author: Klingensmith, J.

text:
    Ronnie Travis KRUSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1422
    District Court of Appeal of Florida, Fourth District.
    [July 12, 2017]

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion For Rehearing

Klingensmith, J.

We grant in part the appellee’s motion for rehearing to clarify the charge to be tried on remand. We substitute the following opinion for the original opinion which we issued on May 31, 2017. We deny the remainder of appellee’s motion for rehearing -without further comment.

Appellant Ronnie Travis Kruse was charged with felony battery on an elderly person (over the age of sixty-five) with prior conviction, and was convicted of the lesser included offense of felony battery with prior conviction. He argues that his counsel was ineffective for failing to request a self-defense jury instruction. We agree, and reverse his conviction and remand the case for a new trial.

In May 2015, appellant had an altercation with the victim outside of the victim’s home. According to the victim, appellant came from across the street and started screaming at him, accusing him of either selling or giving drugs to a present third person. The victim claimed that appellant grabbed him, threw him into the bushes, and broke his jaw by hitting him in the face.

Victim did not contact legal authorities about the incident, but they came to him two days later after appellant called a detective whom he knew to inform him that he had hit the victim during the altercation. According to the third party, appellant put his finger near victim’s face, causing victim to initiate physical contact by swiping appellant’s finger away.

At trial, appellant described what happened as follows:

[APPELLANT]: [Victim] grabbed my hand, this, my right hand, so I physically with my left hand grabbed his shirt, he grabbed this part of my arm, we ended up in a shoving match almost. He was trying to push me, I, I guess out of the yard or into the bush cause we stumbled into a hedge.
[DEFENSE COUNSEL]: And what did you do after that?
[APPELLANT]: I kinda panicked cause I didn’t know what he was gonna do, I apparently hit him twice, I wasn’t even sure cause I didn’t even think about it, it was, it just, ya’ know I guess when ,..
[DEFENSE COUNSEL]: (INDISCERNIBLE) ...
[APPELLANT]: When fear takes over you fight for your life and I ...
[DEFENSE COUNSEL]: Did any, did anything, did you, did you do anything else after that?
[APPELLANT]: No, I pushed him away, I looked at [the third party] ...
[DEFENSE COUNSEL]: Did you
[APPELLANT]: I say get outta here and we left.
[DEFENSE COUNSEL]: Okay.
[APPELLANT]: I just tried to get away from him.
[DEFENSE COUNSEL]: And then you left?
[APPELLANT]: Yes ma’am.

On cross-examination, appellant said he feared the victim was going to harm him even though the victim was sixty-five and somewhat feeble. He stated that he only meant to get the victim off of him, not to “beat that man up,” and maintained that he was “not guilty of anything but defending myself.”

During closing argument, defense counsel at times made points seemingly related to self-defense. She began her argument by stating, “[a]ll right, the question is what happened on May 3rd, 2015? Who came at who, what happened?” She asserted that the victim “escalated” the situation, and that the testimonies established the victim as the first person to make physical contact when he slapped away appellant’s hand. She described the altercation as “a mutual fight between [the victim] and [appellant].”

Notably, during the State’s rebuttal argument as the prosecutor contended that there was no justification for what appellant did, appellant interrupted and blurted out, “[i]t’s called self-defense.”

Despite the testimonies and defense counsel’s arguments, defense counsel did not request for the jury to be instructed on self-defense. Later, the jury asked the court, “[i]s affirmative defense applicable in this case?” Defense counsel agreed with the court to answer, “[y]ou were not instructed on an affirmative defense.”

The question presented is whether this court should find on direct appeal that appellant’s trial counsel was ineffective for not requesting a jury instruction on self-defense. “An attorney renders ineffective assistance of counsel through conduct that exceeds the bounds of reasonable professional assistance, without which, there is a reasonable probability that the client would have enjoyed a different result.” Monroe v. State, 191 So.3d 395, 403 (Fla. 2016). As such, “[ajn ineffective assistance of counsel claim is a mixed question of law and fact and is therefore subject to de novo review.” Jones v. State, 137 So.3d 446, 449 (Fla. 4th DCA 2014) (quoting Bowman v. State, 748 So.2d 1082, 1083-84 (Fla. 4th DCA 2000)).

“[ineffective assistance of counsel claims should rarely be raised on direct appeal because they are generally fact-specific,” Michel v. State, 989 So.2d 679, 681 (Fla. 4th DCA 2008), and as a result, appellate courts do not usually address such claims “until a defendant seeks post-conviction relief because such courts are limited to reviewing the record directly before them.” Monroe, 191 So.3d at 403. “However, such a claim can be raised where the face of the record demonstrates ineffective assistance of counsel.” Michel, 989 So.2d at 681; see also Jones, 137 So.3d at 449 (“Such claims are usually reserved for post-conviction relief, and can be addressed on direct appeal only ‘where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious.’” (quoting Aversano v. State, 966 So.2d 493, 495 (Fla. 4th DCA 2007))). We find that relief on direct appeal is warranted because the record before us demonstrates that appellant’s counsel rendered ineffective assistance at trial.

To establish an ineffective assistance of counsel claim, two elements must be met:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the. broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Jones, 137 So.3d at 449 (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))); see also Capiro v. State, 97 So.3d 298, 300 (Fla. 4th DCA 2012) (describing the two elements as “1) counsel’s performance was deficient to the point that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment, and 2) the deficient performance prejudiced the defense”).

As to the first element, the record shows that appellant’s counsel never requested any instruction on the justifiable use of forcé despite the evidence supporting a self-defense claim. Defense counsel elicited testimony from appellant asserting that the victim was the aggressor who first made physical contact and “tried to push” appellant out of the yard. Defense counsel also elicited from the third-party witness that the victim was the first to make physical contact, and made arguments during closing that could have reasonably comported with a theory of self-defense.

As to the second element, the jury’s question asking if any affirmative defenses were available indicates the reasonable possibility that they might have found appellant acted in self-defense. In fact, during deliberations the jury also asked the court whether it could give them “documentation or proof of [the victim’s] age” despite there being no real contest that the victim was over the age of sixty-five; then, after the court refused the request, the jury ultimately did not find appellant guilty of battery against an elderly person. Therefore, it is fair to conclude that the jury would have seriously considered the possibility that appellant acted in self-defense if that option were available under the instructions.

We recognize that “[cjounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). “Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. However, we are hard pressed to surmise what possible strategic reason counsel had to not request a self-defense jury instruction when both counsel and appellant focused on the fact that victim was the first person to initiate physical contact. The State postulates that perhaps appellant’s counsel decided not to request a self-defense jury instruction based on the assumption that the jury would not believe that appellant (who was forty-five years old at the time of the incident) acted in self-defense against a feeble sixty-five-year-old man by punching him in the face and breaking his jaw. Indeed, such an assumption on the part of appellant’s counsel may have been reasonable. Nevertheless, given the evidence adduced at trial and counsel’s statements in closing, that counsel neither requested such an instruction nor objected to its omission is inexplicable.

In sum, self-defense was appellant’s only proffered defense to the battery charge. By neglecting to request a self-defense instruction that was clearly applicable to the facts and circumstances of the case, appellant’s trial counsel was constitutionally ineffective. Clearly there is a reasonable probability that the error by appellant’s trial counsel was prejudicial. See Marty v. State, 210 So.3d 121, 127 (Fla. 2d DCA 2016). Although claims of ineffective assistance of counsel are usually reserved for post-conviction relief under rule 3.850, here the ineffectiveness of counsel is “apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.” McComb v. State, 174 So.3d 1111, 1113 (Fla. 2d DCA 2015) (quoting Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001)); see also Monroe, 191 So.3d at 403; Jones, 137 So.3d at 449, Accordingly, we reverse appellant’s conviction and remand for a new trial on the charge of felony battery with prior conviction. See Middleton v. State, 131 So.3d 815, 817-18 (Fla. 1st DCA 2014) (stating that for double jeopardy purposes, a jury verdict convicting a defendant of a lesser included offense impliedly acquits the defendant of the greater offense).

Reversed and Remanded.

Gerber, C.J., and Damoorgian, J., concur.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM. SHEPHERD, J.,

license: Public Domain

text:
    Charles N. GANSON, Jr., as Personal Representative of the Estate of Molly Beyer, Appellant, v. CITY OF MARATHON, Florida, and the State of Florida, Appellees.
    No. 3D12-777.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2016.

