text:
    The STATE of Florida, Appellant, v. Richard CALIX, Appellee.
    No. 3D16-2784
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellant.
    Reizenstein and Associates, P.A., and Philip L. Reizenstein, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   SCALES, J.

After shooting and killing his victim in a robbery, Richard Calix was convicted of first degree murder in 1988, a crime he committed when he was seventeen years old. He was sentenced to life in prison with the possibility of parole after twenty-five years. In 2016, Calix filed a post-conviction motion asserting that his sentence was illegal pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Atwell v. State, 197 So.3d 1040 (Fla. 2016).

On November 30, 2016, the trial court granted Calix's motion. The State appealed the trial court's order to this Court and, on April 25, 2018, we affirmed the order in State v. Calix, 245 So.3d 928 (Fla. 3d DCA 2018). The State then appealed our decision to the Florida Supreme Court and, on January 7, 2019, the Florida Supreme Court quashed our April 25, 2018 opinion on the authority of its recent decision in Franklin v. State, 258 So.3d 1239 (Fla. 2018). State v. Calix, 44 Fla. L. Weekly S125, 2019 WL 117432 (Fla. Jan. 7, 2019). Accordingly, we vacate the trial court's November 30, 2016 order and remand to the trial court to adjudicate Calix's rule 3.800 motion in light of Franklin.

Order vacated; remanded with instructions.

      These decisions, deriving from Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), concluded that the imposition of a life sentence on a juvenile homicide offender, without an effective possibility of parole, violated the Eighth Amendment of the United States Constitution. Franklin v. State, 258 So.3d 1239, 1240-41 (Fla. 2018). In Miller v. Alabama, the United States Supreme Court noted that juveniles, due to their age, have "diminished culpability and heightened capacity for change." 567 U.S. at 479, 132 S.Ct. 2455. On this premise, the Supreme Court in Graham and Miller refashioned how a trial court should sentence juveniles to life sentences.

      In both Franklin and State v. Michel, 257 So.3d 3 (Fla. 2018), the Florida Supreme Court partly receded from its decision in Atwell v. State, and held that a juvenile offender's sentence of life imprisonment with a possibility of parole after twenty-five years does not violate the Eighth Amendment, and therefore, the juvenile is not entitled to a re-sentencing. Franklin, 258 So.3d at 1241 ; Michel, 257 So.3d at 8.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Israel J. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1774
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Israel J. Wilson, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Israel Wilson ("Wilson") appeals the denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He claims ineffective assistance of counsel in failing to file a motion to suppress witness identification, to object to improper closing arguments, and to request a jury instruction that he was proceeding to trial with the aid of medication to treat his mental disorders. Because Wilson's claims are meritless, we affirm.

In July 2010, Wilson was convicted of burglary with an assault or battery, attempted robbery, robbery, and fraudulent use of a credit card. The trial court sentenced him to concurrent terms of life in prison for the burglary offense, ten years in prison each for the attempted robbery and the fraudulent credit card use offenses, and thirty years in prison for the robbery offense. He was designated a habitual felony offender and a prison releasee reoffender. His judgment and sentence were per curiam affirmed on December 8, 2011. Wilson v. State , 75 So.3d 728 (Fla. 1st DCA 2011) (table decision).

To succeed on claims of ineffective assistance of counsel, Wilson must show that his trial counsel's performance was deficient and that such deficient performance prejudiced the defense so as to deprive him of a fair trial. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, he must demonstrate that counsel's representation fell below an objective standard of reasonableness based on professional norms. See Odegaard v. State , 137 So.3d 505, 507 (Fla. 2d DCA 2014). To satisfy the prejudice prong, Wilson must show that, but for the error, there was a reasonable probability the outcome would have been different. Jones v. State , 998 So.2d 573, 584 (Fla. 2008).

Regarding ground one, failure to file a motion to suppress out-of-court and in-court identifications, the trial court attached portions of the record to show that this claim was without merit. Counsel cannot be deemed ineffective if the motion to suppress would have been meritless. See Johnston v. State , 63 So.3d 730, 740 (Fla. 2011).

On ground two, failure to object to improper closing arguments, in order to prevail on an ineffective assistance of counsel claim for failing to object to comments made during closing arguments, Wilson must show that the comments were objectionable and that there was no tactical reason for failing to object. See Wickham v. State , 124 So.3d 841, 860 (Fla. 2013) ; Stephens v. State , 975 So.2d 405, 420 (Fla. 2007). He must also show that the comments were so prejudicial that they deprived him of a fair trial. Stephens , 975 So.2d at 420. Wilson fails to demonstrate any deficiency of counsel in failing to object to the above comments by the State. A review of the closing arguments shows that the comments were made in rebuttal to defense counsel on the same subject; therefore, they were an "invited response" and not improper. See Walls v. State , 926 So.2d 1156, 1166 (Fla. 2006).

