author: COHEN, C.J.

text:
    Jonathan KINNEY, Appellant, v. PUTNAM COUNTY CANVASSING BOARD BY AND THROUGH its members Nancy HARRIS, Elizabeth Ann Morris, Charles L. Overturf III, and Homer D. Deloach III, Candidate for Putnam County Sheriff, Appellees.
    Case No. 5D17-1737
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 14, 2018
    Zachery Lucas Keller, of Keller Legal, Palatka, for Appellant.
    Charles T. Douglas, Jr., of Douglas & Hedstrom, P.A., Palatka, and Christopher W. LoBianco, of Douglas & Hedstrom, P.A., Jacksonville, for Appellee, Homer D. DeLoach lll.
    John T. LaVia lll, of Gardner, Bist, Bowden, Bush, Dee, LaVia & Wright, P.A., Tallahassee, and Ronald A. Labasky, of Brewton Plante, P.A., Tallahassee, for Appellee, Putnam County Canvassing Board.
    No Appearance for other Appellees.
   COHEN, C.J.

In 2016, Homer DeLoach and Jonathan Kinney ran for the office of Sheriff of Putnam County ("the office"). The initial results indicated that Kinney received 18 more votes than DeLoach, but because the margin of victory was within one half of a percentage point, a mandatory recount of the ballots was triggered pursuant to section 102.141(7), Florida Statutes (2016). Following the recount, the Putnam County Canvassing Board ("the Board") declared DeLoach the winner of the office by 16 votes.

Kinney filed an election contest complaint against the Board and DeLoach pursuant to section 102.168, alleging that the election result was placed in doubt due to the Board's misconduct and the casting of illegal votes. Kinney's requested relief included invalidating the certified results of the election, ousting DeLoach, and finding that Kinney established his right to the office, or alternatively, declaring a vacancy of the office. Following discovery, the parties filed a joint pre-trial stipulation limiting the issue to be tried to the alleged "[r]eceipt of a number of illegal votes ... sufficient to change or place in doubt the result of the election." See § 102.168(3)(c), Fla. Stat. The stipulation listed 42 registered voters identified post-election who were potentially ineligible to vote or to have their ballots counted in the election.

Those 42 votes fell into 6 categories: 32 votes by individuals allegedly adjudicated guilty of felonies without their civil rights having been restored ("convicted felons"); 1 vote by an individual allegedly adjudicated mentally incompetent; 3 votes by non-residents of Putnam County; 3 votes by individuals who died before their mail-in ballots were received and counted by the Putnam County Supervisor of Elections ("the Supervisor"); 2 votes by individuals whose ballots were timestamped after the close of voting; and 1 vote by an individual who voted in 2 states.

At trial, the parties entered into evidence several joint exhibits which included unofficial and official election results, conviction records, ballot certificates, death certificates, voter applications, and the depositions of 5 identified voters. The Supervisor then testified regarding the procedures in place to identify ineligible voters. The process begins with information from the Division of Elections, a division of Florida's Department of State ("the Department"). The Department is tasked with maintaining a "single uniform, official, centralized, interactive, computerized, statewide voter registration system" ("the system"). Id. §§ 98.035, 98.075(1).

The Department receives information from several other agencies regarding the potential ineligibility of a voter, and if the Department determines that the information is credible, it informs county supervisors of elections, who, in turn, initiate the removal of the ineligible voters from the system as provided in section 98.075(7). County supervisors are responsible for determining a voter's eligibility based on any information provided by the Department at the time the voter registers to vote. Id. § 98.045. Here, neither the Supervisor nor the Board had any knowledge upon registration, on Election Day, or during the subsequent recount of any potential issues with votes cast regarding 5 of the 6 categories. The Supervisor was, however, aware of the possibility that 3 non-residents voted in Putnam County.

Following trial, the court entered final judgment in favor of the Board and DeLoach, finding that Kinney failed to prove that a sufficient number of illegal votes rendered the election result doubtful and that he had a right to the office. Specifically, the court reasoned that because only 10 of the identified voters (namely, the convicted felons) had been removed from the system as of trial, DeLoach's margin of victory merely fell from 16 to 6. The court also noted the lack of evidence regarding for whom the identified voters cast their ballots, if they even voted for the office, as insufficient to cast doubt on the election result. This appeal followed.

"An election should not be set aside unless a court finds substantial non-compliance with a statutory election procedure and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters." Fouts v. Bolay, 795 So.2d 1116, 1118 (Fla. 5th DCA 2001) (citing Beckstrom v. Volusia Cty. Canvassing Bd., 707 So.2d 720 (Fla. 1998) ). Under section 102.168(3)(c), the burden of establishing reasonable doubt in the election result fell on Kinney. The trial court found he failed to carry that burden and we agree. In affirming, we find only 2 of the 6 categories of votes challenged by Kinney merit discussion.

The Supervisor and the trial court found the 3 votes by individuals who no longer resided in Putnam County were proper under section 101.045. We disagree. That section provides:

A person is not permitted to vote in any election precinct or district other than the one in which the person has his or her legal residence and in which the person is registered. However, a person temporarily residing outside the county shall be registered in the precinct in which the main office of the supervisor, as designated by the supervisor, is located when the person has no permanent address in the county and it is the person's intention to remain a resident of Florida and of the county in which he or she is registered to vote.

§ 101.045(1), Fla. Stat. The general rule is that individuals who reside outside a county are ineligible to vote in that county's elections. However, there is an exception that allows individuals who are temporarily living outside the county but who intend to remain residents of the county to vote in that county's elections. While not an exhaustive list, the exception encompasses scenarios such as voters who are living outside the county because of school, employment, health care, or similar temporary situations. The essence of the exception is the non-permanent nature of the situation that causes a voter's absence from the county.

In the instant case, a married couple sold their home in Putnam County in 2015 and retired to North Carolina. Despite their relocation to North Carolina, the couple voted in Putnam County during the 2016 General Election. The couple testified in deposition that while it was possible they might return to Putnam County in the future, they had no specific plan to do so. The third vote was cast by an individual who was born and raised in Putnam County but lived in St. Johns County since 2013. The voter's driver's license listed his parents' address in Putnam County, and he too testified in deposition that he might return to Putnam County at some point in the future.

