text:
    Randy Lane RHOADES, III, Petitioner, v. Lilmissette RODRIGUEZ, Respondent.
    Case No. 5D16-4285
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    Dale T. Gobel, of Gobel Flakes, LLC, Orlando, for Petitioner.
    Jeffrey M. Byrd, P.A., of Jeffrey M. Byrd, P.A., Orlando, for Respondent.
   LAMBERT, J.

Randy Rhoades petitions for a writ of certiorari, requesting that this court quash the trial court’s order that limits the trial testimony of one of his expert witnesses, Dr. Steven Rundell, a biomechanical engineer. We deny the petition.

This case arises from a motor vehicle accident. Respondent, Lilmissette Rodriguez, sued Rhoades, alleging that Rhoades negligently operated his vehicle, resulting in a rear-end accident that proximately caused Rodriguez to suffer injury and damages. Rhoades listed Dr. Rundell as an expert witness, anticipating that Dr. Run-dell would provide opinion testimony as to: (1) the accelerations and forces that are applied to the human body as a result of this collision, (2) the effects of such force on the human body, (3) the likelihood of damage to human bone and tissue by the application of such forces, and (4) a comparison of the forces caused by the instant motor vehicle collision with those forces that are experienced by individuals in other common daily events. Rodriguez filed a Daubert motion, seeking to limit Dr. Rundell from providing this testimony and to further preclude him from providing opinion testimony as to whether she sustained any injury that was causally related to the accident. Following a hearing at which Dr. Rundell testified, the trial court entered the challenged order, permitting Dr. Rundell to testify as to the forces generated by the collision of the vehicles but precluding him from testifying as to the effect of such forces as applied to the human body, the likelihood of any damage to tissue and bone resulting from such forces, a comparison of the forces caused by the collision with those forces associated with other common daily events, and whether Rodriguez was injured as a result of the accident.

Rhoades argues that as a result of Florida’s adoption of the Daubert standards as to the admissibility of scientific evidence, Florida’s trial courts have now been provided with a “broader ability to strike an expert witness,” thus necessitating a “modification in the ability for certiorari review” and the implementation of “a new appellate standard for evaluating the propriety of the trial courts’ [pretrial orders]” that strike expert witnesses or limit their testimony. Rhoades contends that due to what he sees as an increase by the trial courts, post -Daubert, to strike expert witnesses prior to trial, this court should recede from our nearly unanimous en banc decision in Bill Kasper Construction Co. v. Morrison, 93 So.3d 1061, 1062 (Fla. 5th DCA 2012), where we held that certiorari review of a trial court’s pretrial order striking a defendant’s expert witnesses was unwarranted due to the availability of postjudgment appellate relief, Rhoades disagrees, arguing that immediate interlocutory review of such pretrial orders is now necessary “as the only way to ensure the legal correctness of the trial court’s rulings and to assure faith in the fairness of our legal system.”

“To be entitled to certiorari review, [Rhoades] must demonstrate that the [trial court’s] order constitutes a departure from the essential requirements of law and results in material injury for the remainder of the case that cannot be corrected on appeal.” See Paton v. GEICO Gen. Ins. Co., 190 So.3d 1047, 1052 (Fla. 2016) (citing Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla. 2012)). “Simple disagreement with the decision of the trial court is an insufficient basis for certiorari jurisdiction.” Id. (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla. 2000)). Furthermore, the alleged gravity of the trial court’s error does not justify the relaxation of the irreparable harm prerequisite to certiorari relief. Bill Kasper, 93 So.3d at 1063 (Torpy, J., concurring) (citing Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla. 1998)).

We decline Rhoades’s invitation to recede from Bill Kasper. Moreover, subsequent to Rhoades filing his petition, the Florida Supreme Court has declined to adopt the “Daubert amendment” to section 90.702, to the extent that it is procedural, due to constitutional concerns that the court determined must be addressed in the context of a proper case or controversy (as opposed to a “rules case”). See In re: Amendments to the Fla. Evidence Code, 42 Fla. L. Weekly S179 (Fla. Feb. 16, 2017). As the supreme court’s opinion could very well result in the trial court reconsidering or vacating the instant interlocutory order prior to trial, the issues we are being asked to consider may become moot. See Bill Kasper, 93 So.3d at 1065 (Torpy J., concurring) (noting the possibility of a change in the trial court’s ruling rendering moot the issues before the appellate court as an additional factor in denying certiorari review).

PETITION for WRIT OF CERTIORA-RI DENIED.

PALMER and EDWARDS JJ., concur.

      . Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . Effective July 1, 2013, the Florida Legislature amended section 90.702, Florida Statutes, replacing the previously adopted "general acceptance test” for admitting expert opinion evidence described in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), with the standards set forth in Daubert for the admissibility of scientific evidence. Section 90.702 provides that:
      If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
      (1) The testimony is based upon sufficient facts or data;
      (2) The testimony is the product of reliable principles and methods; and
      (3) The witness has applied the principles and methods reliably to the facts of the case.
      § 90.702, Fla. Stat. (2016).
      The Frye test applied to expert testimony based upon new or novel scientific evidence. “Under Frye, in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993) (quoting Frye, 293 F. at 1014).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Daniel LUNA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4053
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    Daniel Luna, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 30, 2015 judgment and sentence in Case No. 2015-CF-003085-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    James E. MCNAIR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4019
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    James E. McNair, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

James McNair appeals the summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues that his prior conviction for aggravated assault is not a qualifying offense for the purpose of sentencing him as a three-time violent felony offender under section 775.084(c), Florida Statutes (2006). Because the record as a whole does not demonstrate on its face an entitlement to relief, this claim is not cognizable under rule 3.800(a). Instead, it should have been raised on direct appeal or in a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Hill v. State, 912 So.2d 610, 610 (Fla. 2d DCA 2005) (citing Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002)). Accordingly, we affirm.

AFFRIMED.

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

      . Although it is not clear from the face of the record that McNair’s sentence is illegal, the records attached to the trial court’s order do not establish that the sentence is legal. The attached records show that for the prior offense Appellant was originally charged with aggravated battery with a firearm and the facts of the underlying case certainly support a conviction for aggravated assault with a deadly weapon; however, the attached records do not show that Appellant ultimately pled to the lesser included offense of aggravated assault with a deadly weapon. Neither the plea agreement nor the plea colloquy was included in the record, and the attached prior judgment further confuses the issue by citing to a non-existent statute. With that said, “[t]o the extent that there may be records in the instant proceedings that demonstrate on their face an entitlement to relief, it was and remains [McNair’s] burden—not the trial court's—to specifically identify those records.” McClain v. State, 157 So.3d 528, 529 (Fla. 1st DCA 2015) (citing Johnson v. State, 60 So.3d 1045, 1050 (Fla. 2011) ("Under rule 3.800(a), ‘the burden [is on] the petitioner to demonstrate an entitlement to relief on the face of the record.’ ” (quoting Williams v. State, 957 So.2d 600, 602 (Fla. 2007))).

      . We note that McNair’s motion was timely under rule 3.850(b) and was under oath. If the trial court needed to explore the issue further, it could have treated the motion as a rule 3.850 motion and held an evidentiary hearing. See Fla. R. Crim. P. 3.850(b).


text:
    Raul ROSADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3113
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017
    Raul Rosado, Miami, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Raul Rosado appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the summary denial of Rosado’s claim that his attorney failed to object to a sleeping juror. See, e.g., Collins v. State, 200 So.3d 163, 166 (Fla. 5th DCA 2016) (“Typically, a claim of ineffective assistance of counsel for failing to object to a sleeping juror should not be summarily denied.”).

On remand, the trial court shall attach records conclusively denying this claim or hold an evidentiary hearing. We affirm the summary denial of Rosado’s other claims.

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

TORPY, EVANDER and EDWARDS, JJ., concur.


text:
    J.D., a Child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2521
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017

      James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

J.D. appeals from an order requiring him to pay $10,074 in restitution. He argues that the trial court erred in ordering restitution based on items that were not listed in the petition for delinquency, arrest reports, or any other discovery. We agree and reverse.