      James S. Mattson; Andrew M. Tobin; Pacific Legal Foundation and Mark Miller and Christina M. Martin, Palm Beach Gardens, for appellant.
    GrayRobinson, P.A., and John R. Herin, Jr., and Jeffrey T. Kuntz, Fort Lauder-dale, for the City of Marathon; Pamela Jo Bondi, Attorney General, and Jonathan A. Glogau, Tallahassee, Special Counsel Chief, for the State of Florida.
    Before SUAREZ, C.J., and WELLS and LAGOA, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Denied.

SUAREZ, C.J., and WELLS, J., concur.

LAGOA, J., would grant rehearing.

Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, and LOGUE, JJ.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

Denied.

SUAREZ, C.J., and WELLS, ROTHENBERG, SALTER, FERNANDEZ, and LOGUE, JJ., concur.

SHEPHERD, J.,

dissenting.

This is a significant regulatory takings case, the holding of which is that a local government can regulate private property to an extent that is functionally comparable to the classic physical taking—without paying just compensation—so long as it does so incrementally over a period of time. This cannot be, and indeed is not, the law. I respectfully dissent from the denial of the Beyers’ motion for rehearing en banc, and write to explain my disagreement with this Court’s willingness to dispense with applicable Takings Clause precedent to reach a result that is contrary to the constitutional principle that excessive economic injuries caused by government action be compensated.

BACKGROUND

The following is a chronology of the salient facts:

• 1970: Gordon and Molly Beyer purchased an undeveloped island in Monroe County (the “County”) for $70,000. At the time of purchase, the island was zoned “General Use,” which allowed one single-family home per acre. The property is just under nine acres.
1986: The County adopted a Comprehensive Land Use Plan (the “1986 Plan”) that downzoned the Beyers’ property to “Offshore Island,” allowing a new development density of one unit per ten acres. Since the Beyers’ property is less than ten acres, this 1986 Plan essentially eliminated their development possibilities.
The 1986 Plan included an administrative process known as a “Beneficial Use Determination.” This process provided landowners with a means of challenging the Plan’s unconstitutional effects on property, but the administrative remedy was problematic because it only allowed for the minimum necessary relief to raise the value of the property to forty percent of its pre-regulation value. See Monroe Cty. v. Gonzalez, 593 So.2d 1143, 1144 (Fla. 3d DCA 1992) (affirming the circuit court’s finding that the 1986 Plan’s beneficial use determination was not an adequate remedy because it did not provide for just compensation as required by the Fifth Amendment to the United States Constitution and Article X, section 6 of the Florida Constitution). Further, the beneficial use provisions required property owners to attempt to sell their property for forty percent of its pre-regulation value before being eligible to apply for relief. Id. The Beyers never challenged the 1986 regulations under this flawed beneficial use determination process.
• 1996: The County adopted a revised plan—the Year 2010 Comprehensive Plan (the “2010 Plan”). Under this Plan, the Beyers’ property is classified as a “bird rookery.” Under this classification, the only permitted use of the property is “temporary primitive camping by the owner, in which no land clearing or other alteration of the island occurs[.]” Monroe Cty. Year 2010 Comprehensive Plan, Policy 102.7.2.
Revised beneficial use procedures allow property owners to “apply for relief from the literal application of applicable land use regulations or of this plan when such application would have the effect of denying all economically reasonable use of [their] property[.]” Id., Policy 101.18.5. “The relief granted shall be the minimum necessary to avoid a ‘taking’ of the property under state and federal law.” Id.
• 1997: The Beyers submitted a beneficial use application along with the applicable fee to the County.
1999: The City of Marathon (the “City”) was incorporated, and the Bey-ers’ property became part of the City. As a condition of incorporation, the City adopted the County’s 2010 Plan. Up to this point, the County had taken no action on the Beyers’ beneficial use application.
• 2002: The Beyers submitted a new application and paid another application fee ($3,000) because the City refused to process the pending County application.
• 2005: The Beyers’ cause was finally heard by a Beneficial Use Special Master, nearly nine years after the application was first submitted. The Special Master found that “[o]ther than the Applicant being allowed to enter onto the property to camp, there is absolutely no allowable use of the property” under the 2010 Plan. The Special Master also found that the permitted camping “would not constitute reasonable economic value to the Applicant in light of their investment in the property.” In spite of these findings, however, the Special Master recommended denying the Beyers’ application because “[t]he Applicant has been adequately compensated by the issuance of 16 ROGO[] points[.]” The City Council adopted these findings and recommendations.
The Beyers, having exhausted their administrative remedy, brought an inverse condemnation action against the City, alleging that they “have been deprived of all or substantially all, reasonable economic use of the subject property”
• 2008: The circuit court grants final summary judgment in favor of the City (and the State of Florida, a third party defendant) concluding that the statute of limitations had run on the Beyers’ taking claim. The Beyers appealed.
• 2010: We reversed and remanded, finding that the Beyers did not bring a facial taking challenge but rather an as-applied taking challenge for which the statute of limitations had not run. Beyer v. City of Marathon, 37 So.3d 932 (Fla. 3d DCA 2010) (“Beyer I").
• 2012: On remand, the circuit court again granted summary judgment in . favor of the City and State on the ground that the Beyers failed to establish reasonable investment-backed expectations and, alternatively, under the laches doctrine. The Beyers again appealed. .
• 2013: We concluded that the laches doctrine did not bar the Beyers’ claim, but. we nevertheless affirm, summary judgment on the basis that the Beyers failed to establish reasonable investment-backed expectations. Beyer v. City of Marathon, 197 So.3d 563 (Fla 3d DCA 2013) (“Beyer II”). The Bey-ers filed a timely motion for rehearing en banc. .

ANALYSIS

The Takings Clause is clear and concise: “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. Regrettably, regulatory takings jurisprudence is cryptic and convoluted. The United States Supreme Court, in an effort to clarify its first regulatory takings test—outlined in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)—has left in its wake a collection of incongruous and inadequate takings inquiries. It is no wonder, then, that this Court’s brief Beyer II opinion flounders, but in its struggle for coherence, Beyer II further muddies, the already murky waters. I write this dissent from the denial of the motion for rehearing en bamc in the hopes that at some point in the not too distant future this court will embrace a less turbid, and more constitutionally sound, regulatory takings framework.

Categories of Takings Challenges

Before engaging in a taking analysis, it is useful to determine the category of the challenge to the regulatory action. There are three main categories of regulatory takings challenges. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Two categories of'regulatory action impose such a severe burden on private property rights that they are génerally deemed per se takings (also referred to as categorical takings). Id. The first bceurs when a regulation “requires an owner to suffer a permanent physical invasion of her property.” Id.; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The second type of per se taking “applies to regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” Lingle, 544 U.S. at 538, 125 S.Ct. 2074 (alteration in original) (quoting Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)), “Outside these two relatively narrow categories ... regulatory takings challenges are governed by the standards set forth in [Penn Central].” Id.

The Beyers brought a per se /categorical taking challenge alleging a deprivation of all, or substantially all, economic use of their land (a Lucas-type total regulatory taking claim). See Lucas, 505 U.S. 1003, 112 S.Ct. 2886. In Beyer I this court erroneously conflated the Beyers’ per se /categorical challenge with something else entirely—a facial taking challenge. 37 So.3d at 934. Under the mistaken belief that a per se /categorical taking was equivalent to a facial taking, Beyer I reframed the Beyers’ claim, presumably as one governed by Penn Central, to overcome the statute of limitations that would have precluded the Beyers from bringing a facial taking challenge. In effect, Beyer I held that the Beyers were not permitted to allege a deprivation of all economic use because such a challenge would be precluded by the statute of limitations. Beyer II perpetuates this misconception.

That Beyer I and Beyer II are mistaken on this point is clear from Lucas, which is the leading per se /categorical “total regulatory takings” case. In Lucas, the property owner brought an as-applied challenge, not a facial taking challenge, under the theory that he had been deprived of all economically viable use of his property. 505 U.S. at 1042 n.4, 112 S.Ct. 2886 (“Here, of course, Lucas has brought an as-applied challenge.”). Similarly, the Beyers allege that the 2010 Plan—as applied to their property—effects a per se /categorical taking because it deprives them of all economic use of their land.

