author: LOGUE, J. SCALES, J. SHEPHERD, Senior Judge.

text:
    Pedro PORTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2441
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before LOGUE and SCALES, JJ., and SHEPHERD, Senior Judge.
   LOGUE, J.

In a case of first impression, we are asked to decide whether Florida’s Rape Shield Law serves to shield the defendant from the victim’s testimony. Pedro Portillo appeals his conviction for attempted sexual battery. Portillo argues that the victim’s testimony violated section 794.022(2), Florida Statutes (2014), a subsection of Florida’s Rape Shield Law. He cites to the victim’s testimony in which she referenced her prior sexual experience to explain her perception of Portillo’s behavior. We affirm for three reasons. First, Portillo failed to preserve this argument for review. Second, a defendant cannot rely on the Rape Shield Law to limit a victim’s testimony on direct examination. And third, any error that may have resulted from the brief and fleeting reference was harmless.

Background

Portillo was charged with attempted sexual battery under sections 794.011(5) and 777.04(1), Florida Statutes (2013). The charge required proof that Portillo intended to digitally penetrate the victim’s vagina. See Lakey v. State, 113 So.3d 90, 91 (Fla. 5th DCA 2013). The adult victim testified that while visiting her mother’s home, Portillo, who lived with the victim’s mother, entered the bathroom where she was taking a shower, groped her, and attempted penetration with his fingers. The testimony at issue reads as follows:

STATE: Have you had any romantic involvements with a man similar to the actions that Mr. Portillo was trying to do to you that day?
VICTIM: I guess can you rephrase it?
STATE: Has a man ever tried to digitally penetrate—
VICTIM: Yes.
STATE: Your vagina?
VICTIM: Like boyfriend?
STATE: Yes.
DEFENSE COUNSEL: Objection. Relevance.
COURT: Overruled.
STATE: Like a boyfriend.
VICTIM: Yes.
STATE: So you know what that felt like at that time?
VICTIM: Yes.
STATE: Did Mr. Portillo seem to be behaving in a way that when he touched your vagina it made you think he was just going to statically touch it on the top?
VICTIM: Yes.
STATE: Or did you—
VICTIM: Oh, no. Sorry.
STATE: Okay. Do you understand what I am asking you?
VICTIM: Yeah.
STATE: Okay. Did he seem like he was just going to pet you on the top?
VICTIM: No.
STATE: Okay. So you’ve had similar experiences in the past that—or let me ask you this. Did you have similar experiences in the past to compare with what Mr, Portillo was doing?
VICTIM: Yeah. I knew what he was trying to do.
STATE: Okay. And what was it that you felt he was trying to do?
VICTIM: Stick his fingers in my vagina.

The jury found Portillo guilty as charged. He was sentenced to three years in prison followed by two years’ probation. He timely appealed.

Analysis

The victim testified that she knew from prior sexual experience that the way Por-tillo placed his fingers on her genitals indicated his intent to digitally penetrate her. Portillo raises only one issue on appeal. He argues that his conviction should be reversed because the victim’s testimony in this regard violated section 794.022(2), which provides in part that “[sjpecific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011.” As explained below, we reject Portillo’s appeal.

1. Portillo failed to preserve his argument that the victim’s testimony violated section 794,022(2).

To preserve an argument for further review, an objection must be articulated “with sufficient specificity as to inform the trial judge of the alleged error.” Richemond v. State, 126 So.3d 281, 284 (Fla. 3d DCA 2011) (internal quotations omitted); see also § 924.051(1)(b), Fla. Stat. (2014) (a legal argument is “preserved” only if the argument was “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor”). Here, the defendant’s objection to the victim’s testimony consisted of two words: “Objection. Relevance.”

In the context of this trial, this general objection was not sufficient to alert the trial court that the grounds of Portillo’s objection was the Rape Shield Law. First, the victim’s testimony on this point was relevant, as it tends to prove Portillo’s intent. See § 90.401, Fla. Stat. (2014) (“Relevant evidence is evidence tending to prove or disprove a material fact.”). Second, a review of the entire record on appeal reveals that no reference to the Rape Shield Law was made at any point in the trial. Third, there is no known Florida case in which a defendant claimed that the Rape Shield Law shields a defendant from a victim’s testimony. Therefore, the trial court had no way to know that Portillo’s objection was not to relevance under section 90.402, but instead based on the prohibition under section 794.022(2). Given this context, the trial court would have to be clairvoyant to realize that Portillo’s general objection was intended to raise this novel argument of first impression.

2. A defendant cannot invoke Florida’s Rape Shield Law to limit a victim’s testimony.

Florida’s Rape Shield Law cannot be invoked by an accused rapist to limit a victim’s direct testimony because the Legislature’s intent in enacting the law was to shield the victim from abusive conduct by the defense. “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla. 2008). A statute must be interpreted “to give effect to every cause in it, and to accord meaning and harmony to all of its parts.” Id Moreover, “[i]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.” Id

The portion of the Rape Shield Law at issue here in its entirety reads:

Specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011, 800.04. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

§ 794.022(2).

While the first sentence of subsection (2) may appear to suggest the prohibition on references to the victim’s prior sexual activity applies to both the defendant and the victim, the second sentence indicates that is not the case. The second sentence of subsection (2) modifies the first sentence by establishing exceptions to the first sentence. All of these exceptions concern the circumstance in which the defendant—not the victim—attempts to enter evidence of the victim’s prior sexual activity. The fact that the exceptions to the prohibition concern only when the defendant is offering evidence of the victim’s prior sexual activity as part of the defense is an indication that the prohibition itself applies only when the defendant is offering evidence of the victim’s prior sexual activity. Otherwise, far from being evenhanded, the Rape Shield Law would be one-sided—against the victim—always prohibiting the victim but only sometimes prohibiting the defendant. Given the purpose of the Rape Shield Law, it is self-evident that the Legislature never intended any such result.

For much of our history, defendants in rape cases often resorted to putting the victim on trial by parading in public the most intimate details of his or her prior sexual experience. Too often, these cross-examinations were part of a strategy to either intimidate the victim into silence, or worse, paint the victim as an object who had forfeited any right he or she may once have had to refuse consent to the defendant’s sexual advances.

As every court discussing the law has recognized, the purpose of Florida’s Rape Shield Law is to protect a victim’s privacy from unwarranted public intrusion. Indeed, “evidence of sexual history typically is excluded to protect the complainant’s reasonable expectation of privacy,” and “to avoid invasive and demeaning inquiry into a complainant’s intimate conduct.” Johnson v. Moore, 472 F.Supp.2d 1344, 1364 (M.D. Fla. 2007) (discussing the purpose of Florida’s Rape Shield Law). Such evidence is also excluded “to encourage the reporting and pursuit of complaints of sexual battery, and to avoid the prejudice that results from the introduction of a distracting, confusing, and inflammatory irrelevancy.” Id. These purposes are not implicated when the victim voluntarily refers to his or her past sexual history to explain the incident.

An examination of the other subsections of the Rape Shield Law supports the conclusion that the purpose of the Rape Shield Law is to shield the victim, not the defendant. Subsection (1) states that a victim’s testimony need not be corroborated in a prosecution for certain sex crimes before a jury can rely on such testimony. Subsection (3) precludes evidence of the victim’s “manner of dress” to purportedly prove the victim “incited” the sexual battery. Subsection (4) permits a victim to introduce evidence that shows “consent” was not voluntary. And subsection (5) provides that evidence of use of a prophylactic device or victim’s request for use of a prophylactic device may not be admitted as evidence of consent. These provisions all protect the victim from an abusive defense. They limit the defense, not the victim.

In fact, since it was enacted, section 794.022(2) has been applied to limit only the defense; it has never been applied to limit the victim’s testimony. Indeed, we could find no decision in any jurisdiction in the United States in which a Rape Shield Law was used to shield the defendant from the testimony of the victim.

Finally, at least one case indicates that a victim who mentions his or her past sexual experience opens the door to a cross-examination in that regard. Docekal v. State, 929 So. 2d 1139, 1143 (Fla. 3d DCA 2006) (noting that it is reversible error to prohibit a defendant from cross-examining a victim regarding her past sexual history when she made statements that “opened the door” to this evidence). This principle of law further indicates that the Rape Shield Law does not serve as a blanket prohibition on the victim’s ability to reference a past experience when telling his or her story.

