text:
    Doyle Lynn SAMMONS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1953
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Doyle Lynn Sammons appeals the judgment and sentences rendered after a jury found him guilty on two counts of possession of a controlled substance, one count of possession of paraphernalia, and one count of driving with a suspended license. Mr. Sammons, who represented himself below, argues that the trial court erred in failing to renew the offer of counsel prior to proceeding with the sentencing hearing. We agree and thus vacate the sentences and remand for resentencing. As to his double jeopardy and jury instruction arguments, we find no reversible error and affirm without discussion.

Mr. Sammons waived his right to counsel and represented himself at trial. The sentencing hearing commenced immediately following the trial. Though Mr. Sammons continued to represent himself, the trial court did not renew the offer of assistance of counsel before proceeding with sentencing. Mr. Sammons was sentenced to forty-two months in prison on the drug possession charges, to run concurrently, and to time served on the remaining counts.

If a defendant's waiver of counsel is accepted at any stage of the proceedings, the trial court must renew the offer of assistance of counsel at each subsequent critical stage of the proceedings. Ingraham v. State, 32 So.3d 761, 768 (Fla. 2d DCA 2010) ; see also Fla. R. Crim. P. 3.111(d)(5) ("If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel."). Sentencing is a critical stage of the proceedings, and a trial court must renew the offer of counsel at the sentencing stage even if the defendant has previously waived counsel at other stages. Alexander v. State, 224 So.3d 804, 806 (Fla. 2d DCA 2017) ; Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999) ; Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007). Thus, the trial court's failure to renew the offer of assistance of counsel prior to proceeding with sentencing in this case was error.

The State argues, however, that the failure to renew the offer of counsel should be considered harmless error in this case because sentencing immediately followed the trial and because standby counsel was appointed throughout the proceedings. We cannot agree.

The renewal of the offer of counsel prior to sentencing is required even when the end of the guilt phase and the commencement of the penalty phase are not separated by a temporal break. See Travis, 969 So.2d at 533 (concluding reversible error occurred where the trial court failed to renew the offer of counsel prior to sentencing even though sentencing proceeded immediately after the dismissal of the jury). This is because "sentencing is a separate critical stage, which has a separate function and consequence from the jury trial itself." Id. Accordingly, the absence of a temporal break between the trial and sentencing does not render the error harmless.

Nor is the error rendered harmless by the mere presence of standby counsel. Though standby counsel was appointed and present throughout the proceedings in this case, there is no indication that Mr. Sammons consulted with or relied upon standby counsel in any significant way during the trial or at sentencing. Cf. Mincey v. State, 684 So.2d 236, 238 (Fla. 1st DCA 1996) (finding failure to renew right to counsel harmless where appellant requested and "relied on standby counsel extensively, before, during and after the trial"). And standby counsel was silent throughout sentencing, other than requesting the public defender's fee and costs. Cf. Harrell v. State, 486 So.2d 7, 7 (Fla. 3d DCA 1986) (finding no reversible error where "Harrell did confer frequently with standby counsel, and standby counsel participated in the defense at trial"). If anything, Mr. Sammons resisted the appointment of standby counsel. The trial court noted this reluctance when it awarded only a portion of the fee requested by the public defender, stating: "As to the defense fee, I kind of feel like we kind of pushed standby counsel on Mr. Sammons ...." For these reasons, we cannot say that standby counsel's presence in this case mitigated the failure to renew the offer of counsel prior to sentencing.

In sum, the trial court erred in failing to renew the offer of counsel prior to the sentencing hearing, and the error was not harmless. We therefore affirm the judgment but vacate the sentences and remand for resentencing.

Judgment affirmed; sentences vacated; case remanded.

BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Steven Elliott MURRAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4225
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Steven Elliott Murray, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Steven Murray pleaded guilty to the sale, manufacture, or delivery of cocaine within 1000 feet of a convenience business (count 1); child abuse (count 2); possession of cocaine (count 3); and felony driving while license suspended or revoked (count 4). He was sentenced to concurrent prison terms of fifteen years on count 1, five years as a prison releasee reoffender on count 2, and five years on counts 3 and 4. Murray challenges the denial of his motion to withdraw plea prior to sentencing and his sentences insofar as the trial court failed to offer Murray the assistance of counsel prior to sentencing. We affirm Murray's convictions without comment. However, we reverse his sentences and remand for further proceedings.

Immediately prior to the hearing on Murray's motion to withdraw plea, Murray sought to discharge counsel and represent himself. Following a Faretta inquiry, the court permitted Murray to represent himself and appointed standby counsel. After taking evidence, the court denied the motion to withdraw plea and took a brief recess. Murray's sentencing began upon the court reconvening. Murray was not offered the assistance of counsel prior to sentencing.

The withdrawal of a plea "is a critical stage of the proceedings during which the defendant is entitled to counsel." Sanders v. State, 210 So.3d 98, 100 (Fla. 2d DCA 2016). And it is well settled that sentencing is also a critical stage of the proceedings. Alexander v. State, 224 So.3d 804, 806 (Fla. 2d DCA 2017) (citing Beard v. State, 751 So.2d 61, 62 (Fla. 2d DCA 1999), for the statement that "[s]entencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even if the defendant has previously waived counsel"). "While a defendant may waive his right to counsel at any stage of the proceedings, the waiver is only valid at that stage and the court must renew the offer of counsel at each crucial stage as long as the defendant is unrepresented." Hyden v. State, 117 So.3d 1, 4 (Fla. 2d DCA 2011) (citing Traylor v. State, 596 So.2d 957, 968 (Fla. 1992) ); see also Alexander, 224 So.3d at 806 ("If a waiver of counsel is accepted at any stage of the proceedings, the offer of assistance of counsel must be renewed by the court at each subsequent critical stage of the proceedings ...."). Even where no intervening event occurs, the court must renew the offer of counsel prior to each critical stage of the proceedings. See Bergeron v. State, 210 So.3d 129, 129-30 (Fla. 2d DCA 2016) ; Parker v. State, 137 So.3d 593, 594 (Fla. 2d DCA 2014) ; Serrano v. State, 113 So.3d 895, 896 (Fla. 2d DCA 2012). The failure to do so is per se reversible error. Pugh v. State, 181 So.3d 529, 530 (Fla. 2d DCA 2015) ; see also Alexander, 224 So.3d at 806 ("Failure to renew the offer of counsel at a critical stage and conduct a Faretta inquiry if the defendant rejects the renewed offer is per se reversible error." (quoting Brooks v. State, 180 So.3d 1094, 1096 (Fla. 1st DCA 2015) ) ).

Accordingly, although we affirm Murray's convictions, we reverse his sentences and remand for further proceedings.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      Murray's appellate counsel filed this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla. 1991). This court subsequently ordered merits briefing.

      Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: PER CURIAM.

text:
    Sean HOWARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3052
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
   PER CURIAM.

Affirmed. See Jones v. State, 569 So.2d 1234 (Fla. 1990).

SILBERMAN, VILLANTI, and ATKINSON, JJ., Concur.


text:
    Cornelio HERRERA-MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3256
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
   PER CURIAM.

Affirmed. See Adaway v. State, 902 So.2d 746 (Fla. 2005) ; Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009) ; Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006) ; Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002) ; Banaszak v. State, 579 So.2d 867 (Fla. 2d DCA 1991) ; Sims v. State, 141 So.3d 613 (Fla. 4th DCA 2014).

SILBERMAN, VILLANTI, and ATKINSON, JJ., Concur.


text:
    Thaddeus R. MCKENZIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3263
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    Thaddeus R. McKenzie, pro se.
   PER CURIAM.

Affirmed. See Martinez v. State, 114 So.3d 1119 (Fla. 2d DCA 2013) ; Antoine v. State, 138 So.3d 1064 (Fla. 4th DCA 2014) ; McLeod v. State, 52 So.3d 784 (Fla. 5th DCA 2010) ; Wooden v. State, 42 So.3d 837 (Fla. 5th DCA 2010) ; Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005).

SILBERMAN, VILLANTI, and ATKINSON, JJ., Concur.


author: Per Curiam.

text:
    James M. BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4674
    District Court of Appeal of Florida, First District.
    March 7, 2019
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal, James Bryant ("Appellant") challenges the denial of his motion to suppress on three grounds. He argues: (1) he had a privacy interest in his backyard and the deputies illegally entered this constitutionally-protected space; (2) his later consent to search did not validate the illegal action by the deputies; and (3) his consent was involuntary because he submitted to police authority. We affirm for the reasons discussed below.

Facts

In January 2017, Deputy Hatcher responded to a tip about suspicious chemical smells coming from a residence. Upon arriving in the area, Hatcher stood in an elevated ditch area off the driveway to acquire a view of the house. From this vantage point, he saw a male using a grinding tool at the back of the house behind a shed. Hatcher and another deputy then walked up a tree line and into the yard while two more deputies drove up the driveway. Although there was no gate, a fence had been erected around the yard. As the deputies approached, Appellant came out of the shed. He explained that he had been cutting glass which resulted in the strong odor.

Appellant showed Sergeant Hayes the area behind the shed where he had been working. While in that area, Hayes noticed an individual hiding in the exhaust window of the shed; he directed the individual to come out. While Deputy Hatcher detained the individual, Deputy Whitley made contact with two females in the backyard. Deputy Harrelson and Hayes spoke with Appellant by the trunk of their patrol car which was parked in the driveway of Appellant's yard. Appellant was presented with a consent to search form which Appellant signed. The consent to search form explained that Appellant had been informed of his constitutional rights not to have a search made of the property without a search warrant and his right to refuse to consent to a search. However, Appellant waived these rights and signed the form which expressly gave deputies his permission to conduct a search.