Finally, in his third ground, failure to request a jury instruction to explain his use of psychotropic medication, the trial court properly dismissed this claim as untimely. Wilson's amended motion for post-conviction relief raising this claim was not filed within two years of this Court's mandate. As he raised a new claim rather than simply providing additional allegations to his original two claims, the time requirements in Rule 3.850(b) applied to the amended motion. See Lanier v. State , 826 So.2d 460, 461-62 (Fla. 1st DCA 2002).

AFFIRMED .

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


text:
    B.R. and S.R., the temporary custodial care providers of T.J.S.M. and L.E.R., Petitioners, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D19-0023
    District Court of Appeal of Florida, First District.
    May 22, 2019
    Ross A. Keene, Pensacola, for Petitioners.
    Sarah J. Rumph, Children's Legal Services, Tallahassee, for Respondent.
   Per Curiam.

Because Petitioners fail to establish a departure from the essential requirements of law by the trial court, the writ is DENIED .

Lewis, Makar, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    Mark Anthony DINGLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2374
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before SCALES, HENDON, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018) ; State v. Michel, 257 So.3d 3 (Fla. 2018).


text:
    DAVID MOORE DRYWALL INC., Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION, Appellee.
    No. 1D18-3952
    District Court of Appeal of Florida, First District.
    May 22, 2019
    Arthur I. Jacobs, Richard J. Scholtz, and Douglas A. Wyler of Jacobs Scholz & Wyler, LLC, Fernandina Beach, for Appellant.
    Samuel Gilot, Senior Attorney, and Dustin William Metz, Executive Senior Attorney, Department of Financial Services, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Aleong v. State, Dep't of Bus. & Prof'l Regulation , 963 So.2d 799 (Fla. 4th DCA 2007) ; Cann v. Dep't of Children & Family Servs. , 813 So.2d 237 (Fla. 2d DCA 2002).

Wolf, Bilbrey, and Winsor, JJ., concur.


text:
    Jefrey ROSARIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3965
    District Court of Appeal of Florida, First District.
    May 22, 2019
    Jefrey Rosario, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Robert D. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-1359
    District Court of Appeal of Florida, First District.
    May 28, 2019
    Robert D. Wallace, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying a motion to correct illegal sentence rendered by filing with the clerk of the lower tribunal on March 5, 2019. Fla. R. App. P. 9.020(h). The notice of appeal, filed on April 5, 2019, failed to invoke the Court's jurisdiction in a timely manner. Fla. R. App. P. 9.140(b)(3). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Bruce MCCRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0015
    District Court of Appeal of Florida, First District.
    May 28, 2019
    Bruce McCray, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004). Petitioner is warned that any future filings that this Court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this Court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2018) (providing that a prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Craig Allen TULL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-1331
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 23, 2019
    Blaise Trettis, Public Defender, and Nick Kramperth, Assistant Public Defender, Sanford, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

We deny the petition seeking a writ of prohibition. See Pilkington v. Pilkington , 182 So.3d 776, 779 (Fla. 5th DCA 2015) ; Chace v. Loisel , 170 So.3d 802, 803 (Fla. 5th DCA 2014) ; see also Fla. R. Crim. P. 3.350(d).

PETITION DENIED.

WALLIS, LAMBERT and EDWARDS, JJ., concur.


text:
    John KIEDROWSKI III, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2741
    District Court of Appeal of Florida, First District.
    May 28, 2019
    John Kiedrowski III, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

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

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Tymiller D. NEWTON, Appellant, v. DEPARTMENT OF REVENUE o/b/o Tanicia P. Oliver, Appellee.
    Case No. 5D18-3601
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 28, 2019
    Carlton Pierce, of Carlton Pierce, P.A., West Palm Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

ORFINGER, HARRIS, and GROSSHANS, JJ., concur.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, FOR BCAP TRUST LLC 2007-AA2 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-AA2, Appellant, v. SUNSET SQUARE CONDOMINIUM ASSOCIATION, INC., et al., Appellee.
    No. 4D18-3054
    District Court of Appeal of Florida, Fourth District.
    May 29, 2019
    Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for appellant.
    Jerome L. Tepps of Jerome L. Tepps, P.A., Sunrise, for appellee.
    On Confession of Error
   Per Curiam.

The bank appeals from an involuntary dismissal of its foreclosure action after trial. The property owner has confessed error in the trial court's dismissal. We therefore reverse and remand the case for entry of a final judgment of foreclosure.