We recognize that these 3 voters had been long-time Putnam County residents and appeared to maintain a connection to, and interest in, local politics. Nonetheless, mere interest in and a connection to a county are insufficient to allow those who reside outside a county to maintain a voice in its elections. We find the situations of these 3 voters to not be the type of temporary absence contemplated by section 101.045(1). Therefore, the Supervisor's and the trial court's determinations that those voters were eligible to vote in the election were incorrect.

The largest category of votes on which Kinney relies to support his argument to oust DeLoach from the office are the identified votes cast by alleged convicted felons. Article VI, section 4(a) of Florida's Constitution provides, "No person convicted of a felony ... shall be qualified to vote ... until restoration of [his or her] civil rights ...." Section 97.041 codifies the constitutional requirement of being a qualified voter. The legislature has provided a mechanism for identifying individuals who are ineligible to vote. See id. § 98.075. Specifically, the Department is responsible for initially identifying potentially ineligible voters. Id. § 98.075. As to convicted felons, the Department compares "information received from, but not limited to, a clerk of the circuit court, the Board of Executive Clemency, the Department of Corrections, the Department of Law Enforcement, or a United States Attorney's Office." Id. § 98.075(5). If the Department determines that the information is credible, it then notifies the Supervisor, who then proceeds with the removal process provided in section 98.075(7). Id.

The evidence is uncontroverted that the Supervisor was not notified by the Department that any of the alleged 32 convicted felons were potentially ineligible to vote upon voter registration, on Election Day, or during the recount. Had the Department notified the Supervisor of the voters' potential ineligibility, section 98.075(7) requires that the Supervisor then notify each registered voter of his or her potential ineligibility by mail within 7 days of receiving notice from the Department, give the voter 30 days to respond, hold an evidentiary hearing if requested by a voter, and give that voter an opportunity to appeal a determination of ineligibility before officially removing the voter from the system. Id. § 98.075(7).

Based on the Supervisor's testimony, as of the time of trial, 10 of the identified convicted felons who voted in the 2016 General Election were removed from the system pursuant to section 98.075(7). However, as our supreme court has noted, "[t]he rule is settled in this state that where an election is otherwise valid, it will not be held void because illegal votes were cast." State ex rel Pooser v. Wester, 126 Fla. 49, 170 So. 736, 739 (1936). Based on the statutory procedures detailed above, the trial court found that Kinney failed to meet his burden of placing the election result in doubt because the 10 identified convicted felons who were properly removed from the system only reduced DeLoach's margin of victory from 16 to 6. The court reasoned that even if Kinney identified more than 16 ineligible votes, he still did not meet his burden because no evidence was presented that the identified voters actually voted for the office, considering that 771 more votes were cast in the General Election than for the office, or for whom the voters cast their ballots if they voted for the office.

We agree. With the exception of 1 voter whose deposition was entered into evidence and who acknowledged voting for DeLoach, the record is silent as for whom, if anyone, the other 41 voters cast ballots. More importantly, on Election Day, the Supervisor had no knowledge of any ineligible or improper votes, other than those cast by the 3 non-residents, and had no legal authority to reject and not count the now-disputed votes. In contrast to the cases Kinney relies on, this election was not one in which a candidate used illegal tactics to obtain votes or election officials failed to comply with the statutory election procedures. See Fouts, 795 So.2d at 1118 (reversing final order granting quo warranto relief and ouster where evidence presented did not prove that ousted candidate "violated any applicable election procedure, much less that any non-compliance raised doubts as to whether the election reflected the will of the voters").

There must be a relatively swift procedure for certifying the results of an election, and the Supervisor and Board followed the law in carrying out that responsibility. We agree with the trial court, which entered a thorough order in this case, that ultimately, Kinney did not meet his burden of proving that the validity of the election of Putnam County Sheriff was in doubt. Accordingly, we affirm.

AFFIRMED.

LAMBERT and EDWARDS, JJ., concur.

      A third candidate, Edison Edison, also ran for the office but is not a party to this appeal.

      A total of 33,488 votes were cast in the General Election. Of that number, 32,717 were cast for the office. Therefore, 771 individuals who voted in the General Election did not vote for the office. Of the votes cast for the office, 15,869 were for DeLoach, 15,853 were for Kinney, and 995 were for Edison.

      Section 102.168 details the process for contesting an election and gives courts the authority to review contested election results.

      Kinney's argument assumes that every potentially ineligible vote was cast for his opponent.

      We find no error in the trial court's determinations regarding the 1 vote cast by an individual allegedly adjudicated mentally incapacitated, the 3 votes cast by individuals who died before their mail-in ballots were received and counted by the Supervisor, and the 2 votes timestamped after 7:00 p.m. The voters whose ballots were timestamped after the 7:00 p.m. deadline were in line at the time the polls were scheduled to close, and there was no impropriety in accepting their votes. The alleged incompetent voter and the voters who died between the time they mailed in ballots and the counting of those ballots are encompassed within the statutory analysis noted in footnote 8. See infra footnote 8.

      Florida's Constitution defines "felony" as "any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary." Art. X, § 10, Fla. Const.

      Furthermore, it is a third-degree felony for any voter to cast a ballot knowing that he or she is not a qualified voter. § 104.15, Fla. Stat.

      Section 98.075 also mandates the Department to identify voters who are ineligible because they are deceased, have been adjudicated mentally incompetent, or are otherwise ineligible to vote and provides the same removal process. Id. § 98.075(3), (4), (6).

      See Bolden v. Potter, 452 So.2d 564 (Fla. 1984) (affirming the invalidation of all absentee ballots cast in an election where evidence, which included 46 voters testifying that their votes were bought, established substantial vote-buying "so conspicuously corrupt and pervasive that it ... tainted the entire absentee voting procedure in this election"); In re Protest Election Returns & Absentee Ballots in Nov. 4, 1997 Election for Miami, Fla., 707 So.2d 1170 (Fla. 3d DCA 1998) (invalidating all absentee ballots cast in mayoral election where statistical expert testified that deviation in absentee ballot cast per district could not be explained by any normal statistical measurement, other experts testified as to illegal absentee ballots and false voter addresses, and there was evidence of stolen ballots, falsely witnessed ballots, and ballots procured by ballot brokers).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E.L., Father of E.L., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-2238
    District Court of Appeal of Florida, Fifth District.
    Decision filed September 25, 2018
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Kelley Schaeffer, of Department of Children & Families, Children's Legal Services, Bradenton, for Appellee.
    Patrick John McGinley, of Law Office of Patrick John McGinley, P.A., Winter Park, and Thomasina Moore, Statewide Director of Appeals, and Sara E. Goldfarb, Appellate Counsel, of Guardian ad Litem Program, Tallahassee, for Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED.