The deputies, thereafter, searched the shed and found evidence of methamphetamine manufacturing. Appellant was charged with trafficking, manufacture and possession of methamphetamines and possession of illegal chemicals. He moved to suppress the evidence found as a result of the warrantless search, raising the same arguments he makes on appeal. The trial court denied the motion. The trial court determined the search was a consensual encounter and the deputies did not illegally enter the property. Furthermore, Appellant gave consent to search freely and voluntarily and such consent was not an acquiescence to police authority.

Appellant subsequently pled nolo contendere to manufacturing of methamphetamine and possession of listed chemicals, reserving his right to appeal the denial of his motion to suppress. This appeal follows.

Analysis

A trial court's ruling on a motion to suppress comes to this Court with a presumption of correctness regarding findings of historical facts. We review pure questions of law de novo . State v. Markus , 211 So.3d 894, 902 (Fla. 2017).

Initially, we agree with Appellant that the trial court erred in concluding the deputies legally entered his backyard. The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons ... and effects, against unreasonable searches and seizures." See also Art. I, § 12, Fla. Const. Under the Fourth Amendment, a "search" occurs when an individual's reasonable expectation of privacy is infringed by an agent of the government. United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). A person has the highest expectation of privacy in his home. See California v. Ciraolo , 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). This extends to the curtilages of the home as well, such as a backyard. See id. at 212-13, 106 S.Ct. 1809 ; see also State v. Morsman , 394 So.2d 408, 409 (Fla. 1981) (noting one had reasonable expectation of privacy in a backyard of a house because passersby could not usually see this area); Lollie v. State , 14 So.3d 1078 (Fla. 1st DCA 2009). "When a citizen has a reasonable expectation of privacy, 'police officers may not enter a [property] without a warrant, absent consent or exigent circumstances.' " Osorio v. State , 244 So.3d 1115, 1118 (Fla. 4th DCA 2018) (quoting Levine v. State , 684 So.2d 903, 904 (Fla. 4th DCA 1996) ). Exigent circumstances are few in number and include such circumstances as pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, responding to medical emergencies, and fighting fires. Riggs v. State , 918 So.2d 274, 279 (Fla. 2005).

Here, Appellant had a reasonable expectation of privacy in his backyard. The evidence confirmed that it was difficult to see into the backyard from the public road. Deputy Hatcher confirmed that he could not see the residence or into the backyard without climbing an elevated ditch next to the driveway. Additionally, Appellant maintained a fence around his property. Osorio , 244 So.3d at 1119 (noting a homeowner may further exhibit an expectation of privacy by putting up fences or taking other steps to exclude the public from seeing into or accessing curtilage).

The record contains no evidence of any exigent circumstances to justify a warrantless search or entry into the backyard. Although the deputies were responding to a call about a suspicious chemical smell, this did not provide them with sufficient cause to enter the backyard without a warrant. Cf. Glass v. State , 736 So.2d 788 (Fla. 2d DCA 1999) (holding that officers had no right to enter backyard simply for the purpose of investigating an anonymous tip). Thus, despite the lack of a gate to prevent entrance into the property or the backyard, Appellant still maintained a reasonable expectation of privacy in his backyard, and the deputies' entry into the backyard based on a tip and without a warrant violated Appellant's Fourth Amendment rights.

However, prior to the deputies searching the shed and discovering the evidence leading to his conviction, Appellant signed a consent to search form. Where there is illegal conduct on the part of the police, such as here, a consent to search can be found voluntary and valid if there is clear and convincing evidence the consent was not a product of the illegal police action. See Montes-Valeton v. State , 216 So.3d 475, 480 (Fla. 2017) (citing Reynolds v. State , 592 So.2d 1082, 1086 (Fla. 1992) ); Gonzalez v. State , 59 So.3d 182, 185 (Fla. 4th DCA 2011).

In determining whether consent was freely and voluntarily given and not the product of unlawful police activity, the totality of the circumstances must be evaluated. See Davis v. State , 594 So.2d 264, 266 (Fla. 1992) ; Blake v. State , 939 So.2d 192, 196 (Fla. 5th DCA 2006). This is a factual question for the trial court, and its ruling should not be disturbed on appeal unless it is clearly erroneous. Davis , 594 So.2d at 266. Some factors to consider are:

(1) the time and place of the encounter; (2) the number of officers present; (3) the officers' words and actions; (4) the age and maturity of the defendant; (5) the defendant's prior contacts with the police; (6) whether the defendant executed a written consent form; (7) whether the defendant was informed that he or she could refuse to give consent; and (8) the length of time the defendant was interrogated before consent was given.

Montes-Valeton , 216 So.3d at 480 ; see also State v. Evans , 9 So.3d 767, 769 (Fla. 2d DCA 2009) (noting factors to consider include "whether the person is under arrest or otherwise detained, the age, education, intelligence, or mental condition of the person giving consent which would evidence a vulnerable state, coercive circumstances, and conduct by law enforcement such as a show of force, other threatening conduct, a prolonged detention, or verbal threats").

Clear and convincing evidence supports the trial court's finding that Appellant voluntarily consented to the search and did not merely acquiesce to police authority. Appellant, who was almost thirty-years-old, was free to advise the officers to leave at any point up until the search; he had not been arrested and was not in handcuffs. There was no show of force by the deputies. The deputies had not drawn their weapons and had not made any verbal threats to Appellant. Only two of the deputies were near Appellant when he was signing the consent form. The other two deputies were busy talking with the other individuals in the backyard. In addition, no evidence was introduced that the deputies commanded Appellant to consent or made repeated requests for his consent. Furthermore, the deputies were on site a relatively short time, about 10 minutes, before Appellant signed the consent form. Accordingly, Appellant's consent to search was free of the taint of the prior illegal police action.

Conclusion

As clear and convincing evidence exists to support the trial court's determination that Appellant freely and voluntarily consented to a search of his shed, we affirm the denial of Appellant's motion to suppress.

AFFIRMED .

Lewis, Ray, and M.K. Thomas, JJ., concur.


author: M.K. Thomas, J.

text:
    MKL ENTERPRISES LLC, d/b/a DriMaxx, Appellant, v. AMERICAN TRADITIONS INSURANCE COMPANY, Appellee.
    No. 1D17-2632
    District Court of Appeal of Florida, First District.
    March 7, 2019
    Corinne L. Heller, Jacksonville, for Appellant.
    Thomas R. Diana and William R. Burke of Zinober Diana, P.A., St. Petersburg; Dorothy V. DiFiore and Karen Shimonsky of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellee.
   M.K. Thomas, J.

MKL Enterprises LLC ("DriMaxx") appeals an order granting American Traditions Insurance Company's ("ATIC") motion to compel appraisal and abate litigation. DriMaxx argues the trial court erred by compelling appraisal prior to making a determination of whether an enforceable agreement exists and if ATIC is "wholly denying" coverage under the homeowner's insurance policy. For the reasons set forth below, we affirm.

The standard of review applicable to an order compelling appraisal under an insurance policy is de novo. Fortune v. Gulf Coast Tree Care Inc., 148 So.3d 827, 828 (Fla. 1st DCA 2014) ; Citizens Prop. Ins. Corp. v. Ashe, 50 So.3d 645, 650 (Fla. 1st DCA 2010).

Generally, " '[a]ppraisal clauses are preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits.' " First Protective Ins. Co. v. Hess , 81 So.3d 482, 485 (Fla. 1st DCA 2011) (quoting Fla. Ins. Guar. Ass'n, Inc. v. Olympus Ass'n, Inc. , 34 So.3d 791, 794 (Fla. 4th DCA 2010) ). Appraisals are appropriate where an insurance company "admits that there is a covered loss, but there is a disagreement on the amount of loss." Johnson v. Nationwide Mut. Ins. Co. , 828 So.2d 1021, 1025 (Fla. 2002) (emphasis in original). By tendering the check, ATIC admitted coverage for some damage while declining to cover all repair costs. Thus, ATIC did not "wholly deny" coverage. See People's Trust Ins. Co. v. Tracey , 251 So.3d 931, 933 (Fla. 4th DCA 2018).

Here, ATIC, the insurer, tendered a check for its estimation of covered damage. In so doing, ATIC thereby "waives any coverage defense it might otherwise have had." Scottsdale Ins. Co. v. Desalvo , 666 So.2d 944, 947 (Fla. 1st DCA 1995). Furthermore, in choosing appraisal as the appropriate resolution forum, ATIC "admits that there is a covered loss." Johnson , 828 So.2d at 1025.

The order of the trial court compelling appraisal is AFFIRMED .

B.L. Thomas, C.J. and, Jay, J. concur.


text:
    Alphonso PASSMORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-82
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Alphonso Passmore, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fitzpatrick v. State, 868 So.2d 615, 616 (Fla. 2d DCA 2004) (holding that for PRR purposes, "it is the fact of the defendant's release from custody, not his status of being in custody, that is relevant").

EVANDER, C.J., ORFINGER and GROSSHANS, JJ., concur.


text:
    Richard PETTIS, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3600
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Richard Pettis, III, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Richard Pettis, III, appeals an order summarily denying his motion seeking additional jail credit. See Fla. R. Crim. P. 3.801. Because the trial court failed to attach records conclusively refuting Pettis' claim, we reverse. See Hoskins v. State , 259 So.3d 892 (Fla. 4th DCA 2018). On remand, the trial court shall either grant Pettis' motion, conduct an evidentiary hearing thereon, or attach portions of the record that conclusively refute the claim for additional jail credit. Shepman v. State , 249 So.3d 1318 (Fla. 5th DCA 2018).

