Silberman, P.A., and Gary Silber-man, for appellees.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   ROTHENBERG, C.J.

DDRA, LLC (“DDRA”) appeals from non-final orders (1) granting JARM, LLC (“JARM”) and Dude IP, LLC’s (“Dude IP”) motion to stay the court proceeding filed by DDRA, LLC (“DDRA”) and to compel the arbitration proceeding they filed against South Beach Delivery Dudes, LLC (“South Beach Delivery”) and DDRA; (2) denying DDRA’s motion to stay arbitration and/or enjoin the arbitration proceeding filed by JARM and Dude IP; and (3) entering an agreed order correcting a scrivener’s error in the order granting JARM and Dude IP’s motion to stay the court proceeding and to compel the arbitration proceeding. Finding no error, we affirm.

JARM and Dude IP filed a demand for arbitration against South Beach Delivery and DDRA. The demand for arbitration arises out of a dispute between two members of South Beach Delivery, JARM and DDRA, relating to the alleged non-performance under South Beach Delivery’s operating agreement, and a dispute between Dude IP and South Beach Delivery, relating to the alleged improper use of trademarks under the licensing agreement.

At the hearing on the parties’ competing motions, JARM and Dude IP argued that the trial court was not authorized to determine the validity or the applicability of the arbitration provisions to the claims set forth in their demand for arbitration because the arbitration provisions in both the operating agreement and the licensing agreement contain the following language: “Any dispute regarding the validity of this arbitration provision, or the applicability of this provision to a particular claim, shall be decided by arbitration under this Section and not by a court.” After addressing JARM and Dude IP’s argument, the trial court ruled that it was denying DDRA’s motion to stay arbitration and/or enjoin arbitration, and it was granting JARM and Dude IP’s motion to stay the court proceeding and to compel the arbitration proceeding. The trial court thereafter entered its written orders, and DDRA’s non-final appeal of these orders followed.

The trial court’s order granting JARM and Dude IP’s motion to stay and to compel the arbitration “proceeding” does not specify whether the trial court had determined that, based on the operating and licensing agreements, it was required to submit the dispute as to the validity and applicability of the arbitration provisions for determination by an arbitrator, or whether the trial court was actually ordering the parties to arbitration. However, based upon our review of the hearing transcript and the inclusion of the word “proceeding” in the order that compelled the arbitration proceeding, we read the trial court’s order as submitting the issue of the validity and applicability of the arbitration provisions at issue for resolution by the arbitrator. We also conclude that the trial court was correct in doing so.

The following language is contained within the arbitration provisions of both the licensing agreement and operating agreement: “Any dispute regarding the validity of this arbitration provision, or the applicability of this provision to a particular claim, shall be decided by arbitration under this Section and not by a court.” This language clearly and unmistakably requires the arbitrator, not a court, to determine both the validity of the arbitration provision and the applicability of the arbitration provision to the claims raised by JARM and Dude IP in their demand for arbitration. Thus, the trial court properly determined that it was prohibited from deciding these issues and that these issues are to be decided by the arbitrator. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability’ is ‘an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’ ”) (quoting AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)) (emphasis and alteration added in Howsam); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.”) (citations omitted); Mercedes Homes, Inc. v. Colon, 966 So.2d 10, 14 (Fla. 5th DCA 2007) (holding that “a court must defer to an arbitrator’s arbitrability decision when the parties submitted that matter to arbitration”). Accordingly, we affirm the orders under review.

Based on our resolution of the above issue, we do not need to address the remaining arguments.

Affirmed.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Andrey TIKHOMIROV, Appellant, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York, successor to JPMorgan Chase Bank, N.A., as Trustee for Centex Home Equity Loan Trust 2006-A, Appellee.
    No. 16-1032
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2017

      Andrey Tikhomirov, in proper person.
    McGuireWoods, LLP, and Sara F. Hol-laday-Tobias, Emily Rottmann, and Ada Agusti Hammond (Jacksonville), for appel-lee.
    Before LAGOA, FERNANDEZ, and LOGUE, JJ.
   LAGOA, J.

Andrey Tikhomirov (“Appellant”) appeals from an order denying a Verified Emergency Motion to Intervene and Vacate Final Judgment of Foreclosure and Stay' Foreclosure Sale. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

As a result of unpaid assessments by the initial owner of the subject property (the “Borrower”), the homeowners’ association (the “HOA”) filed an action to foreclose on a lien for the unpaid assessments. On June 18, 2014, the HOA obtained a final judgment of foreclosure.

On July 20, 2015, Bank of New York Mellon' (“BNYM”) initiated a separate foreclosure action, which named the Borrower and the HOA, among others, as defendants. On the same date, BNYM filed a lis pendens in the trial court, and subsequently recorded the lis pendens in the public records of Miami-Dade County on July 22, 2015.

.While BNYM’s foreclosure action was pending, a foreclosure sale' based on the HOA’s final judgment of foreclosure was held, a Certificate of Sale, was issued to Appellant on October 27, 2015, and a Certificate of Title was issued to Appellant on November 9,2015.

On February 24, 2016, the trial court entered an Unopposed Final Judgment of Foreclosure in favor of BNYM. In this Final Judgment of Foreclosure, the trial cpurt found that BNYM’s lien was superior to all claims of the named defendants, including the HOA, and set a foreclosure sale date for April 7, 2016. The Final Judgment was subsequently recorded in the public records.

On April 4, 2016, after Final Judgment had been entered in favor of BNYM, Appellant filed a combined Verified Emergency Motion to Intervene and Vacate Final Judgment of Foreclosure and Stay Foreclosure Sale. In his Motion to Intervene, Appellant asserted that: (1) he was entitled to intervene in the foreclosure action as the record title owner of the property; (2) he was an indispensable party to the foreclosure action; (3) BNYM had failed to join him as a defendant to the action prior to the entry of the final judgment; and (4) the final judgment was therefore void. Appellant also asserted in his Motion to Vacate and Stay that BNYM had made material misrepresentations regarding its standing to bring the foreclosure action and that Appellant had been denied due process because he did not receive an opportunity to be heard prior to the trial court’s entry of final judgment of foreclosure in favor of BNYM.

Following receipt of the Appellant’s motions, the trial court entered an order resetting the foreclosure sale and scheduled a hearing on Appellant’s motions. Following the hearing on Appellant’s motions, the trial court in a written order denied Appellant’s motions, and reinstated the cancelled foreclosure sale. Specifically, with regard to Appellant’s Motion to Intervene, the trial court denied the motion based upon this Court’s decision in Andresix Corp. v. People’s Downtown National Bank, 419 So.2d 1107 (Fla. 3d DCA 1982). At the foreclosure sale held pursuant to BNYM’s Final Judgment of Foreclosure, Appellant did not exercise his right of redemption and the property was sold on July 7, 2016. This appeal ensued.

II. ANALYSIS

On appeal, Appellant asserts that the trial court should have allowed Appellant’s intervention as a matter of equity so that he could protect his interest in the property. In support of his argument, Appellant cites to Florida Rule of Civil Procedure 1.230. Although Rule 1.230 provides that “[ajnyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention,” intervention under Rule 1.230 is permissive not mandatory. The Rule further prorides that “the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.”

Appellant concedes that he purchased the property with notice that it was subject to BNYM’s foreclosure action and BNYM’s recorded lis pendens. It is well established that a purchaser of property that is the subject of a pending foreclosure action is not entitled to intervene in the foreclosure action where a notice of lis pendens has been recorded. See Andresix, 419 So.2d at 1107. This rule stems from the purpose of a notice of lis pendens which “is to notify third parties of pending litigation and protect its proponents from intervening liens that could impair or extinguish claimed property rights.” See Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So.3d 25, 28 (Fla. 5th DCA 2012).