3. Any error that resulted from the victim’s testimony was harmless.

Finally, even if Portillo had preserved an objection and even if section 794.022(2) provides a blanket prohibition of the victim mentioning his or her sexual experience to explain an incident, reversal is not warranted because the error here, if any, was harmless. See § 59.01, Fla. Stat. (2014) (noting that no judgment shall be set aside or reversed where the improper admission of evidence results in harmless error). The victim’s isolated and fleeting reference to her past sexual experience to explain her perception of Portillo’s behavior was not the focus of the trial; it was not a distraction from the merits of Portil-lo’s guilt or innocence; it was not prejudicial in any manner. Because there is no “reasonable possibility that the error contributed to the conviction,” we must affirm. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

SCALES, J.

concurring.

I concur only in that portion of J. Lo-gue’s opinion holding that Appellant Portil-lo failed to adequately preserve his argument that the victim’s testimony violated Florida’s Rape Shield Law. Therefore, I concur in result only.

SHEPHERD, Senior Judge.

I respectfully dissent. The issue in this case is whether a defendant in a sexual battery case has the same right as does the victim to invoke Florida’s Rape Shield Law, section 794.022(2) of the Florida Statutes (2014), seeking to exclude from evidence a victim’s previous experiences with unrelated men. I believe that he does.

Florida’s Rape Shield Law provides, in pertinent part:

Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under ... s. 794.011, [of the Florida Statutes].

Pedro Portillo was convicted of attempted sexual battery with an object (namely, his fingers) pursuant to sections 794.011(5) and 777.04(1) of the Florida Statutes (2014). The evidence presented at trial established that Mr. Portillo moved his hand up the victim’s thigh and ultimately rested his palm on her vulva (the exterior organ). She also testified unequivocally that Portil-lo did not move his fingers any further before she moved his hand away. The key disputed issue at trial was whether Mr. Portillo intended to actually penetrate the victim’s vaginal canal with his fingers, or whether he simply sought to touch her exterior vulva. The completed act of sexual battery with an object requires the actual penetration of the vaginal canal, rather than mere union with the exterior vulva. See Lakey v. State, 113 So.3d 90, 91 (Fla. 5th DCA 2013). Attempted sexual battery with an object thus requires the same intent, that is, to penetrate the vagina but-for an intervening act. § 777.04. The difference between the two acts is imperative, as the former constitutes attempted sexual battery, while the latter is insufficient as a matter of law. See Lakey, 113 So.3d at 91.

Unlike most cases where a female victim of sexual battery is seeking to exclude evidence of prior consensual sexual activities with other partners for personal reasons, the State in this case sought to offer the victim’s prior experiences as evidence that the defendant intended to digitally penetrate her. During direct examination, the prosecutor elicited the following testimony from the victim:

Q. Has a man ever tried to digitally penetrate—
A. Yes.
Q. —your vagina?
A. Like boyfriend?
Q. Yes
[Defense counsel]: Objection. Relevance.
THE COURT: Overruled.
Q. Like a boyfriend.
A. Yes.
Q. Did Mr. Portillo seem to be behaving in a way that when he touched your vagina it made you think he was just going to statically touch it on the top?
A. Yes.
Q. Or did you—
A. Oh, no. Sorry.
Q. Okay. Do you understand what I am asking you?
A. Yeah.
Q. Okay. So you’ve had similar experiences in the past that—or let me ask you this. Did you have similar experiences in the past to compare with what Mr, Portillo was doing?
A. Yeah. I knew what he was trying to do.
Q. Okay. And what was it that you felt he was trying to do?
A. Stick his fingers in my vagina.

Incanting the reason de etre behind Florida’s Rape Shield Law, that “[a] victim’s prior consensual sexual activity with one other than the accused is simply irrelevant for determining the guilt of the accused,” citing Marr v. State, 494 So.2d 1139, 1142 (Fla. 1986), Portillo argues here that the Rape Shield Law similarly excludes the victim’s prior experiences with her boyfriend. I agree.

On appeal, the State initially argues that Portillo failed to preserve the Rape Shield Law issue by merely raising relevance as his objection to the testimony in the trial court. The majority accepts this argument; however, I reject it because relevancy is at the heart of rape shield laws. See Lewis v. State, 591 So.2d 922, 924 (Fla. 1991) (acknowledging that in Marr the Court “explained that Florida’s Rape Shield Statute is a codification of the rule of relevancy that a victim’s prior sexual activity with one other than the accused is generally irrelevant for determining the guilt of the accused”); Kaplan v. State, 451 So.2d 1386, 1387 (Fla. 4th DCA 1984) (“[Florida’s Rape Shield Law] is merely a codification of this jurisdiction’s rule of relevance as it applies to the sexual behavior of a sexually battered victim.”) Thus, the relevancy objection sufficiently apprised the trial court of the defendant’s grounds for opposing the testimony.

On the merits, the State contends the Rape Shield Law implicitly limits its use to instances where the victim, and not the accused, raises the shield. Florida’s Rape Shield Law, however, unlike the majority of similar laws in other jurisdictions, is silent, and therefore neutral, on the issue of who may employ its prohibition in a criminal trial. In enacting this law, we presume the legislature understood the meaning of the words it used, and that it intentionally opted for the neutral language instead of specifying a beneficiary of the evidentiary objection under this section. See Ward v. State, 936 So.2d 1143, 1146 (Fla. 3d DCA 2006). On at least this point, the neutral language may safeguard Florida’s Rape Shield Law from some of the controversy presently faced in other jurisdictions, where, not surprisingly, courts have struggled with the inherent evidentiary limitations imposed by restrictive rape shield laws. See generally Josh Maggard, Courting Disaster: Re-Evaluating Rape Shields in Light of People v. Bryant, 66 Ohio St. L.J. 1341 (2005); Shawn J. Wallach, Rape Shield Laws: Protecting the Victim at the Expense of the Defendant’s Constitutional Rights, 13 N.Y.L. Sch. J. Hum. Rts. 485 (1997).

In this case, the record on appeal shows that the State could have prosecuted the case against Mr. Portillo without introducing irrelevant evidence regarding the victim’s experience with other partners. Therefore, there was no need to muddy the case submitted to the jury with this evidence. Accordingly, because the trial court unnecessarily admitted this evidence which is clearly excludable under the Rape Shield Law, I would reverse and remand for a new trial.

      . See, e.g., Nickels v. State, 90 Fla. 659, 106 So. 479, 489 (1925) (holding, before enactment of the Rape Shield Law, a defendant raising issue of consent was entitled to admit into evidence "the general reputation of the prosecutrix for chastity, except that she may [also] be interrogated as to her previous intercourse with the defendant or as to promiscuous intercourse with other men, or common prostitution”),

      . See, e.g., Marr v. State, 494 So.2d 1139 (Fla. 1986) (concluding that the trial court properly limited cross-examination of the victim by precluding evidence of the victim’s past sexual activity); State v. Adderly, 803 So.2d 760 (Fla. 3d DCA 2001) (granting the State’s petition for certiorari and quashing the trial court’s order which denied the State’s motion in limine to preclude the defendant from introducing evidence of the victim’s prior sexual activity); Young v. State, 562 So.2d 370, 371 (Fla. 3d DCA 1990) (concluding that the trial court properly precluded the defendant from introducing evidence that the “victim had engaged in sexual intercourse with three members of a group of friends”); State v. Pancoast, 596 So.2d 162 (Fla. 2d DCA 1992) (granting the State’s petition for certiorari and quashing an order denying the State’s motion to strike three defense witnesses and their testimony about prior consensual sex with the victim); Kaplan v. State, 451 So.2d 1386 (Fla. 4th DCA 1984) (concluding that the trial court properly limited cross-examination of the victim); Winters v. State, 425 So.2d 203 (Fla. 5th DCA 1983) (concluding that the trial court properly precluded the defendant from putting on evidence of the victim’s prior sexual activity); Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980) (concluding that the trial court properly denied defense counsel’s request to present proffered testimony to the jury about the victim’s prior sexual activity).