Reversed and Remanded.

Gerber, C.J., Taylor and May, JJ., concur.


text:
    Khalaf MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0259
    District Court of Appeal of Florida, First District.
    May 29, 2019
    Khalaf Miller, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Jamail D. ZIEGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0663
    District Court of Appeal of Florida, First District.
    May 29, 2019
    Jamail D. Ziegler, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

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


text:
    Kyshonda WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5337
    District Court of Appeal of Florida, First District.
    May 30, 2019
    Alex Christiano of Anabelle Dias, P.A., Tallahassee, for Petitioner.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

Kyshonda Williams filed a petition for writ of mandamus to compel the trial court in her pending criminal case to hold an adversary preliminary hearing. We conclude that Petitioner does not have a clear legal right to the hearing under rule 3.133(b) and deny the petition.

After Petitioner was arrested in September 2018, she posted bail and was released with conditions. In November 2018, the State formally charged her with two counts of possession of a controlled substance, one count of use of a weapon in commission of a felony, and one count of possession of cannabis. Later that November, Petitioner filed a motion for an adversarial probable cause hearing. She alleged that the pretrial release conditions amounted to a restraint on her liberty and that the rules of criminal procedure entitled her to an adversary preliminary hearing. After denying Petitioner's motion, the court modified her pretrial release conditions.

They included requiring her to avoid illegal drugs, complete a urinalysis once a week, and avoid contact with her co-defendant husband, except for allowing contact through a third party "for purposes of childcare and parenting." Petitioner now seeks mandamus relief and to compel the trial court to hold an adversary preliminary hearing.

"In order to be entitled to a writ of mandamus, the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available." Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP , 221 So. 3d 1260, 1263 (Fla. 1st DCA 2017) (citation omitted). The right must already be clearly established and mandamus may not be used to establish a right. Id.

Petitioner contends that rules set forth her right to an adversary preliminary hearing and the opportunity for release with the conditions removed. Florida Rule of Criminal Procedure 3.133(b)(1) provides:

A defendant who is not charged in an information or indictment within 21 days from the date of arrest or service of the capias on him or her shall have a right to an adversary preliminary hearing on any felony charge then pending against the defendant. The subsequent filing of an information or indictment shall not eliminate a defendant's entitlement to this proceeding.

If, after a hearing, the court finds no probable cause, but an information has been filed, then "the defendant shall be released on recognizance," without "any restraint on liberty other than appearing for trial." Fla. R. Crim. P. 3.133(b)(5).

Contrary to Petitioner's understanding of the rule, however, this Court has held that no adversary preliminary hearing is required where a defendant has posted bail and is already on pretrial release. Dumlar v. State , 808 So. 2d 272, 273 (Fla. 1st DCA 2002) ; contra Santopolo v. State , 443 So. 2d 1059 (Fla. 2d DCA 1984). In Dumlar , we concluded that because a defendant's remedy at such a rule 3.133(b)(5) hearing-release on recognizance-is essentially the same as what the defendant already has received-pretrial release after posting bail-that a hearing is not necessary. Id. We said that the difference between release on recognizance and release on bail "is not of such a magnitude that a Rule 3.133(b) hearing is necessary." Id. We recognize further that the rules contemplate trial courts attaching conditions accompanying a defendant's release on bail. See Fla. R. Crim. P. 3.131 (requiring defendants to comply with the conditions of pretrial release ordered by the court).

Thus, in view of Dumlar , we cannot conclude that Petitioner has a clear legal right to an adversary preliminary hearing under rule 3.133(b).

Petition DENIED .

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Willie GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0160
    District Court of Appeal of Florida, First District.
    May 29, 2019
    Willie Griffin, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Kelsey, and Winokur, JJ., concur.


text:
    Terry James TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0722
    District Court of Appeal of Florida, First District.
    May 30, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This direct criminal appeal was brought pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we affirm the trial court's revocation of Appellant's probation and the resulting judgment and sentence. However, we remand for correction of a scrivener's error in the Order of Revocation of Probation, which states, inter alia , that Appellant violated conditions of probation (1) and (5) as alleged in charges VI, VII, and VIII, and that Appellant admitted to those violations. The record reflects that Appellant admitted to violating special condition (2) as alleged in charges I-V. It does not reflect that Appellant admitted to violating conditions (1) and (5) as alleged in charges VI, VII, or VIII, nor did the trial court find at the violation of probation hearing that Appellant violated those conditions. The record also does not reflect that the state attempted to demonstrate a basis to revoke as to those conditions. Rather, the inclusion of those conditions in the order of revocation appears to be a scrivener's error. See Kemp v. State , 135 So.3d 347 (Fla. 1st DCA 2013). On remand, the Order of Revocation of Probation should be corrected to reflect that the revocation is based on the condition of Appellant's probation that he admitted to violating.