In Andresix, this Court affirmed the trial court’s order denying Andresix’s motion to intervene in a pending foreclosure action. Specifically, this Court held that “An-dresix, as a purchaser of property which was then the subject of a mortgage foreclosure action and accompanying lis pen-dens by Peoples Downtown National Bank, was not entitled to intervene in such action.” 419 So.2d at 1107; see also SADCO, Inc. v. Countrywide Funding, Inc., 680 So.2d 1072, 1072 (Fla. 3d DCA 1996) (affirming denial of motion to intervene in a residential foreclosure action under the authority of Andresix); Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1089 (Fla. 2d DCA 2015) (same). Accordingly,

when property is pm-chased during a pending foreclosure action in which a lis pendens has been filed, the purchaser generally is not entitled to intervene in the pending foreclosure action. Indeed, if such a buyer purchases the property, he does so at his own risk because he is on notice that the property is subject to the foreclosure action.

Bymel v. Bank of America, N.A., 159 So.3d 345, 347 (Fla. 3d DCA 2015).

In a similar case, De Sousa v. JPMorgan Chase, N.A., 170 So.3d 928 (Fla. 4th DCA 2015), our sister court affirmed the trial court’s denial of a purchaser’s attempt to intervene after final judgment had been entered in a foreclosure proceeding. Id. at 929. In De Sousa, the homeowners’ association filed an action to foreclose on a lien for unpaid assessments. While that action was pending, the bank filed an action to foreclose on a superior mortgage and recorded a lis pendens. Id. A foreclosure sale was then held in the HOA’s action, and a third party purchased the property. Id. Final judgment was then entered in the bank’s foreclosure proceeding, and the third party moved to intervene. Id. The Fourth District Court of Appeal held that the third-party purchaser could not intervene because the purchaser had bought the property after the bank’s lis pendens had been recorded. Id. at 930. The Court also held that the interests of justice did not require intervention because the purchaser could protect its interest in the property by exercising its statutory right of redemption under section 45.0315, Florida Statutes. Id. at 931.

“The statutory right of redemption allows the mortgagor or the holder of a subordinate interest to cure the indebtedness and prevent a foreclosure sale up until the time of the filing of a certificate of sale by the clerk of the court” or the time specified in the foreclosure judgment. De Sousa, 170 So.3d at 931; § 45.0315, Fla. Stat. (2016). Here, Appellant did not exercise his statutory right of redemption and the subject property was sold at the July 7, 2016, foreclosure sale.

Additionally, and similar to the circumstances in De Sousa, because the mortgage on the property executed by the Borrower was recorded prior to both the HOA’s lien and Appellant’s purchase of the property, BNYM had priority over any interest of Appellant. See Westburne Supply, Inc. v. Cmty. Villas Partners, Ltd., 508 So.2d 431, 435 (Fla. 1st DCA 1987) (explaining that a lis pendens “serves to protect the interests of a lien claimant against a subsequent bona fide purchaser by giving constructive notice of the claim of lien where actual notice has not been given"). As such, the lis pendens recorded prior to Appellant’s purchase of the property placed Appellant on notice of BNYM’s superior claim, and the trial court properly exercised its discretion to avoid unnecessary protraction of the foreclosure action in declining to allow Appellant to intervene,

Finally, Appellant argues that the trial court erred in denying his Motion to Vacate filed pursuant to Florida Rule of Civil Procedure 1.540(b)(3). “Under Florida Rule of Civil Procedure 1.540(b), relief from judgment is only available under limited circumstances.” Dawson v. Wachovia Bank, N.A., 61 So.3d 1218, 1221 (Fla. 3d DCA 2011). A Rule 1.540(b)(3) motion seeking relief from judgment based upon fraud requires that the purported fraud be stated with specificity. Specifically,

Florida Rule of Civil Procedure 1.120(b) requires that the circumstances constituting fraud “be stated with such particularity as the circumstances may permit.” This means that a rule 1.540(b)(3) motion must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions. To entitle a movant to an evidentiary hearing, a rule 1.540(b)(3) motion must specify the fraud. In addition to specifying the fraud, the motion should explain why the fraud, if it exists, would entitle the mov-ant to have the judgment set aside.
... Requiring rule 1.540(b)(3) fraud to be stated with particularity allows a trial court to determine whether the movant has made a prima facie showing which would justify relief from judgment.,.. If a motion on its face does not set forth a basis for relief, then an evidentiary hearing is unnecessary. The time and expense of needless litigation are avoided and the policy of preserving the finality of judgments is enhanced.

Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994) (citations omitted); see also Federal Home Loan Mortg. Porp. v. De Souza, 85 So.3d 1125, 1126 (Fla. 3d DCA 2012) (“If a defendant seeks relief from a judgment based upon fraud, he must specify the fraud with particularity and explain why the fraud, if it exists, would change the outcome of the case.”).

“Because a trial court is accorded broad discretion in determining rule 1.540(b) motions, the standard of review of an order on a rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court’s discretion.” Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (citation omitted); see also Dawson, 61 So.3d at 1220.

We find that the trial court did not abuse its discretion in denying the motion for relief from judgment. Appellant neither stated the alleged fraud with sufficient particularity nor explained why the purported fraud would entitle Appellant to have the judgment set aside. Indeed, Appellant presented no competent, sworn, or verified evidence of fraud in his motion to vacate. It is well established that “[t]he plaintiff must raise a prima facie case of fraud, rather than ‘nibble at the edges of the concept’ through speculation and supposition.” Federal Home, 85 So.3d at 1126. Notwithstanding Appellant’s concerns, incorrect or misleading assignments of mortgage are not by themselves indicative of fraud, as assignments of mortgages are not required to transfer mortgages. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682-83 (Fla. 4th DCA 2004) (holding an assignment dated post-complaint does not prevent a mortgage assign-ee from establishing standing). Accordingly, Appellant’s argument concerning the existence or nonexistence of an assignment of mortgage or assignment of the note in the public récords would not have changed the outcome of the foreclosure. Because the Motion to Vacate failed to demonstrate a prima facie case of fraud under Florida Rule of Civil Procedure 1.540(b), we affirm the trial court’s order denying the motion.

III. CONCLUSION

Accordingly, we find that as a purchaser of a property which was the subject of a mortgage foreclosure action and an accompanying recorded lis pendens, Appellant was not entitled to intervene and the trial court did not abuse its discretion in denying the motion to intervene. We further find that the trial court did not abuse its discretion in denying the motion to vacate final judgment and stay the foreclosure sale.

Affirmed.

      . The transcript of the May 3, 2016, hearing has not been made part of the record on appeal.

      . The lis pendens was recorded on July 22, 2015, in the public records of Miami-Dade County.
      The act of recording an instrument in accordance with [Florida’s recording] statute constitutes constructive notice of a prior encumbrance on the property which is the subject of the instrument. Constructive notice is a legal inference, and it is imputed to creditors and subsequent purchasers by virtue of any document filed in the grant- or/grantee index—the official records.
      Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1091 (Fla. 2d DCA 2015) (citations omitted) (alteration in original) (emphasis omitted); see also Fla. Stat. § 695.11.

      . Of significance to this appeal, section 45.0315 provides that
      [a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure .... Otherwise, there is no right of redemption.


text:
    Osvaldo MARTINEZ, Appellant, v. PREFERRED CARE PARTNERS, INC., et al., Appellees.
    No. 3D16-440
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2017
    Osvaldo Martinez, in proper person.
    Legón Fodiman, P.A., and Todd R. Le-gón and William F. Rhodes, for appellees.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   ROTHENBERG, C.J.

Osvaldo Martinez (“Martinez”) appeals the trial court’s entry of an order granting final summary judgment in favor of Preferred Care Partners, Inc. (“PCP”), Preferred Care Partners Medical Group, Inc., Preferred Care Partners Holding Corp., Joseph L. Carancho, and Justo Luis Pozo (collectively, “the defendants”). We affirm.