The petition for delinquency alleged that J.D. entered the victim’s residence and took a television and car keys or car remote, in addition to damaging the window of the victim’s residence. The arrest affidavit indicated that, according to the victim, the burglar stole a flat screen television, a vehicle key, and a vehicle remote. It alleged that J.D. returned the following day and stole the victim’s vehicle, which he later abandoned. Additionally, the report assessed that the property damage to the victim’s residence was $110. J.D. was charged with burglary of an occupied dwelling, grand theft, criminal mischief, and grand theft of a motor vehicle. He entered a no contest plea to the burglary charge, and the State filed a nolle prosequi for the remaining counts. At the plea hearing, the parties did not detail the factual allegations that related to the plea, nor was there any negotiation as to the amount of restitution to be paid.

Pursuant to the plea agreement, J.D. agreed to pay restitution; the trial court reserved jurisdiction to determine the amount. Prior to the disposition hearing, the State provided J.D.’s counsel, for the first time, with information regarding the amount being requested for restitution. That amount included items not previously included in the delinquency petition, police reports, discovery, predisposition report, or plea agreement. At the disposition hearing, the trial court sentenced J.D. to non-secure commitment and again reserved ruling on restitution.

At the subsequent restitution hearing, the victim testified regarding his insurance claim made as a result of the burglary. In addition to the television, vehicle key, and vehicle remote, the victim testified that the stolen items included various pieces of jewelry, watches, a duffle bag, knives, coins, silver bars, and a knitting machine. The victim estimated that the stolen jewelry alone was worth approximately $15,000. On cross-examination, the victim acknowledged that he had provided two statements to law enforcement, neither of which mentioned the loss of jewelry. The trial court ultimately ordered $10,074 in restitution, which included the loss of the jewelry.

This case is factually analogous to both Medlin v. State, 180 So.3d 1101 (Fla. 5th DCA 2015), and D.J.M. v. State, 198 So.3d 955 (Fla. 5th DCA 2016). In Medlin, the defendant pleaded nolo contendere to dealing in stolen property. 180 So.3d at 1102. The information alleged that the stolen property included “various metal items.” Id. As part of the plea colloquy, the State announced it would be seeking “approximately $4600” in restitution. Id. Yet, the trial court ordered the defendant to pay $20,019 in restitution following a hearing during which the State presented evidence of additional items allegedly stolen that were not included in the information. Id. at HOB. This Court reversed, holding that “the trial court’s restitution order should not have included more items than those the State anticipated as being com-pensable as restitution at the time of the plea hearing.” Id.

Likewise, in D.J.M., the defendant was charged with burglary of a conveyance and grand theft, and he pleaded guilty to the grand theft charge. 198 So.3d at 956. This Court affirmed the restitution order as it pertained to $680 cash taken from the victim’s wallet, $400 for a stolen cell phone, and $21 to replace the victim’s vehicle keys. Id. at 956-57. However, we reversed the restitution order of $200 for a computer tablet and $197 for school textbooks that the victim testified at the restitution hearing were also taken from his vehicle. Id. at 957. We reasoned that the award for those items was erroneous because “the arrest affidavit, petition for delinquency, and the factual basis tendered to support the plea never mentioned the tablet or school textbooks, nor was the delinquency petition ever amended.” Id.

Here, the victim’s testimony detailing the additional items allegedly stolen from his residence did not occur until the restitution hearing almost five months after J.D. entered into his plea agreement. These additional items were not listed in the plea agreement, delinquency petition, predisposition report, or any other discovery. Thus, the trial court abused its discretion in ordering J.D. to pay restitution for these items.

Accordingly, we reverse the restitution order because it includes restitution for items not listed in the charging documents or related discovery. On remand, the trial court shall hold a new restitution hearing and order restitution only for the items related to J.D.’s conviction. Cf. Medlin, 180 So.3d at 1103.

REVERSED and REMANDED.

COHEN, C.J., SAWAYA and EDWARDS, JJ., concur.

      . We review orders imposing restitution for an abuse of discretion. See Bernard v. State, 859 So.2d 560, 562 (Fla. 5th DCA 2003).

      . The restitution order does not detail how the trial court arrived at this specific amount for restitution, although the transcripts make clear that it includes additional items about which the victim testified at the restitution hearing. Additionally, the order takes into account reimbursements the victim received from his insurance company.

      . In D.J.M., this Court also reversed the restitution order in part because it required the defendant to reimburse the victim for loss of college financial aid, finding that, like the tablet and textbooks, financial aid was not mentioned in the delinquency petition or at the plea hearing. 198 So.3d at 957.

      . The State also could have included the specific amount of restitution as part of the plea negotiations, but it did not. Including restitution in the plea agreement rewards preparation at the front end of the case and avoids leaving restitution as an issue to be litigated months after the entry of a plea.


author: PALMER, J.

text:
    Alex MUNOZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1747
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Alex Munoz (the defendant) appeals his judgment and sentences, entered by the trial court after a jury found him guilty of aggravated battery with a deadly weapon and simple battery. We reverse the defendant’s conviction and sentence for simple battery, vacate his sentence for aggravated battery, and remand for re-sentencing. We otherwise affirm. The defendant first argues that his convictions for simple battery and aggravated battery violate the constitutional prohibition against double jeopardy because both convictions stem from a single criminal episode and the elements of simple battery are subsumed by the elements of aggravated battery. The State properly concedes error. See Rosado v. State, 129 So.3d 1104, 1107 (Fla. 5th DCA 2013). Accordingly, we reverse the simple battery conviction and sentence as the lesser offense. See State v. Tuttle, 177 So.3d 1246, 1253 (Fla. 2015).

The defendant also challenges his sentence on the aggravated battery conviction, arguing that the court erred in rejecting his request for a downward departure sentence pursuant to section 921.0026(2)(d) of the Florida Statutes (2016). This provision authorizes a trial court to depart downward if “[t]he defendant requires specialized treatment ... for a physical disability, and the defendant is amenable to treatment.” Id.

In denying the defendant’s request for a downward departure sentence, the trial court concluded that the defendant suffered from a physical disability but stated, “I don’t see any indication or documentation that would suggest that there would be any more sophisticated treatment that would not be offered.” The defendant argues that this statement suggests that the court’s ruling was improperly premised, at least to some extent, on his failure to produce evidence that the Department of Corrections (DOC) could not provide the specialized treatment and that such reasoning would violate with the ruling in State v. Chubbuck, 141 So.3d 1163 (Fla. 2014).

In Chubbuck, our Supreme Court considered “whether subsection 921.0026(2)(d) requires the defendant to prove that the required specialized treatment he [or she] needs is unavailable in the DOC.” 141 So.3d at 1168. The court concluded:

[T]he plain language of subsection 921.0026(2)(d) does not require the defendant to prove that the required specialized treatment is unavailable in the DOC. We further find that this interpretation does not lead to an unreasonable result or a result clearly contrary to legislative intent.' Accordingly, a defendant who is requesting a downward departure sentence pursuant to subsection 921.0026(2)(d) must prove the following three elements by a preponderance of the evidence: (1) the defendant has a mental disorder (unrelated to substance abuse or addiction) or a physical disability; (2) which requires specialized treatment; and (3) the defendant is amenable to such treatment.

Id. at 1171 (footnote omitted). As such, the defendant bears no burden of proving the unavailability of specialized treatment in the DOC.

When the record suggests, but does not establish, that a trial court misapplied the law when denying a request for a departure sentence, the district court should vacate and remand for re-sentencing. See Shuler v. State, 947 So.2d 1259, 1260 (Fla. 5th DCA 2007). Accordingly, the defendant’s sentence for aggravated battery is vacated, and this matter is remanded for re-sentencing.

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

SAWAYA and ORFINGER, JJ., concur.

      . See § 784.045(1)(a), Fla. Stat. (2016).

      . See § 784.03, Fla. Stat. (2016).


text:
    Ivan RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1696
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017

      James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to file a timely, facially sufficient motion under Florida Rule of Criminal Procedure 3.850.