REVERSED and REMANDED.

EVANDER, CJ., ORFINGER and COHEN, JJ., concur.


text:
    Jennymar PIZARRO-GARCIA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2518
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    James S. Purdy, Public Defender, and Kathryn R. Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence rendered against Jennymar Pizarro-Garcia (Appellant) after she entered guilty pleas on three criminal charges, but we remand on count five for correction of a scrivener's error. In count five, Appellant pled guilty to the unlawful use of a two-way communication device to facilitate the commission of a crime, in violation of section 934.215, Florida Statutes (2016). The judgment, however, erroneously cites to section 934.21, Florida Statutes (2016). On remand, the trial court is directed to correct the judgment.

AFFIRMED; REMANDED for correction of a scrivener's error.

ORFINGER, BERGER and LAMBERT, JJ., concur.


text:
    Corey KLINE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3980
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Corey Kline, Sneads, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm without prejudice to Appellant's ability to timely file a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

BERGER, WALLIS and GROSSHANS, JJ., concur.


author: LAMBERT, J.

text:
    STATE of Florida, Petitioner, v. Richard KNOWLES, Respondent.
    Case No. 5D18-3024
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Aramis D. Ayala, State Attorney, and Jenny R. Rossman, Assistant State Attorney, Orlando, for Petitioner.
    Robert Wesley, Public Defender, and Megan Robison Albrecht, Assistant Public Defender, Orlando, for Respondent.
   LAMBERT, J.

The State of Florida petitions this court for certiorari review of the trial court's pretrial order precluding it from utilizing evidence at trial of other crimes, wrongs, or acts of child molestation committed by Respondent. The State argues that it is entitled to relief from the order because, otherwise, it will suffer irreparable harm. The State also contends that the order is a departure from the essential requirements of the law. For the following reasons, we deny the petition.

The State charged Respondent with sexual battery on a child less than twelve years of age and lewd or lascivious molestation of a child less than twelve. The State timely filed a notice pursuant to section 90.404(2)(b), Florida Statutes (2012), of its intent to rely upon evidence of other crimes, wrongs, or acts of child molestation allegedly committed by Respondent. This statute provides that "[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant." The State sought admission into evidence of testimony from a different minor child upon whom Respondent allegedly committed prior acts of molestation. The State's intended purpose for this evidence was to corroborate the victim's testimony that Respondent had sexually abused her as alleged in the Amended Information and also to establish Respondent's "motive, intent, or absence of mistake or accident."

Following an evidentiary hearing, the trial court entered the subject order precluding the admissibility of the State's evidence of the prior acts of child molestation. In pertinent part, the court wrote:

Pursuant to [ McLean ] vs. State, 934 So.2d 1248 (Fla. 2006), in part, the court must consider the similarity of the prior acts, where the acts occurred, the age and gender of the victims, the closeness in time to the prior acts, the frequency of the acts, and the presence or lack of intervening circumstances. The facts must be proved by clear and convincing evidence. Finally, the court must determine if the additional facts are confusing, misleading, and/or unnecessarily cumulative. The collateral evidence should not become a feature of the trial.
....
The Court finds evidence of an act perpetrated against [the collateral crime witness] is not admissible. [The collateral crime witness] alleged to a detective that [Respondent] pulled her shorts down on one occasion, while they were standing on her porch. [The collateral crime witness] testified at the hearing. Applying the analysis in [ McLean ], the Court cannot find the evidence is sufficiently similar regarding location, manner and frequency to permit its admissibility. Further, the Court finds the additional evidence may mislead the jurors and it is needlessly cumulative of other evidence bearing on the victim's credibility.

Certiorari review of a trial court's order that effectively excludes one of the State's witnesses from testifying at trial is appropriate because the State has no right to a direct appeal in the event the defendant is acquitted. State v. Gerry , 855 So.2d 157, 159 (Fla. 5th DCA 2003). "To obtain certiorari relief from a pretrial evidentiary ruling, the [S]tate must show that the ruling was a violation of a clearly established principle of law resulting in a miscarriage of justice." State v. Sandoval , 125 So.3d 213, 215 (Fla. 4th DCA 2013) (citing State v. Pettis , 520 So.2d 250, 254 (Fla. 1988) ).

Relevancy is the threshold evidentiary consideration for the trial court in this type of case when deciding whether to admit prior acts of child molestation. Taylor v. State , 256 So.3d 950, 952 (Fla. 5th DCA 2018) (citing Fiore v. State , 967 So.2d 995, 997 (Fla. 5th DCA 2007) ). In McLean , the Florida Supreme Court provided the following explanation of the trial court's gatekeeping function in determining whether to admit this type of evidence:

[T]he similarity of the prior act and the charged offense remains part of a court's analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403.

934 So.2d at 1259.

As demonstrated by its order, the trial court both understood and applied the gatekeeping requirements established in McLean . The admissibility of collateral crime or similar fact evidence is within the discretion of the trial court as limited by the rules of evidence. LaMarca v. State , 785 So.2d 1209, 1212 (Fla. 2001). Moreover, a trial court is given a "large measure of discretion" under section 90.403 in determining whether the probative value of admissible evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. See State v. McClain , 525 So.2d 420, 422 (Fla. 1988). Under the abuse of discretion standard applicable here, Mendez v. State , 961 So.2d 1088, 1089 (Fla. 5th DCA 2007), discretion is abused when "no reasonable person would take the view taken by the trial court." Moore v. State , 800 So.2d 747, 748 (Fla. 5th DCA 2001) (quoting Stephens v. State , 787 So.2d 747, 754 (Fla. 2001) ). Whether we as appellate judges would have reached the same conclusion in this case about the admissibility of this evidence is largely irrelevant. The trial court's evidentiary ruling under review did not constitute an abuse of its discretion.

Accordingly, because we conclude that the State has not shown that the trial court's order violated a clearly established principle of law resulting in a miscarriage of justice, the petition is denied.

PETITION FOR WRIT OF CERTIORARI DENIED.

ORFINGER and SASSO, JJ., concur.

      The victim in both counts is the same.

      Also commonly referred to as similar fact or collateral crime evidence.


text:
    Dr. Erwin D. JACKSON, Appellant, v. CITY OF TALLAHASSEE, et al., Appellees.
    No. 1D19-366
    District Court of Appeal of Florida, First District.
    March 8, 2019
    Charles Burns Upton II of Upton Law Firm, P.L., Tallahassee, for Appellant.
    Louis C. Norvell, Senior Assistant City Attorney, Tallahassee, for Appellees.
   Per Curiam.

This is an appeal from a final summary judgment in which the circuit court ruled that the City did not violate the Sunshine Law in its process of eliminating some applicants for a vacant commission seat, and that regardless of any asserted violation, the City's later meeting eliminated any purported taint from the earlier process by conducting a full and open public meeting to fill the vacancy. As the court found:

On December 31, 2018, the Tallahassee City Commission held a public meeting to consider the appointment to fill the temporary vacancy on the City Commission. There was more than an hour of public comment and 30 public speakers. At the meeting, nine candidates (seeking to fill the vacancy) made presentations and responded to questions from commissioners.... [T]here was no limit on the number of speakers or the topics on which they could speak. The Commission engaged in full discussion of the appointment and there were rounds of nominations before a candidate was selected for appointment.

Based on those findings, we agree with the circuit court that "the December 31, 2018 meeting was not [a] perfunctory or ceremonial acceptance of a prior decision made outside the Sunshine." Accordingly, as the court concluded, any purported violation "was cured by the full, open and fair consideration of the appointment at the December 31, 2018 meeting." See Sarasota Citizens for Responsible Gov't v. City of Sarasota , 48 So.3d 755, 765 (Fla. 2010) ("In Tolar [v. Sch. Bd. of Liberty Cty. ], 398 So.2d [427,] 429 [ (Fla. 1981) ], this Court held that Sunshine Law violations can be cured by 'independent, final action in the sunshine,' which this Court distinguished from mere ceremonial acceptance or perfunctory ratification of secret actions and decisions."). Finch v. Seminole Cty. Sch. Bd. , 995 So.2d 1068, 1073 (Fla. 5th DCA 2008) (concluding that the Sunshine Law violation "was cured by the subsequent public hearings at which the rezoning plan was adopted," for "[a] violation may be cured by an independent final action taken in the sunshine that is 'not merely a ceremonial acceptance of secret actions and not merely a perfunctory ratification of secret decisions at a later meeting open to the public' [but is, instead,] a full, open and independent public hearing of the disputed issue[, which] can remedy the earlier violation" (quoting Tolar , 398 So.2d at 429 ) ); Bruckner v. City of Dania Beach , 823 So.2d 167, 171 (Fla. 4th DCA 2002) (observing that the public meeting "held pursuant to duly published notices" and "subject to comments by the public" satisfied Tolar so that "[e]ven if there was a violation, Sunshine Law violations can be cured by independent, final action completely in the Sunshine"); see also Jackson-Shaw Co. v. Jacksonville Aviation Auth. , 510 F.Supp.2d 691, 724 n.31 (M.D. Fla. 2007) (recognizing, on the weight of Tolar , that "[a] full and open hearing, with final action completely in the Sunshine, will cure any defect arising from a Sunshine Law violation").