The record reflects that Martinez previously owned companies that entered into a Network Risk Agreement with POP. According to the agreement, POP was to provide Martinez’s companies with Medicare-eligible members in its healthcare plan; Martinez’s companies would provide medical care for those members; and the parties would split the capitation from the federal government. Martinez sued the defendants on October 5, 2012 for allegedly committing various tortious acts. The defendants filed a motion for summary judgment as to all of Martinez’s claims based, in part, on the general release Martinez executed on January 18, 2012, releasing the defendants from the claims alleged in his complaint.

A general release is construed according to the principles governing the construction of contracts. Plumpton v. Cont’l Acreage Dev. Co., 830 So.2d 208, 210 (Fla. 5th DCA 2002). The general release in the instant case unambiguously covers “all manner of claims” that Martinez and the companies he formerly owned “have, had, or may have had” against the defendants “from the beginning of the world to present.” Such all-encompassing language fully protects the defendants, as it is undisputed that the claims in Martinez’s complaint accrued pri- or to the execution of the general release. See AXA Equitable Life Ins. Co. v. Gelpi, 12 So.3d 783, 786 (Fla. 3d DCA 2009); Brewer v. Laborfinders of Tampa, 944 So.2d 1102, 1103 (Fla. 1st DCA 2006).

It is also undisputed that Martinez failed to file a reply containing any legal theory that could result in the avoidance of the defendants’ general release. See Fla. R. Civ. P. 1.100 (“If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.”); CJM Fin., Inc. v. Castillo Grand, LLC, 40 So.3d 863, 864 (Fla. 4th DCA 2010) (affirming summary judgment “because the clear language of a release barred the claim and [the plaintiff] failed, to properly plead any legal theory that would have avoided the release”). Accordingly, the trial court properly entered final summary judgment in favor of the defendants.

Affirmed.


text:
    Catherine WADLEY and Bliss Consulting Services, Inc., Appellants, v. Thomas P. NAZELLI, Appellee.
    No. 3D16-100
    District Court of Appeal of Florida, Third District.
    Opinion filed July 05, 2017

      The Law Offices of Mario G. Menocal, P.A., and Mario G. Menocal; Gutierrez Bergman Boulris, PLLC, and Jennifer A. Kerr, for appellants.
    Krinzman Huss & Lubetsky, and Michael I. Feldman, for appellee.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   ROTHENBERG, C.J.

The plaintiffs below, Bliss Consulting Services, Inc. (“Bliss Consulting”) and its sole shareholder, Catherine Wadley (“Wadley") (collectively, “the plaintiffs”), appeal from an order dismissing with prejudice their first amended complaint (“amended complaint”) solely as to defendant Thomas P. Nazelli (“Nazelli”), a nonresident defendant and the president and sole shareholder of defendant Orchestra Management Solutions, Inc. (“OMS”) (collectively, “the defendants”), for lack of personal jurisdiction, Because the plaintiffs failed to establish that Nazelli was subject to jurisdiction under Florida’s long-arm statute, section 48.193(l)(a)2., Florida Statutes (2015), we affirm the order under review.

I. Facts and Procedural History

The plaintiffs filed an amended complaint stemming from the alleged breach of an alleged joint venture agreement between the plaintiffs and the defendants for the purpose of marketing and selling a software product developed by OMS. The plaintiffs alleged in .their amended complaint that jurisdiction was proper under section 48.193(l)(a) of Florida’s long-arm statute based on Nazelli’s commission of a tortious act in Florida, and that Nazelli had sufficient minimum contacts with Florida to satisfy federal due process requirements.

The defendants filed a verified motion to dismiss asserting, in part, lack of personal jurisdiction over Nazelli. Following -an evidentiary hearing, the trial court entered an order granting Nazelli’s verified motion to dismiss for lack of personal jurisdiction, finding that the plaintiffs failed to establish that Nazelli’s contacts with the state of Florida were sufficient to confer jurisdiction pursuant to Florida’s long-arm statute and to satisfy federal due process requirements. The plaintiffs’ appeal follows. We review the order granting Nazelli’s motion to dismiss for lack of personal jurisdiction de novo. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002) (holding that a trial court’s ruling on a motion to dismiss for lack of personal ju-risdictioh is reviewed de novo on appeal).

II. Analysis

The plaintiffs contend that the trial court erred by dismissing their amended complaint with prejudice as to defendant Nazelli for lack of personal jurisdiction. We disagree.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989), the Florida Supreme Court set forth a two-step inquiry to determine whether the courts in Florida have long-arm jurisdiction over a nonresident défendant, First, a court must determine'if the operative complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. If this step is satisfied, the court must then determine if the nonresident defendant has sufficient “minimum contacts” with the forum state to satisfy the Fourteenth Amendment’s due process requirements. To satisfy the “minimum contacts” requirement, a court must determine that “the' defendant’s' conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Florida’s long-arm statute provides for either “specific” jurisdiction under section 48.193(l)(a) if the nonresident defendant committed any of the acts enumerated under section 48.193(l)(a) in Florida, or “general” jurisdiction under section 48.193(2) if the nonresident defendant “engaged in substantial and not isolated activity within this state.” See Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011). As this Court explained in Gerber Trade Finance, Inc. v. Bayou Dock Seafood Co., 917 So.2d 964, 967 (Fla. 3d DCA 2005):

While it is true that under the general jurisdiction standard the defendant must be involved in substantial, not isolated, and continuous contacts within the State, see § 48.193(2), Fla. Sfcat. (2004), for specific jurisdiction, the plaintiff need only show that the defendant’s contact within the State resulted in, among several options, a tortious act. § 48.193(l)(b), Flá. Stat. (2004).

In the instant case, the plaintiffs argue that they have alleged .sufficient jurisdictional facts in their amended complaint to bring the action within the “specific” jurisdiction provision, of Florida’s long-arm statute, section 48.193(l)(a), which provides, in part, as follows:.

48.193 Acts subjecting person to jurisdiction of courts of state.—'
(l)(a) A person, whether or not a citizen or resident of this state, who personally of through an agent does ahy of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the 'following acts:
2. Committing a tortious act within this state.

The plaintiffs argue on appeal that Nazelli personally committed the tort of fraudulent inducement within the state of Florida based on his alleged actions in Florida and hundreds of communications into Florida with Wadley, a Florida resident. In Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002), the Florida Supreme Court held that “ ‘committing a tortious act’ in Florida under section 48.193(l)(b) can occur through the nonresident defendant’s telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications.” (emphasis added). See also Swanky Apps, LLC v. Roony Invest & Finance, S.A., 126 So.3d 336, 339 (Fla. 3d DCA 2013) (“[C]omitting a tortious act within Florida under section 48.193(l)(b) can occur by making telephonic, electronic, or written communications into this State, provided that the tort alleged arises from such communications, and under certain circumstances, such communications can also satisfy due process requirements”) (internal quotations and citations omitted); OSI Indus., Inc. v. Carter, 834 So.2d 362, 365 (Fla. 5th DCA 2003) (holding that a telephone call from an out-of-state defendant to a plaintiff in Florida during which the defendant allegedly made misrepresentations to the plaintiff to induce the plaintiff to continue his employment with a corporation, in which the defendant was a principal, was sufficient to constitute committing a tort in Florida and adequate minimum contacts to satisfy federal due process where the out-of-state defendant knew that the misrepresentations would impact the plaintiff in Florida).

Thus, as the above cases demonstrate, a nonresident defendant’s communications into Florida can form the basis for committing a tortious act within Florida. However, in'the instant case, although there were some general allegations within the amended complaint that could support a cause of action for fraudulent inducement, the amended complaint did not specifically plead a cause of action for fraudulent inducement. Further, during the evidentiary hearing on the motion to dismiss, the plaintiffs did not argue that Nazelli committed the tort of fraudulent inducement while in Florida or move to further amend their complaint to add a cause of action for fraudulent inducement. In fact, the plaintiffs did not address the tort of fraudulent inducement at the hearing. Finally, the plaintiffs did not file a motion for rehearing requesting that the trial court consider the general allegations set forth in the amended complaint that may support a cause of action for fraudulent inducement.