ORFINGER, EVANDER and EDWARDS, JJ., concur.


text:
    Brad A. BATES, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-5107
    District Court of Appeal of Florida, First District.
    Opinion filed March 20, 2017.
    Brad A. Bates, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the corrected judgment and sentence rendered on or about July 7, 2016, in Duval County Circuit Court case number 16-1996-CF-18920-BXXX, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion. ■

B.L. THOMAS, OSTERHAUS and BILBREY, JJ., CONCUR.


text:
    Jarrod Ray ROSS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2713
    District Court of Appeal of Florida, First District.
    Opinion filed March 23, 2017
    Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jarrod Ray Ross appeals his judgments and sentences in six 2014 cases and the order revoking his probation in two 2012 cases based on the new law offenses in the 2014 cases. His appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After our independent review of the record, we find no reversible error and affirm Ross’s judgments and sentences and the revocation of his probation. However, for the reasons that follow, we remand for the trial court to correct the revocation order to conform to the court’s oral pronouncement of the conditions violated by Ross. See Nickolas v. State, 66 So.3d 1077 (Fla. 1st DCA 2011) (affirming Anders appeal but remanding for correction of written order of revocation of probation to conform to the oral pronouncement of the conditions violated).

The revocation order states that Ross was found guilty of violating “conditions VII-XIV,” but the trial court stated at the sentencing hearing that Ross was not being found guilty of the new law offenses that were dismissed by the State, which correspond to alleged violations VI, VII, and XIII. Additionally, the “conditions” listed by the trial court are actually counts in the second amended affidavit of violation of probation, all of which were alleged to be violations of standard condition of probation number (5) requiring Ross ¡to “live without violating any law.”

Accordingly, on remand, the trial court shall correct the revocation order to conform to the oral pronouncement and reflect that Ross was found guilty of violating condition (5), as alleged in counts VIII-XII and XIV of the second amended affidavit of violation of probation. Ross need not be present for this ministerial act. See id.

AFFIRMED and REMANDED for entry of corrected order.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


text:
    L.L.L., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    Case No. 5D16-2409
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    L.L.L., Daytona Beach, pro se.
    Andrew T. Sheeran and Tracy C. George, of the Agency for Health Care Administration, Tallahassee, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

The appellant appeals an administrative Final Order of the Department of Children and Families, Office of Appeal Hearings, upholding his Medicaid health plan’s denial of prior authorization for dental care.

The appellee, the Florida Agency for Health Care Administration, concedes in its brief that “[a] due process violation occurred because the Hearing Officer was provided and relied upon an inapplicable policy and [the appellant] was not given an opportunity to examine or rebut the legal authority provided to the Hearing Officer.” The appellee also concedes that “the case should be remanded to reopen the fair hearing to give the parties an opportunity to present evidence and argument in rebuttal and for the Hearing Officer to make a determination based on the applicable policy.” We agree. Accordingly, we reverse the order under review and remand for another hearing.

REVERSED and REMANDED.

SAWAYA, PALMER and TORPY, JJ., concur.


text:
    ESTATE OF Clyde L. HARRIGER, Appellant, v. Alice Jean Rogers HARRIGER, Appellee.
    Case No. 5D16-1708
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 24, 2017
    Allison J. McCabe and Susanne D. McCabe, of McCabe Law Firm, Port Orange, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The estate of Clyde L. Harriger (“Former Husband”) appeals the Final Judgment of Dissolution of Marriage regarding Former Husband and Alice Jean Rogers Harriger (“Former Wife”). Former Husband raises three issues on appeal, contending that the trial court erred in: 1) considering the subject of nonmarital property despite Former Wife’s failure to raise it in her pleadings; 2) determining that Former Wife possessed nonmarital property and categorizing two Bank of America accounts as nonmarital; and 3) failing to make factual findings regarding six Wells Fargo accounts. We affirm as to the first two issues without further discussion.

As to the third issue, we reverse and remand for the trial court to make factual findings regarding the Wells Fargo bank accounts. See Winney v. Winney, 979 So.2d 396, 400 (Fla. 1st DCA 2008) (“A trial court’s failure to make adequate factual findings in a final judgment of dissolution of marriage is typically reversible error because, in most circumstances, this failure precludes meaningful appellate review.”). Specifically, the trial court is directed on remand to make written findings stating whether these accounts are marital or non-marital property.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, TORPY and BERGER, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Jamon STEPHENS
    No. 2017-KK-0412
    Supreme Court of Louisiana.
    03/06/2017
   PER CURIAM

| (Writ granted; stay denied.

The district court denied the defendant’s motion to suppress a statement by which he claimed ownership of a stolen shotgun.

The appellate court granted the defendant’s writ application, ruling that the statement should be suppressed because the state failed to adduce testimony to adequately describe the warnings given to the defendant when police mirandized him.

The appellate court erred; Miranda warnings did not apply to the defendant’s statement. Testimony at the suppression hearing established that the defendant made the statement upon witnessing police discover the shotgun, and not from any police questioning, as follows:

Q. And are you aware of whether or not that statement that the shotgun located beneath the driver’s seat belonged to him—was that in response to any questioning?
A. No, ma’am.

As this court previously explained, “[s]pontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody.’) a State v. Castillo, 389 So.2d 1307, 1310 (La.1980). Here, the testimony establishing that the defendant’s statement was unsolicited by police questioning was unrefuted. The state, therefore, earned “the burden of proving the admissibility of a purported confession or statement by the defendant” under La. C.Cr.P. art. 703(D).


author: PER CURIAM:

text:
    STATE EX REL. James Joseph HEBERT v. STATE of Louisiana
    No. 15-KH-2052
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

| ] Writ 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). We attach hereto and make a part hereof the District Court’s written reasons 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 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.

19 Attachment


author: CRICHTON, J.,

text:
    STATE of Louisiana v. Delance SMALL
    No. 2016-KO-0533
    Supreme Court of Louisiana.
    03/13/2017
    CRICHTON, J., additionally concurs and assigns reasons.
   CRICHTON, J.,

additionally concurs and assigns reasons.

hi agree with the majority's denial of the writ; however, because of the frequency with which the issue arises, I write separately to clarify whether or not the law currently requires sentencing courts to advise defendants who plead guilty to an offense of the future sentence enhancement exposure the plea may engender.

By statute, during a plea colloquy, a sentencing judge must ascertain whether or not a defendant understands “[t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” La. C.Cr.P. art. 556.1(A)(1). However, there is no statutory requirement of advisement of the potential for habitual offender sentence enhancement. State v. Muse, 367 So.2d 789, 792 (La. 1979) (“[D]efendant need not be informed when he enters a guilty plea that it may serve as a basis for an enhanced sentence”). In fact, “[t]his Court has never extended the core Boykin constitutional requirements to include advice with respect to sentencing.... or that his conviction may be used as a basis for the filing of a future multiple offender bill.” See State v. Guzman, 99-1528 (La. 5/16/00), 769 So.2d 1158 (citing State v. Anderson, 98-2977 (La. 3/19/99), 732 So.2d 517; State v. Nuccio, 454 So.2d 93 (La. 1984)); see also State v. Verdin, 02-2671, p. 4 (La.App. 1 Cir. 2/3/03), 845 So.2d 372, 375 (“Although advice with respect to a defendant’s sentencing exposure and the possibility of enhancement Rmay facilitate the taking of a voluntary guilty plea, such advice has never formed part of the Supreme Court’s core Boykin requirements for the entry of a presumptively valid guilty plea.”) (citing Guzman).