TORPY and BERGER, JJ., concur.

EVANDER, J., concurs, with opinion.

This is an appeal of a final judgment of termination of parental rights (TPR). Appellant does not challenge any of the trial court's findings of fact and conclusions of law. Rather, he argues that he is entitled to a new trial because the trial court failed to conduct a Nelson hearing when, at the outset of his trial, he expressed dissatisfaction with his appointed counsel. Because this issue was not preserved below, affirmance is appropriate. I write to suggest that the strict standards set forth in Nelson should not apply in termination of parental rights (TPR) cases.

In Nelson , our sister court stated:

[W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson , 274 So.2d at 258, 259 (emphasis added).

The Florida Supreme Court has expressly held that the right to counsel in TPR cases includes the right to effective assistance of counsel. J.B. v. Fla. Dep't of Children & Families , 170 So.3d 780, 785 (Fla. 2015). However, in determining the means to vindicate the right to effective assistance of counsel in TPR cases, the court recognized that the State has a stronger interest in finality than it does in criminal cases:

Although the State has a significant interest in the finality of both criminal and TPR judgments, the interest in finality is substantially heightened in the TPR context by the very important consideration that must be given to the child's interest in reaching permanency and to the harm that results when permanency is unduly delayed.

Id. at 792.

As a result, in the context of an ineffective assistance of counsel claim, the court concluded that it was not appropriate to simply transplant the standards governing criminal cases, as set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the court required "a showing of prejudice that goes beyond the Strickland requirement that confidence in the outcome is undermined." J.B. , 170 So.3d at 793. Instead, a parent must show that deficient representation so prejudiced the outcome of the TPR proceeding that "but for counsel's deficient representation the parent's rights would not have been terminated." Id. at 792.

In further recognition of the State's "substantially heightened" interest in finality in TPR cases, the court also concluded that a parent is required to file a motion alleging a claim of ineffective assistance of counsel within twenty days after a TPR judgment and, in that motion, explain how counsel's alleged ineffective representation prejudiced the parent's case "to such an extent that the result would have been different absent the deficient performance." Id. at 794.

Consistent with J.B. , I do not believe that it is appropriate simply to transplant Nelson and the body of caselaw that it has spawned into the TPR context. See J.B. , 170 So.3d at 792 ("We therefore conclude that it is not appropriate simply to transplant Strickland and the body of case law that it has spawned into the TPR context.")

First, I do not believe that a request for substitute counsel is timely, as a matter of law, simply because it occurs before the actual commencement of trial. Rather, in determining the timeliness of an indigent parent's request for substitute counsel, a trial court should consider whether the indigent parent has acted in a diligent manner in bringing his or her dissatisfaction with appointed counsel to the attention of the trial court. See In re Lillian SS. , 146 A.D.3d 1088, 45 N.Y.S.3d 640, 646 (App. Div. 2017) (holding request for substitute appointed counsel in abuse and neglect proceeding must be based on good cause; court must consider "timing of the ... request, its effect on the progress of the case and whether present counsel will likely provide ... meaningful assistance"; substitution designed to remedy impairments to effective representation, not reward truculence with delay"). For example, in the instant case, Appellant's primary complaint was that his appointed counsel erroneously advised him to consent to a case plan, which occurred almost two years prior to the filing of the TPR petition and almost two and one-half years before commencement of his trial. However, Appellant failed to bring this matter to the trial court's attention until the day of trial. Thus, I believe, this complaint was untimely.

Second, because of the state's overriding interest in providing permanency for a child, and consistent with J.B. , the parent should be required to file a post-trial, pre-appeal motion explaining how, but for the trial court's failure to appoint substitute counsel, the parent's rights would not have been terminated. Although a trial court should always make appropriate inquiry when an indigent parent makes a timely request for substitute counsel based on alleged ineffective assistance of counsel, I believe the prejudice standard to be applied when the trial court errs in failing to appoint substitute counsel should be consistent with the prejudice standard for ineffective assistance of counsel claim pronounced by the Florida Supreme Court in J.B. Here, Appellant made no effort to explain how the trial court's failure to appoint substitute counsel prejudiced him "to such an extent that the result would have been different."

For all the reasons set forth above, I believe the final judgment terminating Appellant's parental rights is properly affirmed.

      Nelson v. State , 274 So.2d 256 (Fla. 4th DCA 1973).


author: Kuntz, J.

text:
    NATIONAL MILLWORK, INC., a Florida corporation, Appellant, v. ANF GROUP, INC., a Florida corporation, and Liberty Mutual Insurance Company, a foreign corporation, Appellees.
    No. 4D18-545
    District Court of Appeal of Florida, Fourth District.
    September 26, 2018
    Marshall A. Adams and Jarad A. Gibson of Lubell & Rosen, LLC, Fort Lauderdale, for appellant.
    Laura A. Baker and Ira L. Libanoff of Ferencik Libanoff Brandt Bustamante & Goldstein, P.A., Fort Lauderdale, for appellees.
   Kuntz, J.

National Millwork, Inc. appeals an order granting ANF Group, Inc.'s motion to stay litigation and compel arbitration. National Millwork argues that portions of the arbitration clause are void because they violate public policy and that those offending portions of the agreement cannot be severed. We agree, in part, based on our conclusion that portions of the arbitration clause conflict with section 682.014, Florida Statutes (2016). But the circuit court is in a better position to determine, in the first instance, whether those portions of the agreement can be severed. Thus, we reverse, in part, and remand for further proceedings.

Background

National Millwork entered into a "Subcontract" with ANF to provide doors for construction of an assisted living facility. Claiming over $100,000 remained due on the Subcontract, National Millwork filed a complaint for breach of contract against ANF and ANF's surety, Liberty Mutual.

ANF and Liberty Mutual moved to compel arbitration and stay the litigation, relying on an arbitration clause in the Subcontract providing that "[a]ny claim, dispute or other matter in question arising out of or related to this Subcontract Agreement shall be subject to arbitration."

In response, National Millwork argued a provision in the arbitration clause rendered it void and unenforceable. Section 15.7 states that on review of an arbitration award, "the court shall be empowered to address on review any failure by the arbitrator(s) to properly apply Florida la[w] to the dispute. To the extent the arbitrator(s) or the court fail to apply the law properly, the Award of the arbitrator(s) is subject to further review through the Florida appellate process." National Millwork argued this conflicted with the Revised Florida Arbitration Code.