The plaintiffs now argue on appeal that the dismissal should have been without prejudice to allow them to further amend their complaint to state a cause of action for fraudulent inducement. However, by failing to seek an amendment to their complaint before the trial court, the plaintiffs have failed to preserve this issue for appellate review.

In Vorbeck v. Betancourt, 107 So.3d 1142, 1147-48 (Fla. 3d DCA 2012), this Court explained:

The rule of preservation, which is a keystone in our appellate process, dictates that “[i]n the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.” Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002); see also Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (“As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.”). As Florida courts have long recognized, “[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation
...Sunset Harbour, 914 So.2d at 928 (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985)).

This Court also noted that the rule of preservation applies to the dismissal of a complaint with prejudice, id. at 1148, and cited to the following cases:

Stander v. Dispoz-O-Products. Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008) (noting that “a party who does not seek to amend in the trial court cannot raise the issue of amendment for the first time on appeal,” and holding that the plaintiff waived the right to challenge the dismissal with prejudice because when the trial court orally “announced that it was dismissing with prejudice,” the plaintiff merely responded “Thank you, your Honor,” and “did not request leave to amend the complaint, nor did plaintiff move for rehearing to amend after the order of dismissal was entered”); Jelenc v. Draper, 678 So.2d 917, 918 n.1 (Fla. 5th DCA 1996) (“The Jelencs alternatively argue that even if dismissal was proper, it should have been without prejudice to allow them the opportunity to amend their complaint. While our disposition of the case moots this claim, we note that we would not have been able to address the claim because the record does not disclose that the Jelencs ever requested the opportunity to amend, and thus, the issue was not preserved for appellate review.”); Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985) (holding that the “appellants’ failure to seek leave to amend prior to the dismissal with prejudice or to move for rehearing requesting leave to amend, precludes consideration of the issue for the first time on appeal”); see also Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d 246, 255 (Fla. 2d DCA 2010). Thus, the failure to raise an issue regarding an improper dismissal with prejudice at the trial level constitutes a waiver of this issue on appeal. See Keech, 815 So.2d at 720 (“The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.”).

Because the plaintiffs failed to preserve their objection to the dismissal of their complaint with prejudice; request leave to amend their complaint to state a cause of action for fraudulent inducement; or otherwise attempt to argue that the tortious act they were relying on to establish specific jurisdiction over Nazelli was fraudulent inducement, we find no error with the trial court’s determination that the plaintiffs failed to allege sufficient jurisdictional facts to bring the plaintiffs’ actions within the ambit of Florida’s long-arm statute, section 48.193(l)(a) 2. As we have determined that the plaintiffs did not satisfy the first inquiry set forth in Venetian Salami, we need not determine whether there were sufficient minimum contacts between Florida and Nazelli to satisfy federal due process requirements. Accordingly, we affirm the order under review.

The remaining arguments raised by the plaintiffs do not merit discussion.

III. Conclusion

We affirm the trial court’s order finding that it lacked personal jurisdiction over Nazelli under Florida’s long-arm statute, section 48.193(l)(a) 2.

Affirmed.

      . The defendants, Nazelli and OMS, filed a joint motion to dismiss, The trial court, however, entered separate orders as to Nazelli and OMS. In its order as to OMS, the trial court found that it had personal jurisdiction over OMS. The trial court's order as to OMS was not appealed by any of the parties and, therefore, is not a subject of this appeal.

      . The amended-complaint alleges a breach of a joint venture agreement. The exhibit attached to the amended complaint to support this allegation reflects that the proposed joint venture agreement was between OMS and Bliss Consulting, and that the proposed joint venture agreement was never executed.

      ; The amended complaint also alleged personal jurisdiction over Nazelli pursuant to the general jurisdiction provision set forth in section 48,193(2) of Florida’s long-arm statute. The plaintiffs have since abandoned this argument.

      4. Section 48.193(l)(b), Florida Statutes (2002), pertaining to "[c]ommitting a tortious act” within Florida, was renumbered in 2013 . as section 48.193(l)(a)2. .


author: EMAS, J.

text:
    Linaker CHARLEMAGNE, Appellant/Cross-Appellee, v. The STATE of Florida, Appellee/Cross-Appellant.
    Nos. 3D13-2786, 3D13-2803
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2017
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant/cross-appellee.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee/cross-appellant.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

EMAS, J.

Linaker Charlemagne was convicted of one count of first-degree murder with a firearm (discharging a firearm resulting in death) and one count of attempted first-degree murder with a firearm (discharging a firearm resulting in great bodily harm). The trial court imposed concurrent sentences of life imprisonment. Pursuant to section 775.087(2)(a)3, Florida Statutes (2009) (the 10-20-Life statute), each of the life sentences carried a mandatory minimum sentence of twenty-five years in prison. The trial court ordered that the twenty-five year mandatory minimum sentences be served concurrently.

On direct appeal, we affirmed the convictions. Charlemagne v. State, 185 So.3d 540 (Fla. 3d DCA 2016) (Mem). The State cross-appealed the twenty-five year mandatory minimum sentences, contending that the trial court did not have the discretion to direct that they be served concurrently. The State argued that the language of the 10-20-Life statute required that the twenty-five year mandatory minimum terms be imposed consecutively.

We agreed, reversed the sentences and remanded with directions that the sentences be corrected to reflect that the twenty-five year mandatory minimum terms shall be served consecutively. In doing so, we relied upon Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013) and Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013), each of which was subsequently quashed by the Florida Supreme Court. See Walton v. State, 208 So.3d 60 (Fla. 2016); Williams v. State, 186 So.3d 989 (Fla. 2016). In Williams, the Florida Supreme Court addressed whether and under what circumstances the 10-20-Life statute prohibited, permitted or required consecutive mandatory minimum sentences. The Court held that, for purposes of sentencing under the 10-20-Life statute:

Generally, 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.... It follows, therefore, that a trial court must impose the mandatory minimum sentences concurrently under such circumstances.
If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. In other words, a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.
Id. at 993 (internal citations omitted).

Charlemagne petitioned for review in the Florida Supreme Court. The Florida Supreme Court granted review, quashed our decision, and remanded the case for reconsideration in light of its decisions in Walton and Williams.

It is undisputed that Charlemagne was convicted of multiple firearm offenses, committed contemporaneously, during which multiple victims were shot at. Therefore, under Williams, the imposition of consecutive mandatory minimum sentences was permissible but not mandatory. The transcript of the sentencing hearing establishes that the trial court exercised its discretion in ordering that the mandatory minimum sentences be served concurrently rather than consecutively. These sentences were consistent with the Florida Supreme Court’s holding in Williams, and were within the trial court’s discretion.

We therefore affirm the convictions (direct appeal) and the sentences imposed by the trial court (cross-appeal), including the twenty-five year mandatory minimum sentences, which the trial court ordered to be served concurrently.

Affirmed.

      . We also relied upon our decision in Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014). The Florida Supreme Court subsequently quashed Morgan and remanded the case for reconsideration in light of Walton and Williams. Morgan v. State, SC 14-757, 2017 WL 2302326 (Fla. May 26, 2017).


author: PER CURIAM.

text:
    James M. CLARK, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4773
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017.
    Andy Thomas, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ORDER STRIKING ANDERS BRIEF

PER CURIAM.

Appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This Court is required to perform an independent review “to discover any errors apparent on the face of the record.” State v. Causey, 503 So.2d 321, 322 (Fla. 1987). It appears the face of this record reveals multiple sentencing errors.