However, while currently not required by law, it is my opinion that so advising defendants constitutes a best practice for sentencing courts and better serves both the interests of justice and judicial economy. While according to La.R.S. 14:17, “[ijgnorance of ... of any criminal statute is not a defense to any criminal prosecution,” a defendant not trained in the law would likely be unaware of his possible enhanced sentencing exposure following the commission of any future felony crime, violent or non-violent. In my view, trial court judges owe it to a criminal defendant to spend one minute during the felony guilty plea colloquy addressing this critical issue. In the event that such an advisement deters future criminal conduct, it is a gain for society as well as a cost-saving measure for our state’s mass incarceration crisis.


text:
    STATE EX REL. Stewart PRICE v. STATE of Louisiana
    No. 2015-KH-2122
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

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

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 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. Leonard MCGEE v. STATE of Louisiana
    No. 2015-KH-2084
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

| tDenied. Relator’s sentences are authorized by law. See R.S. 14:64, R.S. 14:27, R.S. 14:65.1. As to his claim about the consecutive nature of the sentence terms, his filing is properly construed as an application for post-conviction relief because it protests a discretionary function of the sentencing court, see La.C.Cr.P. Art. 883, and does not pertain to any illegal sentence term. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. Art. 930.8.Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. Art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, sentencing claims are 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. Finally, the application is repetitive. La.C.Cr.P. Art. 930.4.

Relator has now fully litigated several 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. 930.412and 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. Steven MOLIERE v. STATE of Louisiana
    No. 2015-KH-2083
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

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

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 naiTow 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. Fredrick J. WEBB v. STATE of Louisiana
    No. 15-KH-2074
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

| iDenied. Relator does not identify an illegal term in his sentence and therefore his filing was properly construed by the district court as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. Relator previously exhausted his right to state collateral review and does not carry his burden of showing any exception applies here. See State v. Webb, 15-0962 (La. 9/25/15), 175 So.3d 954. We attach hereto and make a part hereof the District Court’s written reasons denying relief.

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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.

JsAttachment


text:
    STATE EX REL. Byron JOSEPH v. STATE of Louisiana
    No. 15-KH-2070
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

h Denied. The application is repetitive. See La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Joshua R. PARKER v. STATE of Louisiana
    No. 15-KH-2069
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

|T 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).

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


text:
    STATE EX REL. Eduardo ROBINSON v. STATE of Louisiana
    No. 2015-KH-1987
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

11 Writ granted. Relator is serving, inter alia, a sentence of life imprisonment at hard labor without parole eligibility for an aggravated rape he committed when he was 15 years old. State v. Robinson, 437 So.2d 872 (La. 1983). In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court concluded that a sentence of life without the possibility of parole for a nonhomicide offense committed when the defendant was a juvenile constitutes cruel and unusual punishment. Therefore, the district court erred in denying relator’s motion to correct an illegal sentence, which may be filed at any time. See La.C.Cr.P. Art. 882. Therefore, we order the deletion of the relator’s parole ineligibility with regard to his sentence for aggravated rape and order that he be designated as parole-eligible with regard to that sentence and that sentence only in accordance with La. R.S. 15:574.4(D). Relator’s consecutive sentence of life imprisonment at hard labor without parole eligibility for first degree murder committed when he was 16 years old, State v. Robinson, 434 So.2d 1108 (La. 1983), is unaffected by this ruling.


author: CLARK, J.,

text:
    STATE of Louisiana v. Conell GALLE
    No. 2015-KP-1734
    Supreme Court of Louisiana.
    03/13/2017
   1 RECONSIDERATION GRANTED. The district court’s ruling denying post-conviction relief is vacated and the matter is remanded to the district court for an evidentiary hearing to determine whether exclusion of the grand jury testimony at trial, which the state disclosed before trial pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), impeded relator’s fundamental right to present a defense and whether trial counsel rendered ineffective assistance with regard to litigating the admissibility of this evidence and demonstrating its importance to the defense. Notwithstanding that the Fourth Circuit on direct review found no error in the trial court’s ruling excluding the grand jury testimony, see State v. Galle, 11-0930 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, writ denied, 13-0752 (La. 10/30/13), 124 So.3d 1102, and the procedural bar against repetitive claims, the interest of justice requires revisiting these issues in a case in which relator’s defense was that the state’s sole eyewitness misidentified him and the state parted the usual cloak of secrecy which surrounds grand jury proceedings to disclose the testimony at issue because it directly contradicted that eyewitness account. See La. C.Cr.P. art. 930.4(A); see also State v. Galle, supra (Lombard, J., dissenting); see generally Stewart v. Wolfenbarger, 468 F.3d 338, 357 6th Cir. 2006, as amended on denial of reh’g and rek’g en banc (Feb. 15, 2007) (finding prejudice as a result of the exclusion from trial of exculpatory evidence that “went to the very heart of Petitioner’s defense.”).

GUIDRY, J., would deny.

CLARK, J., dissents and would deny the Petitioner’s request for reconsideration.

CRICHTON, J., would deny.

CLARK, J.,

Dissents.

U respectfully dissent and would deny the Petitioner’s request for reconsideration.


text:
    STATE of Louisiana v. Brian SMITH
    No. 17-KK-0020
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

|/Writ granted in part. The district court abused its discretion in issuing the subpoena duces tecum for the Vulnerability Assessment and Threat Analysis Group/Training Center (VATA) materials because the narrowly defined criteria provided in State v. Marcelin, 10-2036 (La. 10/15/10), 46 So.3d 191 (per curiam), were not met. See also United States v. Bueno, 443 F.3d 1017, 1026 (8th Cir. 2006) (“[A] moving party must show, among other things, that the documents are evidentiary and relevant and that the application is made in good faith and is not intended as a general fishing expedition.”). The subpoena duces tecum for VATA materials is hereby quashed. In all other respects, the application is denied.


author: PER CURIAM: CRICHTON, J.

text:
    STATE of Louisiana v. Brian SMITH
    No. 2017-KK-0021
    Supreme Court of Louisiana.
    03/13/2017
   PER CURIAM:

| jWrit granted in part. The district court abused its discretion in issuing the subpoena duces tecum for St. John the Baptist Parish Sheriffs Office (SJBPSO) materials because the narrowly defined criteria provided in State v. Marcelin, 10-2036 (La. 10/16/10), 46 So.3d 191 (per curiam), were not met. See also United States v. Bueno, 443 F.3d 1017, 1026 (8th Cir. 2006) (“[A] moving party must show, among other things, that the documents are evidentiary and relevant and that the application is made in good faith and is not intended as a general fishing expedition.”). The subpoena duces tecum for SJBPSO materials is hereby quashed. In all other respects, the application is denied.

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J.

additionally concurring with reasons:

hi fully subscribe to this Court’s grant of the State’s writ but write separately to emphasize that defense counsel have yet to identify the materiality or relevancy of the requested documents. Such a fishing expedition is abusive and contravenes the purpose of compulsory process, which is to enable the parties to proceed to hearing or trial with competent, admissible evidence. Cf. Government of Virgin Islands v. Mills, 966 F.2d 443, 445 (3d Cir. 1992) (“The Compulsory Process clause protects the presentation of the defendant’s case from unwarranted interference by the government, be it in the form of an unnecessary evidentiary rule, a prosecutor’s misconduct, or an arbitrary ruling by the trial judge.”) (emphasis added). Moreover, in my view, such abuse is a waste of the taxpayers’ money and the judiciary’s time and resources. The fact that this is a double capital murder case and of the utmost importance does not provide license for defense counsel to flagrantly disregard statutory and jurisprudential law.


text:
    Kateri LAND and Ty Land v. KOHL’S DEPARTMENT STORES, INC., et al.
    NO. 2017-CC-0109
    Supreme Court of Louisiana.
    March 13, 2017
    GUIDRY, J., would grant.

      CLARK, J., would grant.
    CRICHTON, J., would grant and assigns reasons.
   CRICHTON, J.,

would grant and assigns reasons:

IH disagree with the Court’s 4-3 decision to deny the writ application of defendants, Kohl’s Department Stores, Inc., Diversified Maintenance Systems, LLC, Tyler Lee, and Juana Martinez, and would grant and order a remand to the court of appeal, so that it can consider the trial transcript and review the trial court’s grant of a new trial.