After a hearing, the circuit court granted the motion to compel arbitration and stay litigation. National Millwork appeals the court's order compelling arbitration.

Analysis

The Revised Florida Arbitration Code governs the confirmation, vacation, modification or correction, and appeal of an arbitration award. §§ 682.12-.14, .20, Fla. Stat. (2016).

The Subcontract purports to expand that judicial review. National Millwork argues the attempt to expand judicial review renders the arbitration provision void and unenforceable. We agree that the attempt to expand the scope of judicial review is unenforceable.

A court may vacate an arbitration award in limited and specifically enumerated situations. § 682.13, Fla. Stat. Those situations include an arbitration award "procured by corruption, fraud, or other undue means," or when there is "evident partiality," corruption, or misconduct on the part of the arbitrator. § 682.13(1)(a)-(b), Fla. Stat. An arbitration award may also be vacated when an arbitrator refuses to postpone a hearing or conducts a hearing without notice to a party, exceeds the powers given to the arbitrator, or when there was no agreement to arbitrate. § 682.13(1)(c)-(f), Fla. Stat.

Similarly, a court may modify an arbitration award when there is an imperfection in the arbitration award not affecting the merits of the decision, an evident mistake appears on the face of the award, or the award includes a matter not submitted to arbitration. § 682.14, Fla. Stat.

Considering similar provisions of the Federal Arbitration Act, the United States Supreme Court held that a party cannot expand the scope of judicial review. Hall St. Assocs., L.L.C. v. Mattel, Inc. , 552 U.S. 576, 589, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). The Supreme Court noted that the applicable sections of the Federal Arbitration Act

address egregious departures from the parties' agreed-upon arbitration: "corruption," "fraud," "evident partiality," "misconduct," "misbehavior," "exceed[ing] ... powers," "evident material miscalculation," "evident material mistake," "award[s] upon a matter not submitted"; the only ground with any softer focus is "imperfect[ions]," and a court may correct those only if they go to "[a] matter of form not affecting the merits."

Id. at 586, 128 S.Ct. 1396 (alterations in original) (quoting 9 U.S.C. §§ 10 and 11 ).

Explaining the "old rule of ejusdem generis ," the Supreme Court stated that "when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows." Id. Applying the canon, the Supreme Court held that "[s]ince a general term included in the text is normally so limited, then surely a statute with no textual hook for expansion cannot authorize contracting parties to supplement review for specific instances of outrageous conduct with review for just any legal error." Id.

In Hall Street , the Supreme Court held that the bases for modifying or vacating an arbitration award in the Federal Arbitration Act are exclusive. Id. The Revised Florida Arbitration Code includes similar language, and the Court's reasoning in Hall Street can be applied to this case. But the Florida statute also explicitly states which portions of the Arbitration Code a party cannot amend by contract.

The Revised Florida Arbitration Code prohibits varying the requirements for a petition for judicial relief, permitting provisional remedies, conferring jurisdiction, and varying the bases for appeal of an arbitration award. § 682.014(2)(a) 1., 3., 5., and 6., Fla. Stat. (2016). It also prohibits a party from waiving or agreeing to vary

(d) A party's right to seek judicial enforcement of an arbitration preaward ruling under s. 682.081;
* * *
(f) The right to confirmation of an award as provided under s. 682.12;
(g) The grounds for vacating an arbitration award under s. 682.13 ;
(h) The grounds for modifying an arbitration award under s. 682.14 [.]

§ 682.014(3)(d), (f), (g), and (h), Fla. Stat.

This prohibition is clear. A party may not expand the scope of judicial review of an arbitration agreement. As a result, here, the provision of the Subcontract seeking to do so is unenforceable.

But that does not end our inquiry. ANF and Liberty Mutual argue that even if we find the provision unenforceable, we can sever the unenforceable provision from the Subcontract.

The intent of the parties determines severability. See Shotts v. OP Winter Haven, Inc. , 86 So.3d 456, 475 (Fla. 2011) ; Gessa v. Manor Care of Fla., Inc. , 86 So.3d 484, 496-97 (Fla. 2011) (Polston, J., dissenting) (citation omitted) ("Severability has long been recognized in Florida's law of contracts and is determined by the intent of the parties."). And the Subcontract contained a detailed severability clause, which certainly is relevant to the severance analysis. See Betts v. FastFunding The Co., Inc. , 60 So.3d 1079, 1082 (Fla. 5th DCA 2011) (citing Fonte v. AT & T Wireless Servs., Inc. , 903 So.2d 1019, 1024 (Fla. 4th DCA 2005) ); VoiceStream Wireless Corp. v. U.S. Commc'ns, Inc. , 912 So.2d 34, 37 (Fla. 4th DCA 2005) (footnote omitted) ("[W]here the [ ] agreement includes a severability clause, the presence of certain unenforceable provisions in the contract does not require a finding that the arbitration agreement is unenforceable.").

But the circuit court did not address severability, and we decline to do so in the first instance. On remand, the court must determine whether the offending portions of the Subcontract were integral to the agreement to arbitrate. See, e.g. , Obolensky v. Chatsworth at Wellington Green, LLC , 240 So.3d 6, 11 (Fla. 4th DCA 2018) ; Gessa , 86 So.3d at 498 n.12 (Polston, J., dissenting) (citing Gold, Vann & White, P.A. v. Friedenstab , 831 So.2d 692, 695-97 (Fla. 4th DCA 2002) ; Harrison v. Palm Harbor MRI, Inc. , 703 So.2d 1117, 1119 (Fla. 2d DCA 1997) ).

Conclusion

We reverse the circuit court's order compelling arbitration and staying litigation and remand for further proceedings.

Reversed and remanded.

May and Forst, JJ., concur.


author: Per Curiam.

text:
    Rickie E. WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0894
    District Court of Appeal of Florida, First District.
    October 2, 2018
    Rickie E. Wilder, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant's notice, filed February 20, 2018, is untimely and ineffective to invoke the Court's jurisdiction to review the "Order Denying Defendant's Appeal," rendered September 26, 2017. See Fla. R. App. P. 9.100(c). Accordingly, this proceeding is hereby dismissed.

Osterhaus and Winsor, JJ., concur; Makar, J., concurs with opinion.