First, the court imposed all fines, fees, costs, and surcharges as a lump sum, including a discretionary fine pursuant to section 775.083(1), Florida Statutes, and the corresponding surcharge. See Trusty v. State, 210 So.3d 758, 760 (Fla. 1st DCA 2017) (striking discretionary fine and corresponding surcharge because court ordered as a lump sum). Second, the court imposed a $300 public defender fee without providing Appellant notice or an opportunity to be heard on that fee. See id. (striking public defender fee greater than the $100 statutory minimum because for fees greater than the minimum, the court “is required to give the defendant notice and an opportunity to be heard”). Third, there is a discrepancy between the court’s oral pronouncement of the total amount of fines, fees, and costs and the total listed in Appellant’s written judgment and sentence. See Ramos v. State, 156 So.3d 591, 591-92 (Fla. 1st DCA 2015) (mem.) (explaining “a discrepancy between the total amount orally announced and the total reflected in the written judgment and sentence” is a sentencing error); Whitney v. State, 108 So.3d 1157, 1157-58 (Fla. 1st DCA 2013) (explaining a written sentence that differs from the oral pronouncement is an illegal sentence). .

Accordingly, on the Court’s own motion and pursuant to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the initial brief filed February 17, 2017, is stricken in order to permit the filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Counsel for Appellant shall file the motion with the lower tribunal within twenty days of the date of this order, and the lower tribunal is directed to resolve' the motion in accordance with rule 3.800(b)(2)(B). The clerk of the lower tribunal shall thereafter transmit a supplemental record on appeal pursuant to Florida Rule of Appellate Procedure 9.140(f)(6), and counsel for Appellant shall file an amended initial brief within twenty days following transmittal of the supplemental record. See Adams v. State, 197 So.3d 641, 642 (Fla. 1st DCA 2016).

WOLF and ROWE, JJ., and GRIFFIS III, STANLEY H., ASSOCIATE JUDGE, CONCUR.


text:
    Carlos SHAARBAY, Appellant, v. DEPARTMENT OF REVENUE O/B/O Dania ALVAREZ, Appellee.
    No. 3D16-2137
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Carlos Shaarbay, in proper person.
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that, given the presumption of correctness of the trial court’s ruling, where no transcript is provided to appellate court, then appellate court is unable to determine whether the evidence supports the trial court’s judgment).


text:
    3590 MYSTIC POINTE LLC, etc., et al., Appellants, v. Larry KAREL, etc., et al., Appellees.
    No. 3D16-2101
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Weissman & Dervishi and Jeffrey Weissman (Fort Lauderdale); Barry S. Franklin; McGlinehey Stafford and Manuel Farach (Fort Lauderdale), for appellants.
    Gordon & Rees and Amy Darby (Tampa); Robert P. Frankel (Plantation); for appellees.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See B & G Aventura, LLC v. G-Site Ltd. P’ship, 97 So.3d 308 (Fla. 3d DCA 2012).


text:
    William Warner RIECK, Appellant, v. Diana R. FAUQUENOT-KIRK, Appellee.
    No. 3D16-2087
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Rehearing Denied August 7, 2017
    John Marston, P.A., and John Marston, for appellant.
    Rysman Law, P.A., and Peter Rysman, for appellee.
    . Before SUAREZ, FERNANDEZ and, SCALES, JJ.
   PER CURIAM.

Affirmed. See DeWitt v. Puce, 408 So.2d 216 (Fla. 1981).


text:
    John ALESANTRINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2701
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017
    Rehearing Denied July 19, 2017

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ, and SCALES, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 967 So.2d 735, 750 (Fla. 2007) (“a trial court may base an evidentiary ruling on an alternative basis that was not suggested by the parties.”).


text:
    Luis LA-CASSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1195
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017.
    Luis La-Casse, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER, and LUCK, JJ.
   PER CURIAM.

Luis La-Casse appeals the trial court’s entry of an order precluding him from filing any further pro se post-conviction pleadings. The ruling in State v. Spencer, 751 So.2d 47 (Fla. 1999) requires that we reverse. Pursuant to Spencer, the trial court was required to issue a Show Cause Order to provide La-Casse the opportunity to demonstrate why an order precluding pro se filings should not be entered. Although La-Casse was warned that such an Order would be entered, no Show Cause Order was issued below. We therefore reverse for the entry of such an order by the trial court.

Reversed and remanded.


author: HUGHES, J.

text:
    James E. BOREN v. Earl B. TAYLOR
    No. 2016-CC-2078
    Supreme Court of Louisiana.
    06/29/2017
    HOGAN & HOGAN, Jane Catherine Hogan; INNOCENT PROJECT NEW ORLEANS, Emily Lucy Ann Maw, Kristin M. Wenstrom; Scott Lehman Sternberg, for Applicant-Plaintiff.
    ST. LANDRY PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Earl B. Taylor, District Attorney, Alisa Ardoin, Gothreaux, Donald James Richard, for Respondent-Defendant.
    Scott Lehman Sternberg, Counsel for The Louisiana Press Association, (Amicus Curiae)
   HUGHES, J.

[! This case presents the res nova issue of whether an attorney, representing an incarcerated felon, is subject to the provisions of La. R.S. 44:31.1, when making a public records request to obtain information relative to a potential post-conviction relief application. Both the district court and the appellate court ruled in the affirmative. For the following reasons, we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Attorney James E. Boren was retained by Stephan M. Bergeron to review his 2013 rape convictions to determine if there were any valid bases for post-conviction relief. Mr. Boren forwarded a written request on June 30, 2015 to the St. Landry District Attorney’s office, seeking to review and copy records related to Mr. Ber-geron’s conviction under the Louisiana Public Records Law, La. R.S. 44:1 et seq. Assistant District Attorney Donald J. Richard replied to the request, in a July 14, 2015 letter, requesting Mr. Boren disclose the nature of his relationship bwith Mr. Bergeron, i.e., whether Mr. Boren was “acting in any capacity in representing him in any post-conviction proceedings” and, if so, asking Mr. Boren to “set forth the grounds for post-conviction relief,” along with his “personal representation that none of those grounds were raised on appeal.” Mr. Boren responded by letter dated July 21, 2015, disclosing that he was retained by Mr. Bergeron to investigate his 2013 rape convictions to determine if there were any valid claims 'for post-conviction relief and that he was seeking access to files of the St. Landry Parish District Attorney’s Office regarding that prosecution. Mr. Boren was thereafter notified by Mr. Richard’s July 24, 2015 letter that his “response does not meet the requirements previously cited in our response letter dated July 14, 2015. Therefore, your request is DENIED.” (Emphasis original.)

Mr. Boren then filed a “Petition for Writ of Mandamus and Review” on August 10, 2015, in the Twenty-Seventh Judicial District Court, pursuant to La. Const. Art. XII, § 8, La. C.C.P. arts. 3862-68, and La. R.S. 44:35. Mr. Boren also sought to collect from the defendant/custodian attorney-fees, costs, and damages, under La. R.S. 44:35, for their failure to comply with his public records request.

Following an August 31, 2015 hearing, the district court denied Mr. Boren’s petition for a writ of mandamus. A subsequent writ application to the appellate court was denied. Boren v. Taylor, 15-0911 (La. App. 3 Cir. 11/18/15) (unpublished). On Mr. Boren’s application to this court, we granted the writ and remanded to the appellate court for briefing, argument, and full opinion. Boren v. Taylor, 15-2322 (La. 3/14/16) (unpublished writ action). On remand, the appellate court affirmed the district court ruling. Boren v. Taylor, 15-0911 (La. App. 3 Cir. 10/26/16), 206 So.3d 892. Thereafter, this court granted the plaintiffs writ application. Boren v. Taylor, 16-2078 (La. 1/23/17), 215 So.3d 262.