The granting or denying of a motion for new trial rests within the discretion of the trial court, however, that discretion is not without limits. While a trial judge may evaluate the evidence without favoring either party, and draw its own inferences and conclusions and evaluate witness credibility to determine whether the jury erred in giving too much credence to an unreliable witness, the trial judge cannot interfere with any verdict with which he or she disagrees. Particularly, a jury verdict cannot be set aside on that the grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence.

Martin v. Heritage Manor S. Nursing Home, 2000-1023, pp. 14-15 (La. 4/3/01), 784 So.2d 627, 637 (emphasis added). Here, in this slip-and-fall case, the jury returned a verdict in favor of defendants. The trial court granted a new trial, citing the lack of credibility of defendants’ primary liability witness and its own conclusion based on viewing the evidence. As we have held, a jury verdict should not be set aside if supportable by any fair interpretation of the evidence.

I ¡/Under the circumstances of this case where a new trial motion is granted, defendants’ remedy is the procedural vehicle of a supervisory writ, see La. C.C.P. art. 2201 (Supervisory writs), not an appeal. See La. C.C.P. art. 2083 (Judgments appealable). And, in this instance the court of appeal perfunctorily “denied” the writ without comment and undoubtedly without a review of the record. In light of the standard set forth by Martin and the limited remedy available to defendants, I would grant the writ and order the court of appeal to examine the entire record to determine if the trial court abused its discretion.

      . See also La. C.C.P. art. 1841 ("A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.”); VaSalle v. Wal-Mart Stores, Inc., 2001-0462, 10-11 (La. 11/28/01), 801 So.2d 331, 338 (”[H]ad the trial court signed the proposed order granting defendants a new trial, that order would also have been interlocutory and not appealable.”); Miller v. Chicago Ins. Co., 320 So.2d 134, 136 (La. 1975) (“[A]n order granting or denying a new trial is not appealable, but is reviewable under the appellate courts’ supervisory jurisdiction for abuse of discretion.”).


text:
    STATE of Louisiana v. Don HAYES
    NO. 2016-KK-0761
    Supreme Court of Louisiana.
    April 26, 2016
   Applying for Rehearing of this Court s action dated April 26, 2016, Parish of Orleans, Criminal District Court Div. G, No. 527-283; to the Court of Appeal, Fourth Circuit, No. 2016-K-0414;

| Rehearing denied.


text:
    Raymond NAMIAS, Jr. v. SUNBELT INNOVATIVE PLASTICS, LLC
    NO. 2016-C-0482
    Supreme Court of Louisiana.
    May 2, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 6, No. 14-05232; to the Court of Appeal, First Circuit, No. 2015 CA 1380

| denied.


text:
    STATE of Louisiana v. Gary D. HOWARD
    NO. 2015-KO-1404
    Supreme Court of Louisiana.
    December 16, 2016
    Counsel for Applicant; Hon. Dale Cox, District Attorney; CADDO PARISH DISTRICT ATTORNEY’S OFFICE
    Hon. James Edward Stewart, Rebecca Armand Edwards Esq.; Counsel for Respondent
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 5, No. 318,396; to the Court of Appeal, Second Circuit, No. 49,-965-KA

| granted.


text:
    SUCCESSIONS OF Jeanette Rena TONEY, Wife of/and Ronnie Robert Toney
    NO. 2016-C-1534
    Supreme Court of Louisiana.
    December 16, 2016
   Richie Glenn Guidry; —Other; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 2015-30286; to the Court of Appeal, First Circuit, No. 2015 CA 1928

Sessions, Fishman, Nathan & Israel, LLC, Jack Marks Alltmont Esq.; Counsel for Applicant

Gary James Williams Esq.; Roy K. Burns Jr, LLC, Roy K. Burns, Jr. Esq.; Counsel for Respondent

I, Granted.


text:
    Robert GREEN and Argent Trust Company v. Christopher HOLDER
    NO. 2016-C-1694
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 17866; to the Court of Appeal, Second Circuit, No. 50,-824-CA

| ^Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Allen PAZON
    NO. 2016-KK-1784
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 528-393; to the Court of Appeal, Fourth Circuit, No, 2016-K-0762

| denied.

WEIMER, J., would grant. GUIDRY, J., would grant. HUGHES, J., would grant.


text:
    Armanzo CARTER v. DON MASHBURN, INC. and Technology Insurance Co.
    NO. 2016-CC-1787
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs Office Compensation, District 04, No. 16-05668; to the Court Third Circuit, No. WCW 16-00652;—Defendant(s) of Workers’ of Appeal

| denied.

KNOLL, J., would grant. CLARK, J., would grant. CRICHTON, J., would grant.


text:
    Shirley Sharpe NETTLE Wife of/and Richard W. Nettle v. SUCCESSION OF Joyce Wise NETTLE c/w Succession of Joyce Wise Nettle
    NO. 2016-C-1846
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2011-30401 C/W 2011-14170; to the Court of Appeal, First Circuit, No. 2015 CA 1875 C/W 2015 CA 1876;

| denied.


text:
    STATE of Louisiana v. Hunter C. CHRISTOPHER
    NO. 2016-KK-1915
    Supreme Court of Louisiana.
    December 16, 2016
   Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 521659; to the Court of Appeal, First Circuit, No. 2016 KW 0800;

LDenied.


text:
    Patricia BELL v. CARENCRO NURSING HOME, INC. d/b/a Evangeline Oaks Guest House
    NO. 2016-C-1918
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. C-2011-7362-E; to the Court of Appeal, Third Circuit, No. 16-190;

11 Denied.


text:
    Thomas Andrew RICALDE v. EVONIK STOCKHAUSEN, LLC and Edwin Mereand
    NO. 2016-C-1923
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. A, No. 62,868; to the Court of Appeal, Fifth Circuit, No. 16-CA-178

11 Denied.

WEIMER, J., would grant. HUGHES, J., would grant.


text:
    Dan and Diane VOLENTINE v. RAEFORD FARMS OF LOUISIANA, LLC, et al.
    NO. 2016-C-1924
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Bienville, 2nd Judicial District Court Div. B, No. 41-200; to the Court of Appeal, Second Circuit, No. 50,-698-CA;

1 íDenied.

HUGHES, J., would grant and docket.


text:
    Dan and Diane VOLENTINE v. RAEFORD FARMS OF LOUISIANA, LLC, et al.
    NO. 2016-01925
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Bienville, 2nd Judicial District Court Div. B, No. 41-200; to the Court of Appeal, Second Circuit, No. 60,' 698-CA;

| denied.

HUGHES, J., would grant and docket.


text:
    MUNICIPAL POLICE EMPLOYEES’ RETIREMENT SYSTEM OF LOUISIANA v. CITY OF BATON ROUGE, Parish of East Baton Rouge
    NO. 2016-CC-1928
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 644,979; to the Court of Appeal, First Circuit, No. 2016 CW 0782;

| ^Denied.


text:
    Daniel L. MOORE and Marie Moore v. CITY OF WESTLAKE Philmer Johnson, Jr. and Paula Johnson v. City of Westlake
    NO. 2016-CC-1929
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2015-4200 C/W 2015-4201; to the Court of Appeal, Third Circuit, No. CW 16-00500;

|, Denied.

WEIMER, J., would grant.


text:
    Gina Kain LUSICH v. CAPITAL ONE, ACP, LLC, & Cindy Martin
    NO. 2016-C-1932
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorar and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 14-0502; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0052;

|! Denied.

HUGHES, J., would grant.


text:
    Frankie JACKSON, Jr. v. UNION PACIFIC RAILROAD COMPANY, et al.
    NO. 2016-CC-1936
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 229-694-F; to the Court of Appeal, Third Circuit, No. CW 16-00461.

| denied.


text:
    The INDEPENDENT WEEKLY, LLC v. Lafayette City Marshal Brian POPE
    NO. 2016-C-1942
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 20155737; to the Court of Appeal, Third Circuit, No. 16-282.

hDenied.


text:
    Jim MONTGOMERY and Natalie Montgomery v. Mr. and Mrs. Ronnie LESTER
    NO. 2016-C-1944
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 261,686; to the Court of Appeal, Third Circuit, No. 16-192

| denied.