I concur, noting that Appellant's remedy, if any, is by petition for belated review filed pursuant to Florida Rule of Appellate Procedure 9.141(c).


text:
    Michael ELMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-950
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Michael Elmer, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This court issued an order on August 10, 2018, directing Appellant to show cause why sanctions should not be imposed against him in view of his having instituted numerous repetitive, meritless proceedings in this court. See State v. Spencer , 751 So.2d 47 (Fla. 1999). We have reviewed Appellant's response and determined it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his conviction and sentence imposed in Leon County case number 1995-CF-3305. The Clerk of this Court is directed to not accept any filings in this case unless they are signed by a member in good standing of the Florida Bar. Additionally, we find this appeal is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2017). We direct the clerk to forward a certified copy of this opinion to the appropriate institution or facility within the Florida Department of Corrections for disciplinary procedures pursuant to department rules.

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


text:
    Daunte OATS, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5169
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Michael Jerome Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Daunte Oats raises two issues on appeal: whether the trial court failed to conduct a competency hearing and whether Florida's 10-20-Life statute is unconstitutional as applied to juveniles. We affirm as to the second issue, but reverse and remand as to the first because it appears no competency hearing occurred. As the State concedes, a determination was made that reasonable grounds existed that Oats was not competent to proceed, but that no competency hearing occurred. We therefore reverse and remand for the trial court to conduct a nunc pro tunc competency evaluation; if one cannot be done, Oats is entitled to a new trial. See, e.g. , Brooks v. State , 180 So.3d 1094, 1096 (Fla. 1st DCA 2015).

Makar, Winokur, and Winsor, JJ., concur.


text:
    Kevin L. CHRISTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3233
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Kevin L. Christy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The "petition for writ of prohibition habeas corpus, ad prosequendum, mandamus and/or discharge" is denied on the merits. See Florida Rule of Criminal Procedure 3.191 (providing that the period for speedy trial without demand runs from the date of arrest, and the period for speedy trial upon demand runs from the date of the indictment or information). Here, even though Petitioner was incarcerated on other charges, the arrest warrant related to this case was not executed until August 28, 2018. Thus, the speedy trial period had not begun to run as Petitioner filed the demand for and notice of expiration of speedy trial and motion to discharge before that date.

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


text:
    Reginald KEITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2893
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Stacy A. Scott, Public Defender, and Julie Crews Johnson, Assistant Public Defender, Macclenny, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Any request for belated appeal must be filed by petition pursuant to Florida Rule of Appellate Procedure 9.141(c).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    Richard BRYSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2384
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Richard Bryson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b). The order appealed was rendered upon being filed with the clerk of the lower tribunal on May 1, 2018. See Fla. R. App. P. 9.020(i).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    Michael Aaron ANDERSON, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-4871
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Michael Aaron Anderson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Based on Appellee's confession of error, the Order of Dismissal is vacated and this cause is remanded for further proceedings. See Jackson v. McDonough , 28 So.3d 61 (Fla. 1st DCA 2006).

Wolf, Kelsey, and Jay, JJ., concur.


author: PER CURIAM

text:
    IN RE: Mitchel M. EVANS II
    NO. 2018-B-0976
    Supreme Court of Louisiana.
    October 8, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Mitchel M. Evans II, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1989. In 1997, respondent received an admonition for taking a recorded statement from a criminal defendant despite the defendant's attorney prohibiting same.

In 2016, we considered allegations against respondent of misconduct that occurred between 2005 and 2012. We ultimately determined that respondent neglected numerous legal matters, failed to communicate with numerous clients, failed to provide competent representation, failed to refund unearned fees, failed to provide accountings to clients, failed to reduce contingency fee agreements to writing, failed to properly supervise non-lawyer assistants, failed to keep one client's information confidential, and failed to cooperate with the ODC in two investigations. For this misconduct, we suspended respondent from the practice of law for three years, with two years deferred, followed by two years of supervised probation with conditions. In re: Evans , 16-1115 (La. 12/6/16), 218 So.3d 1015 (" Evans I "). Respondent has not sought reinstatement from this suspension; thus, he remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

UNDERLYING FACTS

By way of background, the mother of James McCoy's child filed a custody case in Louisiana in an attempt to obtain sole custody of the child. The child's mother also moved for a restraining order against James' wife, Rosalba.

In September 2015, the McCoys hired respondent to represent them in the case, paying him $1,200 for the representation. Specifically, the McCoys wanted respondent to get the case dismissed, claiming Louisiana lacked jurisdiction over the matter. The McCoys also wanted the restraining order dissolved because it jeopardized Rosalba's security clearance with the military. Furthermore, as both James and Rosalba were in the military and stationed outside of Louisiana at the time, they discussed with respondent appearing via SKYPE at the upcoming hearing to dismiss the case.

Respondent appeared in court on the McCoys' behalf on September 10, 2015 and entered into a consent judgment with opposing counsel. Despite the McCoys' wishes, the consent judgment gave sole custody of the child to the mother and maintained the restraining order. Even though respondent consented to this judgment, he apparently informed the McCoys that the judge ordered the terms of the judgment. It was not until the McCoys hired an attorney in Florida, where they were living at the time, that they learned respondent had consented to the terms of the judgment.

The McCoys provided the ODC with copies of e-mails between themselves and respondent, in which they clearly stated their wishes regarding the scope of the representation. Respondent admitted that he agreed to the consent judgment without speaking to the McCoys but alleged his actions were appropriate since the McCoys waived their appearance at the hearing. The McCoys disputed waiving their appearance and provided documentation indicating they would appear at the hearing via SKYPE. The McCoys also indicated they were happy to drive to Louisiana, if necessary, but respondent assured them they could appear via SKYPE.

The McCoys requested a refund of the unearned portion of the fee they paid respondent. However, respondent refused to refund any portion of the fee. Because of the consent judgment respondent entered into without the McCoys' knowledge or permission, Rosalba has lost her security clearance with the military and James has been denied visitation he previously enjoyed with his child.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.2(a) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

DISCIPLINARY PROCEEDINGS

In January 2017, the ODC filed formal charges against respondent. Respondent answered the formal charges, essentially denying any misconduct. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found that Rosalba and James testified consistent with the formal charges. They both testified that they sought respondent's assistance in having the case dismissed and the restraining order dissolved. The McCoys told respondent that they did not believe Louisiana had jurisdiction and that they did not want any restraining order entered. The committee also found that, in his testimony, respondent acknowledged the McCoys voiced these concerns to him. Respondent further acknowledged he entered into a consent judgment that was inconsistent with his clients' wishes. Respondent's justification for the consent judgment was his belief that he was acting in his clients' best interest and the consent judgment would allow the McCoys to have the matter reopened in another jurisdiction. Finally, while respondent testified that he informed the McCoys of the consent judgment the night after it was entered, he readily admitted that he did not discuss same with the McCoys beforehand or have their authority to enter into it.