Had the Beyers brought a facial taking challenge, there would have been no need for them to waste their time and money on a beneficial use determination because a facial taking claim alleges that the mere enactment of a regulation effects a taking regardless of any determination as to the regulation’s actual impact on the property in question. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) (“Such ‘facial’ challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an ‘uphill battle,’ since it is difficult to demonstrate that ‘mere enactment’ of a piece of legislation ‘deprived [the owner] of economically viable use of [his] property.’” (citations omitted)); Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 295, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (“Because appellees’ taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the ‘mere enactment’ of the Surface Mining Act constitutes a taking.”). This fundamental misunderstanding of the distinction between a facial taking and a Lucas-tjge total regulatory taking has unfortunately engendered a confused and tortured analysis of the Beyers’ taking claim.

The Beyers’ Taking Claim

It is important to recognize at the outset that although the various takings tests outlined above are not particularly coherent, they share a common purpose: “to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, 544 U.S. at 539, 125 S.Ct. 2074; see also Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646 (“[T]his Court, quite simply, has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.”). In its attempt to make sense of a genuinely enigmatic regulatory takings jurisprudence, Beyer II appears to have lost sight of this overarching purpose. In short, Beyer II fails to see the proverbial forest for the trees.

Although the Beyers brought a Lucas-type challenge alleging the deprivation of all economic use of their land, Beyer I went to great lengths to transform the Beyers’ categorical challenge into one controlled by the ad hoc, factual inquiry set forth Penn Central. This was unnecessary since the Beyers’ as-applied categorical challenge was not yet barred by the statute of limitations. Altering the Bey-ers’ claim resulted in a refusal to adequately consider the economic impact of the regulation by both the circuit court on remand and this court in Beyer II. Further, even if the regulation’s economic impact were not sufficiently burdensome to give rise to a total regulatory taking claim, both Penn Central analyses are deeply flawed and ignore applicable Supreme Court precedent for irrelevant case law.

1. The Total Taking Inquiry (Lucas)

In Lucas, a property owner purchased two residential beachfront lots that were subsequently rendered undevelopable by the state’s enactment of the “Beachfront Management Act.” 505 U.S. at 1006, 112 S.Ct. 2886. As in this case, the owner did not challenge the validity of the Act as a lawful exercise of the state’s police power, “but contended that the Act’s complete extinguishment of his property’s value entitled him to compensation.” Id. at 1009, 112 S.Ct. 2886. Relying, in part, on Justice Holmes’s “oft-cited maxim” in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922), that “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking,” the Supreme Court formulated a new categorical rule: “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Lucas, 505 U.S. at 1019, 112 S.Ct. 2886. Although it is clear that the focus of this “total taking” inquiry is on the economic impact of the regulation, this potentially determinative factor seems to have been overlooked by the circuit court and Beyer II.

Since the Beyers obtained a beneficial use determination that specifically considered the permitted economic uses of their property under the 2010 Plan, inquiry into the economic impact is rather straightforward. According to the Special Master, “[o]ther than the Applicant being allowed to enter into the property to camp, there is absolutely no allowable use of the property under the City of Marathon Land Development Regulations.” In essence, the Beyers are required to leave their property in its natural state. Cf Lucas 505 U.S. at 1018, 112 S.Ct. 2886 (explaining “that regulations that leave the owner of land without economically beneficial or productive options for its use— typically, as here, [require] land to be left substantially in its natural state”). This is no different from the beachfront property in Lucas, which was found to have been deprived of all economically beneficial use. Id. at 1020, 112 S.Ct. 2886. Indeed, the Beyers’ only allowable use for “temporary primitive camping by the owner, in which no land clearing or other alteration of the island occurs” actually leaves them worse off than the property owner in Lucas because the Beyers would not even be permitted to stay permanently on their island, let alone live in a moveable trailer. See id. at 1044, 112 S.Ct. 2886 (Blackmun, J., dissenting) (“Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer.”).

Unfortunately, despite the unmistakable parallels between the economic impact in Lucas and the economic impact on the Beyers’ property, the Beyers’ challenge was never considered under Lucas’s total regulatory takings framework. To add insult to injury, although the economic impact here is tremendously burdensome, it does not appear to have been considered in the context of the Penn Central analysis either. Even assuming for the sake of argument that the 2010 Plan did not give rise to a Lucas-type total regulatory taking because it did not deprive the Beyers of all or substantially all economically beneficial use, the regulation’s economic impact would still be a necessary factor in the Penn Central inquiry. As Justice Sca-lia, writing for the majority in Lucas, explained:

Justice STEVENS criticizes the “deprivation of all economically beneficial use” rule as “wholly arbitrary,” in that “[the] landowner whose property is diminished in value 95%[] recovers nothing,” while the landowner who suffers a complete elimination of value “recovers the land’s full value.” This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation. Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, “[t]he economic impact of the regulation on the claimant and ... the extent to which the regulation has interfered with distinct investment-backed expectations” are keenly relevant to takings analysis generally.

505 U.S. at 1019 n. 8, 112 S.Ct. 2886 (emphasis added) (citing Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646).

2. The Ad Hoc, Factual Inquiry (Penn Central)

In Penn Central, the United States Supreme Court identified several factors that “have served as the principal guidelines for resolving regulatory takings claims that do not fall within the ... Lucas rules.” Lingle, 544 U.S. at 539, 125 S.Ct. 2074. As the Supreme Court has explained:

Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.

Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (citing Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646).

Both the circuit court and Beyer II claim to evaluate the Beyers’ taking challenge under Penn Central- Yet, despite the Supreme Court’s insistence that no individual Penn Central factor be.singled out as determinative, the circuit court and Beyer II did just that, brushing aside the undoubtedly relevant economic impact factor and focusing solely on “reasonable investment-backed expectations.”. See Palazzolo, 533 U.S. at 634, 121 S.Ct. 2448 (O’Connor, J., concurring) (“The court erred in elevating what it believed to be ‘[petitioner’s] lack of reasonable investment-backed expectations’ to ‘dispositive’ status. Investment-backed expectations, though important, are not talismanic under Penn Central. Evaluation of the degree of interference with investment-backed expectations instead is one factor that points toward the answer to the question whether the application of a particular regulation to particular property ‘goes too.far.’” (citation omitted) (alteration in original)); Lingle, 544 U.S. at 540, 125 S.Ct. 2074 (“And the Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.”).

To further complicate matters, the cursory analyses of “reasonable investment-backed expectations” are confused and fundamentally flawed. Both the circuit court’s and Beyer IPs findings that the 2010 Plan did not interfere with the Bey-ers’ reasonable investment-backed expectations are based on two unsound arguments. First, the Beyers waited too long to assert their constitutional rights in the face of ever tightening restrictions thereby forfeiting any expectations to develop their land. And second, the Beyers failed to produce any evidence of their subjective expectations. A third perplexing justification is raised only in Beyer II: that the award of ROGO points satisfied the Bey-ers’ investment-backed expectations. These three arguments are treated in turn.

a. Prolonged Inaction

The prolonged inaction argument is based on the misunderstanding that regulations passed after the acquisition of property, if not challenged quickly enough, diminish a property owner’s expectations so as to extinguish constitutionally protected property rights. The argument ignores the “investment-backed” qualifier and looks to a property owner’s non-investment-backed expectations at an unspecified point in time within a post-acquisition regulatory regime. Cf. Daniel R. Man-delker, Investment-Backed Expectations in Taking Law, 27 Urb. Law. 215, 235-36 (1995) (“Investment-backed expectations held by property owners arise at the time of purchase and the information they have then about their property gives them meaning.”). This, of course, creates uncertainty since expectations could be widely variable and without the “investment-backed” requirement, there is nothing that dictates when a property owner’s expectations ought to be evaluated. Although the precise meaning of the reasonable investment-backed expectations factor is hardly clear, it is not quite as nebulous as this “prolonged inaction” theory would suggest.