HUGHES, J., would grant.


text:
    Jude SAVOIE v. CALCASIEU PARISH WARD FOUR FIRE DISTRICT NO. 2, Parish of Calcasieu, and Calcasieu Parish Police Jury
    NO. 2016-C-1947
    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. 2013-1402; to the Court of Appeal, Third Circuit, No. 16-172

11Denied.

HUGHES, J., would grant.


text:
    Mariana OROZCO (Re: Filberto Serna, Dec’d) v. ARIES BUILDING SYSTEMS, INC. and Filser Construction
    NO. 2016-C-1949
    Supreme Court of Louisiana.
    Supreme Court of Louisiana December 16, 2016
   Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 7, No. 14-05423; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0187.

| denied.


text:
    Maurice FONTENOT, et al. v. Jarred Levar STEVENS, et al.
    NO. 2016-C-1950
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2009-1900; to the Court of Appeal, Third Circuit, No. 16-277.

h Denied.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    Joyce Jeane SERHAN v. Joseph Don JEANE, et al.
    NO. 2016-C-1956
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 77992-B C/W 78940 B; to the Court of Appeal, Third Circuit, No. 16-110 C/W 16-111

[ denied.


text:
    Sylvia HAMILTON v. LOUISIANA, OFFICE OF RISK MANAGEMENT, LSU
    NO. 2016-CC-1959
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 5, No. 16-00246; to the Court of Appeal, First Circuit, No. 2016 CW 0842

| ¶ Denied.

WEIMER, J., would grant.


text:
    Tony CHANEY v. BOARD OF REVIEW and Ronnie Falgout, Jr., Individually and his Official Capacity, and Joseph Severio; Individually and his Official Capacity, and Arthur Bourgeois, Individually and his Official Capacity, and Gloria Berthalot; Individually and his Official Capacity, and Brenda Mitchell; Individually and his Official Capacity, and Ronald J. Harrison; Individually and his Official Capacity, Dale R. Burger; Individually and his Official Capacity, Paul M. Casadaban; Individually and his Official Capacity, and Linette Watson; Individually and his Official Capacity, and the New Orleans Private Patrol
    NO. 2016-CC-1960
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 608216.

|! Denied.


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-1962
    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.

| denied.

HUGHES, J., would grant.


text:
    Penny RODEWALD, et al. v. EAGLE US 2 LLC, et al.
    NO. 2016-CC-1976
    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. 2014-5080; to the Court of Appeal, Third Circuit, No. CW 16-00321

| denied.


text:
    STATE of Louisiana v. Duhon ZENO
    NO. 2015-K-2233
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. E, No. 510799; to the Court of Appeal, First Circuit, No. 2015 KA 0763

| denied.

JOHNSON, C.J., would grant. WEIMER, J., recused.


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-1968
    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

|, Denied.

HUGHES, J„ would grant.


text:
    Lynda J. GARMAN, et vir v. Joyce J. SERHAN, et vir.
    NO. 2016-C-1957
    Supreme Court of Louisiana.
    December 16, 2016
   Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 77,992 C/W 78,940; to the Court of Appeal, Third Circuit, No. 16-111 C/W 16-110

| íDenied.


text:
    STATE of Louisiana v. Christopher Wayne HOLDER
    NO. 2016-K-0056
    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. 191,414; to the Court of Appeal, Second Circuit, No. 50,-171-KA; December 16, 2016

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

h Denied.


text:
    CITY OF YOUNGSVILLE v. C.H. FENSTERMAKER AND ASSOCIATES, L.L.C.
    NO. 2016-CC-1941
    Supreme Court of Louisiana.
    Supreme Court of Louisiana December 16, 2016
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 2015-4091; to the Court of Appeal, Third Circuit, No. CW 16-00431.

|¶ Denied.


author: Judge Edwin A. Lombard

text:
    STATE of Louisiana v. Skyla JACKSON
    NO. 2016-KA-0803
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 23, 2017
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, Assistant District Attorney, Christopher J. Ponoroff, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA
    Michael J. Billiot, Orleans Parish Public Defenders, 810 Roussell Street, Houma, LA 70360, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet)
   Judge Edwin A. Lombard

_JjThe defendant, Skyla Jackson, appeals the revocation of her probation. Because there is no right of appeal from the revocation of probation, this appeal is converted to an application for supervisory writ. See State v. Manuel, 349 So.2d 882 (La. 1977). After review of the writ application in light of the applicable law and arguments of the parties, the district court judgment is affirmed.

Procedural History

On October 23, 2015, the defendant pleaded guilty to second degree battery, a violation of La. Rev. Stat. 14:34.1, and was sentenced to serve three years in the custody of the Louisiana Department of Corrections. The sentence was suspended and the defendant was placed on three years active probation. In the early morning hours of March 10, 2015, the defendant was arrested following a report of theft committed by two women at the victim’s hotel. The State filed a motion to revoke the defendant’s probation on March 14, 2016. After a hearing on May 11, 2016, the defendant’s probation was revoked. The defendant’s motion to reconsider sentence was denied on July 29, 2016. The pleading filed in this court on August 9, 2016, construed as a writ application, is timely.

laRelevant Facts Adduced at Revocation Hearing

The State presented Louisiana State Trooper Mike Mercante who testified that he participated in the defendant’s arrest on March 10, 2016, while on patrol in the French Quarter. Officer Mercante first encountered the victim arguing with Destiny Bernard, who was in possession of his (the victim’s) wristwatch. The victim reported meeting with Ms. Bernard and another woman (later identified as the defendant) and returning with the women to his hotel room. Ms. Bernard received a phone call, the two women left abruptly, and the victim discovered his cell phone and credit cards from his wallet were missing. Ms. Bernard produced the victim’s watch and identified the defendant as the other woman involved in the incident. Other officers quickly located the defendant in the area and the victim identified her. The officers recovered a second wristwatch from the defendant, this one belonging to the victim’s roommate who identified the property. In the police report, the watch recovered from Ms. Bernard was valued at $200, the watch recovered from the defendant was valued at $100 and the I-Phone, which was not recovered, was valued at $600.

The defendant testified that before her arrest, she accompanied Ms, Bernard and the victim to the hotel room. She claimed that the property later recovered from her person was given to her by the victim’s friend, “Dan.” The defendant stated that she left the hotel room alone because she became uncomfortable when the victim and Ms. Bernard began to engage in sexual contact. She stated that she had earlier accompanied the victim, his friend, and Ms. Bernard as the three drank] 8 heavily at various locations that night (and into the morning) although she did not consume alcohol not because she was pregnant.

In its oral ruling revoking the defendant’s probation, the district court rejected the defense argument that the officers failed to sufficiently investigate and that the State lacked probable cause to arrest the defendant. The district court observed that the defendant herself testified that she approached the victim and his friend and accompanied them on “multiple trips to a bar, a cab, a convenience store and ultimately going back to do [sic] these gentlemen’s hotel room.” The district court specifically found that probable cause existed to arrest the defendant for felony theft based on the value of missing property. The transcript reflects that, at the conclusion of the revocation hearing, the district court stated it was revoking probation based on the evidence that the defendant committed a felony and that she was on probation for a crime of violence for which she had been sentenced just six months earlier.

Standard of Review

The district court is “entrusted with much discretion” in determining the appropriate sanction for a probation violation; its ruling is reviewed for an abuse of discretion. State v. Rideau, 376 So.2d 1251 (1979).

Applicable Law

Pursuant to La. Code Crim. Proc. art 895, the defendant is required to “refrain from criminal conduct” as a condition of probation. See State v. Dorest, 2001-0581 (La. 1/10/02), 805 So.2d 132, 132-33 (per curiam) (under the circumstances of this case, the district court was justified in finding that committing a misdemeanor offense violated the mandatory requirement of La. Code Crim. Proc. art. 895(A) to “refrain from criminal 14conduct” and, therefore, the district court decision to revoke the defendant’s probation was not an abuse its discretion).