AFFIRMED .

B.L. Thomas, C.J., and Roberts and Jay, JJ., concur.


text:
    J.M., Father of E.M. and K.M., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D19-0510
    District Court of Appeal of Florida, First District.
    March 20, 2019
    Michael A. Tupper of Tupper Law, P.A., Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children's Legal Services, Jacksonville, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of February 12, 2019, the Court has determined that its jurisdiction to review the Final Judgment for Termination of Parental Rights, rendered on December 4, 2018, was not invoked in a timely fashion. Accordingly, this appeal is dismissed for lack of jurisdiction. The dismissal is without prejudice to the Appellant's right to seek relief in the trial court. In the Interest of E.H. , 609 So. 2d 1289 (Fla. 1992).

Roberts, Ray, and Jay, JJ., concur.


text:
    Nancy WANNALL and Gary Wannall, Appellants, v. GADSDEN COUNTY EMERGENCY MEDICAL SERVICES, and Town of Havana, Appellees.
    No. 1D18-1654
    District Court of Appeal of Florida, First District.
    March 20, 2019
    Marie A. Mattox and James Garrity of Marie A. Mattox, P.A., Tallahassee, for Appellants.
    William B. Armistead and Gwendolyn P. Adkins of Coppins Monroe, P.A., Tallahassee; and Jeff F. Dodson of McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A., Tallahassee, for Appelles.
   Per Curiam.

Appellants seek review of an order granting summary judgment in favor of Appellees. We find any foreseeable zone of risk did not extend to Appellants. Accordingly, Appellees did not owe a duty of care to Appellants, and we affirm the trial court's order. See Parker v. Murphy , 510 So.2d 990 (Fla. 1st DCA 1987) (affirming summary judgment in favor of the sheriff after a prisoner twice escaped and attacked appellant and her husband holding there was no special relationship between the sheriff and appellant, and thus, no duty of care).

AFFIRMED .

Makar, Winokur, and M.K. Thomas, JJ., concur.


text:
    MV SENIOR MANAGEMENT, LLC, Appellant, v. REDUS FLORIDA HOUSING, LLC, Appellee.
    No. 1D17-4688
    District Court of Appeal of Florida, First District.
    March 20, 2019
    R. Daniel Noey and Wesley D. Fina of Schutt, Schmidt & Noey, Jacksonville, for Appellant.
    W. Douglas Childs and Brian M. Pederson of Childs, Hester & Love, P.A., Jacksonville, for Appellee Redus Florida Housing, LLC.
   Per Curiam.

Upon review of the record and Appellant's response to our order to show cause on jurisdiction, we find that the claim remaining pending below is interrelated with the claim on appeal, depriving us of jurisdiction. The order on appeal disposes of only count one of Appellee's two-count third-party complaint against Appellant. Count one seeks contractual and common-law indemnity. Count two, still pending below and stayed pending this appeal, alleges breach of contract for Appellant's failure to obtain insurance and indemnify Appellee. Both counts relate to the same underlying tort claim against Appellee, and both counts arise out of the same management agreement between the two parties to this appeal. This is a classic case of a piecemeal appeal. See S.L.T. Warehouse Co. v. Webb , 304 So.2d 97, 99-100 (Fla. 1974) (holding that piecemeal review is disfavored and the lower tribunal should rule on all interrelated claims to avoid the potential need for successive appeals).

This appeal does not fall within the scope of Florida Rule of Appellate Procedure 9.110(k), allowing immediate appeals of certain partial final judgments. That rule requires that the cause of action disposed of in the order appealed not be "interdependent with other pleaded claims," and that is not the case here. Id.; see also Fla. Farm Bureau Gen. Ins. Co. v. Peacock's Excavating Serv., Inc. , 186 So.3d 6, 11 (Fla. 2d DCA 2015) (dismissing appeal for lack of jurisdiction where claim still pending below involved same facts and contracts as the order appealed).

DISMISSED .

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Ray Charles BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4564
    District Court of Appeal of Florida, First District.
    March 21, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See Sims v. State , 260 So.3d 509 (Fla. 1st DCA 2018) ; Murphy v. State , 227 So.3d 242 (Fla. 1st DCA 2017) ; Williams v. State , 143 So.3d 423 (Fla. 1st DCA 2014).

Lewis, Rowe, and Makar, JJ., concur.


author: Genovese, Justice

text:
    Ivan I. SMITH, Jr. and Gloria G. Smith v. Kimberly L. ROBINSON, Secretary of the Department of Revenue, State of Louisiana
    No. 2018-CA-0728
    Supreme Court of Louisiana.
    December 5, 2018
    Russell Joseph Stutes, Jr. ; for appellant.
    Hon. Jeffrey Martin Landry, Attorney General; Robert S. Angelico ; Cheryl Mollere Kornick ; Randy James Marse, Jr. ; Jeffrey Paul Birdsong ; for appellee.
   Genovese, Justice

This case comes to this Court on direct appeal from the Nineteenth Judicial District Court of East Baton Rouge Parish pursuant to Louisiana Constitution Article V, § 5 (D) upon a declaration by that court that 2015 La. Acts No. 109 ("Act 109"), which amended La.R.S. 47:33, is unconstitutional.

Plaintiffs, Ivan I. Smith, Jr. and Gloria G. Smith (collectively "Taxpayers"), are Louisiana residents and part owners of several limited liability companies ("LLC") and Subchapter S corporations ("S corporation") that transact business in Texas, Arkansas, and Louisiana. Defendant herein is Kimberly L. Robinson, in her capacity as Secretary of the Department of Revenue of the State of Louisiana (the "Department"). Taxpayers filed the instant suit seeking recovery of income taxes paid under protest. At issue is whether Act 109, which amended La.R.S. 47:33, a state income tax statute that provides a credit to taxpayers for income taxes paid in other states, violates the dormant Commerce Clause of the United States Constitution.

For the reasons hereinafter set forth, we conclude that Act 109, which amended La.R.S. 47:33, violates the dormant Commerce Clause of the United States Constitution. Consequently, the judgment of the district court is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

Taxpayers own an interest in several LLCs and S corporations (the "Pass-Through Entities") that transact business in Texas, Arkansas, and Louisiana. Taxpayers, Louisiana residents, paid 2015 Texas franchise taxes in the amount of $23,180.00, representing the amount of taxes based on the Pass-Through Entities' Texas-sourced income. Taxpayers were also subject to the Louisiana income tax on all of the income they derived both outside and inside Louisiana. The Department denied Taxpayers the credit they claimed against their 2015 Louisiana income tax for the franchise taxes they paid to the state of Texas; thus, Taxpayers paid $23,180.00, the amount of credit against Louisiana income tax to which Taxpayers would have been entitled absent Act 109, under protest, and then filed a Petition for Refund of Tax Paid Under Protest. The subject of the protest is the disallowance of the credit for taxes paid to Texas as a result of Act 109.

In the Petition for Refund of Tax Paid under Protest, Taxpayers alleged that Act 109 limits the availability of credits for income taxes paid to other states. Pursuant to Act 109, credits are only available for income taxes paid to a state that offers a reciprocal credit to that state's own residents who transact business in Louisiana. Texas does not offer such a credit; thus, Act 109 denies a credit to Louisiana residents who transact business in Texas. Taxpayers asserted in the district court that the reciprocal credit requirement of Act 109 is unconstitutional as it violates the dormant Commerce Clause by subjecting them to multiple taxation. Taxpayers prayed that Act 109 be declared unconstitutional and that the taxes paid in accordance with Act 109 be refunded with interest as provided by law.

In the district court, Taxpayers filed a Motion for Summary Judgment on the issue of the unconstitutionality of Act 109 and their entitlement to a refund of the taxes paid under protest. Taxpayers argued that Act 109 is unconstitutional because the Texas franchise tax imposes a tax on income, and Taxpayers would be entitled to a credit for the amount of Texas franchise taxes paid absent Act 109. Additionally, because Act 109 levels a double tax on interstate income, but not intrastate income, it violates the dormant Commerce Clause.

The Department opposed Taxpayers' Motion for Summary Judgment, arguing that the Texas franchise tax is not a tax on net income because it contains both a net income component and a net capital component, which are not divisible. Relative to the dormant Commerce Clause, the Department denied that Act 109 burdens interstate commerce because it is within the state's power to regulate state income tax.

Following a hearing, the district court reasoned that the First Circuit Court of Appeal in Perez v. Secretary of Louisiana Department of Revenue & Taxation, 98-330 (La.App. 1 Cir. 3/8/99), 731 So.2d 406, writ denied, 99-951 (La. 6/4/99), 743 So.2d 1256, had already addressed and affirmatively concluded that the Texas franchise tax was an income tax under Louisiana law; thus, it was settled law and binding on the court. Further, the district court concluded that the United States Supreme Court decision in Comptroller of Treasury of Maryland v. Wynne, --- U.S. ----, 135 S.Ct. 1787, 191 L.Ed.2d 813 (2015), was dispositive of the constitutional issue raised. The district court found the resolution to be "straightforward," given the holdings of Perez and Wynne. For these reasons, the district court granted Taxpayers' Motion for Summary Judgment, declared Act 109 unconstitutional, and rendered judgment in favor of Taxpayers for $23,180.00, plus interest as provided by law.

The Department, pursuant to Louisiana Constitution Article V, § 5 (D), directly and suspensively appealed the district court judgment to this Court.