      . Ala. Code § 12-21-203; Alaska Stat. § 12.45.045; Ark. Code Ann. § 16-42-101; Cal. Evid. Code § 782; Conn. Gen. Stat. § 54-86f; 11 Del. Code Ann. § 3509; D.C. Code § 22-3022; Ga. Code Ann. § 24-4-412; Haw. Rev. Stat. § 626-1, R. 412; Idaho R. Evid. 412; 725 Ill. Comp. Stat. 5/115-7; Iowa R. Evid. 5.412; Kan. Stat. Ann. § 21-5502; La. Code Evid. Ann. art. 412; Me. R. Evid. 412; Mich. Comp. Laws § 750.520j; Minn. Stat. § 609.347; Miss. Code Ann. § 97-3-68; Mo. Rev. Stat. § 491.015; Mont. Code Ann. § 45-5-511; Neb. Rev. Stat. § 27-412; Nev. Rev. Stat. §§ 50.090; N.H. Evid. R. 412; N.J. Stat. Ann. § 2C: 14-7; N.Y. Crim. Proc. Law § 60.42; Okla. Stat. tit. 12, § 2412; Or. Rev. Stat. § 40.210; 18 Pa. Cons. Stat. Arm. § 3104; R.I. Gen. Laws § 11-37-13; S.C. Code Ann. § 16-3-659.1; Tenn. Evid. R. 412; Tex. R. Evid. 412; Vt. Stat. Ann. tit. 12 § 3255; Va. Code Ann. § 18.2-67.7; Wash. Rev. Code § 9A.44.020; Wyo. Stat. Ann. § 6-2-312.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jacob KLEINTANK, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3809
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017
    A. R. Mander, III, of Mander Law Group, Dade City, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Respondent’s concession of error, we grant the petition for writ of certiorari and quash the order of the trial court denying Petitioner’s Florida Rule of Criminal Procedure 3.800(c) motion for reduction or modification of sentence. On remand, the trial court is directed to consider the motion on the merits. See Manspeaker v. State, 90 So.3d 998, 998 (Fla. 1st DCA 2012).

PETITION GRANTED.

ORFINGER and BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur


text:
    Justin CHILDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3638
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017
    Justin Childs, West Palm Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Justin Childs appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm as to Ground Two. However, because the record attachments do not conclusively refute Childs’ claim that his plea is invalid since probation was not contemplated as part of the plea agreement, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Spacco v. State, 739 So.2d 1269, 1270 (Fla. 5th DCA 1999) (explaining that defendant’s plea may have been rendered invalid when trial court imposed split sentence because the defendant claimed to enter plea in exchange for what he believed would be a prison term without probation (citing Eggers v. State, 624 So.2d 336 (Fla. 1st DCA 1993))).

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Lawrence C. WASHINGTON, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2902
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017
    Lawrence C. Washington, Sr., Crawford-ville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Lawrence C. Washington, Sr. seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Washington argued five claims in his motion, contending that his trial counsel was ineffective for: 1) failing to conduct a reasonable investigation into potential alibi witnesses; 2) allowing Washington to be convicted based on circumstantial evidence that was not inconsistent with his theory of innocence; 3) failing to object to the admission of certain evidence; 4) failing to object to improper comments made by the State during closing arguments; and 5) failing to move for a judgment of acquittal.

Because Claims One, Two, Three, and Four are facially insufficient, we reverse the summary denial of those claims and remand for the trial court to strike the claims. Washington is to be allowed sixty days under Rule 3.850(f)(2) to file an amended motion alleging facially sufficient grounds for relief if he can do so in good faith. See Spera v. State, 971 So.2d 754, 755 (Fla. 2007). We affirm Claim Five without further discussion.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, TORPY and WALLIS, JJ., concur.


text:
    Poul Wesley SPRADLING, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-222
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017

      Andy Thomas, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his judgment and sentence for aggravated battery with great bodily harm. Appellant raises two issues on appeal, the second of which is affirmed without further comment. Appellant initially argues that the trial court erred by allowing improper impeachment questioning with regard to his prior criminal record. This Court agrees; however, while the trial court erred by allowing improper impeachment of Appellant, we affirm because the error was harmless.

Appellant chose to testify in his own defense at trial. Prior to Appellant taking the stand, the State indicated an intention to inquire of Appellant, “Have you ever been convicted of a felony?” When he responded in the affirmative, the State would follow with, “How many?” Assuming Appellant responded honestly, the State intended to further inquire, “Of those felonies, how many of those are crimes of dishonesty?” Defense counsel objected to the last question, but the trial court erroneously concluded that the question was proper and allowed it. The question was asked at trial, and Appellant truthfully answered that one of his six felonies was a crime of dishonesty.

Section 90.610(1), Florida Statutes (2016), provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment ...

It is well settled that pursuant to section 90.610, Florida Statutes, “when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so ‘would have the impermissible and unintended effect of elevating certain felonies over others.’ ” Atis v. State, 32 So.3d 81, 84 (Fla. 2d DCA 2009) (quoting Bobb v. State, 647 So.2d 881, 884 (Fla. 4th DCA 1994)). Under this rule and as addressed by the Court in Atis, 32 So.3d at 84, when impeaching a witness, it is permissible to inquire of the witness as follows:

Counsel: Have you ever been convicted of a felony?”
Witness: Yes.
Counsel: How many times?

Counsel may inquire further as follows:

Counsel: Have you ever been convicted of a misdemeanor involving dishonesty or a false statement?
Witness: Yes.
Counsel: How many times?

Counsel may not inquire as to whether any of the admitted felonies involved dishonesty or a false statement. If the witness admits to or testifies accurately to the number of convictions, the witness may not be questioned further regarding prior convictions, nor questions as to the nature of the crimes. Gavins v. State, 587 So.2d 487 (Fla. 1st DCA 1991). The witness may be not be impeached further with the specifics of prior convictions unless or until he provides false or inaccurate testimony regarding one of the four enumerated questions above. Furthermore, the witness may be not be confronted with the specifics of qualifying prior convictions unless the questioning party has in its possession certified records of the prior convictions available for introduction into evidence. Id. at 489-90.

Although the trial court erred in allowing Appellant to be questioned regarding whether any of his prior felonies involved dishonesty or a false statement, we conclude that the error was harmless. To establish harmless error, the State must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Here, Appellant admitted to six felony convictions, only one of which involved dishonesty or a false statement. In addition, Appellant’s sole defense to the charges was that of self-defense. In order to prove self-defense, Appellant must establish that he reasonably believed he was in imminent danger of death or great bodily harm. Wyche v. State, 170 So.3d 898, 905 (Fla. 3d DCA 2015). However, according to Appellant’s own testimony, the victim was on a bed and remained there while Appellant went into another room to retrieve a weapon. Appellant then returned to the room where the victim remained seated and attacked him. Given the foregoing, no reasonable jury would have concluded Appellant feared imminent death or great bodily harm, even if the improper impeachment question had not been asked. Therefore, we conclude the error was harmless.

AFFIRMED.

B.L. THOMAS, WETHERELL, and M.K. THOMAS, JJ., CONCUR.


author: COHEN, C.J.

text:
    J.S., Mother of M.S., E.D., J.D., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D16-4267
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 7, 2017
    Sherry Cote-Jarvis, of Cote-Jarvis & Associates, P.A., Edgewater, for Appellant.
    Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellee.
    David Paul Krupski, Appellate Counsel, Guardian ad Litem, Sanford, for Guardian ad Litem Program.
   COHEN, C.J.

J.S. appeals the order terminating her parental rights to three children, M.S., E.D., and J.D., who at the time of trial ranged from five to ten years old. The sole ground for termination of parental rights was J.S.’s failure to substantially comply with the case plan.

The children were initially removed from the home because of ongoing domestic violence involving J.S. and her boyfriend. During the course of the original court-ordered case plan, the mother tested positive for a controlled substance. As a result, four months before the termination of parental rights trial, the case plan was modified to require random drug tests and substance abuse counseling.