At its core, the theory is predicated on the mistaken belief that notice of post-acquisition regulations is a relevant indici-um of investment-backed expectations. This approach is not supported by federal takings jurisprudence, and it is undermined by Supreme Court precedent. For example, in Palazzolo, the Supreme Court held that even regulations passed before the acquisition of property do not necessarily have a detrimental impact on the reasonable investment-backed expectations of subsequent owners who take title with notice of the regulations:

The Takings Clause ... in certain circumstances allows a landowner to assert that a particular exercise of the State’s regulatory power is so unreasonable or onerous as to compel compensation. Just as a prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned, other enactments are unreasonable and do not become less so through passage of time or title. Were we to accept the State’s rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.

533 U.S. at 627, 121 S.Ct. 2448 (emphasis added). This being the case, the Beyers, who were not on notice of the regulations now being challenged at the time of acquisition, a fortiori, have a right to challenge the alleged unreasonable limitation on the use and value of their land. Notice of regulations passed after the acquisition of property does not intrude on this right.

Since the “prolonged inaction” argument find's no basis in federal takings jurisprudence, it should come as no surprise that the case cited in support of this approach by both the circuit court and Beyer II is not a regulatory takings case but a vested rights case. See Monroe Cty. v. Ambrose, 866 So.2d 707 (Fla. 3d DCA 2003). It is true, as both the circuit court and Beyer II assert, that landowners cannot establish a vested right without taking steps to develop their land. See id. at 711 (“If the Landowners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances.”). But the Beyers are not bringing a claim or seeking a remedy under the vested rights doctrine, nor do they need to. Vested rights are conceptually distinct from the property rights at issue in this case. It is therefore perplexing that both the circuit court and Beyer II rely on such an incongruous framework to find that the Beyers lacked reasonable investment-backed expectations.

In a nutshell, the vested rights doctrine is a creature of state law that prevents the government from interfering with a landowner’s right to complete development of property when there has been sufficient reliance on the regulatory climate in existence at the time development began. See Ambrose, 866 So.2d at 710 (outlining the common law vested rights test). In contrast, the Beyers’ constitutionally protected property rights at issue here are distinct from any governmental benefit granted by the state. See Nollan, 483 U.S. at 838, 107 S.Ct. 3141 (“But the right to build on one’s own property-even though its exercise can be subjected to legitimate permitting requirements-cannot remotely be described as a ‘governmental benefit.’ ”); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part II Takings As Intentional Deprivations of Property Without Moral Justification, 78 Cal. L. Rev. 53, 61 (1990) (explaining that constitutionally protected property “includes the freedom to pursue economically advantageous activities even when no law affirmatively grants such a right.”).

The fact that these are distinct rights is recognized by the primary case cited by both the circuit court and Beyer II. See Ambrose, 866 So.2d at 712 (explaining that although subsequently enacted regulations apply to landowners who do not have vested rights, “to the extent that these regulations render any of the Landowners’ property practically useless, the Landowners are entitled to compensation”); see also § 380.08, Fla. Stat. (“Nothing in this chapter authorizes any governmental agency to adopt a rule or regulation or issue any order that is unduly restrictive or constitutes a taking of property without the payment of full compensation, in violation of the constitutions of this state or of the United States.”). As these are distinct property interests, the Beyers do not need to establish a vested right for there to be a taking that requires “full compensation.”

b. Lack of Evidence

The second argument advanced by the circuit court and Beyer II is that the Bey-ers’ failure to provide evidence of their particular investment-backed expectations makes summary judgment in favor the City appropriate. This narrow emphasis on subjective expectations is misplaced. The requirement that “investment-backed expectations” be reasonable requires an objective evaluation. See Lucas, 505 U.S. at 1035, 112 S.Ct. 2886 (“The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved.”); Res. Investments, Inc. v. United States, 85 Fed.Cl. 447, 511 (2009) (“The investment-backed expectations prong requires ‘an objective, but fact-specific inquiry into what, under all the circumstances, the [landowner] should have anticipated.’ ... ‘[A] party’s subjective expectation is irrelevant to whether that expectation is reasonable.’ ” (quoting Cienega Gardens v. United States, 331 F.3d 1319, 1346 (Fed.Cir.2003))).

Although the Supreme Court has provided sparse guidance as to the application of the expectations factor, one significant objective criterion that shapes a property owner’s expectations is “the regulatory regime in place at the time the claimant acquires the property at issue.” Palazzo-lo, 533 U.S. at 633, 121 S.Ct. 2448 (O’Con-nor, J., concurring). On this point, it is undisputed that when the Beyers purchased their property, it was zoned “General Use,” which allowed one single family home per acre. In contrast, under the 2010 Plan, the Beyers are not allowed to alter the island from its natural state whatsoever. This is one major objective fact that helps establish the Beyers’ “reasonable investment-backed expectations,” and it is undoubtedly sufficient for the Beyers’ claim to survive summary judgment.

It is therefore inaccurate to assert, as do the circuit court and Beyer II, that there is no evidence of investment-backed expectations. Indeed, both the circuit court and Beyer II recognize that expectations can be shaped by a regulatory regime since both conclude that the Beyers did not have reasonable expectations due, at least in part, to the ever-tightening restrictions on their land. It is more than a little perplexing that the circuit court and Beyer II seem to have no trouble concluding that the Beyers’ expectations were defined by post-acquisition regulations, but they are at a complete loss when it comes to determining the Beyers’ investment-backed expectations in light of the lack of restrictions that were in place when the Beyers purchased their property—i.e. at the time of investment.

c. ROGO Points

Almost as an afterthought, Beyer II concludes that the City’s award of ROGO points “reasonably meets the Beyers’ economic expectations!.]” This is a puzzling assertion since it seems to undermine thé opinion’s findings elsewhere that the Bey-ers did not have reasonable investment-backed expectations. . After all, how could an award of ROGO points meet:non-existent expectations? In any event, Beyer II appears to rely on the Special Master’s finding that the Beyers have “been adequately compensated by-the issuance of 16 ROGO points.”' Although it is not clear what the Special Master considered the points compensation for, if they are compensation in the takings context, the Constitution requires not that the compensation merely be adequate, but that the compensation be “just.” See Palazzolo, 533 U.S. at 631; 121 S.Ct. 2448 (2001) (“Assuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest.”).

Moreover, bearing in mind that Beyer II affirms the circuit court’s grant of summary judgment, there is a much more profound problem with Beyer II’s cursory reliance on ROGO points: this justification was never raised in the City’s motion- for summary judgment-or in any .of the briefs on appeal, and it is plainly a contested fact. Indeed, the. evidence for a ROGO points valuation in the record would be woefully inadequate to.find no genuine issue as to this material fact. The .only evidence in the.record is from the beneficial use hearing. There, the Assistant City Attorney testified that a “two .point ROGO dedication lot can generate, anywhere from 25 to $40,000”- but conceded that he was not a real estate’ expert and that this figure was arrived at anecdotally and not derived from any-economic analysis of the current marketplace. Further, the Special Master sustained the Beyers’ objection to this testimony as improper hearsay evidence.

Since Beyer II improperly relied on this disputed issue of fact, the Beyers were caught by surprise and only able to address the issue in their motion for rehearing, where they argue that ROGO points have no market value. This is problematic because the record is insufficient to make a determination one way or the other. Consequently, the ROGO points valuation is not a fact upon which summary judgment ought to be based, and it is an improper justification for affirmance.

CONCLUSION

Although the intricacies of the various takings inquiries are without a doubt complicated and imprecise, one thing is certain: the Beyers have been singled out to suffer significant economic injuries in the name of the public good. They purchased an island zoned for residential development that the government transformed into a “bird rookery.” The only allowable use now is temporary, primitive camping (provided, incidentally, that no land clearing or alteration of the island occurs). If this is not a situation where justice and fairness require that economic injuries caused by public action be compensated by the government, I do not know what is. The decision of this Court that the Beyers have no constitutional taking claim against the City for what are indisputably excessive economic injuries is, well, for the birds. I hope that someday in the near future, this court reaffirms the notion that citizens have rights too. Accordingly, I respectfully dissent .from the denial of the motion for rehearing en banc.

LAGOA and EMAS, JJ., concur.

      . ROGO (Rate of Growth Ordinance) establishes rules and procedures for the process of receiving building permits in Monroe County. This process controls growth with a competitive point system that allocates the limited number of development permits available annually. See generally, Monroe Cty., Fl. Land. Dev. Code ch. 138.