Based on these factual findings, the committee determined that respondent violated Rules 1.1(a), 1.2(a), 1.4, 1.5(f)(5), and 8.4(a) of the Rules of Professional Conduct. The committee determined that respondent did not violate Rules 1.3, 8.4(c), or 8.4(d) because respondent informed the McCoys of his actions and reasoning shortly after the consent judgment was entered and his actions were not prejudicial to the administration of justice.

The committee then determined that respondent intentionally violated duties owed to his clients, causing actual harm to the McCoys. After considering the ABA's Standard for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

Regarding an appropriate sanction, the committee found that, if the instant charges had been included in Evans I , the sanction ordered in Evans I would have been the same. Therefore, the committee felt no additional discipline was needed because the three-year suspension, with two years deferred, followed by two years of supervised probation with conditions, as imposed in Evans I , is sufficient punishment.

Accordingly, the committee recommended no additional discipline than that which was imposed by us in Evans I . However, the committee did recommend respondent be ordered to refund the entire $1,200 fee to the McCoys.

The ODC objected to the hearing committee's report, arguing the committee erred in not finding that respondent violated Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct. The ODC also objected to the committee's failure to recommend the imposition of additional discipline upon respondent.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings are not manifestly erroneous and are supported by the record. The board agreed with the committee's conclusion that respondent violated Rules 1.1(a), 1.2(a), 1.4, 1.5(f)(5), and 8.4(a) of the Rules of Professional Conduct. However, the board disagreed with the committee that respondent did not violate Rules 8.4(c) and 8.4(d). With respect to Rule 8.4(c), the board determined that respondent lied to Rosalba about how the ruling in the consent judgment came about. The board noted that Rosalba testified respondent informed her the judge in the matter made the ruling on the custody and restraining order issues. However, several months later, in January 2016, Rosalba learned respondent had entered into a consent judgment with opposing counsel regarding those issues. Thus, the board found that respondent violated Rule 8.4(c). With respect to Rule 8.4(d), the board determined that respondent consented to issues to which his clients did not want him to consent. Accordingly, the board found that respondent violated Rule 8.4(d).

The board then determined that respondent intentionally violated duties owed to his clients, causing the McCoys actual harm. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined the baseline sanction is suspension.

In aggravation, the board found the following: a prior disciplinary record, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1989). In mitigation, the board noted only respondent's cooperative attitude toward the proceedings.

After further considering prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board also recommended respondent be ordered to provide the McCoys with a refund.

One board member dissented and would find that respondent did not violate Rule 8.4(c). She reasoned that the committee made no factual finding that respondent lied to the McCoys and that the board majority did not determine the committee's failure to find such was manifestly erroneous.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

In this matter, the record supports a finding that respondent failed to provide competent representation to his clients, took action contradictory to his clients' wishes, failed to communicate with his clients, failed to refund an unearned fee, and engaged in conduct prejudicial to the administration of justice. As such, he has violated the Rules of Professional Conduct as found by the disciplinary board, with the exception of Rule 8.4(c).

Regarding Rule 8.4(c), we agree with the assessment of the dissenting board member. The McCoys and respondent provided conflicting testimony regarding what respondent told his clients about how the consent judgment came to be. Given that the hearing committee did not make a specific factual finding that respondent lied to the McCoys and the disciplinary found no manifest error in the committee's factual findings, we cannot say the ODC proved a Rule 8.4(c) violation by clear and convincing evidence.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

Respondent's intentional misconduct violated duties owed to his clients and caused the McCoys actual harm. We agree with the committee and the board that the baseline sanction is suspension.

Aggravating factors include a prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. As the board pointed out, the only mitigating factor is respondent's cooperative attitude toward the proceedings.

In light of the above, especially respondent's intentional failure to abide by his clients' wishes, the harm this intentional conduct caused the McCoys, and the numerous aggravating factors present, the best way to protect the public is to require respondent to apply for reinstatement and obtain our permission before being allowed to return to the practice of law. As such, we find the board's recommended sanction is appropriate.

Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for one year and one day. We will also order him to refund the $1,200 fee to the McCoys.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Mitchel M. Evans II, Louisiana Bar Roll number 19322, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that respondent shall refund the $1,200 fee, plus legal interest, to James and Rosalba McCoy. 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.

      Presumably, the committee is applying the analysis of Louisiana State Bar Ass'n v. Chatelain , 573 So.2d 470 (La. 1991). In Chatelain , we observed that when the underlying conduct occurs within the same period as the misconduct forming the basis of a previous disciplinary matter, the discipline imposed should be determined as if both proceedings were before the court simultaneously. However, in the instant matter, respondent's misconduct subject of Evans I occurred between 2005 and 2012, and his misconduct in the McCoy matter did not occur until September 2015. Therefore, Chatelain is not applicable.


author: WEIMER, J., would grant.

text:
    Kristin LAURENT v. Ivan S. PREVOST
    Ivan S. Prevost v. Kristin Laurent
    No. 2018-CJ-1356
    Supreme Court of Louisiana.
    October 8, 2018
    ON WRIT OF CERTIORARI TO THE CIVIL DISTRICT COURT, PARISH OF ORLEANS
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

CRICHTON, J., additionally concurs and assigns reasons.