LAW AND ANALYSIS

Act 109

Prior to 2015, a Louisiana taxpayer who derived income from another state, and who paid net income taxes on that income in that other state, received a full credit for the payment of out-of-state taxes pursuant to La.R.S. 47:33. Prior to 2015, La.R.S. 47:33 provided in pertinent part:

A. Subject to the following conditions, resident individuals shall be allowed a credit against the taxes imposed by this Chapter for net income taxes imposed by and paid to another state on income taxable under this Chapter, provided that:

(1) The credit shall be allowed only for taxes paid to the other state on income which is taxable under its law irrespective of the residence or domicile of the recipient.

In 2015, the Louisiana legislature adopted Act 109, which amended La.R.S. 47:33. Act 109 amended La.R.S. 47:33(A)(4) through (6) to provide:

A. Subject to the following conditions, resident individuals shall be allowed a credit against the taxes imposed by this Chapter for net income taxes imposed by and paid to another state on income taxable under this Chapter, provided that:

....

(4) The credit shall be allowed only if the other state provides a similar credit for Louisiana income taxes paid on income derived from property located in, or from services rendered in, or from business transacted in Louisiana.

(5) The credit shall be limited to the amount of Louisiana income tax that would have been imposed if the income earned in the other state had been earned in Louisiana.

(6) The credit shall not be allowed for income taxes paid to a state that allows a nonresident a credit against the income taxes imposed by that state for taxes paid or payable to the state of residence.

As a result of the 2015 amendment to La.R.S. 47:33, a Louisiana taxpayer is allowed to take a credit for out-of-state taxes paid on income earned out of state only if that other state's tax laws provide a reciprocal credit for residents of that state who earn income in Louisiana. Further, even if a reciprocal credit exists, the credit is limited to the amount the taxpayer would have paid in Louisiana taxes.

Motion for Summary Judgment

12 In this case, the district court's ruling was pursuant to Taxpayers' Motion for Summary Judgment. La.Code Civ.P. art. 966. Summary judgments are reviewed de novoon appeal, with the reviewing court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966 ; Louisiana Safety Ass'n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass'n, 09-23, p. 5 (La. 6/26/09), 17 So.3d 350, 353. In this case, there are no material issues of fact in dispute. We are called upon to interpret the law at issue. Questions of law are reviewed de novo, without any deference to the legal conclusions reached by the district court, as this court is the ultimate arbiter of the meaning of laws of this state.

Jackson v. City of New Orleans, 12-2742, 12-2743, p. 6 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014), (citing Catahoula Par. Sch. Bd. v. Louisiana Mach. Rentals, LLC., 12-2504, p. 9 (La. 10/15/13), 124 So.3d 1065, 1071 ).

Louisiana Revised Statutes 47:33

3 The initial inquiry is whether the Taxpayers' payment of the Texas franchise tax is a "net income tax[ ] imposed by and paid to another state[,]" pursuant to La.R.S. 47:33(A). As recognized by the district court, this precise issue was decided by the First Circuit Court of Appeal in the case of Perez, 731 So.2d 406, which held that Texas franchise tax paid by an S corporation is a net income tax paid by individual shareholders of the S corporation, and that such shareholders are entitled to a credit for the tax paid to Texas against their Louisiana tax liability.

The taxpayers in Perez were Louisiana residents and sole shareholders of a Louisiana S corporation. The Perezes filed a Louisiana individual income tax return and claimed a credit under La.R.S. 47:33 for Texas franchise taxes paid by their S corporation to Texas. The Department denied their claim and argued that the credit is allowed only for net income taxes paid to another state and that the Texas franchise tax was not an income tax. The Department also argued that the credit was not allowed because the S corporation paid the tax, the Perezes did not. The court of appeal concluded that the Texas franchise tax, "to the extent it was imposed on an income base, is a net income tax imposed by and paid to another state on income also taxable under Louisiana's income tax laws, as required for the application of [La.R.S.] 47:33." Perez, 731 So.2d at 408-09. The court of appeal also held that "the fact that the Corporation paid the Texas tax does not prevent the tax from being available to an individual taxpayer for a credit pursuant to [La.R.S.] 47:33." Id.at 409.

Notably, the Department acquiesced in the Perez decision in its Statement of Acquiescence No. 03-001 issued September 10, 2003. Therein, the Department concluded that "[t]axes on net income paid by an S corporation shall be considered taxes on net income paid by shareholders of the S corporation for purposes of computing the credit allowed under [La.R.S.] 47:33."

4 The Department now reverses its position and currently asserts that the Texas franchise tax is not an income tax pursuant to La.R.S. 47:33 and that the district court erred in relying on Perez and concluding to the contrary. First, the Department urges that the district court reached its erroneous conclusion by failing to recognize that the credit granted by La.R.S. 47:33 must be strictly construed against the Taxpayers. The Department claims that not only did the Perez decision fail to adhere to the rule of strict construction, but it also failed to cite the Texas Constitution, which forbids the imposition of an income tax absent voter referendum. Moreover, the Department now rejects Perez, as that decision predates the revisions to the Texas franchise tax in 2006; therefore, it contends that Perez did not analyze La.R.S. 47:33 after its 2015 amendment in relation to the Texas franchise tax provisions after its 2006 revisions.

The Department's initial argument is that Taxpayers in this case are not entitled to claim the credit because, strictly construing La.R.S. 47:33(A), the Texas franchise taxes paid are not "net income taxes imposed by and paid to another state[.]" The Department argues that because it is not an income tax, Taxpayers are not entitled to the credit under the plain language of La.R.S. 47:33 ; thus, the district court erred in deciding the constitutionality issue. Instead, the Department maintains that this Court may resolve this matter solely on the basis that the Taxpayers do not qualify for the credit on statutory grounds.

Since the Perez decision in 1999, which holding the Department acquiesced in since 2003, a Louisiana taxpayer who paid the Texas franchise tax on income derived from sources in Texas has been entitled to claim a credit for those taxes paid against its Louisiana tax liability. Indeed, even after Texas revised its franchise tax provisions, the Department did not revoke or modify its Statement of Acquiescence, and it made no change in its position relative to a taxpayer's entitlement to a credit. The Department now reverses its longstanding position and asserts that the Texas franchise tax is not an income tax pursuant to La.R.S. 47:33. We find no merit in this contention.

The Perez court correctly held that the Texas franchise tax is a tax on net income, applying the test established by this Court in City of New Orleans v. Scramuzza, 507 So.2d 215 (La.1987). In Scramuzza, 507 So.2d at 218, this Court held that the "[c]lassification of a tax must be determined by its operational effect rather than by the descriptive language used in drafting the enactment." Perez recognized that "in classifying a tax[,] the operational and consequential effect of the tax must be given paramount consideration." Perez, 731 So.2d at 408 (citing Scramuzza, 507 So.2d at 219 ). Pursuant to Scramuzza, the Perez court concluded that the "operational effect" of the Texas franchise tax was to tax the income of the corporation. Perez, 731 So.2d at 408.

In considering the current version of the Texas franchise tax, the relevant inquiry remains whether the operational and consequential effect of the law is to impose a tax on income that is subject to the Louisiana income tax. Scramuzza, 507 So.2d 215. Therefore, we must examine the current version of the Texas franchise tax.

In its current form, the Texas franchise tax uses a three-step calculation to arrive at a "taxable margin." Tex. Tax Code § 171.101. Step one of the calculation begins with a taxpayer's gross receipts; from the gross receipts, the taxpayer deducts certain amounts for returns and other allowances. Tex. Tax Code §§ 171.101 ; 171.1011. Secondly, the Texas tax code allows for additions or deductions to arrive at a "total revenue" figure. Tex. Tax Code §§ 171.101 ; 171.1011. The amount of "total revenue" is the figure used for the third step of the calculation. In the final step, the taxpayer uses one of four alternative methods to determine the "taxable margin": (1) seventy percent of the "total revenue"; (2) "total revenue" minus $1,000,000.00; (3) "total revenue" minus wages; or, (4) "total revenue" minus cost of goods sold. Tex. Tax Code § 171.101. Once the "taxable margin" is derived, the taxpayer then apportions that amount and takes other allowable deductions. Tex. Tax Code §§ 171.106 ; 171.107-09.

Considering the manner in which the current Texas franchise tax is calculated, it is still essentially imposed on an income basis. The Perez court opined that "the Texas tax, to the extent it was imposed on an income base, is a net income tax imposed by and paid to another state on income also taxable under Louisiana's income tax laws, as required for the application of [La.R.S.] 47:33." Perez, 731 So.2d at 408-09. The sole question, as espoused in Scramuzza, is whether the operational and consequential effect means that the tax can be fairly classified as a tax on net income. The Perez court correctly determined that it did, and we conclude that the revisions to the Texas franchise tax in 2006 did not change this result. The current version of the Texas franchise tax begins with revenue, applies the three-step calculation, and taxes income that is also taxable under Louisiana law. For these reasons, like the franchise tax prior to 2006, the Texas franchise tax post 2006 is a net income tax for purposes of La.R.S. 47:33.

In addition to finding that the Texas franchise tax was a net income tax, Perez also addressed the fact that the payment of that tax was made by a pass-through entity doing business in Texas, but the credit was being claimed by individual shareholders of the S corporation stating:

The Department contends that the credit cannot be given to the Perezes for a tax liability owed and paid by the Corporation. There is no statutory requirement that the tax be imposed on the individual shareholders of an "S" Corporation or that the shareholders have personal liability for the tax in order for the credit to be allowed. [La.R.S.] 47:33 does not require that the tax paid to the other state be imposed on or paid by the individual taxpayer. As long as a net income tax of another state is "paid" to that other state on income also taxable by Louisiana, a credit is allowed. Therefore, the fact that the Corporation paid the Texas tax does not prevent the tax from being available to an individual taxpayer for a credit pursuant to [La.R.S.] 47:33.