The United States Supreme Court has discussed the due process right to cross-examination and confrontation at revocation hearings in only tow cases, neither of which explicitly detailed the contours of the right. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Supreme Court considered a habeas petitioner whose parole was revoked without any hearing at all, outlining the requirements of a probable cause and final revocation hearing, including a qualified right to cross-examine and confront adverse witnesses, but did not expand upon or apply these rights. 408 U.S. at 488-89, 92 S.Ct. 2593. In Gagnon, decided less than a year later, the Supreme Court held only that the Morrissey framework applies in the probation as well as the parole context. 411 U.S. at 791, 93 S.Ct. 1756. The Supreme Court’s lack of further comment on the due process requirements of revocation hearings has, in essence, left that task to the state and lower federal courts. See Baggert v. State, 350 So.2d 652 (1972) (citing Morrissey as establishing the minimum requirement of due process in revocation hearings); see also State v. Akers, 2014-1315 (La.App. 4 Cir. 5/20/15), 2015 WL 2452415 (unpub’d) (rejecting the defendant’s claim that district court erroneously allowed the State to establish violation of condition of-probation almost entirely on hearsay evidence because the .record established (1) the defendant admitted his behavior violated conditions of probation; and (2) defense counsel was permitted to cross-examine testifying officer, at revocation hearing).

| fDiscussion

The defendant seeks review of the district court decision, arguing that revocation was inappropriate because she was not convicted of the theft charge and the evidence introduced at the revocation hearing was insufficient to support the district court judgment because the only evidence introduced at the hearing was hearsay testimony provided by a police officer whose version of events had been provided by an unsworn witness who admitted having consumed alcohol.

The defendant is correct in noting that the State’s case rested largely on hearsay provided by the arresting officer concerning the allegations of the victim. However, the hearsay evidence was sufficiently corroborated by both the officer’s own observations and the defendant’s admissions concerning recovery of some portion of the missing property. In .fact, the defendant herself confirmed the victim’s hearsay account in almost all respects except she provided an innocent explanation to justify her possession of the (allegedly) stolen property. Therefore, based on the evidence presented at the revocation hearing, the district court did not abuse its discretion in finding that the defendant violated the requisite condition of her probation to refrain from criminal conduct.

Further, the defendant’s reliance on this court’s decision in State v. Dorest, to argue that a misdemeanor charge is an insufficient based for probation revocation is misplaced. The Louisiana Supreme Court reversed that decision, finding that a misdemeanor charge violated the requirement that a defendant “refrain from criminal conduct” as a condition of probation. State v. Dorest, 99-2902 (La.App. 4 Cir. 1/31/01), 778 So.2d 1239, 2001-0581, reversed (La. 1/10/02), 805 So.2d 132, 132-33 {per curiam). Moreover, in this case, the district court |Rexpressly determined in its ruling that the evidence established the defendant had committed a felony. The State’s decision to not pursue charges after the defendant’s probation was revoked does not undermine the sufficiency of the evidence presented at the hearing in support of her probation violation.

Finally, the defendant asserts that the district court erred in not considering any mitigating circumstances, ignoring her probation officer’s recommendations, and failing to include such considerations in its oral reasons for revocation. However, the transcript reflects that at the conclusion of the revocation hearing, the district court stated it was revoking probation based on evidence that the defendant committed a felony while on probation for a crime of violence for which she had been sentenced just six months earlier. Thus, the district court stated an adequate basis on the record for its decision to revoke the defendant’s probation. See State v. Harris, 368 So.2d 1066, 1073 (La. 1979) (under prior law requiring written reasons for ruling revoking probation, oral “statement of reasons by the trial judge ... adequately afford[ed] us a basis to review his contention” and demonstrated “substantial compliance” with law). As to the defendant’s complaint that the district court failed to consider the probation officer’s recommendation, the record before this court does not reflect that the defendant made any effort to call the probation officer as a witness at the hearing or to introduce any documentary evidence prepared by the probation officer on her behalf.

\ ^Conclusion

For the reasons stated above, the defendant’s appeal is converted to a writ application. After review of the writ application, we do not find that the district court abused its discretion in revoking the defendant’s probation. Accordingly, relief is denied to the defendant and the district court judgment is affirmed.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED JUDGMENT AFFIRMED.

      , The defendant described the circumstances in which she acquired the property as follows:
      He let me wear it. We were talking about jewelry and I showed him my gold bracelet and he showed me his black watch and I asked him, "Can I wear it,” and he said "Sure,” and he gave it to me.


author: HIGGINBOTHAM, J.

text:
    Shirley Sharpe Nettle Wife of/and Richard W. NETTLE v. Succession of Joyce Wise NETTLE Succession of Joyce Wise Nettle
    NO. 2015 CA 1875
    NO. 2015 CA 1876
    Court of Appeal of Louisiana, First Circuit.
    September 16, 2016

      Jerald R. Madere, Metairie, LA, Laurie M. Pennison, Mandeville, LA, Attorneys for Plaintiffs-Appellants, Shirley Nettle Wife of/and Richard W. Nettle
    G. Brice Jones, Ross F. Lagarde, Paul D. Hesse, Slidell, LA, Attorneys for Defendant-Appellee, Succession of Joyce Wise Nettle
    BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| gThis is a suit for declaratory judgment filed by husband and wife, Shirley Sharp Nettle and Richard W. Nettle (the Nettles), wherein they seek to be declared the owners of certain immovable property located in St. Tammany Parish.

FACTS AND PROCEDURAL HISTORY

On June 24, 1976, Ms. Joyce Wise Nettle, Richards’s mother, purchased two tracts of land located on Lawes Drive in St. Tammany Parish (the Lawes Drive Property). The “Vendor’s Privilege and First Mortgage” documents were filed in the conveyance records for the Parish of St. Tammany. Joyce lived on the Lawes Drive Property until she moved into a nursing home in 2006.

On May 20, 2011, Joyce died. Her succession was opened and her grandchildren, Kenneth J. Germain and Lisa A. Favre Connelly, were named as co-executors of her estate. In her will, Joyce left all of the property she possessed to Kenneth and Lisa. The Nettles, through a rule to annul the probated testament, challenged Joyce’s will based on her capacity at the time of signing. The trial court denied the Nettles’ rule on April 24, 2012.

On July 20, 2011, the Nettles filed a Suit for Declaratory Judgment against the Succession of Joyce Nettle (the Succession), seeking a judgment declaring them to be the sole owners of the Lawes Drive Property. In their petition, the Nettles assert that on March 20, 1979, Joyce executed a counter letter in authentic form, which acknowledged the Nettles as the sole and true owners of the Lawes Drive Property. A copy of the alleged counter letter, stamped as a “TRUE COPY,” and the “Act of Deposit” filing the counter letter into the conveyance records of St. Tammany Parish, were attached to the Nettles’ petition.

laThe Succession answered the Nettles’ suit asserting that at the time of her death, Joyce was the sole owner of the Lawes Drive Property. The Succession’s answer stated that during her lifetime, Joyce possessed the Lawes Drive Property, maintained insurance for and paid all ad valo-rem taxes on the Lawes Drive Property, and on more than one occasion, mortgaged the Lawes Drive Property. The succession also questioned the validity and authenticity of the counter letter. Additionally, in its amended answer, the Succession pled thirty-year acquisitive prescription, and pointed out that the Nettles, in a bankruptcy proceeding, acknowledged under oath that they had no ownership interest in the Lawes Drive Property.

On September 2, 2014, the Nettles filed a motion for summary judgment asserting that according to the clear language of the counter letter, Joyce conveyed the Lawes Drive Property to the Nettles. Thus, they maintained that no genuine issue of material fact remained, and they were entitled to judgment as a matter of law declaring their sole ownership in the Lawes Drive Property. The Succession opposed the Nettles’ motion for summary judgment, and filed a cross-motion for summary judgment asserting that the counter letter was inadmissible. The Succession sought dismissal of the Nettles’ claims or, in the alternative, a ruling on its motion in limine prohibiting the presentation of the “alleged duplicate of the counter letter dated March 20,1979.” The competing motions for summary judgment and the Succession’s motion in limine were heard by the trial court. The trial court concluded that the original counter letter was necessary to prove its contents. On March 13, 2015, the trial court signed a judgment denying the Nettles’ motion for summary judgment, granting the Succession’s motion for summary judgment, dismissing the Nettles’ claims with prejudice, and finding the motion in limine to be moot. It is from this judgment that the Nettles appeal.