In its final order, the trial court terminated J.S.’s parental rights pursuant to section 39.806(l)(e)l., Florida Statutes (2016), finding that J.S. failed to substantially comply with the modified case plan. We have reviewed the trial transcript and accept the Department’s concession that the evidence at the termination of parental rights trial was not legally sufficient to support the trial court’s finding. Accordingly, we reverse the order terminating J.S.’s parental rights and remand for further proceedings.

REVERSED and REMANDED.

EVANDER and EDWARDS, JJ., concur.


text:
    Marysely GONZALEZ, Appellant, v. Guillermo HEWITT, Appellee.
    Case No. 5D16-1346
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017
    Brandon M. Tyson, of Tyson Law Firm, LLC, Altamonte Springs, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Marysely Gonzalez (“Mother”) appeals the default final judgment of paternity, contending that the trial court erred in summarily denying her motion to set aside the default judgment without an evidentia-ry hearing regarding her allegations of excusable neglect. We agree. We therefore reverse the judgment and remand with instructions to hold an evidentiary hearing on Mother’s motion to vacate. We also note that the trial court erred in failing to make appropriate findings regarding the best interest of the child pursuant to section 61.13(3), Florida Statutes (2016), and by failing to include an explanation of the method by which Mother can establish timesharing with the child.

REVERSED and REMANDED.

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


author: WALLIS, J.

text:
    TIMBER PINES PLAZA, LLC, Appellant, v. Richard ZABRZYSKI and Grazyna B. Machnik, Appellees.
    Case No. 5D16-3275
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017

      Randall P. Mueller and Michael P. Quinn, of Carey, O’Malley, Whitaker & Mueller, P.A., Tampa, for Appellant.
    George G. Angeliadis, of The Hogan Law Firm, Spring Hill, for Appellees.
   WALLIS, J.

Timber Pines Plaza, LLC (“Timber Pines”), appeals the trial court’s order denying its motion to compel arbitration on a counterclaim brought by Richard Zabrzy-ski and Grazyna B. Machnik (collectively, “Appellees”). For reasons that follow, we reverse the trial court’s order and remand with instructions to grant Timber Pines’ motion to compel arbitration.

Timber Pines owns the Shopping Outlet Mall in Spring Hill, Florida (the “Outlet Mall”). The Outlet Mall contains two out-parcels, the North Outparcel and the South Outparcel. In April 2014, Timber Pines contracted to sell the North Outpar-cel to Appellees for $550,000. The contract contains the following broad arbitration provision:

14. DISPUTE RESOLUTION: This Contract will be construed under Florida law. All controversies, claims, and other matters in question arising out of or relating to this transaction or Contract or its breach will be settled as follows:
(a) Disputes concerning entitlement to deposits made and agreed to be made: Buyer and Seller will have 30 days from the date conflicting demands are made to attempt to resolve the dispute through mediation. ...
(b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve the matter though mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the county where the Property is located. The arbitrator may not alter the Contract terms or award any remedy not provided for in this Contract. ...

Before the purchase and sale closed, Timber Pines imposed Amended Deed Restrictions (the “ADR”) on the North Out-parcel, which provide:

All future buildings or structures, property or building uses or ancillary or related uses, plans, site plans, on site parking, remodeling, renovations or additions as to building type, construction and set backs, Tract replats or subdivisions and the like must be previously submitted to and approved by [Timber Pines], its successors, heirs, assigns or successors in title in its sole discretion without necessity of consent of any other tract owner. Failure of [Timber Pines] to grant approval shall not be considered a waiver. [Timber Pines] also reserves for itself, its assignees and successors the right to approve and make any such changes described above for any property it owns, at any time without consent or approval by any tract owner.

(emphasis added). Appellees signed an acknowledgment form consenting to the ADR’s terms. The transaction closed in October 2014, after which Appellees obtained building permits for the construction of a 6124 square foot building on the North Outparcel. Crucially, the contract for the sale of the North Outparcel does not reference, much less incorporate, the ADR.

In October 2015, Timber Pines filed a complaint for injunctive relief and damages, alleging that Appellees commenced construction on the North Outparcel without obtaining approval pursuant to the ADR. Timber Pines requested that Appel-lees cease construction and comply with the restrictions, but Appellees refused. The trial court denied Timber Pines’ request for an injunction, and our court per curiam affirmed the trial court’s ruling. Timber Pines Plaza, LLC v. Zabrzyski, No. 5D16-95, 2016 WL 7405671, at *1 (Fla. 5th DCA Dec. 20, 2016).

In March 2016, Appellees answered the original complaint and included a counterclaim for breach of contract, alleging that Timber Pines “failed or refused to object or otherwise provide any input on the building plans.” Appellees further argued Timber Pines breached the contract by failing to provide them with a cross-parking easement. Timber Pines responded by moving to dismiss and compel arbitration on Appellees’ counterclaim pursuant to the contract’s arbitration provision. Appellees responded that Timber Pines waived its right to compel arbitration by asserting claims under the ADR that were “inextricably intertwined” with the contract. Neither party requested a hearing on Timber Pines’s motion to compel arbitration, and the trial court ultimately denied Timber Pines’s motion. The trial court’s order does not include any factual findings or detail its reasons for denying the motion.

The issue before us is whether Timber Pines, by filing suit to enforce the ADR, waived its right to compel arbitration on Appellees’ counterclaim for breach of the contract for the purchase and sale of the North Outparcel. We review de novo a trial court’s ruling on a motion to compel arbitration, but we defer to the trial court’s factual findings provided that they aré supported by competent, substantial evidence. Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So.3d 859, 862 (Fla. 5th DCA 2013). As a matter of public policy, Florida law “favors arbitration as an efficient means of settling disputes because it avoids the delays and expenses of litigation.” Gale Grp., Inc. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996). We generally consider three elements when ruling on a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) (citing Terminix Int’l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). “[T]he determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the intent of the parties.’ ” Id. (quoting Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982)).

“[T]he mere coincidence that the parties in dispute have a contractual relationship will ordinarily not be enough to mandate arbitration of the dispute.” Id. at 638. Rather, “there must exist a significant relationship between the claim and the agreement containing the arbitration clause.” Careplus Health Plans, Inc. v. Interamerican Med. Ctr. Grp., LLC, 124 So.3d 968, 972 (Fla. 3d DCA 2013) (citing Seifert, 750 So.2d at 637-38). The Florida Supreme Court has expanded upon the definition of “significant relationship” as follows:

A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual 'nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the, general common law owed not only to the contracting parties but also to third parties and the public.

Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013) (citations omitted).

The determination as to whether a party waived the right- to arbitrate “should be analyzed much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the ... party has acted inconsistently with the arbitration right.” Raymond James Fin. Servs., Inc. v. Saidukas, 896 So.2d 707, 711 (Fla. 2005) (quoting Nat’l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987)). A party acts inconsistently with the arbitration right by prosecuting or defending “a lawsuit on issues subject to arbitration.” Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009) (quoting Seville Condo. #1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976)). Once a party waives the right to arbitrate, “the party may not reclaim the arbitration right without the consent of his or her adversary.” Id.

We find that there exists no significant relationship between Timber Pines’s claims under the ADR and the arbitration clause contained in the contract for the purchase and sale of the North Outparcel. Accordingly, we find that Timber Pines did not waive its right to compel arbitration on Appellees’ counterclaim. See id. Timber Pines referenced the contract in its complaint only to provide context for the parties’ relationship and events leading up to the dispute. Timber Pines sought relief on the sole basis that Appellees commenced construction on the North Outparcel without obtaining approval as required by the ADR. The Florida Supreme Court has stressed that a “contractual nexus” requires that the claim “emanate[ ] from an inimitable duty created by the parties’ unique contractual relationship.” Jackson, 108 So.3d at 593. Here, the contract creates no “inimitable duty” concerning prior approval before commencing construction; the contract is silent on this issue. See id. Only the ADR provides that Appellees must obtain approval before beginning construction on the North Outparcel. Thus, we agree with Timber Pines that there exists no significant relationship between its claim for injunctive relief under the ADR and Appellees’ counterclaim under the contract because resolution of Timber Pines’s claims does not require any “reference to or construction of some portion of the contract itself.” Kolsky v. Jackson Square, LLC, 28 So.3d 965, 969 (Fla. 3d DCA 2010) (quoting Seifert, 750 So.2d at 638).