Mr. Boren asks this court to reverse the appellate court decision, contending, in essence: that the provisions of La. R.S. 44:31.1 apply only to an incarcerated [¡¡individual, not to an attorney; that La. R.S. 44:31.1 should be strictly construed so as not to diminish his right of access to public records becáuse of his attorney-client relationship with an incarcerated individual; that the public records custodian (here, the district attorney) exceeded his authority to question a person seeking public records access beyond that allowed by La. R.S. 44:32(A); and that he is entitled to an award of attorney fees, costs, and damages, pursuant to La. R.S. 44:35.

LAW AND ANALYSIS

The public’s right to access public records is granted by Louisiana Constitution, Article XII, Section 3, which provides: “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”

The legislature, by enacting the Public Records Law, La. R.S. 44:1 et seq., sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records that the law deems public. See Landis v. Moreau, 00-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 694-95; Title Research Corporation v. Rausch, 450 So.2d 933, 937 (La. 1984). In implementation of this right, La. R.S. 44:31(A) states, “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” Further, “any person of the age of majority may inspect, copy, or reproduce any public record,” except “as otherwise specifically provided by law.” La. R.S. 44:31 (B). A public records custodian must “present any public record to any person of the age of majority who so requests,” and the custodian “shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person.” La. R.S. 44:32(A).

The legislature has further recognized that “it is essential to the operation of |4a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records.” La. R.S. 44:4.1(A). In order to foster the people’s awareness, the legislature declared that “all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in [the Public Records Law] or the Constitution of Louisiana.” Id. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in the Public Records Law or in the.Constitution of Louisiana has no effect. Id.

Thus, the Public Records Law must be construed liberally in favor of free and unrestricted access to public documents, and access to public records can be denied only when a law specifically and unequivocally provides otherwise. Title Research Corporation v. Rausch, 450 So.2d at 937. See also DeSalvo v. State, 624 So.2d 897, 902 (La. 1993), cert. denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994); Landis v. Moreau, 779 So.2d at 695. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see; to allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. In re Matter Under Investigation, 07-1853, p. 25 (La. 7/1/09), 15 So.3d 972, 989; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, p. 4 (La. 7/1/97), 696 So.2d 562, 564; Title Research Corporation v. Rausch, 450 So.2d at 936.

In this case, Mr. Boren’s public records request was denied by the defendant/custodian on the basis of the exception set forth in La. R.S. 44:31.1, which provides:

For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted- his appellate remedies when the request for public records is not limited to grounds upon which the individual could, file for post conviction relief under Code of Criminal Procedure Article R930.3. Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such .individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for. post conviction relief under Code of Criminal Procedure Article 930.3. [Emphasis added.]

Both the district court and the appellate court in this case held that the provisions of La. R.S. 44:31.1 were applicable to the public records request of Mr. Boren, reasoning, in essence, that Mr. Boren stood in the' shoes of his client, Stephan Bergeron, an incarcerated felon who had exhausted his appellate remedies. Therefore, the lower courts ruled that Mr. Boren was required to satisfy the necessary inquiries of the custodian, (here, the St. Landry Parish District Attorney) to ascertain “if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3,” as provided by La. R.S) 44:31.1.

As we noted hereinabove, however, La. Const. Art.,XII, § 3 establishes a fundamental right in a “person” to “examine public documents,” and this right may only be denied “in cases established by law.” The plain language of La, R.S. 44:31.1 only restricts the right of “an individual in custody after sentence following a felony conviction” to examine public documents. Mr. Boren is not an individual in custody after sentence following a felony conviction. Neither La. R.S. 44:31.1 nor any other law cited to, or discoverable by, this court restricts the right of a “person” on the basis of that person’s status as an attorney representing a client. Having found that La. R.S. 44:31.1 clearly and unambiguously applies only to “an individual in custody after sentence following a felony conviction,” we find it | «unnecessary to delve further into the intent of the ■ legislature in enacting this statute.

Mr. Boren’s rights under the Public Records Law have not been “specifically and unequivocally” limited by any law. See Title Research Corporation v. Rausch, 450 So.2d at 937. Therefore, his public records request to the defendant/custodian should have been evaluated under La. R.S. 44:31 and La. R.S. 44:32, allowing the custodian'to inquire only as to the “identification of the person” seeking access to public records and whether he or she is “of the age of majority.” .

We note the defendant/custodian’s argument in favor of the application of La. R.S. 44:31.1 to Mr. Boren’s public records request, asserting that Mr. Boren was not acting as an “ordinary citizen” in making the request since he was ^operating in a legally representative capacity” and that to allow Mr. Boren, under these circumstances, to avoid the application of La. R.S. 44:31.1 would give Mr. Boren’s incarcerated client, Stephan Bergeron, “greater rights than he would have had .without an attorney” and “more rights than all those other defendants incarcerated without attorneys.” The plaintiff and amicus curiae counter that applying the restrictions contained in La. R.S. 44:31.1 to an attorney representing [7an incarcerated felon would produce an absurd result, in that any other non-incarcerated person (such as other attorneys, court personnel, journalists, friends or relatives of the incarcerated felon, etc.) would have unfettered access (excepting the custodian’s inquiry as to age and identity) to the public records sought while the rights of Mr. Boren would be diminished simply because he is representing Mr. Bergeron. The Innocence Project of New Orleans also asserts, in its brief to this court, that in most cases grounds for post-conviction relief are not knowable, citing La. C.Cr.P. art. 930.8(A)(1), until public records are reviewed for error by an attorney, such as when a prosecutor has impermissibly excluded jurors on the basis of racial bias, as discussed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or when a prosecutor has failed to turn over ^exculpatory material to the defense, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 (1963).

Because the defendant/custodian denied Mr. Boren’s public records request in this case on the basis of La. R.S. 44:31.1, for his failure to answer an inquiry as to “the grounds for post-conviction relief’ to be put forth on behalf of Mr. Boren’s client, Stephan Bergeron, the denial was improper. Therefore, Mr. Boren was entitled to the relief he sought in the district court, pursuant to La. R.S. 44:35, which authorizes “proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief’ when a person has been denied the right to inspect public records, stating:

A. Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
C. Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable.
D. If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.
E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or | ^arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.
(2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester’s attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.
F.An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for the employment of outside counsel.

Additionally, a plaintiff who prevails in a suit to enforce the right to view public records is entitled to collect attorney fees, costs, and damages, as set forth in La. R.S. 44:35. Accordingly, the district court erred in denying Mr. Boren’s claim for attorney fees, costs, and damages under La. R.S. 44:35.

DECREE

For the reasons stated, we reverse the appellate court decision, upholding the district court’s denial of the plaintiffs petition for writ of mandamus, and we remand this matter to the district court with instructions to issue a writ of mandamus to the St. Landry Parish District Attorney, ordering compliance with La. R.S. 44:31 and La. R.S. 44:32, without regard to the provisions of La. R.S. 44:31.1, as to the public records request of plaintiff James E. Boren. We further instruct the district court to assess and award to plaintiff James E. Boren attorney fees, costs, and damages, as appropriate under La. R.S. 44:35.

REVERSED; REMANDED TO DISTRICT COURT WITH INSTRUCTIONS.

       Retired Judge Freddie Pitcher, Jr. participated in this decision as Justice Ad Hoc, sitting for Genovese, J., recused in this case.

      . See State v. Bergeron, 14-608 (La. App. 3 Cir. 11/5/14), 150 So.3d 523, 526 (wherein the defendant’s four convictions for rape of his former wife during their four-year marriage were affirmed).

      . When a law is clear and unambiguous and its application does not lead to absurd'consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; La. R.S. 1:4.

      . “The text of a law is the best evidence of legislative intent.” La. R.S. 24:177(B)(1). It is only "[w]hen the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code and Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950,” that “the court shall consider the intent of the legislature.” La. R.S. 24:177(A) (footnotes omitted).