      . A fourth category involves "special application of the ‘doctrine of unconstitutional conditions,' which provides that 'the government may not require a person to give up a constitutional right... in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.' ” Lingle, 544 U.S. at 547, 125 S.Ct. 2074 (quoting Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)); see also Nollan v. Cal. Coastal Com’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

      , Beyer I never mentions Penn Central, but the opinion seems to suggest that the court considered the Beyers' reframed “as-applied taking” challenge equivalent to a Penn Central taking challenge. On remand, the circuit court recognized that the Beyers had alleged a Lucas-type taking, but based on Beyer I’s holding, the court ostensibly analyzed the Beyers' claim under Penn Central. On appeal, Beyer II likewise recognized that the Beyers’ "complaint asserted that they have been deprived of all or substantially all reasonable economic use of the property!,]” but while the opinion briefly mentions Penn Central, the analysis seems rooted in the vested rights doctrine, which is distinct from a Takings Clause analysis under Penn Central.

      . This confusion likely stems in large part from the United States Supreme Court's now repudiated reliance on due process precedents in Takings Clause cases. In Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), abrogated by Lingle, 544 U.S. 528, 125 S.Ct. 2074 the Court held that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests!.]” Under this framework, a regulation could effect a taking by its mere enactment if it did not substantially advance a legitimate state interest; its effects on the property would be immaterial, Facial taking challenges were brought under Agins' formula since the "substantially advances” inquiry was thought to be separate from Penn Central or any of the other tests outlined above, which often require an inquiry into the actual burden imposed on property rights. See Lingle, 544 U.S. 528, 125 S.Ct. 2074. In Lingle, a unanimous Court held that the "substantially advances” formula was “doctrinally untenable” and "is not a valid method of discerning whether private property has been ‘taken’ for the purposes of the Fifth Amendment,” Id. at 542, 125 S.Ct. 2074, This is because "the ‘substantially advances’ inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners. In consequence, this test does not help to identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property; it is tethered neither to the text of the Takings Clause nor to the basic justification for allowing regulatory actions to be challenged under the Clause.” Id. Since this suggests most takings claims under the Takings Clause involve an inquiry into the actual effects of the regulation (as-applied), it is unclear what role facial takings challenges have after Lingle,

      . See supra note 3.

      . This was based on an unreviewed state trial court finding,

      . In Florida, the "substantially all” language is often added to the Lucas formulation. See, e.g., Tampa-Hillsborough Cty. Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 58 (Fla.1994), as clarified (June 23, 1994) ("A taking occurs where regulation denies substantially all economically beneficial or productive use' of land.”). This suggests a slightly less demanding standard in Florida than the one in Lucas.

      . If a 95% diminution in value is considered “one step short of complete,” the Beyers are about as close as one could possibly get to complete since their property has diminished in value by at least 98.7%. In 1970, the Beyers purchased their property for $70,000. As a result of the various regulations, the appraisal value of the Beyers' land has plummeted to a mere $900, which is only about 1.3 percent of the original purchase price.

      . See J. David Breemer & R.S. Radford, The (Less?) Murky Doctrine of Investment-Backed Expectations After Palazzolo, and the Lower Courts' Disturbing Insistence on Wallowing in the Pre-Palazzolo Muck, 34 Sw. U.L. Rev. 351, 352 (2005) ("The Supreme Court’s regulatory takings jurisprudence is one of the most heatedly divisive topics in contemporary constitutional law. One point, on which all sides agree, however, is that the meaning and significance of 'investment-backed expectations’ is among the most baffling elements of this confusing and seemingly schizophrenic doctrine.” (citations omitted)).

      . The circuit court also cites a federal takings case, Good v. United States, 189 F.3d 1355 (Fed.Cir.1999), for the proposition that a property owner who waited “seven years, watching as the applicable regulations got more stringent” lacked reasonable investment-backed expectations based on such "prolonged inaction.” The court's reliance on Good, however, is misplaced. Good, a pre-Palazzolo case, is quite clear that it was not the seven year delay that had a detrimental effect on the property owner's "reasonable investment-backed expectations" but, rather, the regulatory environment that existed at the time the land was acquired. Id. at 1363 ("While Appellant’s prolonged inaction does not bar his takings claim, it reduces his ability to fairly claim surprise when his permit application was denied. Appellant was aware at the time of purchase of the need for regulatory approval to develop his land.” (emphasis added)).

      . Ordinarily, once a vested right has been established, it is protected not by the Takings Clause, but by the Due Process Clause. See Moronda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, Inc., 127 So.3d 1258, 1272 (Fla.2013) ("These constitutional due process rights protect individuals from the retroactive application of a substantive law that adversely affects or destroys a vested right; imposes or creates a new obligation or duty in connection with a previous transaction or consideration; or imposes new penalties.”).

      . "While vested rights may be a clear way for property owners to obtain enforceable expectations, see [Mandelker, supra p. 16, at 237-38], a rule that equates the two doctrines is too narrow and would result in insufficient protection of property interests.” Robert M. Washburn, "Reasonable Investment-Backed Expectations" As A Factor in Defining Property Interest, 49 Wash. U.J. Urb. & Contemp. L. 63, 96 (1996); see also Breemer, supra note 9, at 396 ("[I]t is unfair to hinge reasonable expectations on the commencement of development before regulation because this effectively requires federal takings claimants to establish vested rights under state law.... But no federal court has ever held that state law vested rights are a necessary condition for acquisition of federal reasonable expectations,”).

      . Vested rights are created by common law, statute, or contract. See 10A Fla. Jur 2d Constitutional Law § 378.

      . The regulations under which the Beyers’ beneficial use determination, was made also distinguish between a vested rights determination (Policy 101-18.2) and a beneficial use procedure for total regulatory takings (Policy 101.18.5.1). See also Marathon, Fla., Code of Ordinances art. 18 (2015) (“Beneficial Use Determinations”); id. art. 19 (2015) (“Vested Rights Determinations”).

      . As has been already been explained, this approach errs in its timing, but it is correct in . its observation that expectations can be informed by the regulatory climate.

      . This is particularly true under Florida’s summary judgment standard, which is more demanding than its federal counteipart. See, e.g., Piedra v. City of N. Bay Vill, 193 So.3d 48 (Fla. 3d DCA 2016) ("If the record on appeal reveals the merest possibility of genuine issues of material fact, or even the slightest doubt in this respect, the summary judgment must be reversed.").


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Lavelle HARRELL, et al.
    No. 2017-KD-1055
    Supreme Court of Louisiana.
    06/20/2017
    CRICHTON, J., additionally concurs and assigns reasons.
    GENOVESE, J., would grant.
   CRICHTON, J.,

additionally concurs and assigns reasons:

|J concur with this Court’s denial of the State’s writ. On the showing made, I cannot say the trial court abused its discretion in denying admissibility of the entire Grand Jury testimony of witness Jessie Perrier. However, to the extent the trial court did not permit the State on redirect to question witness Perrier on statements made to the Grand Jury that are consistent with his in-court testimony, that would, in my view, constitute error. See La. C.E. arts. 611(D) and 801(D)(1)(b).


author: PER CURIAM

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-338636
    NO. 2017-BA-1057
    Supreme Court of Louisiana.
    06/29/2017
   BAR ADMISSIONS PROCEEDING

PER CURIAM

| ] After reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on May 5, 2017.

2. The period of this conditional admission shall coincide with the period of petitioner’s JLAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner’s continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

| ¡.Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: GENOVESE, Justice,

text:
    U.L. COLEMAN, III, et al. v. QUERBES COMPANY NO. 1, et al.
    No. 2017-C-0694
    Supreme Court of Louisiana.
    06/29/2017
    CRICHTON, J., would grant in part and deny in part for the reasons assigned by Justice Genovese.
    GENOVESE, J., would grant in part and deny in part, and assigns reasons.
   GENOVESE, Justice,

would grant in part and deny in part, and assigns the following reasons:

lil would grant Plaintiffs’ writ application in part. The Second Circuit did not apply the correct standard of review to the exceptions of no cause of action. This Court has explained:

The peremptory exception of no cause of action is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading. All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of sufficiency of the petition so as to afford litigants their day in court. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. The sufficiency of a petition subject to an exception of no cause of action is a question of law, and a de novo standard is applied to the review of legal questions; this court renders a judgment based on the record without deference to the legal conclusions of the lower courts. See Foti v. Holliday, 09-98 (La. 10/30/09), 27 So.3d 813.