Of course, the instant dispute would not exist had the parties not contracted for the purchase and sale of the North Out-parcel, but “the mere fact that the dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one ‘arising out of or relating to’ the agreement.” Seifert, 750 So.2d at 638. The Fourth District Court addressed analogous facts in AMS Staff Leasing, Inc. v. Taylor, 158 So.3d 682, 685 (Fla. 4th DCA 2015), where the employer and employee had an existing employment agreement that contained an arbitration provision covering “any dispute” with the employer “arising under [the employee’s] employment.” The court found that, although the employee’s worker’s compensation claim arose from his employer-employee relationship, that claim was separate and distinct from the employment agreement containing the arbitration provision. Id. Similarly, Timber Pines’s claim arose in part because it agreed to sell the North Outparcel to Appellees. However, once that sale closed, the ADR controlled the relationship between the parties regarding approval of construction plans—the only claim Timber Pines asserts in this case.

Based on the foregoing, we find that Timber Pines did not waive its right to compel arbitration on Appellees’ counterclaim. Therefore, we reverse and remand with instructions to grant Timber Pines’s motion to stay litigation of Appellees’ counterclaim and to compel arbitration.

REVERSED and REMANDED with Instructions

ORFINGER, J., and JACOBUS, B.W, Senior Judge, concur.

      . See § 682.03(7), Fla. Stat. (2016) ("If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.”).


author: PER CURIAM:

text:
    STATE EX REL. Jamario ALEXANDER v. STATE of Louisiana
    No. 2015-KH-2024
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to show that the District Court erred in finding them imper-missibly omitted from his earlier pleadings, see La.C.Cr.P. art. 930.4, and also fails to carry his post-conviction burden of proof, Cf. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the District Court’s written ruling denying relator’s application.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive 12application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

| ¡¡Attachment


text:
    STATE EX REL. William HUNTER v. STATE of Louisiana
    No. 2015-KH-2051
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

1 iDemed. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to cany his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. Finally, the application is repetitive. La. C.Cr.P. art. 930.4.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P, art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in |¾2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Carlitos Armando GUARDADO v. STATE of Louisiana
    No. 2015-KH-2050
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. Moreover, that relator alternatively names his filing an application for a writ of habeas corpus does not save him from the procedural requirements for applications for post-conviction relief. See State ex rel. Glover v. State, 93-2330, pp. 9-11 (La. 9/5/95), 660 So.2d 1189, 1195-96 (distinguishing habeas corpus post-conviction relief and endorsing La.C.Cr.P. art. 351 and its cmt. (c), which state that “[hjabeas corpus is not the proper procedural device for petitioners who may file applications for post conviction relief;” rather, it “deals with pre-conviction complaints concerning custody”). Relator does not demonstrate that he preserved any non-jurisdictional issues for review when he entered his unconditional guilty pleas. See State v. Crosby, 338 So.2d 584 (La. 1976).

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 | aonly under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.CrJP. art. 930.6, and this denial is final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Sylvester BROWN v. STATE of Louisiana
    No. 2015-KH-2030
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his second application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Thomas BEAMON v. STATE of Louisiana
    No. 2015-KH-2026
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

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

Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions ^authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Marlin RAY v. STATE of Louisiana
    No. 15-KH-2023
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

|! Denied. Relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his claim that his plea was involuntary or that the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. Art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. Art. 930.4 and within the limitations period as set out in La.C.Cr.P. Art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. Art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. Art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions ^authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE EX REL. Shannon HURD v. STATE of Louisiana
    No. 2015-KH-2020
    Supreme Court of Louisiana.
    02/17/2017
   PER CURIAM:

hDenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. We attach hereto and make a part hereof the Court of Appeal’s written reasons denying writs.

Relator has now fully litigated at least seven applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La. C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a ^successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

| .¡Attachment


text:
    STATE EX REL. Francis BROWN v. STATE of Louisiana
    NO. 2016-KH-2120
    Supreme Court of Louisiana.
    December 9, 2016
   Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court, Div. B, No. 06-K-2644-B; to the Court of Appeal, Third Circuit, No. KH 16-00828;

The application is transferred to the district court with instructions to the district judge to act on relator’s motion for eviden-tiary hearing as relator shows by Inmates’ Request for Legal/Indigent Mail receipt that the application was submitted on or about June 22, 2016. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE EX REL. Joe BROWN v. STATE of Louisiana
    NO. 2016-KH-2155
    Supreme Court of Louisiana.
    December 12, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Oi'leans, Criminal District Court Div. H, No. 247-354;

It The application is transferred to the district court with instructions to the district judge to act on relator’s motion to correct illegal sentence filed via certified mail on April 25, 2016. The district court is ordered to provide this Court with copy of its judgment.


text:
    Paul THOMPSON and David Simmons v. WILLIAMS COMPANIES, INC., Williams Olefins, LLC, Williams Partners, LP, Williams Partners GP LLC, Discovery Producer Services, LLC, Black Marlin Pipeline, LLC, Williams Ohio Valley Midstream LLC, and Turner Industries Group, LLC
    NO. 2016-CC-2224
    Supreme Court of Louisiana.
    December 14, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 72701; to the Court of Appeal, First Circuit, No. 2016 CW1549.

11 Stay denied. Writ denied.

WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Arthur HUBBARD
    NO. 2016-KD-2211
    Supreme Court of Louisiana.
    December 14, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 526-400; to the Court of Appeal, Fourth Circuit, No. 2016-K-1266;

11 Stay denied. Writ denied.


text:
    STATE of Louisiana v. Arthur HUBBARD
    NO. 2016-KD-2222
    Supreme Court of Louisiana.
    December 14, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 526-400; to the Court of Appeal, Fourth Circuit, No. 2016-K-1267;

11 Stay denied. Writ denied.

GUIDRY, J., would grant.


text:
    CAMBAS ELECTRIC, INC. v. The MCDONNEL GROUP, L.L.C. et al.
    No. 2016-CC-1774
    Supreme Court of Louisiana.
    December 16, 2016
   Applying for Rehearing of this Court’s action dated October 28, 2016; Parish of Orleans, Civil District Court Div. A, No. 2014-6440; to the Court of Appeal, Fourth Circuit, No. 2016-C-0720,

| Rehearing denied.

HUGHES, J., would grant the rehearing.


text:
    Carolyn CORRERO v. Dr. Jose L. FERRER, Lammico Insurance Agency, Inc., IASYS Glenwood Regional Medical Center, L.P. and XYZ Insurance Company
    NO. 2016-C-0861
    Supreme Court of Louisiana.
    December 16, 2016
   Applying for Rehearing of this Court’s action dated October 28, 2016, Parish of Ouachita, 4th Judicial District Court Div. J, No. C-2014-2553; to the Court of Appeal, Second Circuit, No. 50,476-CA;

| Rehearing denied.

GUIDRY, J., would grant the rehearing.


text:
    Danielle Deon Dickerson ACURIO v. Dr. Michael Thomas ACURIO
    NO. 2016-C-1395
    Supreme Court of Louisiana.
    December 16, 2016
    WIENER, WEISS & MADISON, APC, Charles Edward Tabor Esq.; Counsel for Applicant;
    CADDO PARISH DISTRICT ATTORNEY’S OFFICE, Tommy Jan Johnson Esq.; Counsel for Respondent
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. D, No. 129,886; to the Court of Appeal, Second Circuit, No. 50,-709-CA;

h Granted.


text:
    Paula Stephanie FERRAND v. C. Vincent FERRAND
    NO. 2016-CJ-1903
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 708-409; to the Court of Appeal, Fifth Circuit, No. 16-CA-7;

| denied.