This court has repeatedly held that the trial court's factual conclusions are entitled to great deference. As Associate Justice Knoll aptly articulated in In re A.J.F. , 00-0948, p.26 (La. 6/30/00), 764 So.2d 47, 62 : "In manifest error review, it is important that the appellate court not substitute its opinion when it is the [trial] court who is in the unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record." Given the standard of review in this case, I agree with the decision to deny this writ.


text:
    Raven BOYANCE, et al. v. UNITED FIRE AND CASUALTY COMPANY, et al.
    No. 2018-C-886
    Supreme Court of Louisiana.
    October 8, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. MARTIN
    Writ granted. Contested issues of material fact remain. The summary judgment rendered in favor of William R. Caldwell, Clodhopper Trucking, LLC, and Canal Insurance Co. is reversed and the matter is remanded for further proceedings.


text:
    STATE of Louisiana v. Elton WILLIAMS
    No. 2018-KO-181
    Supreme Court of Louisiana.
    October 8, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Denied.
    HUGHES, J., dissents and assigns reasons.
   Louisiana Code of Criminal Procedure article 401 provides:

A. In order to qualify to serve as a juror, a person must:
(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service.
(2) Be at least eighteen years of age.
(3) Be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language.
(4) Not be under interdiction of incapable of serving as a juror because of a mental or physical infirmity, provided than no person shall be deemed incompetent solely because of the loss of hearing in any degree.
(5) Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor.
B. Notwithstanding any provision in Subsection A, a person may be challenged for cause on one or more of the following:
(1) A loss of hearing or the existence of any other incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party.
(2) When a reasonable doubt exists as to the competency of the prospective juror to serve as provided for in Code of Criminal Procedure Article 787.

(emphasis added)

The provision has been interpreted to mean to continuously reside (at least one year).

In this case a proposed juror under oath testified "I reside in Madisonville." Madisonville is in St. Tammany Parish. This trial was held in Orleans Parish. The attorney for the defendant timely objected on the record to the non-qualified juror. No amount of waffling can overcome the plain language of the law. It is the duty of the court to know and enforce the law as written.


text:
    IN RE: A. Wayne STEWART
    NO. 2018-OB-1648
    Supreme Court of Louisiana.
    October 5, 2018
    ORDER
   The Office of Disciplinary Counsel ("ODC") is conducting an investigation into allegations that respondent requested an intimate sexual relationship with a client in lieu of payment of attorney's fees, in violation of Rule 1.7 (conflict of interest: current clients) of the Rules of Professional Conduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent's petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by A. Wayne Stewart, Louisiana Bar Roll number 9398, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of A. Wayne Stewart for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that A. Wayne Stewart shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    IN RE: Brian Anthony DRAGON
    NO. 2018-B-1606
    Supreme Court of Louisiana.
    October 8, 2018
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Brian Anthony Dragon, Louisiana Bar Roll number 33100, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

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


author: PER CURIAM:

text:
    STATE of Louisiana v. Quentin WATSON
    No. 2017-KP-1409
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE of Louisiana v. Alcide HYPOLITE
    No. 2017-KP-1393
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   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.

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 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. Aaron TOLLIVER, Jr. aka Aron Tolliver, Jr.
    No. 2017-KP-1375
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied.

Relator has now fully litigated his fourth 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.

Clark, J., recused.


text:
    STATE EX REL. Jimmie DECUIR v. STATE of Louisiana
    No. 2017-KH-1324
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's convictions and sentences became final in 2013, and he does not provide a copy of the application for post-conviction relief filed in the district court. He fails to offer proof that his application was timely filed in the district court or that an exception to the time limitation applies.

La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE EX REL. Matthew RICHCREEK v. STATE of Louisiana
    No. 2017-KH-1312
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

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

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


text:
    STATE EX REL. Thomas WILLIAMS v. STATE of Louisiana
    No. 2017-KH-1310
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE SEVENTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFOURCHE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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

Weimer, J., recused.


text:
    STATE EX REL. Kenneth J. BARNES v. STATE of Louisiana
    No. 2017-KH-1309
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE EX REL. Joel RILEY v. STATE of Louisiana
    No. 2017-KH-1302
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE EX REL. Bradley Lee JENKINS v. STATE of Louisiana
    No. 2017-KH-1276
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Relator 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).

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


text:
    STATE EX REL. Bryan BRUMFIELD v. STATE of Louisiana
    No. 2017-KH-1211
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator's sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated 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.

Hughes, J., would grant and assigns reasons.

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


text:
    STATE EX REL. Lakeisha Shanae ADAMS v. STATE of Louisiana
    No. 2017-KH-1301
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

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

Relator has now fully litigated her 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 she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kristopher JOHNSON v. STATE of Louisiana
    No. 2017-KH-1127
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Christephan M. WESLEY aka Christopher M. Wesley v. STATE of Louisiana
    No. 2017-KH-1002
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator 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). He also fails to show entitlement to DNA testing. La.C.Cr.P. art. 926.1.

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 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.

HUGHES, J., would grant in part and assigns reasons.

Hughes, J., would grant in part as to hearsay evidence.


text:
    STATE EX REL. Brandon ORTEGO v. STATE of Louisiana
    No. 2017-KH-0863
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his related involuntary guilty plea claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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

Hughes, J., would grant the writ.


text:
    STATE EX REL. Ezekiel TOUSSAINT v. STATE of Louisiana
    No. 2017-KH-1204
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    STATE EX REL. Hubert WALKER v. STATE of Louisiana
    No. 2017-KH-1203
    Supreme Court of Louisiana.
    October 8, 2018
    Applying For Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. B, No. 83,444; to the Court of Appeal, Second Circuit, No. 51,655-KH
    ON SUPERVISORY WRITS TO THE SIXTH JUDICIAL DISTRICT COURT, PARISH OF MADISON
   PER CURIAM:

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

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


text:
    STATE EX REL. Fermichael HARRISON v. STATE of Louisiana
    No. 2017-KH-1172
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION
   PER CURIAM:

Denied. Relator 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).

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

Genovese, J., recused.

Hughes, J., and Johnson C.J., would grant.


text:
    STATE EX REL. Ronald C. DALE v. STATE of Louisiana
    No. 2017-KH-1168
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator 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). Relator's remaining claims are repetitive. La.C.Cr.P. art. 930.4.

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 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.

Crichton, J., recused.


text:
    STATE EX REL. Brian S. BAKER v. STATE of Louisiana
    No. 2017-KH-1166
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator 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). His remaining claims are repetitive and/or unsupported. La.C.Cr.P. arts. 930.4 and 930.2.

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


text:
    STATE EX REL. Kevin HAYES v. STATE of Louisiana
    No. 2017-KH-1158
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. As to his request for DNA testing, relator fails to make the required showing. La.C.Cr.P. art. 926.1 ; cf. State v. Debrow , 13-1814 (La. 5/23/14), 138 So.3d 1229.