Jackson v. City of New Orleans, 12-2742, p. 24 (La. 1/28/14), 144 So.3d 876, 895.

Louisiana Code of Civil Procedure Article 931 provides: “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” This Court has recognized the jurisprudential exception to the rule which allows evidence admitted without an objection to enlarge the pleadings. Emigh v. West Calcasieu Cameron Hosp., 13-2985 (La. 7/1/14), 145 So.3d 369; City of New Orleans v. Bd. of Directors of La. State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748. However, contrary to Defendants’ | ¡¡contention and the Second Circuit s opinion herein, the standard of review is de novo, even where there is an accepted enlargement of the pleadings.

I would deny the writ in part as it pertains to Defendants’ exceptions of no rights of action and prescription as the correct standards of review were applied to those exceptions.


author: PER CURIAM:

text:
    STATE of Louisiana v. Ronald Vincent RICE, Jr.
    No. 2017-KK-0446
    Supreme Court of Louisiana.
    06/29/2017
   PER CURIAM:

11 GRANTED. The trial court erred in finding the surveillance video not sufficiently authenticated to be admitted at the preliminary hearing and thereby sustaining the prosecution’s objection to the video. That ruling is hereby reversed and the case is remanded for further proceedings consistent with this opinion.

The trial court conducted a preliminary examination on November 16, 2016, to determine whether probable cause existed to support charges of attempted second degree murder and carjacking against defendant. Because of its purported significance to the defense, the admissibility of the surveillance video was addressed before any other evidence or testimony. To accompany presentation of the video, the defense called Shelby Williams, who lives across the street from defendant and whose video surveillance system captured defendant at, according to Mr, Williams’s testimony, times pertinent to when the offenses occurred. During |2Mr. Williams’s testimony, the prosecutor objected to the video’s introduction on authenticity grounds, asserting it was inadmissible because there was no custodian who could testify about the process by which the video was produced. The trial court sustained the objection, finding that the defense had not established that the video evidence was reliable.

On review, the Third Circuit denied defendant’s writ, a majority of the panel having determined that no substantial right of defendant was affected by the trial court’s ruling, and citing La.C.E. art. 103. State v. Rice, 16-0998 (La. App. 3 Cir. 2/14/17) (Cooks, J., dissents with reasons) (unpub’d).

As provided in La.C.E. art. 1101(B)(4), the specific exclusionary rules and other provisions of the Code of Evidence “shall be applied [to preliminary examinations in criminal cases] only to the extent that they tend to promote the purposes of the hearing.” La.C.E, art. 1101(D), however, affords a trial court the discretion tp apply the code provisions pertaining to, inter alia, authentication and identification at a preliminary hearing, Therefore, even operating with the relaxed evidentiary approach at a preliminary examination, it was within the trial court’s discretion to require that the video be authenticated.

Nevertheless, as Judge Cooks explained in her dissent, the trial court erred in sustaining the state’s objection on authentication grounds. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La.C.E. art. 901(A). Such evidence may come in the form of testimony by a witness with knowledge that the matter is what it is asserted to be; indications of lathe item’s distinctive characteristics, including its contents, substance, internal patterns, and other distinctive characteristics; or evidence describing the process or system used to produce the item and showing that the process or system produces an accurate result. See La.C.E. art. 901(B)(1), (4), and (9). ■

Such a showing was made by Mr. Williams’s testimony. Contrary to the prosecutor s objection—urging that there was no custodian who could testify about the process by which the video was produced—Mr. Williams explained that he had personally designed and managed the video surveillance system at his home (for security purposes) and knew the video at issue to be what it was asserted to be. He also described the process and system by which the video was created and testified to the accuracy of that system.

In emphasizing perceived issues with the video’s reliability, ie., whether it had somehow been manipulated, the trial judge conflated the separate issues of authentication and reliability. Reliability is not a prerequisite for authentication. See, e.g., State v. Smith, 15-1359, p. 14 (La. App. 4 Cir. 4/20/16), 192 So.3d 836, 844. Whereas authentication renders an item admissible, the ultimate issue of its reliability is for the fact-finder to resolve after the evidence has been admitted. That the video at issue here has been sufficiently authenticated so as to be admitted has no bearing on whether the prosecution can subsequently seek to challenge its reliability. Once evidence has been admitted, an “opposing party ‘remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence—not to its admissibility’ Id., 15-1359, p. 14, 192 So.3d at 844 (emphasis in original) (quoting Sublet v. State, 442 Md. 632, 668-69, 113 A.3d 695, 716-17 (2015)). Accordingly, the trial court erred in sustaining the state’s objection.

Finally, though we do find that the trial court erred in excluding the video, we emphasize that the narrow issue now before us is the admissibility of the video at the preliminary examination. The separate issue of its admissibility at a possible trial is not before us at this juncture and we offer no view as to that determination. Nor can we venture any opinion as to the weight the video evidence should be assigned after its admission upon remand. See La. Const, art. V, § 10 (“In criminal cases [this court’s] appellate jurisdiction extends only to questions of law.”).

REVERSED AND REMANDED.

      . Mr. Williams is a computer engineer. He is also the first cousin of defendant. He testified at the hearing, however, that based on his personal views of defendant, he was not willingly testifying or providing the video evidence to help the defense. Rather, the video and Mr. Williams’s presence at the hearing were both secured by subpoena,

      . Though-the time and date stamp on the video did not correspond with the offenses, Mr. Williams explained that the camera’s time stamp was inaccurate because it resets whenever the power goes out. According to Mr. Williams, however, the correct date and time can be gleaned from the files on his computer storage unit. His video system records around the clock and automatically names the video files that are generated according to the .accurate date and time, as provided by an independent computer. Mr. Williams testified further that his computer storage system was-not vulnerable to the same time stamp problem as his camera, because it automatically synchronizes the time and date with a computer server after any power outages.

      . The record before us 'contains no indication that Mr. Williams possesses any interest in the resolution of this matter. As noted above, he testified pursuant to subpoena. In that testimony, Mr. Williams indicated he was not testifying "to help Ronald Rice,”, that he had refused defense counsel’s request for the video "because he didn't want Mr. Rice released,” and that he wanted "whatever the Court finds appropriate” to be the ultimate outcome. Hearing Tr., pp. 6-7.

      . The trial court erroneously found that “there’s been no chain of custody under a third party," with regard to the video, given that Mr. Williams is indeed a third party who created and possessed the video until it was relinquished pursuant to court order. Hearing Tr„ p. 18,


text:
    Jason and Stacey ADAMS, et al. v. SOUTH LAFOURCHE LEVEE DISTRICT 5 Chers, Inc. v. South Lafourche Levee District
    NO. 2016-C-1423
    Supreme Court of Louisiana.
    06/29/2017
   PER CURIAM

h Granted. The case is remanded to the court of appeal for reconsideration of its judgment in light of our opinion in South Lafourche Levee District v. Jarreau, 2016-0788 (La. 3/31/17), 217 So.3d 298.

HUGHES, J., would deny the writ.


author: PER CURIAM CRICHTON, J.,

text:
    STATE of Louisiana v. Barry PASCUAL
    No. 2016-KP-2167
    Supreme Court of Louisiana.
    06/29/2017
   PER CURIAM

11Writ granted. The application is granted to vacate the district court’s ruling and remand for reconsideration in light of recent legislative action in 2017 La. Acts. 277. See La.C.Cr.P. art. 878.1(C) (eff. August 1, 2017).

VACATED AND REMANDED

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J.,

additionally concurs and assigns reasons

hi agree that the matter should be remanded to the district court for reconsideration of its ruling in light of recent legislative action. I additionally concur to spotlight one issue.

Relator/defendant, 16 years old at the time of the commission of first degree murder, underwent a thorough penalty phase hearing and the district court imposed the jury’s recommendation of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. In light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), defendant, now at age 37 and through counsel, has requested government funds so that he can retain a child psychiatrist or psychologist to produce mitigation evidence. As an initial matter, it appears that defendant has failed to demonstrate he is indigent, which would be a necessary first step if he wishes the public to underwrite the cost of his expert. See McWilliams v. Dunn, — U.S. -, 137 S.Ct. 1790, 1798-99, 198 L.E.2d 341 (2017) (discussing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)).