Perez, 731 So.2d at 409. We agree and reiterate that the Department acquiesced in this holding stating in its Statement of Acquiescence No. 03-001 that "[t]axes on net income paid by an S corporation shall be considered taxes on net income paid by shareholders of the S corporation for purposes of computing the credit allowed under [La.R.S. 47:33 ]."

At present, and reversing its position, the Department now urges that it is not plausible that the Texas franchise tax imposed upon the S corporation and the LLC can be characterized as a net income tax imposed upon Taxpayers individually. Because of the legal nature and manner of taxation of S corporations and LLCs, for the shareholders or members of these pass-through entities, the operational and consequential effect is a tax on the individual taxpayer. The pass-through entity does not pay a tax on its income. To the contrary, that income is distributed to the shareholders or members, and the shareholder or member individually pays income tax on the distributions. Therefore, we find no merit to the Department's assertion that the requisite strict construction of the statute against Taxpayers results in the conclusion that it does not apply to a franchise tax imposed upon Taxpayers' Pass-Through Entities.

In its original brief to this Court, the Department relies on Graphic Packaging Corp. v. Hegar, 471 S.W.3d 138, 147 (Tex. App. Austin 2015), 538 S.W.3d 89 (Tex. 2017), wherein a Texas appellate court held "that the [Texas] franchise tax is not 'a tax imposed or measured by net income' and, therefore, that it does not fall within chapter 141's definition of an 'income tax'. SeeTex. Tax Code § 141.001, art. II.4." Relying on Graphic Packaging, the Department also seeks to distinguish the Texas franchise tax from the earnings tax addressed in Scramuzza.

First, this Court is not bound by a Texas appellate court decision interpreting a provision of a Texas statute. Second, Graphic Packaging did not address whether the franchise tax was an income tax pursuant to La.R.S. 47:33. Moreover, in affirming the appellate court, the Texas Supreme Court did not reach that conclusion, stating: "Even were we to agree with Graphic that its franchise tax for the years in question amounted to the same thing as chapter 141's income tax (an issue we do not decide) .... " Graphic Packaging, 538 S.W.3d at 96. Thus, the supreme court of Texas has not so declared.

Additionally, with respect to the Department's specific argument relative to a gross receipts tax as discussed in Graphic Packaging, we find that the district court in this case correctly referenced and relied upon the United States Supreme Court in Wynne, 135 S.Ct. 1787, as authority. In Wynne, the United States Supreme Court directly addressed the distinction between a tax on gross receipts and a tax on net income in the context of a dormant Commerce Clause analysis. The Wynne Court opined that the nature of the tax is determined by its practical effect. Specifically, the Court stated that it saw "no reason why the distinction between gross receipts and net income should matter, particularly in light of the admonition that we must consider 'not the formal language of the tax statute but its practical effect.' "

Wynne, 135 S.Ct. at 1795 (quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326 (1977) ). The Wynne Court stated:

And we have now squarely rejected the argument that the Commerce Clause distinguishes between taxes on net and gross income. See [Oklahoma Tax Comm'n v. Jefferson Lines, 514 U.S. 175, 190, 115 S.Ct. 1331, 1341, 131 L.Ed.2d 261 (1995),] (explaining that the Court in [Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633 (1948),] "understood the gross receipts tax to be simply a variety of tax on income"); Moorman Mfg. Co. v. Bair,437 U.S. 267, 280, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978) (rejecting a suggestion that the Commerce Clause distinguishes between gross receipts taxes and net income taxes); id., at 281, 98 S.Ct. 2340 (Brennan, J., dissenting) ("I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax"); Complete Auto[Transit, Inc., 430 U.S.] at 280, 97 S.Ct. 1076 (upholding a gross receipts tax and rejecting the notion that the Commerce Clause places "a blanket prohibition against any state taxation imposed directly on an interstate transaction").

Id.at. 1796 (footnote omitted).

5 For the foregoing reasons, we hold that a taxpayer's payment of Texas franchise taxes under the 2006 revisions of the Texas statutes are income taxes pursuant to the 2015 revisions of La.R.S. 47:33, as amended by Act 109. In so concluding, we reject the Department's invitation to resolve this matter on statutory grounds without reaching the constitutional question before this Court. Having found that the Texas franchise tax is income tax for purposes of La.R.S. 47:33, we must next address whether the district court erred in finding Act 109 to be unconstitutional.

The Dormant Commerce Clause

678 The Department argues that even if the Texas franchise tax is an income tax for purposes of La.R.S. 47:33, it, nevertheless, does not violate the dormant Commerce Clause. As an initial matter, we note that statutes are presumed to be constitutional; therefore, the party challenging the validity of the statute bears the burden of proving that statute to be unconstitutional. The "party challenging the constitutionality of a statute must point to a particular provision of the constitution that would prohibit the enactment of the statute, and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the statute in question." Finally, the presumption of constitutionality is especially forceful in cases involving statutes related to taxation and public finance. With these principles in mind, we now turn to the merits of the dormant Commerce Clause challenge.

"The Commerce Clause grants Congress power to 'regulate Commerce ... among the several States.' Art. I, § 8, cl. 3." Wynne, 135 S.Ct. at 1794. "Although the Clause is framed as a positive grant of power to Congress, 'we have consistently held this language to contain a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject.' " Id. (quoting Jefferson Lines, Inc., 514 U.S. at 179, 115 S.Ct. 1331 ).

9 The United States Supreme Court established a four-part test to assess the validity of state taxes under the Commerce Clause in Complete Auto Transit, Inc., 430 U.S. 274, 97 S.Ct. 1076 ("Complete Auto"). Under the Complete Auto test, a state tax on interstate commerce is upheld if the tax: (1) is applied to an activity with a substantial nexus with the taxing state; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and, (4) is fairly related to the services provided by the state. Id.at 279, 97 S.Ct. 1076, 1079. In this case, Taxpayers do not argue the absence of a substantial nexus with the state or the lack of a fair relationship to the services provided by the state. Taxpayers argue that Act 109 violates the second and third prong of the Complete Auto test pertaining to the apportionment of the tax and discrimination against interstate commerce.

The second prong of the Complete Auto test " 'ensures that each State taxes only its fair share of an interstate transaction.' " Jefferson Lines, Inc., 514 U.S. at 184, 115 S.Ct. 1331 (quoting Goldberg v. Sweet, 488 U.S. 252, 260-61, 109 S.Ct. 582, 588, 102 L.Ed.2d 607 (1989) ). In Jefferson Lines, the Supreme Court recognized that since Goldberg, it has "assessed any threat of malapportionment by asking whether the tax is 'internally consistent' and, if so, whether it is 'externally consistent' as well." Id.at 185, 115 S.Ct. 1331, 1341 (quoting Goldberg, 488 U.S. at 261, 109 S.Ct. 582 ).

In Wynne, 135 S.Ct. at 1802 (quoting Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1331 ), the Court explained the application of the internal consistency test, which " 'looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate.' " The Department contends that Act 109 meets the internal consistency test because "[i]f every state offered the same credit against income taxes as does Louisiana, all [states] would grant a credit that precisely reduced the taxpayers in-state income tax to the same amount they would pay if they earned all that income in-state." The Department argues that in such instance, "[a]ny additional tax owed by the in-state taxpayer would simply result from the higher rate charged on the income by a foreign state," and "the dormant Commerce Clause does not protect interstate commerce from a succession of taxes by differing jurisdictions." Moorman Mfg. Co., 437 U.S. 267, 98 S.Ct. 2340 ; Jefferson Lines, 514 U.S. 175, 115 S.Ct. 1331.

10 As stated hereinabove, even if a tax is internally consistent, it must also meet the second component of fair apportionment, i.e., external consistency. Jefferson Lines, 514 U.S. at 184, 115 S.Ct. 1331.

External consistency looks to "the economic justification for the State's claim upon the value taxed, to discover whether a State's tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State." Id.at 185, 115 S.Ct. 1331, 1341 (citing Goldberg, 488 U.S. at 262, 109 S.Ct. 582 ). "[T]he threat of real multiple taxation (though not by literally identical statutes) may indicate a State's impermissible overreaching." Id.

11 Taxpayers argue that Act 109 fails the fair apportionment test because its tax liability does not reasonably reflect how and where Taxpayers' income is generated. Act 109 fails to fairly apportion the tax according to each state's relation to the income. Since no credit is given with respect to the taxes paid on income earned from sources in Texas, Taxpayers maintain that Act 109 fails to apportion the out-of-state income in the first instance. Not only is it not apportioned, it creates the potential for multiple taxation of the same income. We agree with Taxpayers that Act 109 fails the external consistency test.

12 The third prong of the Complete Auto test addresses whether the state tax discriminates against interstate commerce. "A State may not 'impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business.' " Jefferson Lines, 514 U.S. at 197, 115 S.Ct. 1331 (quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 362, 3 L.Ed.2d 421 (1959) ). "Thus, States are barred from discriminating against foreign enterprises competing with local business ... and from discriminating against commercial activity occurring outside the taxing State[.]"Id. (citations omitted).