      . The extensive exceptions to the Public Records Law promulgated by the legislature demonstrate the recognition of the legislature of the need to expressly provide for such exceptions by a specific and express law when it deems appropriate. See, e.g„ La. R.S. 44:1(A)(2)(b), (B); La. R.S. 44:2; La. R.S. 44:3; La. R.S. 44:3.1; La. R.S. 44:3.2; La. R.S. 44:3.3; La. R.S, 44:3.4; La. R.S. 44:4; La. R.S. 44:4.1(B), (C); La. R.S. 44:5; La. R.S. 44:10; La. R.S. 44:11; La. R.S. 44:12; La. R.S. 44:13; La. R.S. 44:14; La. R.S. 44:15; La. R.S. 44:16; La, R.S. 44:17; La. R.S. 44:18; La. R.S. 44:19; La. R.S. 44:20; La. R.S. 44:21; La. R.S. 44:21.1; La, R.S. 44:22; La. R.S. 44:23; La. R.S. 44:23.1.

      . This court granted the motions of The Louisiana Press Association and the Innocence Project of New Orleans to file amicus curiae briefs in this case, in opposition to the position of the defendant/custodian.

      . See-La. C.Cr.P. art. 930.3 (“If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds: (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana; (2) The court exceeded its jurisdiction; (3) The conviction or sentence subjected him to double jeopardy; (4) The limitations on the institution of prosecution had expired; (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; ,,. (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana[;] (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.”).

      . Article 930.8(A)(1) provides: "No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply: (1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys.” (Emphasis added.) The Innocence Project asserts that the provisions of Article 930.8(A)(1) illustrate the necessity of access to a prosecutor’s file prior to the formulation of potential grounds for post-conviction relief, i.e., since the defendant and his attorney(s) only have knowledge, post-trial, of the contents of the trial record and trial attorney's file, new facts can only come from the prosecutor's file.

      . See also La. C.Cr.P. art. 926(B)(5) (requiring that, in an application for post conviction relief, the plaintiff is required to allege, in his written petition, “[ajll errors known or discoverable by the exercise of due diligence”).

      .In the lone dissent to the appellate court decision in this case, the dissenting judge cites as a compelling reason not to "blindly embrace the District Attorney’s position” the circumstances underlying the decision in Foster v. Chatman, — U.S. -, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). Boren v. Taylor, 206 So.3d at 901 (dissenting opinion). In Foster v. Chatman, the defendant had been convicted of capital murder and sentenced to death. However, by means of his attorney’s post-trial efforts, evidence obtained under the state’s public records law from the prosecutor’s records revealed pervasive racial bias in the jury selection process and "demonstrate^] a concerted effort to keep black prospective jurors off the jury.” See Foster v. Chatman, 136 S.Ct. at 1755,


author:
PER CURIAM
     Johnson, Chief Justice, Hughes, J.,

text:
    STATE of Louisiana v. Chadwick MCGHEE
    No. 2015-K-2140, No. 2015-K-2141
    Supreme Court of Louisiana.
    06/29/2017

      AVOYELLES PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Charles “Charlie” Riddle, District Attorney, Michael Francis Kelly, for Applicant. (No. 2015-K-2140) (No. 2015-K-2141)
    Paula Corley Marx, for Respondent. (No. 2015-K-2140) (No. 2015-K-2141)
   PER CURIAM

|, Defendant Chadwick McGhee was found guilty as a principal to the simple kidnapping of Jessica Guillot, La.R.S. 14:45, in response to a charge of second degree kidnapping, La.R.S. 14:44.1, Guillot disappeared in September 2013 after she' was last seen being dragged out of one vehicle by Donnie Edwards and Willie Price and forced into a second vehicle in which Asa Bentley was waiting. Bentley then choked and threatened the victim, who begged for her life, as Edwards drove off with them, following Price and defendant in the first vehicle. The court of appeal found that, although the evidence showed co-perpetrators Bentley, Edwards, and Price kidnapped the victim,, the evidence was insufficient to show that the defendant was anything other than an unwitting bystander to the crime. Because the court of appeal erred in its application of the due process standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), we grant the state’s application to reverse the court of appeal’s ruling and remand for consideration of the pretermitted assignments of error.

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the- crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La. 1984). The Jackson standard does not permit a reviewing court to substitute its own appreciation of the facts for that of the factfinder. State v. Robertson, 96-1048, p. 1 (La. 10/4/96), 680 So.2d 1165, 1166. It is not the province of the reviewing court to assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116, p. 2 (La. 10/16/95), 661 So.2d 442, 443. As explained in State v. Mussall, 523 So.2d 1305 (La. 1988):

If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to' guarantee the fundamental protection of due process of law.

Mussall, 523 So.2d at 1310 (footnote omitted).

Principals to an offense are defined as:

All persons concerned in the commission of a crime, whether present or absent, and whether they • directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

La.R.S. 14:24. The court of appeal found the evidence insufficient to show that the defendant, who was present at a kidnapping, was aware that a kidnapping was going to occur or had any intent to aid and abet in the commission of the crime. In doing so, the court of appeal failed to view all of the evidence in the light most favorable to the prosecution. That evidence included not only the defendant’s | ¡¡presence at the crime scene but also his participation in stalking the victim with Bentley.

Evidence was presented at trial to establish the following. On September 7, Asa Bentley came to the victim’s mother’s house looking for the victim and claiming the victim had stolen something from him. The victim’s mother then walked to the victim’s home and found it had been ransacked. A few hours later, Bentley and the defendant picked up Cecil Cooper (the victim’s flaneé) from work. The defendant repeatedly told Cooper that something bad had happened the night before and the victim was in trouble. Bentley then complained to Cooper that the victim had stolen cocaine from him and stated that “somebody” was going to have to pay him his money or “somebody” would get hurt. After Cooper refused to pay and threatened to call the police, the defendant and Bentley dropped him off at the ransacked residence he shared with the victim, and they careened away after hitting a vehicle on the property. Bentley then met Tamika Williams at her apartment. The defendant was not present. Bentley told Williams that the victim had stolen cocaine from him and that when he found her he was going to kill her. The victim was later spotted near a shed and a phone call was made to Bentley informing him of her location. Notably, when Bentley arrived to look for her he was accompanied by the defendant, who one witness testified was nearly always at Bentley’s side. Together, Bentley and the defendant entered the shed looking for the victim. On Monday, September 9, Bentley picked Williams up and they drove on Highway 1 while Bentley talked to his brother, Willie Price, on the phone. Bentley slowed so that a vehicle—containing Price, the defendant, Donnie Edwards, and the victim—could pass him. The two vehicles then pulled over and the victim was dragged into Bentley’s car and attacked as described above. The two vehicles drove off together. After Bentley strangled the victim, the defendant joined him in theUvehicle in which the victim was killed. Later that night. Bentley reminded an upset defendant in front of eyewitnesses that the defendant had to do anything Bentley told him to do. When the defendant was interviewed by police, he confirmed their characterization of him as “Asa’s boy” but denied he knew the victim stole cocaine from Bentley or why Bentley was looking for her and he denied he was present in the car with Price, Edwards, and the victim. That statement was played for the jury.

Given defendant’s close association with Bentley, his awareness that the victim had stolen cocaine from Bentley, his participation in attempting to recoup Bentley’s loss from the victim’s flaneé, his participation in the hunt for the victim, his presence in the vehicle that transported the victim to Bentley, his presence during (and after) the transfer of the victim to Bentley, and his denial of any knowledge or involvement, we cannot say the jury’s determination that the defendant is a principal to the kidnapping is irrational even though he remained in the car during the moment the victim was handed over to Bentley. Although a jury may not speculate “if the evidence is such that reasonable jurors must have reasonable doubt,” State v. Lubrano, 563 So.2d 847, 850 (La. 1990) (internal quotation marks and citations omitted), the state here presented sufficient evidence, which when viewed in the light most favorable to the prosecution under the due process standard of Jackson v. Virginia, to establish that the defendant aided and abetted in the kidnapping of the victim. Accordingly we grant the state’s application to reverse the court of appeal’s ruling and remand to the court of appeal for consideration of the pretermitted assignments of error.