In addition, however, I believe there is absolutely no need for a child psychiatrist or psychologist to evaluate an adult, and therefore the trial court correctly determined that such an expert opinion would be irrelevant to the | ..question of whether defendant is “the rare juvenile offender whose crime reflects irreparable corruption.” See Miller, 567 U.S. at 478, 132 S.Ct. at 2469.

In making its determination under Miller and Montgomery, I believe the district court should focus on the years of incar-ceratión that have followed defendant’s conviction; that is, a1 determination of present day mental health as determined by a local mental health professional who evaluates adults could be of greater use in deciding whether this defendant is “capable of change” and therefore deserving of a sentence that includes the possibility of parole eligibility. However, it should be noted that neither Miller nor Montgomery expressly requires government funding for an expert witness in every instance. In my view, the necessity of an expert witness should be determined on a case-by-case basis.

Irrespective of the question of expert assistance, in a case of this nature, I believe that how defendant has responded to close to 20 years of incarceration, as reflected in records of the Department of Corrections, is critical information that should be considered by the district court in determining parole eligibility along with the facts and circumstances of the crime.


text:
    IN RE: Sherman STANFORD
    NO. 2017-OB-1069
    Supreme Court of Louisiana.
    06/28/2017
   Plaintiff for Petition for Permanent Resignation from the Practice of Law in Lieu of Discipline Pursuant to Rule XIX Section 20.1

h Petition for permanent resignation in lieu of discipline granted.

^Attachment


text:
    IN RE: Bradley J. TREVINO
    NO. 2017-B-1053
    Supreme Court of Louisiana.
    06/29/2017
   ORDER

11 Considering the Motion for Revocation of Conditional Admission filed jointly by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that respondent’s conditional admission to the practice of law in the State of Louisiana be revoked, effective immediately. Respondent may not reapply for admission until he can demonstrate at least a one-year period of sobrb ety and compliance with the terms and conditions of a contract with the Judges and Lawyers Assistance Program. Should respondent thereafter choose to submit an application for readmission, he shall comply with all requirements of Supreme Court Rule XIX, § 24.

IT IS FURTHER ORDERED that respondent shall pay all costs associated with these proceedings.

FOR THE COURT:

/s/ James T. Genovese JUSTICE, SUPREME COURT OF LOUISIANA


text:
    IN RE: Michael J. PHILLIPS
    NO. 2017-B-0943
    Supreme Court of Louisiana.
    06/29/2017
   PER CURIAM

pThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael J. Phillips, Louisiana Bar Roll number 10506, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


author: WEIMER, J.,

text:
    Floyd SAFFORD v. HAMMERMAN & GANIER INTERNATIONAL INC. and New Orleans Fire Department
    NO. 2016-C-1591
    Supreme Court of Louisiana.
    06/29/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

Rehearing not considered.

WEIMER, J.,

concurring.

hOn the application for rehearing, I am constrained by the rules regarding finality of judgments as cited by the majority. However, I continue to adhere to my belief that recalling the writ, as a matter of policy and practice, was inappropriate.


text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2017-B-1016
    Supreme Court of Louisiana.
    06/29/2017
   ORDER

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

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

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

HUGHS, J., would accept consent discipline.


author: PER CURIAM Clark, J., CRICHTON, J.,

text:
    IN RE: Lenise R. WILLIAMS
    NO. 2017-B-0906
    Supreme Court of Louisiana.
    06/29/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a legal matter, failed to communicate with a client, and failed to properly withdraw from a representation. Respondent then failed to cooperate with the ODC in its investigation. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Lenise R. Williams, Louisiana Bar Roll number 29706, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but sixty days of this suspension shall be deferred. Following the active portion of the suspension, respondent shall successfully complete a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

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

CLARK, J., would reject consent discipline.

CRICHTON, J., would reject consent discipline.

GENOVESE, J., would reject consent discipline.

Clark, J.,

dissents.

hi respectfully dissent and would reject the Petition for Consent Discipline.

CRICHTON, J.,

dissents.

hi respectfully dissent and would reject the Petition for Consent Discipline.


text:
    IN RE: Marcus Paul LACOMBE
    NO. 2017-B-1014
    Supreme Court of Louisiana.
    7/06/2017
   ORDER

h Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Marcus Paul La-Combe, Louisiana Bar Roll number 28647, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ MARCUS CLARK JUSTICE, SUPREME COURT OF LOUISIANA


text:
    IN RE: John E. SETTLE, Jr.
    NO. 2017-B-0529
    Supreme Court of Louisiana.
    07/13/2017
   ORDER

| j Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, the response thereto filed by respondent, and the report and recommendation of the hearing committee,

IT IS ORDERED that respondent, John E. Settle, Jr., Louisiana Bar Roll number 11950, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ MARCUS CLARK JUSTICE, SUPREME COURT OF LOUISIANA '

Crichton, J., recused.


text:
    STATE of Louisiana v. Julius HANKTON
    No. 2017-KK-1108
    Supreme Court of Louisiana.
    07/20/2017
   PER CURIAM

Writ granted.

hAt a preliminary hearing, the district court found no probable cause on any of the seven counts of drug and gun charges against the defendant, and the district court granted defendant’s motion to suppress evidence. The district court’s rulings principally focused on the consequences of a December 5, 2014 police stop of a Toyota RAV4. The district court cited a federal agent’s testimony that the decision to stop had been made after learning from the RAV4’s owner, a rental company, that the defendant was not an authorized driver on the rental agreement. In the district court’s view, the reportedly unauthorized use was an insufficient justification to stop the RAV4, especially given that defendant was not charged with unauthorized use of a movable.

The district court’s suppression of evidence seized after stopping the RAV4 is contrary to well-established law. Under La. C.Cr.P. art. 215.1, “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” The information provided by checking with the rental car company gave federal agents reasonable suspicion to | gbelieve that defendant was engaging in unauthorized use of a movable. When the district court began hypothesizing about possible permissible circumstances for defendant to drive the vehicle, and the court heavily emphasized that the defendant had not been charged with the crime of unauthorized use of a movable, the district court overlooked its role in evaluating reasonable suspicion. “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, Terry [v. Ohio,] 392 U.S. 1] 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

Moreover, the federal agent’s testimony about information gathered from the rental car company was only part of the information law enforcement agencies obtained about the defendant’s activities. As the agent also testified, she was part of a state and federal task force that had observed defendant use the RAV4 during a controlled narcotics transaction. When the district court focused on evidence of unauthorized use of the RAV4 to the exclusion of other criminal activity (which was more significant as it was narcotics-related activity), the district court improperly narrowed its role in evaluating reasonable suspicion. As the Supreme Court has explained in the context of stopping a vehicle: “When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (internal quotations omitted).

Here, under the totality of the circumstances, which included observations by a state and federal task force of the defendant using the RAV4 in furtherance of Unarcotics activity, as well as federal agents’ own understanding that the defendant was engaging in the unauthorized use of a movable, federal agents were justified in stopping the RAV4. Cf. United States v. Hensley, 469 U.S. 221, 231-32, 106 S.Ct. 676, 83 L.Ed.2d 604 (1985) (upholding the propriety of officers stopping a vehicle based on reasonable suspicion formed by a law enforcement agency of another jurisdiction). Stopping the vehicle was all the more justified here than in Hensley because the information of the defendant’s alleged use of the RAV4 in narcotics activity was directly developed and shared between state and federal agencies comprising a task force. As a federal agent testified, “three members of our task force were able to witness the controlled purchase on December the 5th.” Thus, the evidence obtained from federal agents stopping the RAV4 (and most of the evidence was found in plain view after stopping the vehicle) should not have been suppressed.

The district court additionally suppressed evidence, in the form of cell phones allegedly used in drug trafficking.