LAW AND ANALYSIS

When reviewing summary judgments, appellate courts conduct a de novo review, using the same criteria that govern the trial court’s determination of whether |4summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30. The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.

On a motion for summary judgment, the initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Then the non-moving party must produce factual support sufficient to satisfy its evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. P. art. 966(C)(2).

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. See 5Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813 writ denied, 2004-2286 (La. 11/24/04), 888 So.2d 231. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Williams v. Memorial Medical Center, 2003-1806 (La. App. 4th Cir. 3/17/04), 870 So.2d 1044, 1053, writ denied, 2004-0963 (La. 6/4/04), 876 So.2d 93. Unless the motion for summary judgment is supported by affidavits, together with sworn or certified copies of all papers or documents' referred to, La. Code Civ. P. art. 967 does not shift the burden to the adverse party to set forth specific facts showing that there is a genuine issue for trial. See Sanders v. J. Ray McDermott, Inc., 2003-0064 (La.App. 1 Cir. 11/7/03), 867 So.2d 771, 775-76.

In their motion for summary judgment, the Nettles contend that the counter letter executed by Joyce on March 20, 1979, transferred ownership of the Lawes Drive Property to them. The copy of the counter letter that the Nettles attached to their petition and supplemental motion for summary judgment was stamped as a “true copy” by Mr. James Strain, who was the attorney that notarized the original counter letter. According to the affidavits of the Nettles, in 2011 they went to Mr. Strain’s office and presented him with a copy of the original counter letter, along with the invoice received from and check paid to Mr. Strain’s law firm, evidencing payment for preparing the counter letter. Because Mr. Strain recognized the invoice from his firm, his signature, and the signatures of the secretaries that worked at his firm, he agreed to provide a “true copy” seal to the counter letter.

In his deposition, Richard testified that his mother, Joyce, signed the counter letter in order to prevent his sister from having any right to the Lawes Drive property if Joyce died. He stated that he had some memory of doing something to prevent his Lsister from getting the Lawes Drive Property, but he had forgotten about the counter letter. Richard stated that he found the counter letter while going through some paperwork after Joyce passed away.

In response to the Nettles’ motion for summary judgment, and in support of its motion for summary judgment, the Succession attached several documents relevant to the ownership of the Lawes Drive Property, including an affidavit of Mr. Strain. In his affidavit, Mr. Strain acknowledges that in order to accommodate Richard, he stamped the counter letter as a “true copy” when the Nettles came to his office. However, Mr. Strain stated that “he is unable to certify to the document as he had no file with which to compare the document and cannot attest with any degree of certainty that this is a true copy of the purported Act dated the 20th day of March, 1979.” Additionally, Mr. Strain recanted and withdrew the certification of the counter letter. Mr. Strain stated that he remembered transacting business with Richard in the past, but did not recall the nature of the business.

In addition to the affidavit of Mr. Strain, the Succession attached the 1976 Act of Sale recorded in the conveyance records of St. Tammany Parish, which showed Joyce as the record owner of the Lawes Drive Property, and the cancellation of the Vendor’s Privilege on August 21, 1997, signed by Joyce. The Succession also included the affidavit of Cynthia B. Lasseigne, who is an abstractor in the 22nd Judicial District Court. In that affidavit, Ms. Lasseigne stated that her public records search of the Lawes Drive Property revealed no vestige of ownership by the Nettles until the July 14, 2011 Act of Deposit by the Nettles. Additionally, Ms. Lasseigne stated that Joyce had applied for the homestead exemption and, on more than one occasion, had mortgaged the Lawes Drive Property, declared herself as owner in the St. Tammany Parish Assessor’s records/tax rolls, and claimed the Lawes Drive Property as her homestead.

|7The Succession also introduced the bankruptcy petition of the Nettles, in which the Lawes Drive Property was not listed as part of their estate, as well as the sworn detailed descriptive list verified by Richard and associated with his effort to interdict Joyce in 2006, which included the Lawes Drive Property as one of Joyce’s assets. The Succession also included the affidavits of Joyce’s grandchildren, Kenneth and Lisa. In his affidavit, Kenneth testified that Joyce referred to the Lawes Drive Property as hers, and Joyce continuously possessed the Lawes Drive Property during her lifetime, exercising her possession as owner. He further stated that the Nettles also resided on the property until 1982, when Joyce told them to leave and “get off [her] property.” In her affidavit, Lisa testified that when she lived on the Lawes Drive Property in a separate home, she paid all rental payments and utilities to Joyce. Lisa also stated that she never heard of the Lawes Drive Property being referred to as the Nettles’ property, and that around 1982, she also heard Joyce tell the Nettles, regarding the Lawes Drive Property, to “get off [and] never come back.” Lisa stated that the Nettles have not lived on the Lawes Drive Property since that time. Additionally, the Succession offered Richard’s deposition into evidence, where he testified that Joyce paid the down payment for the Lawes Drive Property when she purchased it.

In deciding the motion for summary judgment, the trial court relied on Louisiana Code of Evidence articles 1002 and 1003 to conclude that original writing of the counter letter was necessary to prove it contents. Louisiana Code of Evidence article 1002 provides: “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by this Code or other legislation.” Article 1003 provides, in pertinent part:

A duplicate is admissible to the same extent as an original unless:
(1) A genuine question is raised as to the authenticity of the original;
|s(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or
(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

The trial court concluded that the counter letter is the contract on which the Nettles’ claim for ownership of the Lawes Drive Property is based, and the Succession raised a genuine issue as to the authenticity of the original. Therefore, the original was required to prove the contents of the counter letter. Additionally, the trial court concluded that the “True Copy” certification provided by Mr. Strain was properly recanted through his affidavit attached to the Succession’s motion for summary judgment. In essence, the trial court granted the Succession’s motion in limine prohibiting the introduction of the copy of the counter letter into evidence to prove its contents. We find no error in the trial court’s decision.

Joyce was the record owner of the Lawes Drive Property and there was no vestige of ownership by the Nettles until the July 14, 2011 Act of Deposit. Joyce made the down payment on the Lawes Drive Property, continuously lived there, declared herself as owner in the St. Tammany Parish Assessor’s records/tax rolls, and claimed the Lawes Drive Property as her homestead. Joyce also received rent fi’om other persons living on the Lawes Drive Property, and asked the Nettles to leave the Lawes Drive Property. Additionally, the Nettles, twice in sworn court documents, stated that Joyce owned the Lawes Drive Property and that they were not the owners.

Excluding the counter letter, and considering the vast amount of evidence presented by the Succession in favor of its position that Joyce was the owner of the Lawes Drive Property at the time of her death, we find no genuine issue of material fact remains as to the issue of whether the Nettles were entitled to a declaratory judgment declaring them as the sole owners of the Lawes Drive Property. In light of the showing made by the Succession establishing that Joyce was the owner of the Lawes Drive Property at the time of her death, we And the trial court correctly granted |flsummary judgment in its favor and dismissed the Nettles’ claims for declaratory judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these consolidated proceedings are assessed to husband and wife, Shirley Sharp Nettle and Richard W. Nettle.

AFFIRMED.

      . The Nettles’ petition was filed in a separate proceeding bearing docket number 2011-14170, but was consolidated with the Succession of Joyce Wise Nettle bearing docket number 2011-30401 on October 21, 2011.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . After the Succession raised the bankruptcy issue, the Nettles reopened their bankruptcy case to include the Lawes Drive Property. The bankruptcy proceeding was stayed pending the outcome of the ownership issue in the 22nd Judicial District Court.