KNOLL, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Chaka STEWART
    NO. 2015-K-1845
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 507-111; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0135;

| granted.


text:
    STATE of Louisiana v. Chaka STEWART
    NO. 2015-K-1846
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 507-866e to the Court of Appeal, Fourth Circuit, No. 2015-KA-0136;

| granted.


text:
    Floyd SAFFORD v. HAMMERMAN & GAINER INTERNATIONAL INC. and New Orleans Fire Department
    NO. 2016-C-1591
    Supreme Court of Louisiana.
    December 16, 2016
    PUGH, ACCARDO, HAAS, RADECKER & CAREY, LLC, Christopher Marc Landry Esq., Erzsebet Pifko Esq.; Counsel for Applicant
    ROBEIN, URANN, SPENCER, PI-CARD & CANGEMI, APLC, Christina L. Carroll Esq., Counsel for Respondent
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 8, No. 15-01981; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0209;

11Granted.


text:
    Thelma LAYTON v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS—Louisiana State Penitentiary
    NO. 2016-C-1955
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review State Civil Service Commission In and for the State of Louisiana, No. S-17982; to the Court of Appeal, First Circuit, No. 2015 CA 1370;

hNot considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    Tracy KENT v. STATE of Louisiana
    NO. 2015-KO-2119
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 13-3877; to the Court of Appeal, Fifth Circuit, No. 15-KA-323;

h Denied.


text:
    STATE of Louisiana v. Christopher Michael JOHNSON
    NO. 2015-KO-2287
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 4, No. 285,954; to the Court of Appeal, Second Circuit, No. 49,-815-KA;

_JjDenied.


text:
    STATE of Louisiana v. Christopher Wayne HOLDER
    NO. 2016-KO-0092
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. E, No. 131,414; to the Court of Appeal, Second Circuit, No. 50,-171-KA;

| jDenied.

KNOLL, J., would grant. HUGHES, J., would grant.


text:
    Leroy HENRY, et al. v. COOPER/T. SMITH STEVEDORING COMPANY, INC., et al.
    NO. 2016-CC-0384
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 13-12146 C/W 14-5412; to the Court of Appeal, Fourth Circuit, No. 2015-C-1369;

11 Denied.


text:
    STERLING SUGARS, INC. v. Amerda HESS, et al.
    NO. 2016-CC-1317
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, No. 100091; to the Court of Appeal, First Circuit, No. 2015 CW 1857;

h Denied.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    Alycia RODE (D), et al. v. Dr. Frank LOPEZ, et al.
    NO. 2016-CC-1406
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2015-712; to the Court of Appeal, Third Circuit, No. CW 15-01090;

| denied.


text:
    Alycia RODE (D), et al. v. Dr. Frank LOPEZ, et al.
    NO. 2016-CC-1409
    Supreme Court of Louisiana.
    December 16, 2016
   Dr. Frank Lopez;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2015-712; to the Court of Appeal, Third Circuit, No. CW 15-01091;

| denied.


text:
    MISTY FINCHUM AGENCY, LLC, et al. v. JAMIE THIBODEAUX AND ASSOCIATES, INC., et al.
    NO. 2016-CC-1598
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2012-002792; to the Court of Appeal, Third Circuit, Nos. CW 16-00561, CW 16-00378;

h Denied.

WEIMER, J., .would grant. CLARK, J., would grant. CRICHTON, J., would grant.


text:
    Elbert LAWRENCE v. The STATE of Louisiana
    NO. 2016-CC-1605
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 639,010; to the Court of Appeal, First Circuit, No. 2016 CW 0009;

L Denied.

HUGHES, J., would grant.


text:
    Amy Lee HYDE v. DANNY & CLYDE’S FOOD STORE, INC., Danny & Clyde’s Po-Boys & More, LLC and American Economy Insurance Company
    NO. 2016-CC-1634
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 636,801; to the Court of Appeal, First Circuit, No. 2016 CW 0591;

| denied.

JOHNSON, C.J., would grant.

KNOLL, J., would grant.

HUGHES, J., would grant.


text:
    Darlene WATSON as Administrator of the Estate of John Lee v. WOLDENBERG VILLAGE, INC.
    NO. 2016-C-1964
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2014-08770; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0159;

| denied.

WEIMER, J., would grant. CLARK, J., would grant.


text:
    Collins CORBIN v. DIRECTOR OF THE WORKERS’ COMPENSATION ADMINISTRATION LOUISIANA WORKFORCE COMMISSION STATE OF LOUISIANA
    NO. 2016-CC-1966
    Supreme Court of Louisiana.
    December 16, 2016
   Office for the Workers’ Compensation Administration;—Other; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2016-10687; to the Court of Appeal, First Circuit, No. 2016 CW 0875;

1 jDenied.


text:
    Glenn Kenneth JONES v. Tammy M. STEWART, Access Home Insurance Company, Sears Home Improvement Products, Inc. and its Parent Corporation Sears Holding Company
    NO. 2016-C-1967
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2013-04435; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0329;

1 ¶ Denied.

HUGHES, J., would grant.


text:
    Eva D. ABRAHAM, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1969
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5045; to the Court of Appeal, Third Circuit, No. CW 16-00313; December 16, 2016

| t Denied.


text:
    Rhonda ALFORD, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1970
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5075; to the Court of Appeal, Third Circuit, No. CW 16-00314;

| denied.


text:
    Gloria JACK, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1971
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5039; to the Court of Appeal, Third Circuit, No. CW 16-00322;

| denied.


text:
    Anand ROY, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1973
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5114;- to the Court of Appeal, Third Circuit, No. CW 16-00308;

|! Denied.


text:
    Jason BREAUX, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1975
    Supreme Court of Louisiana.
    December 16, 2016
   Jason Breaux;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5114; to the Court of Appeal, Third Circuit, No. CW 16-00315;

I, Denied.


text:
    Vincent Micah CALLIGAN, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1977
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2014-5063; to the Court of Appeal, Third Circuit, No. CW 16-00316;

|, Denied.


text:
    Angoe PAYNE, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1979
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. 3, No. 2014-5054; to the Court of Appeal, Third Circuit, No. CW 16-00311;

| denied.


text:
    DUPUY STORAGE, AND FORWARDING, LLC v. MAX SPECIALITY INSURANCE COMPANY, McCaleb Bilbro, The Javier Law Firm, LLC and Continental Casualty Company c/w Evanston Excess and Surplus Insurance Company, Formerly Know as Max Specialty Insurance Company v. Mccaleb Bilbro, The Javier Law Firm, LLC And Continental Casualty Company
    NO. 2016-OC-1982
    Supreme Court of Louisiana.
    December 16, 2016
   Dupuy Storage and Forwarding LLC;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2013-09508; to the Court of Appeal, Fourth Circuit, Nos. 2016-CA-0050, 2016-CA-0051;

| denied.


text:
    STATE of Louisiana v. Briceson CARTER
    NO. 2016-KK-1983
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 518-558; to the Court of Appeal, Fourth Circuit, No. 2016-K-0748;

| j Denied.


text:
    Nick CLINE on behalf of his Minor Son, Coby Cline, and Chance Heine on behalf of his Minor Children, Lona and Wyatt Heine v. The STATE of Louisiana, through the Department of Transportation and Development
    NO. 2016-CC-1991
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. C, No. 46,712; to the Court of Appeal, First Circuit, No. 2016 CW 1271;

| denied.


text:
    Bradley DAVIS v. GREY WOLF DRILLING COMPANY Grey Wolf Drilling Company v. Bradley Davis
    NO. 2016-CC-1993
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 4, No. 07-05162 C/W 12-03760; to the Court of Appeal, Third Circuit, No. WCW16-00581;

| denied.


text:
    TRANS PACIFIC INTERACTIVE, INC. v. U.S. TELEMETRY CORPORATION; U.S. Telemetry Network, Inc.; U.S. Telemetry—Bakersfield, LLC; Datex Spectrum, LLC; Thomas L. Siebert; K. Steven Roberts; Robert S. Miller; Don M. Clarke; James K. Gable; Charles M. Bruce; John J. Broussard; Henry (Hank) Mills; Clay M, Allen; and Stephen D. Gavin
    NO. 2016-C-1995
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No, 507714; to the Court of Appeal, First Circuit, No, 2016 CA 0119;

| denied.


text:
    STATE of Louisiana v. John DRUMMER, Jr.
    NO. 2016-KK-2151
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 189,360; to the Court of Appeal, Third Circuit, No, KW 16-00776;

| iDenied.