The evidence had been seized from another vehicle and from a residence pursuant to warrants. Because the warrants had been obtained based on the controlled nar-cptics. transactions, the. district court reasoned that the state had the burden of demonstrating the reliability of the informants who had participated in. transactions. However, pursuant to La. C.Cr,P. art. 703(D), the burden should have been placed on defendant to establish grounds for suppression. This court has indicated that a controlled purchase of narcotics conducted by police Lprovides sufficient probable cause to secure a warrant. State v. Gant, 637 So.2d 396, 397 (La. 1994), Therefore, the district court’s proper role was merely to ascertain whether the officers, who provided information for the warrants, established a substantial basis for probable cause. Stated differently, the district court focused on the credibility of the participants in the controlled narcotics purchases, but their credibility was immaterial to the defendant’s motion to suppress. When evidence is seized pursuant to a warrant, “[t]he task for a reviewing court is simply to insure that under the totality of the circumstances the magistrate had a substantial basis for concluding probable cause existed.” State v. Lee, 05-2098 (La. 1/16/08), 976 So.2d 109, 122. A review .of the present record indicates the search warrants were procured on the affidavits of an officer who recounted that police had both directly observed and made audiovisual recordings of the controlled narcotics purchases. The credibility of these assertions was not assailed at the hearing on the defendant’s motion to suppress. Thus, according to La. C.Cr.P., art. 703(D), there was no justification for. suppressing the evidence seized pursuant to warrants.

The district court ruled' there was no probable cause to sustain all seven counts of charges. For several counts, the district court cited its rejection of any justification to conduct a stop of the 'RAV4 and to conduct later searches pursuant to warrants. As noted earlier, the district court erred in its analysis of those points. However, two other points remain to be addressed as far as probable cause is concerned.

First, the district court found no probable cause to sustain Count 1 because evidence tested positive for drugs by one lab, but negative by another lab. While the equivocal test results may certainly affect whether the state can prove- Count 1 at trial, Lthe district court again improperly focused its attention on one evidentiary facet, rather than considering the broader pretrial inquiry as to whether “the facts and circumstances are sufficient to justify a man of average caution in the belief that the person has committed a crime.” State v. Baham, 13-0901, p. 3 (La. 6/28/13), 117 So.3d 505, 507. Thus, notwithstanding equivocal lab -results, considering the fuller evidentiary context of a task force’s observations of the controlled purchase of a substance represented by the defendant to be narcotics, the district court erred in finding no probable cause as to Count 1.

Second, the district court found no probable cause regarding Counts 5 and 6, which relate to alleged possession of a firearm. The state alleges defendant threw the firearm from the window of a vehicle as it rounded a corner while the defendant’s vehicle was being pursued by police. The district court explained that because the firearm was never recovered, there was no basis to support the charges. However, again overlooking relevant circumstances in its probable cause inquiry, the district court made no account for the fact that jailhouse recordings and a statement of a passenger indicate defendant possessed a firearm and discarded the firearm from the vehicle. See, e.g., State v. Hawkins, 32, 737, p. 2 (La.App. 2 Cir. 10/27/99), 743 So.2d 892, 894 (finding state had proven possession of a firearm beyond a reasonable doubt, based on eyewitness testimony, and notwithstanding that “the gun was never recovered”). Inasmuch as “[t]he primary function of the preliminary examination is to determine if there is probable cause to believe a defendant has committed a crime in order to hold him on his bond obligation for trial,” Baham, 13-0901 at 3, 117 So.3d at 507, the district court erred in finding no probable cause as to Counts 5 and 6.

Un conclusion, the district court erred in suppressing evidence obtained from a vehicle stop and, later, evidence obtained pursuant to search warrants. The district court also erred in finding no probable cause to believe the defendant committed all seven counts charged and, consequently, erred in relieving the defendant of his bond obligation for trial. Therefore, the writ is granted, and the defendant’s motion to strike and for attorney’s fees premised on the state’s writ application is denied. The suppression and no probable cause rulings of the district court are hereby reversed. Based on our ruling, the district court’s justification for relieving the defendant’s bond obligation is also reversed. We remand this matter to the district court for further proceedings consistent with this opinion.

ORDER

Considering the defendant’s motion to strike and motion for sanctions, said motion is denied.

/s/ JOHN L. WEIMER Associate Justice, for the Court

      . A review of the hearing transcript indicates the district court ruled on the question of whether to suppress evidence returned via search warrants, more narrowly focusing on whether to suppress "both of them [which] are cell phones.” As the district court further clarified with the prosecution, one phone was seized from an "apartment” and another phone was seized from an "Infinity," a vehicle near the apartment.

      . "On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.” La, C.Cr.P. art. 703(D),

      . The defendant represents that he has separately lodged a challenge to the process employed in securing the warrants. Nothing in the present opinion should be construed to have any bearing on the merits of that challenge.


text:
    STATE EX REL. Alonzo E. ALLEN v. STATE of Louisiana
    No. 2016-KH-0074
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DESOTO

PER CURIAM:

11 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). In addition, relator’s claims about the denial of his motion to suppress were fully litigated on appeal. La.C.Cr.P. art. 930.4(A). Relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 666 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. Relator’s remaining claims are repetitive. La. C.Cr.P. art'. 930.4. Finally, 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 |2accord 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.

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE of Louisiana v. Rodney C. HULBERT, et al.
    NO. 2017-KK-0881
    Supreme Court of Louisiana.
    June 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 530-913; to the Court of Appeal, Fourth Circuit, No. 2017-K-0436;

L Denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Joseph M. GONSOULIN
    NO. 2017-KK-1077
    Supreme Court of Louisiana.
    June 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 575557; to the Court of Appeal, First Circuit, No. 2017 KW 0314;

| ¶ Stay denied; writ denied.

GENOVESE, J., would grant.


text:
    Nikola P. VEKIC v. Dragutin POPICH, Mary A. Popich & Helen Harris Popich
    NO. 2017-C-0698
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 13-0508; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0508,

h Granted.


text:
    STATE of Louisiana v. Reggie Patrick THIBODEAUX
    NO. 2017-KK-0705
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 737860 C/W 740222; to the Court of Appeal, First Circuit, No. 2017 KW 0232

I! Granted.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Dexter ALLEN
    NO. 2017-KK-0640
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 15-4483; to the Court of Appeal, Fifth Circuit, No. 17-K-199;

|, Stay denied. Writ denied.


text:
    STATE of Louisiana v. David D. DOVE
    NO. 2016-KO-1081
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 495-952; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0733;

1 jPenied.


text:
    STATE of Louisiana v. Ladareus J. JONES
    NO. 2016-K-1651
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 515-607; to the Court of Appeal, Fourth Circuit, No. 2015-KA-1232

|! Denied.

WEIMER, J„ would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    AN ERNY GIRL, L.L.C. v. BCNO 4 L.L.C. and John Gregory Fox BCNO 4 L.L.C. v. An Erny Girl, L.L.C.
    NO. 2017-OC-0815
    Supreme Court of Louisiana.
    June 29, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 2016-966 2016-4130; to the Court of Appeal, Fourth Circuit, No. 2016-CA-1011 2016-CA-1012;

11Writ denied. Request for sanctions denied.

HUGHES, J., would grant the writ.


text:
    STATE of Louisiana v. Kenneth LANDRIEU
    NO. 2017-KK-0950
    Supreme Court of Louisiana.
    July 6, 2017
   Applying For Rehearing of this Court’s action dated June 9, 2017, Parish of Orleans, Criminal District Court Div. G, No. 526-779; to the Court of Appeal, Fourth Circuit, No. 2017-K-0445

11 Rehearing denied.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    IN RE: COMMITTEE BAR ADMISSIONS CFN-473690
    NO. 2017-BA-1090
    Supreme Court of Louisiana.
    July 7, 2017
   IN RE: Confidential Party; Plaintiff; Applying For Petition to sit for the Louisiana Bar July 7, 2017

11 Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, demonstrating that he has made a good faith effort to address the default judgment against him.


text:
    STATE of Louisiana v. Jaquan Darnell CORMIER
    NO. 2017-KK-1117
    Supreme Court of Louisiana.
    July 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 86653; to the Court of Appeal, Third Circuit, No. KW 17-00481

| .Denied,


text:
    STATE of Louisiana v. Shammah ALLEN
    NO. 2017-KK-1254
    Supreme Court of Louisiana.
    July 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 529-841; to the Court of Appeal, Fourth Circuit, No. 2017-K-0533

| .Stay denied. Writ denied.