REVERSED AND REMANDED

JOHNSON, Chief Justice, dissents and assigns reasons.

HUGHES, Justice, dissents for the reasons assigned by Johnson, C.J.

Johnson, Chief Justice,

dissents and assigns reasons.

Ill respectfully dissent because I agree with the court of appeal that the evidence was insufficient to prove defendant’s guilt as a principal to kidnapping.

Simple kidnapping is defined, in pertinent part, as the intentional and forcible seizing and carrying of any person from one place to another without her consent. R.S. 14:45(A)(1). Viewing the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, it shows only that defendant was present when the victim was kidnapped and that he failed to stop others committing the offense or report it to authorities, which omissions are not crimes. There is no evidence that defendant forcibly seized the victim or took her anyplace against her will—indeed there was no evidence concerning how she came to ultimately be in the same vehicle with defendant and the others, much less proof that she was there unwillingly. There is also not enough evidence from which to rationally conclude |2that defendant aided or abetted in her subsequent forcible departure in another vehicle, as was required to establish his guilt as a principal. Importantly, an individual’s mere presence during a crime does not make him guilty as a principal; rather, the evidence must show that he stood by ready and willing to help the perpetrators.

In sum, even if the evidence supports a rational finding that defendant knew before the kidnapping that co-defendant Bentley was searching for the victim and that Bentley had threatened to harm her, it was inadequate to show that defendant also knew that Bentley intended to kidnap her, let alone that defendant stood by willing and ready to help him do so. This Court has made clear that “[i]t is not enough to find merely that [the accused’s] coconspirator or accomplice had the necessary mental state, since this intent cannot be inferred to the accused. It must be shown that this accused also had the specific intent [required for the offense].” State v. Holmes, 388 So.2d 722, 726 (La. 1980) (emphasis added).

Accordingly, I find that the state failed to prove that defendant possessed the requisite intent for conviction as a principal to the kidnapping and I therefore would have let stand the court of appeal’s ruling vacating his conviction.

Hughes, J.,

dissenting.

hi respectfully dissent for the reasons assigned by Johnson, C.J.

       Retired Judge Michael Edward Kirby is assigned as Justice ad hoc,'sitting for Genovese, J., recused.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . As the court of appeal observed, "... while misprision may be unsavory, it ceased to be a crime in Louisiana after 1942.” State v. McGhee, 15-0285 (La. App. 3 Cir. 11/4/15), 179 So.3d 739, 747 (citing State v. Jackson, 344 So.2d 961 (La. 1977), disavowed on other grounds by State v. Chism, 436 So.2d 464 (La. 1983)). In my view, this case presents a textbook example of a prosecutorial effort to prove guilt by mere association.

      . All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. R.S. 14:24.

        . Cf. State v. Anderson, 97-1301, p. 3 (La. 2/6/98), 707 So.2d 1223, 1225 (quoting 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996) ("It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.”) (emphasis added).

      . See, e.g., State v. Knowles, 392 So.2d 651, 657 (La. 1980) ("Although the definitions of principals and conspirators are not perfectly synonymous, the imposition of criminal liability upon one who aids and abets in a crime is founded upon the same principle that makes a conspirator culpable for the acts of a cocon-spirator. .,. Both of these inchoate offenses are directed at persons who knowingly participate in the planning or execution of a crime,”) (internal citation omitted); see also State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 ("Mere presence at the scene is ... not enough to 'concern' an individual in the crime.”).


author: PER CURIAM:

text:
    STATE EX REL. David MITCHELL v. STATE of Louisiana
    No. 2016-KH-0595
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| ¶ Denied. The application was not timely filed in the district court, and relator 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 at least four 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 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. Terry Glen HILL v. STATE of Louisiana
    No. 2016-KH-0284
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| Denied. The application was not timely filed in the district court, and relator 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. We attach hereto and make a part hereof the district court’s written reasons denying relief.

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.

| ¡Attachment


text:
    STATE EX REL. Titrus DAVIS v. STATE of Louisiana
    No. 2016-KH-0408
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

[ denied. 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 at least three 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 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. Dennis Lee WEST v. STATE of Louisiana
    No. 2016-KH-0813
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator 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 an 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. Dontrale PHILLIPS v. STATE of Louisiana
    No. 2016-KH-0594
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES

PER CURIAM:

It Denied. Relator inexcusably failed; to raise his claims in the proceedings leading to conviction. La.C.Cr,P. art. 930.4(B). In addition, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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.


author:
PER CURIAM:
      M Keva M. Landrum-Johnson District Court Judge Section E

text:
    STATE EX REL. Eugene JARROW v. STATE of Louisiana
    No. 2015-KH-2238
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

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. In addition, relator’s sentencing claim is not cognizable on collateral review. See 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. Finally, the application is also repetitive. La. C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated at least 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 Land 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.

Attachment

I «STATE OF LOUISIANA

VERSUS

EUGENE JARROW

CRIMINAL DISTRICT COURT

PARISH OF ORLEANS

CASE NO. 269-092

SECTION ‘E’

JUDGMENT

The defendant, Eugene Jarrow, hereinafter referred to as Petitioner, has filed with this Court a Motion to Vacate an Illegal Sentence and to Seb-Aside an Illegal Guilty Plea.

In 1979, Petitioner was charged with one count of Armed Robbery in violation of La.R.S. 14:64. On April 30,1979, Petitioner plead guilty as charged. On August 22, 1979, Petitioner was sentenced to ten (10) years at hard labor in the Department of Corrections without the benefit of probation, parole or suspension of sentence.

In Petitioner s motion, he contends that his sentence was illegal. Specifically, Petitioner contends that his guilty plea was not voluntarily entered. The Court has considered and reviewed Petitioner’s motion and finds it to be repetitive. Petitioner’s claim has been previously addressed by the Louisiana Supreme Court. State v. Jarrow, 2004-0483 (La. 9/24/04), 882 So.2d 1160. Furthermore, Petitioner’s motion is untimely. Petitioner’s motion, although styled a “motion to vacate an illegal sentence and to set-aside an illegal guilty plea”, is in fact an application for post-conviction relief. La.C.Cr.P. art. 930.8 provides that an application for post-conviction relief should not be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La.C.Cr.P. art. 914 or 922, unless it falls within certain exceptions to the time limitation for filing. Petitioner has not asserted any claims that would fall under the exceptions to the time limitation; thus, under La.C.Cr.P. art. 930.8, Petitioner’s motion is time-barred.

For the forgoing reasons, Petitioner’s Motion to Vacate an Illegal Sentence and to Set-Aside an Illegal Guilty Plea is hereby DENIED.

New Orleans, Louisiana, this 20th day of August, 2015.

M Keva M. Landrum-Johnson District Court Judge Section E


text:
    STATE EX REL. John Henry CAMPBELL v. STATE of Louisiana
    No. 2016-KH-0072
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| 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, 93-2830 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. See 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 |2successive 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. Clay Anthony LEGER v. STATE of Louisiana
    No. 2016-KH-0805
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU

PER CURIAM:

11 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.

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. Eugene M. WATSON v. STATE of Louisiana
    No. 2016-KH-0402
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

h Denied. Relator fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Relator also fails to show he received ineffective assistance of counsel under' the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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., James GUNNER v. STATE of Louisiana
    No. 2016-KH-0282
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIA-NA

PER CURIAM:

iiWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown, the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. William Lee WALLACE v. STATE of Louisiana
    No. 2016-KH-0803
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| j Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings 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. Matthias FRANCOIS v. STATE of Louisiana
    No. 2016-KH-0368
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

L Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr,P. art. 930.2.

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.