13 The Department states that there is no discrimination in this case because it has repeatedly been acknowledged by the United States Supreme Court that interstate commerce can be subject to a myriad of different taxes as it moves through the distribution chain. The Department then makes the conclusory statement that "the imposition of Louisiana income tax and Texas franchise tax to the Taxpayers' interstate activity does not discriminate against interstate commerce or violate the dormant Commerce Clause." However, under the third prong of Complete Auto, the inquiry is whether the tax discriminates by disparate treatment between interstate and intrastate commerce.

Taxpayers maintain that Act 109 discriminates against interstate commerce in two ways. First, the amended language of La.R.S. 47:33(A)(4) exposes one hundred percent of the interstate income of Louisiana residents to double taxation. By virtue of their ownership in the Pass-Through Entities, which earned income was derived from sources in Texas, Taxpayers paid taxes on income from Texas sources. Additionally, since Texas has no reciprocal credit provision, Act 109 does not allow a credit to Taxpayers on their Louisiana income taxes for the income taxes they paid on the revenue earned from Texas sources. Therefore, in this case, Taxpayers are paying income tax twice on their interstate income. However, on income earned in Louisiana, Taxpayers pay only the Louisiana income tax.

Additionally, Taxpayers state that La.R.S. 47:33(A)(5) provides another provision for the double taxation of a portion of a Louisiana resident's interstate income. The amended language now provides that even if a state offers a reciprocal credit (thereby satisfying the requirement of La.R.S. 47:33(A)(4) ), the amount of the credit is limited to the amount of Louisiana income tax a taxpayer would have paid if the income had been earned in Louisiana. Therefore, the effect is to discriminate against interstate commerce by twice taxing a portion of a taxpayer's out-of-state income.

We agree with Taxpayers that Act 109 results in the double taxation of interstate income as compared with the taxation of intrastate income. This disparate treatment impermissibly discriminates against interstate commerce, and it fails the third prong of the Complete Auto test. Our conclusion herein is supported by the reasoning and holding in Wynne.

As stated above, the district court found Wynne to be dispositive on the issue of the constitutionality of Act 109. We likewise find Wynne instructive and applicable herein. Not only did Wynne eliminate any question regarding the distinction between taxes on net and gross income, as in the instant matter, but it also involved the potential tax liability of shareholders of an S corporation and whether the Maryland tax law violated the dormant Commerce Clause.

As analyzed in Wynne, 135 S.Ct. 1787, Maryland imposed an income tax on its residents for income earned inside and outside Maryland, which was composed of a state income tax and a county income tax. If a Maryland resident paid income tax to another state for income earned there, Maryland allowed the taxpayer a credit against the state portion of the tax paid to the other state, but not the county portion of the tax. According to the Maryland tax scheme, income of nonresidents was also taxed in two parts. Nonresidents were required to pay the Maryland state income tax on all income that was earned from sources within Maryland. Nonresidents, not subject to the county tax, were required to pay a "special nonresident tax" in lieu of the county tax. Wynne, 135 S.Ct. at 1792. The "special nonresident tax" was levied on income earned from sources within Maryland. Maryland did not tax the income of nonresidents earned from sources outside Maryland. Id.

The taxpayers in Wynne were Maryland residents who owned stock in an S corporation, which earned income and filed state income tax returns in multiple states. The taxpayers earned pass-through income from the S corporation. When filing their Maryland tax returns, the Wynnes claimed an income tax credit for the income taxes paid to other states. The Maryland Comptroller of the Treasury allowed the credit only for the state portion of the income tax and disallowed the credit for the county income tax.

The Wynne court addressed whether Maryland's taxation on income was a violation of the dormant Commerce Clause. Reasoning that the dormant Commerce Clause prohibits states from discriminating against interstate commerce by subjecting it to a higher tax that would be collected if the commerce were solely intrastate, the Court stated:

Under our precedents, the dormant Commerce Clause precludes States from "discriminat[ing] between transactions on the basis of some interstate element." Boston Stock Exchange v. State Tax Comm'n,429 U.S. 318, 332, n. 12, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). This means, among other things, that a State "may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State." Armco Inc. v. Hardesty,467 U.S. 638, 642, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984). "Nor may a State impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, or by subjecting interstate commerce to the burden of 'multiple taxation.' " Northwestern States Portland Cement Co. v. Minnesota,358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) (citations omitted).

Id.at 1794. Addressing Maryland's particular tax provisions, the Court stated:

This case involves the constitutionality of an unusual feature of Maryland's personal income tax scheme. Like many other States, Maryland taxes the income its residents earn both within and outside the State, as well as the income that nonresidents earn from sources within Maryland. But unlike most other States, Maryland does not offer its residents a full credit against the income taxes that they pay to other States. The effect of this scheme is that some of the income earned by Maryland residents outside the State is taxed twice. Maryland's scheme creates an incentive for taxpayers to opt for intrastate rather than interstate economic activity.

Id.at 1792.

The Wynne Court discussed tax schemes it had previously found to be unconstitutional because they "had the potential to result in the discriminatory double taxation of income earned out of state and created a powerful incentive to engage in intrastate rather than interstate economic activity." Id.at 1801-02. Although it did not use the term in those decisions, the Court recognized that it "held that those schemes could be cured by taxes that satisfy what [it has] subsequently labeled the 'internal consistency' test." Id.at 1802 (quoting Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1331 ). After conducting the internal consistency test, the United States Supreme Court concluded that "Maryland's income tax scheme fails the internal consistency test."Id.at 1803 (footnote omitted).

In reaching its ultimate conclusion, the Wynne Court explained that "[t]he critical point is that the total tax burden on interstate commerce is higher, not that Maryland may receive more or less tax revenue from a particular taxpayer." Id.at 1805. Further, "[t]hat Maryland's existing tax unconstitutionally discriminates against interstate commerce is enough to decide this case." Id.at 1806. For these reasons, the Supreme Court held that Maryland's tax scheme violated the federal constitution.

Like the effect of Maryland's tax scheme, Act 109's failure to provide a credit results in the double taxation of income that is earned outside Louisiana, i.e., interstate commerce, but not intrastate income. Because the income, if earned in Louisiana, would only be taxed once, Act 109 "creates an incentive for taxpayers to opt for intrastate rather than interstate economic activity" which, pursuant to Wynne, is violative of the dormant Commerce Clause. Wynne, 135 S.Ct. at 1792. Louisiana residents who earn interstate income are forced into double taxation on all or a portion of their interstate income, whereas Louisiana residents with only intrastate income are not. This tax scheme impermissibly discriminates against interstate commerce and violates the dormant Commerce Clause of the United States Constitution. For the above reasons, we hold herein that Act 109 is unconstitutional.

CONCLUSION

We find that the Taxpayers' payment of the franchise tax under the 2006 revisions to Texas' franchise tax provisions are income taxes paid to another state pursuant to the 2015 revisions of La.R.S. 47:33. Further, we hold that Act 109 is unconstitutional, as it is in violation of the dormant Commerce Clause of the United States Constitution.

DECREE

For the reasons stated herein, we affirm the judgment of the district court in its entirety.

AFFIRMED.

PER CURIAM:

Defendant, Kimberly L. Robinson, in her capacity as Secretary of the Department of Revenue of the State of Louisiana, has filed an application for rehearing relative to this Court's opinion affirming the district court's declaration of unconstitutionality of 2015 La. Acts No. 109 ("Act 109"). After review and full consideration of said application, we hereby grant rehearing for the sole purpose of clarifying this Court's opinion.

This matter came before this Court solely on the issue of the district court's declaration of unconstitutionality of Act 109 in its entirety. In addressing the constitutionality, vel non, of Act 109, the focus was solely on whether or not the act created an impermissible double taxation. This Court's opinion found that Act 109, taken as a whole, did in fact create an impermissible double taxation in that it impermissibly discriminated against interstate commerce in violation of the dormant Commerce Clause of the United States Constitution. The issue of severability of the various subparts of Act 109, vis-à-vis the constitutionality of the act as a whole, was neither raised nor addressed until this application for rehearing was filed.

Upon this Court's review of the issue of severability within the act, we find that only La.R.S. 47:33(A)(4), and not any other part or portion of the act, creates the prohibited double taxation. Thus, we modify and amend this Court's original opinion to reflect an affirmation of the district court's finding of unconstitutionality of Act 109 as it pertains to La.R.S. 47:33(A)(4) only, and we do not rule upon the unaddressed issue of any other portions of the act, particularly, La.R.S. 47:33(A)(5) and (A)(6). Therefore, the CONCLUSION and DECREE, set forth in the slip opinion at page 21, is modified and amended as follows:

CONCLUSION

We find that the Taxpayers' payment of the franchise tax under the 2006 revisions to the Texas franchise tax provisions constitute income taxes paid to another state pursuant to the 2015 revisions of La.R.S. 47:33. Further, we hold that La.R.S. 47:33(A)(4) of 2015 La. Acts No. 109 is unconstitutional, as it constitutes a double taxation and is thus in violation of the dormant Commerce Clause of the United States Constitution.

DECREE

For the reasons stated herein, we affirm the district court judgment declaring 2015 La. Acts No. 109 unconstitutional only as to La.R.S. 47:33(A)(4) and no further.

AFFIRMED AS AMENDED .

WEIMER, J., dissenting in part.

I agree that the Department of Revenue's application for rehearing should be granted. However, I believe that this matter should be docketed to fully explore the issues presented on rehearing, particularly whether La. R.S. 47:33(A)(5) of 2015 La. Acts 109 violates the dormant commerce clause.