WEIMER, J., would request opposition from state. HUGHES, J., would grant the writ in part.


author: KEATY, Judge.

text:
    LAKE CHARLES POLICE OFFICERS’ ASSOCIATION LOCAL 830 AFL-CIO and Craig Desormeaux, Individually and as President of the Local 830 v. The Honorable Randall Edmund ROACH and the City of Lake Charles
    16-719
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered on 02/15/2017
    Edward J. Fonti, Gregory W. Belfour Jones, Tete, Fonti & Belfour, LLP, Post Office Box 1930, Lake Charles, Louisiana 70602, (337) 439-8315, Counsel for Defendants/Appellants: Randall Edmund Roach, Mayor .of the City of Lake Charles, The City of Lake Charles
    Billy E. Loftin, Jr., Brian M. Bradford Loftin, Cain & LeBlanc, LLC, 113 Dr. Michael DeBakey Drive, Lake Charles, Louisiana 70601, (337) 310-4300, Counsel for Defendants/Appellants: Randall Edmund Roach, Mayor of the City of Lake Charles, The City of Lake Charles
    Mayor Randall Edmund Roach, In Proper Person, 326 Pujo Street, Lake Charles, Louisiana 70601, (337) 491-1201, Defendant/Appellant
    Walter M. Sanchez, The Sanchez Law Firm, L.L.C., 1200 Ryan Street, Lake Charles, Louisiana 70601, (337) 433-4405, Counsel for Plaintiffs/Appellees: Lake Charles Police Officers’ Association Local 830 AFL-CIO, Craig Desormeaux, Individually and as President of the Local 830
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

|; Defendants, the Honorable Randall Edmund Roach, in his capacity as Mayor of the City of Lake Charles, and the City of Lake Charles (collectively “the City”), appeal the trial court’s granting of a declaratory judgment in favor of Plaintiffs, the Lake Charles Police Officers’ Association Local 830 AFL-CIO and Craig Desor-meaux, individually and as President of the Local 830 (collectively “the Local 830”). For the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

The Local 830 is a labor organization with approximately 160 members (Local 830 members). All Local 830 members are classified civil service employees and constitute approximately 80% of the Lake Charles Police Department (LCPD). Classified civil service employees are restricted from certain political activities pursuant to La.R.S. 33:2504. The penalty imposed for violating the statutory restrictions includes mandatory discharge and a six-year ineligibility period for seeking employment or public office in the classified service. La. R.S. 33:2504(B) and (C).

Given those restrictions, the Local 830 consulted with the Lake Charles City Service Board (the Board) and proposed a rule detailing the circumstances wherein Local 830 members could lawfully endorse political candidates. The Board repeatedly deferred action on the proposed rule. As a result, the Local 830 filed the instant Petition for Declaratory Judgment, asking for a declaration allowing it to publicly endorse, support, and “make public political statements on behalf of a candidate seeking to be elected to public office, after a vote of the membership regarding the issue and have its officers or spokesperson make such public endorsements or public statements on behalf of the Local.” The trial court ruled in 12its favor and incorporated the procedure proposed by the Local 830, in its pretrial memorandum, for the consideration of such endorsements. The City appealed.

On appeal, the City asserts the following assignments of error:

1.
The trial court erred in' concluding that the Lake Charles Police Officers’ Association Local 830 which is comprised solely of classified civil service Lake Charles police employees, may publicly endorse candidates for elected public offices, and in specifying the procedure to be followed in making and announcing an endorsement.
2.
The trial court erred in permitting classified civil service police employees to make public statements on behalf of Local 830 endorsing candidates for elected public offices.
3.
The trial court erred in not attributing the political activities of the Lake Charles Police Officers’ Association Local 830 to its members.

DISCUSSION

I. Declaratory Judgment

The Local 830 requested a declaratory judgment addressing whether it could publicly support a candidate running for public office despite the restrictions imposed upon classified civil service employees pursuant to La.R.S. 33:2504. In that regard, “[cjourts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. Code Civ.P. Art. 1871. Further, La.Code Civ.P. Art. 1872 provides that:

A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or | ¡¡franchise and obtain a declaration of rights, status, or other legal relations thereunder.

In Campbell v. Evangeline Parish Police Jury, 14-1301, pp. 3-4 (La.App. 3 Cir. 5/6/15), 164 So.3d 408, 412, writ denied, 15-1067 (La. 9/11/15), 176 So.3d 1043, the supreme court further elaborated that:

[T]he function of a declaratory judgment is to establish the rights of the parties or to express the court’s opinion on a question of law without ordering any relief. MAPP Constr., LLC v. Amerisure Mut. Ins. Co., 13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. “Trial courts are vested with wide discretion in deciding whether or not to grant or refuse declaratory relief.” In re Interment of LoCicero, 05-1051, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 883, 886. However, where the judgment would terminate an uncertainty or controversy which gave rise to the proceeding, the trial court must render a declaratory judgment. Id. See also La.Code Civ.P. Art. 1876. Accordingly, the appellate court is limited to a determination of whether the trial court abused its discretion in its grant of or refusal to render a declaratory judgment. Id.
Although the trial court’s determination about whether to issue a declaratory judgment is subject to the abuse of discretion standard, the judgment itself is still subject to the appropriate standard of review—questions of law are reviewed de novo and questions of fact are subject to the manifest error/clearly wrong standard of review. See Ranger Ins. Co. v. Shop Rite, Inc., 05-452 (La.App. 5 Cir. 1/17/06), 921 So.2d 1040.

The interpretation of statutes is a question of law which is reviewed by the appellate courts under the de novo standard of review. Silver Dollar Liquor, Inc. v. Red River Parish Police Jury, 10-2776 (La. 9/7/11), 74 So.3d 641.

H. ASSIGNMENTS OF ERROR

In its first assignment of error, the City contends that the trial court erred in concluding that the Local 830, which is comprised of LCPD classified civil service employees, can publicly endorse candidates for elected public offices. The City asserts that the trial court erred by specifying the procedure to be followed when making an endorsement. In its second assignment of error, the City states that the | ¿trial court erred in allowing LCPD employees to make public statements on behalf of the Local 830 .by endorsing candidates for elected public offices. In its third assignment of error, the City argues that the trial court erred in not. attributing the political activities of the Local 830 to its individual members. Given the overlapping assignments of error, the issue to be decided is whether the prohibition against political activity pursuant to La.R.S. 33:2504 is limited to civil service employees, or whether that prohibition extends to a labor organization such as the Local 830, where its members are classified civil- service employees.

In that regard, at the January 26, 2016 trial on the merits of the declaratory judgment, Mr. Desormeaux’s testimony indicates that he was both a lieutenant employed by the LCPD and the president of the Local 830. He testified regarding the procedure the Local 830 would utilize endorsing a political candidate. Mr. Desor-meaux stated that Local 830 members would attend a members-only meeting to discuss a possible political endorsement. He indicated that the meeting’s occurrence would be disseminated to members through e-mail correspondence and by posting a notice on the bulletin board located in the police department offices currently used by the Local 830 for such notices. Mr. Desormeaux noted that only Local 830 members could attend the meeting, which would be closed to the public. He testified that all candidates running for a certain elected position would be invited to speak individually at the Local 830 meetings. Mr. Desormeaux stated that the Local 830’s ballot elections would remain open for nine calendar days so that its members have “ample opportunity to IjjCome in over that nine day period and cast their ballot.” He revealed that the written, secret ballots would be collected in a ballot box that would remain in the patrol secretary’s office. Mr. Desormeaux advised that the ballots would be counted by a committee composed of three Local 830 members, none of whom could be serving on the executive board at that time. He stated that after counting the ballots, the committee would report the results to the executive board. Mr. Desormeaux testified that the endorsement would occur only upon a majority of the votes cast in favor of a certain candidate. The endorsement would be disseminated to the public by a Local 830 member according to Mr. Desor-meaux. He advised that the Local 830 spokesperson could not wear police attire while informing the public of the endorsement.