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


text:
    STATE EX REL. Sean GRIFFIN v. STATE of Louisiana
    No. 2017-KH-1144
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator shows no lower court error.

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


text:
    STATE EX REL. John STEWART v. STATE of Louisiana
    No. 2017-KH-0850
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. Relator was serving a 20-year sentence for an armed robbery committed with a firearm in Ascension Parish when he became eligible for supervised release after diminution of sentence pursuant to 1995 La. Acts 1099. At that time, he was transferred from Dixon Correction Center to the Orleans Justice Center based on an outstanding warrant for first degree murder in Orleans Parish. There, he was arrested for first degree murder, and he made his first appearance in Magistrate Court.

Prior to his transfer to the Orleans Justice Center, relator became aware of the detainer placed on him, and he filed a motion to quash in which he contended the state failed to timely prosecute him for first degree murder. Possibly confusing relator with another John Stewart with a different birthdate who had pleaded guilty to theft under docket number 412-793, the district court sent relator a letter, dated June 3, 2016, and signed by "Sec B", informing him that his motion to quash "was improper" because he had already pleaded guilty to theft. This letter, which was not signed by the district court judge, does not constitute a ruling on relator's motion to quash, cf. La.C.C.P. art. 1911(A) ("Except as otherwise provided by law, every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge."), and does not comport with La.C.Cr.P. arts. 3 and 17. Accordingly, we grant relator's application to remand to the district court judge to review and rule upon relator's motion to quash (which was incorrectly filed under docket number 412-793) in which he contends the state has not timely prosecuted him for first degree murder. The district court is directed to rule on relator's motion to quash within 30 days of this order and to provide this court with proof of compliance in the form of a written and signed ruling.

In addition, the court of appeal previously granted relator's writ application in part to transfer relator's challenge of the validity of the arrest warrant and his arrest for first degree murder to the Magistrate Court for consideration within 30 days of the court of appeal's ruling. State v. Stewart , 17-0190 (La. App. 4 Cir. 3/13/17) (unpub'd). Relator claims that he has been mistaken for the John Stewart who previously pleaded guilty to theft in docket number 412-793 (with a different date of birth and social security number) and who is, in fact, the person for whom the arrest warrant was issued. Because the Magistrate Court has not complied with the court of appeal's ruling, we also grant the application to order the Magistrate Court to conduct a contradictory hearing (in magistrate number 575153, section M2), at which relator is represented by counsel, on relator's claim he was wrongfully arrested. The Magistrate Court is directed to conduct this contradictory hearing within 14 days of this order and to furnish this court with proof of compliance in the form of a minute entry.

REMANDED


text:
    IN RE: Robert A. LENOIR
    NO. 2018-B-1149
    Supreme Court of Louisiana.
    October 8, 2018
    ORDER
   Considering the Petition for Revocation of Conditional Admission filed by the Office of Disciplinary Counsel, and the consent to revocation filed by respondent,

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

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


text:
    STATE EX REL. Jason P. REBARDI v. STATE of Louisiana
    No. 2017-KH-1214
    Supreme Court of Louisiana.
    October 8, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ;

State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator fails to show he is factually innocent under the standard of State v. Conway , 01-2808 (La. 4/12/02), 816 So.2d 290.

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

Weimer, J., recused.

Hughes, J., dissents and assigns reasons.

Relator offers five affidavits, three from the victim's family, which recant or call into question trial testimony. Relator argues actual innocence. Without reaching the merits, these affidavits are "new evidence" as contemplated by La. C. Cr. P. article 930.8(A)(1), and a hearing is required.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-690183
    NO. 2018-BA-1187
    Supreme Court of Louisiana.
    October 8, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

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

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Alabama Lawyer Assistance Program ("ALAP") on January 20, 2016.

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

3. Petitioner shall authorize the Director of ALAP to report any violations of the ALAP agreement to the Louisiana Office of Disciplinary Counsel ("ODC").

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

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

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

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

CONDITIONAL ADMISSION GRANTED.

CLARK, J., would require an evaluation by the Judges and Lawyers Assistance Program.

CRICHTON, J., would require an evaluation by the Judges and Lawyers Assistance Program.

GENOVESE, J., would require an evaluation by the Judges and Lawyers Assistance Program.


text:
    Keifer BONVILLAIN v. WALGREENS LOUISIANA COMPANY, INC., Yvette Lavato, and XYZ Insurance Company
    NO. 2018-CC-0788
    Supreme Court of Louisiana.
    October 15, 2018
    Granted and remanded to the court of appeal for briefing, argument and opinion.


text:
    STATE EX REL. Floyd TYLER and Ronald Braud v. STATE of Louisiana
    NO. 2017-KH-1218
    Supreme Court of Louisiana.
    October 15, 2018
    Denied; moot.


text:
    STATE EX REL. Tonya OTKINS-VICTOR v. STATE of Louisiana
    NO. 2016-KO-1495
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE of Louisiana v. Douglas Blake CAZES
    NO. 2018-KK-1677
    Supreme Court of Louisiana.
    October 12, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Terry Dale TILMON
    NO. 2018-KH-0751
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Tilmon v. State, 15-0052 (La. 2/19/16), 184 So.3d 673.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Allen Jamel ROBINSON
    NO. 2018-KH-0756
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Robinson v. State, 15-1970 (La. 1/13/17), 206 So.3d 867.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1140
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    David Lee WILLIAMS v. Darrel VANNOY, Warden James M. LeBlanc, Secretary Jeff Landry, Secretary
    NO. 2018-KH-1540
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, LLC and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1141
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Jacob JOHNSON v. Daryl PURPERA, Individually and in his Official Capacity as Louisiana Legislative Auditor, State of Louisiana, through Louisiana Legislative Auditor
    NO. 2018-CC-1144
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Jeremy & Summer GEORGE v. Robbie & Bryan DUGAS
    NO. 2018-CJ-1145
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE of Louisiana v. Lawrence WILLIAMS
    NO. 2018-KH-1330
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Williams v. State, 16-1008 (La. 9/22/17), 226 So.3d 444.


author: HUGHES, J., would grant.

text:
    Alyce MOUTON v. WALGREEN COMPANY
    NO. 2018-C-1147
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    LEXINGTON NATIONAL INSURANCE COMPANY v. STATE of Louisiana
    NO. 2018-CC-1095
    Supreme Court of Louisiana.
    October 15, 2018
    Not considered. Not timely filed. See Supreme Court Rule X, § 5.