      Retired Judge Freddie Pitcher, Jr., assigned as Justice ad hoc, sitting for Crichton, J., recused.

      Louisiana Constitution Article V, § 5 (D), provides that "a case shall be appealable to the supreme court if ... a law or ordinance has been declared unconstitutional[.]"

      The Attorney General of the State of Louisiana was served with the captioned lawsuit in accordance with Louisiana Code of Civil Procedure Article 1880 and made no appearance.

      Louisiana Revised Statutes 47:1576(A)(1)(a) provides:
      Except as otherwise provided in Subsection B of this Section, any taxpayer protesting the payment of any amount found due by the secretary of the Department of Revenue, or the enforcement of any provision of the tax laws in relation thereto, shall remit to the Department of Revenue the amount due and at that time shall give notice of intention to either file suit or file a petition with the Board of Tax Appeals for purposes of recovery of such tax.

      Louisiana Revised Statutes 47:33 was again amended by 2018 La. Acts No. 6; however, said 2018 amendment to La.R.S. 47:33 has no bearing on the issues presented in this case.

      The Statement of Acquiescence contains the following language:
      A Statement of Acquiescence or Nonacquiescence (SA/SNA) is issued under the authority of LAC 61:III.101(C). It is a written statement to provide guidance to the public and to Department of Revenue employees. An SA/SNA is a written statement issued to announce the Department's acceptance or rejection of specific unfavorable court or administrative decisions. If a decision covers several disputed issues, an SA/SNA may apply to just one issue, or more, as specified. An SA/SNA is not binding on the public, but is binding on the Department unless superceded by a later SA/SNA, declaratory ruling, rule, statute, or court case.

      "[E]xemptions from taxation are to be strictly construed against the person claiming the exemption, and any plausible doubt is fatal, Mattingly v. Vial , 193 La. 1, 190 So. 313 (1939), and that an exemption being an exceptional privilege, it must be clearly, unequivocally and affirmatively established. Meyers v. Flournoy , 209 La. 812, 25 So.2d 601 (1946)." Ethyl Corp. v. Collector of Revenue , 351 So.2d 1290, 1293 (La.App. 1 Cir. 1977), writ denied , 353 So.2d 1035 (La.1978).

      At issue in Scramuzza was an earnings tax, which this Court found was an income tax because it operated to tax income. In Scramuzza , this Court reasoned that "[t]o ascertain a precise definition of an income tax would prove to be a near impossible task[,]" and that any "definition must necessarily vary to conform to the various systems of income taxation." Scramuzza , 507 So.2d at 218 (footnote omitted). This Court stated, therefore, that its task was not to provide a definition of income tax; instead, it merely had to determine if the earnings tax should be classified as an income tax. This Court recognized that an "[i]ncome tax ... may be understood both technically and in more general terms[,]" and concluded that "[a]n income tax in most generally understood terms is a tax on income." Id. at 218. This Court recently affirmed the Scramuzza test in Beer Industry League of Louisiana v. City of New Orleans , 18-280, 18-285, p. 10 (La. 6/27/18), 251 So.3d 380, 387.

      See In re Nestle USA, Inc. , 387 S.W.3d 610 (Tex.2012) (discussing the history of the Texas franchise tax on domestic and foreign corporations since 1893).

      The Department filed a supplemental brief to discuss the recent decision of Goggin v. State Tax Assessor , 191 A.3d 341 (Me. 2018). We are not persuaded by that decision wherein a Maine resident, who was a member of a New Hampshire LLC, sought Maine's tax credit for business taxes imposed by New Hampshire on the LLC. The court found that Maine's credit for income tax paid in another state did not include business taxes paid in the other state. The Goggin court noted, first, that the LLC was an out-of-state (New Hampshire) LLC; therefore, the LLC was bound by New Hampshire's tax laws, not Maine's tax laws. "Second, the term 'income tax' in Maine's statute is a term of art" that provides "a credit only for income taxes paid by individuals on income derived from other states[,]" and it did not apply to taxes imposed on business entities. Id. at 346. Thus, the Maine case is readily distinguishable.

      "Courts 'should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds.' " Burmaster v. Plaquemines Par. Gov't ., 07-2432, p. 7 (La. 5/21/08), 982 So.2d 795, 802 (quoting Ring v. State, Dep't of Transp. & Dev. , 02-1367, p. 4 (La. 1/14/03), 835 So.2d 423, 427 ).

      State v. Citizen , 04-1841, p. 11 (La. 4/1/05), 898 So.2d 325, 334 ; Louisiana Mun. Ass'n v. State , 04-227, p. 45 (La. 1/19/05), 893 So.2d 809, 842; Bd. of Comm'rs of North Lafourche Conservation, Levee & Drainage Dist. v. Bd. of Comm'rs of Atchafalaya Basin Levee Dist. , 95-1353, p. 3 (La. 1/16/96), 666 So.2d 636, 639.

      Fruge v. Bd. of Tr. of Louisiana State Emp.'s Ret. Sys. , 08-1270, pp. 5-6 (La. 12/2/08), 6 So.3d 124, 128 (citing World Trade Ctr. Taxing Dist. v. All Taxpayers, Property Owners , 05-374, p. 12 (La. 6/29/05), 908 So.2d 623, 632 ; Caddo-Shreveport Sales & Use Tax Comm'n v. Office of Motor Vehicles Dep't of Pub. Safety & Corr. of the State , 97-2233, pp. 5-6 (La. 4/14/98), 710 So.2d 776, 779 ; Polk v. Edwards , 626 So.2d 1128, 1132 (La.1993) ).

      Beer Indus. League of Louisiana , 251 So.3d at 386 (citing Caddo-Shreveport Sales & Use Tax Comm'n , 710 So.2d at 779 ); Bd. of Dirs. of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, and Citizens of State of Louisiana , 529 So.2d 384, 387 (La.1988).

      The Department quotes the following language from Jefferson Lines, Inc. , 514 U.S. at 187-88, 115 S.Ct. 1331 :
      In deriving this rule covering taxation to a buyer on sales of goods we were not, of course, oblivious to the possibility of successive taxation of related events up and down the stream of commerce, and our cases are implicit with the understanding that the Commerce Clause does not forbid the actual assessment of a succession of taxes by different States on distinct events as the same tangible object flows along. Thus, it is a truism that a sales tax to the buyer does not preclude a tax to the seller upon the income earned from a sale, and there is no constitutional trouble inherent in the imposition of a sales tax in the State of delivery to the customer, even though the State of origin of the thing sold may have assessed a property or severance tax on it. See [McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 53, 60 S.Ct. 388, 396, 84 L.Ed. 565 (1940) ]; cf. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981) (upholding severance tax on coal mined within the taxing State). In light of this settled treatment of taxes on sales of goods and other successive taxes related through the stream of commerce, it is fair to say that because the taxable event of the consummated sale of goods has been found to be properly treated as unique, an internally consistent, conventional sales tax has long been held to be externally consistent as well.

      J.D. Adams Mfg. Co. v. Storen , 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365 (1938) ; Gwin, White & Prince, Inc. v. Henneford , 305 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272 (1939) ; Central Greyhound Lines, Inc. v. Mealey , 334 U.S. 653, 68 S.Ct. 1260, 92 L.Ed. 1633 (1948). The Wynne Court explained "[o]ur existing dormant Commerce Clause cases all but dictate the result reached in this case[.]" Wynne , 135 S.Ct. at 1794.

      Retired Judge Freddie Pitcher, Jr., assigned as Justice ad hoc, sitting for Crichton, J., recused.


author: PER CURIAM:

text:
    Ricky BRUCE v. Darrel VANNOY, Warden
    No. 2018-KP-1422
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES
   PER CURIAM:

Denied. Relator fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the court of appeal's denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

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 of Louisiana v. Darrell GEORGE
    No. 2018-KH-0667
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant fails to show that 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).

Applicant 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. Applicant'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, applicant 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 of Louisiana v. Leon WILLIAMS
    No. 2018-KH-0658
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Denied. Applicant 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. Applicant'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.

Applicant 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. Applicant'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, applicant 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 of Louisiana v. Robert Latroy WHITE
    No. 2018-KH-0616
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. Applicant'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. The application is also repetitive. La.C.Cr.P. art. 930.4

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE of Louisiana v. David Jerome MANNING, Jr.
    No. 2018-KH-0614
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Christine Yvonne VOELKEL
    NO. 2019-B-0344
    Supreme Court of Louisiana.
    March 8, 2019
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Christine Yvonne Voelkel, Louisiana Bar Roll number 29469, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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


text:
    IN RE: Craig T. BROUSSARD
    NO. 2019-B-0340
    Supreme Court of Louisiana.
    March 6, 2019
    ORDER
   Considering the Joint Petition to Revoke Probation and for Interim Suspension filed by respondent, Craig T. Broussard, and the Office of Disciplinary Counsel,

IT IS ORDERED that the probation of Craig T. Broussard, Louisiana Bar Roll number 26217, is hereby revoked. It is further ordered that respondent is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


author: PER CURIAM

text:
    IN RE: Shannon Jay THOMAS
    NO. 2019-B-0230
    Supreme Court of Louisiana.
    March 18, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent was arrested and charged with simple battery. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Shannon Jay Thomas, Louisiana Bar Roll number 25522, be and he hereby is suspended from the practice of law for a period of one year and one day, retroactive to December 20, 2018, the date of his interim suspension.

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