There are a couple of appellate court opinions and an Attorney General opinion interpreting the prohibitions against political activities imposed upon civil service employees, which are summarized as follows. In Cannatella v. Department of Civil Service, 592 So.2d 1374 (La.App. 4 Cir.), writ denied, 596 So.2d 215 (La.1992), a police officer, who was both a classified employee and the president of the Police Association of New Orleans (PANO), endorsed a mayoral candidate on behalf of PANO. The Civil Service Commission suspended the officer, Sergeant Cannatella, based upon his alleged violations of La. Const. Art. X, § 9(A), which provides that “[n]o ... officer or employee in the classified service shall participate or engage in political activity!)]” Id. Political activity is defined in La.Const. Art. X, § 9(C) as “an effort to support or oppose the election of a candidate for political office or to support a particular political party in an election.” Id. Sergeant Cannatella also allegedly violated City Civil Service Rule XIV, which provided that “‘[c]onduct prohibited to classified employees ... |fiby this Rule includes any public political statement, whether verbal or written, any public political overture or demonstration or any connection with public representation or reproduction having political significance!)]’ ” Id. at 1376. The fourth circuit noted that private expressions of opinion by classified civil service employees were specifically exempted. Id.

The fourth circuit reversed the Civil Service Commission’s ruling, finding that the prohibition found in La.Const. Art. X, § 9(A) and City Civil Service Rule XIV “is exclusively limited to ... classified civil service employees and officers.” Cannatella, 592 So.2d at 1376. It stated that the prohibition “does not extend to a labor organization such as PANO, or its spokesperson, merely because its members are classified civil service employees.” Id. The fourth circuit explained that:

PANO is an entity which is distinct and distinguishable from its members. An endorsement of a candidate for elective office by PANO through its president is not a personal endorsement of that candidate by Sgt. Cannatella. The stipulation clearly shows that Sgt. Cannatella publicly expressed PANO’s endorsement for mayor, not his personal choice. Any statement made by Sgt. Cannatella during a PANO meeting is a private expression of his opinion which is specifically exempt from the constitutional prohibition. Civil Service Commission v. PANO, 90-C-0769, writ granted (La.App. 4th Cir.1990).

Id.

Cannatella, 592 So.2d 1374, was referenced in a 1999 Attorney General Opinion interpreting La.R.S. 33:2504, which states:

1) The endorsement of a political candidate by a union is not proscribed by any law.
2) The endorsement of a political , candidate by a union is not a personal endorsement by its spokesperson.
3) Any statement made by a civil service employee during a union meeting is a private expression of the employee’s opinion and is specifically exempt from constitutional prohibition.

|7La. Atty. Gen. Op. No. 98-464 (La.AG.), 1999 WL 106945.

Thereafter in 2001, the fifth circuit in Kenner Police Department v. Kenner Municipal Fire & Police Civil Service Board, 00-1080, 00-1081 (La.App. 5 Cir. 1/23/01), 783 So.2d 392, writ denied, 01-487 (La. 4/20/01), 790 So.2d 635, affirmed the trial court’s judgment terminating five police officers for violating La.R.S. 33:2504. In Kenner, 783 So.2d 392, the five plaintiffs were both former police officers and members of the police union, the Police Association of the City of Kenner (PACK). The plaintiffs also “made up the entire executive board of PACK.” Id. at 394. The plaintiffs, acting as PACK’S executive board, voted to endorse and support a certain candidate for political office without obtaining the entire union’s approval before making the decision. When the union members were notified of the executive board’s action, many objected. Despite the objections, the plaintiffs conducted a meeting, comprised only of the executive board, which resulted in a financial contribution to the political candidate’s campaign. Following a formal investigation and citing La.R.S. 33:2504, the appointing authority terminated them. The Civil Service Board affirmed the action of the appointing authority both on the political endorsement and on the fact that executive board members had financially contributed to the candidate. The trial court affirmed the Civil Service Board’s finding, and an appeal ensued. In affirming the trial court’s judgment by finding that a violation of La.R.S. 33:2504 occurred, the fifth circuit relied upon the following facts: (1) with respect to the public endorsement, there was no formal vote of the union membership to either approve or disapprove of the endorsement; (2) the campaign contribution issue was not brought before any other union members since only the same five members of |sthe executive board voted in favor of the issue; and (3) multiple union members objected to the executive board’s action.

The instant matter is different from Kenner, 783 So.2d 392, in that every Local 830 member is given the opportunity to vote for any candidate they desire. Although given the opportunity, Local 830 members are not required to vote. All votes cast are confidential, and a majority is required before an endorsement is made. The votes cast are counted by three Local 830 members who are not serving on its executive board. Additionally, and unlike Kenner, 783 So.2d 392, the Local 830 is only seeking to politically endorse, and not financially support, a candidate.

To the extent that the law appears unsettled between the circuit courts, we have found no jurisprudence wherein the supreme court or the third circuit has addressed this precise issue. Therefore, we conclude that Cannatella, 592 So.2d 1374, and the Louisiana Attorney General Opinion cited above constitutes persuasive authority for the trial court’s interpretation and application of La.R.S. 33:2504. In accordance therewith, the Local 830 is an entity which is distinct and distinguishable from its members. See Cannatella, 592 So.2d 1374. As such, an endorsement of a political candidate by the Local 830 through its president, Mr. Desormeaux, is not a personal endorsement of that candidate by him.

In brief, the City relies on Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983), for the proposition that political activities of the Local 830 are attributable to its members. Glazer involved a member of the State Mineral Board. The board’s duties included the administration of the state’s proprietary interest in minerals and the authority to lease state lands for development of minerals. The board member was also the president, chief executive officer, and sole stockholder of a steel company that sold products on a 18non-bid negotiated basis to mineral lessees of state-owned lands. The supreme court held that the public servant’s company’s receipt of private compensation from the state’s mineral lessees, when the mineral board had direct control over the leases involved, presented the danger of an undue influence on the public servant’s official dealings with the mineral lessees. As such, the supreme court found that the board member violated La.R.S. 42:llll(C)(2)(d), which governed the ethical standards established for public servants.

Glazer, 431 So.2d 752, is distinguishable from the instant matter since Glazer involved one public official, whereas the Local 830 is a labor organization with many members and is distinct and distinguishable from its members. The public official in Glazer used his wholly-owned corporation to do what he was prohibited from doing in his individual capacity, in an attempt to avoid an unlawful conflict of interest. It is apparent that the individual board member is the real beneficiary given the pecuniary benefit he would receive. On the other hand, in this matter, the Local 830 does not seek any pecuniary benefit that can be attributed to any of its members.

Finally, under the rationale expressed by the United States Supreme Court in Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), unions and corporations are entitled to the First Amendment protection guaranteeing freedom of expression, which the Supreme Court ruled applied to spending money in elections as part of free speech. We find that if that form of speech is protected for such entities, then actual speech is protected and must not be stifled. Importantly, the Supreme Court noted that, “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Id. at 898. “The right of citizens to inquire, to hear, to speak, and to use | minformation to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Id. “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.” Id. Laws burdening political speech, therefore, must be strictly scrutinized. Id.

The Supreme Court included unions and other associations as well as for-profit and non-profit corporations as “persons” covered by the First Amendment, by noting: “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster[.]” Id. at 900 (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). It rejected arguments that political speech on behalf of other associations or corporations should be treated differently via the First Amendment simply because they are not categorized as natural persons. Citizens United, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753.

Based on the above, the trial court correctly interpreted La.R.S. 33:2504, and it did not abuse its discretion in granting the declaratory judgment. The City’s assignments of error are without merit, and the declaratory judgment is affirmed.

CONCLUSION

The trial court’s granting of a declaratory judgment in favor of Plaintiffs, the Lake Charles Police Officers’ Association Local 830 AFL-CIO and Craig Desor-meaux, Individually and as President of the Local 830, is affirmed. All costs associated with this appeal áre assessed to Defendants, the Honorable Randall Edmund Roach, in his capacity as Mayor of the City of Lake Charles, and the City of Lake Charles.

AFFIRMED.

      . In support, Mr. Desormeaux noted a similar case, Shreveport Police Officers Association Local # 75 ALF-CIO and Michael Carter, Individually and as President of the Shreveport Police Officers Association Local # 75 AFL-CIO v. Honorable Cedric Glover, Appointing Authority, and City of Shreveport, Docket Number 505.140B, First Judicial District Court, Caddo Parish. He offered into evidence the trial court's Reasons for Judgment as an exhibit at trial in this matter.