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    John A. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0996
    District Court of Appeal of Florida, First District.
    May 30, 2019
    John A. Turner, pro se, Appellant.
    Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We agree with the trial court that Appellant failed to file his motion for postconviction relief within the time permitted by law and failed to allege any valid exception to that time period. See Fla. R. Crim. P. 3.850(b).

AFFIRMED .

Lewis, Wetherell, and Winokur, JJ., concur.


author: PER CURIAM

text:
    IN RE: Stephen J. HOLLIDAY
    NO. 2019-OB-0459
    Supreme Court of Louisiana.
    May 20, 2019
    ON APPLICATION FOR REINSTATEMENT
   PER CURIAM

This proceeding arises out of an application for reinstatement to the practice of law filed by petitioner, Stephen J. Holliday, a suspended attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In May 2001, petitioner was arrested and charged with driving while intoxicated ("DWI"), speeding, and improper lane usage. Ultimately, the DWI charge was dismissed, and petitioner pleaded guilty to the traffic charges.

In September 2001, petitioner vandalized a truck belonging to his ex-wife's boyfriend while it was parked at his ex-wife's home. He was arrested and charged with simple criminal damage to property and violation of a restraining order. He was also cited for failure to yield to an emergency vehicle for refusing to stop his car when the police ordered him to do so.

In December 2002, petitioner was arrested and charged with DWI second offense, hit and run, disobeying a red light, reckless driving, and failing to maintain proof of insurance. In February 2005, petitioner pleaded guilty to failing to report an accident, disobeying a red light, and reckless driving. In June 2005, the record of petitioner's arrest was expunged.

In June 2005, petitioner gave a sworn statement to the Office of Disciplinary Counsel ("ODC") regarding the three matters set forth above. In response to the ODC's questions, petitioner asserted his Fifth Amendment privilege against self-incrimination. The ODC insisted that he answer on the ground that all criminal charges against him had either been declined or resolved via plea agreement. Nevertheless, petitioner continued to refuse to answer, thereby failing to cooperate with the ODC's investigation.

For the above misconduct, we suspended petitioner from the practice of law for three years. In re: Holliday , 09-0116 (La. 6/26/09), 15 So.3d 82.

In June 2015, petitioner pleaded no contest to domestic abuse battery. In May 2016, we accepted a joint petition for consent discipline filed by petitioner and the ODC and suspended petitioner from the practice of law for one year. In re: Holliday , 16-0686 (La. 5/27/16), 193 So.3d 124.

In August 2018, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be reinstated to the practice of law on a conditional basis for one year, subject to the following conditions:

1. Petitioner shall continue diagnostic monitoring with JLAP during the one-year probationary period. If his JLAP diagnostic monitoring agreement terminates by its own terms during the probationary period, then he shall execute a new agreement to satisfy this condition;
2. Petitioner shall maintain good standing pursuant to his JLAP agreement;
3. Petitioner shall maintain compliance with the Rules of Professional Conduct;
4. Petitioner shall cooperate with the ODC in the event of an inquiry as to his fitness to practice law; and
5. Petitioner shall satisfy all requirements to practice law pursuant to the rules governing attorneys in the State of Louisiana.

Neither petitioner nor the ODC objected to the hearing committee's recommendation.

DISCUSSION

After considering the record in its entirety, we find petitioner has met his burden of proving that he is entitled to be reinstated to the practice of law on a conditional basis. Accordingly, we will order that petitioner be reinstated to the practice of law, subject to a one-year period of probation governed by all of the conditions recommended by the hearing committee.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Stephen J. Holliday, Louisiana Bar Roll number 23496, be immediately reinstated to the practice of law in Louisiana, subject to a one-year period of probation governed by the conditions set forth herein. The probationary period shall commence from the date petitioner and the ODC execute a formal probation plan. Should petitioner fail to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately, or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.


text:
    IN RE: Yolanda Julie KING
    NO. 2019-B-0356
    Supreme Court of Louisiana.
    May 20, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Yolanda Julie King, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon her conviction of a serious crime. In re: King , 16-0331 (La. 3/14/16), 186 So.3d 649 (Johnson, C.J., recused).

UNDERLYING FACTS

In February 2013, respondent qualified to run for Orleans Parish Juvenile Court, representing in her qualifying documents that she was domiciled in Orleans Parish. Respondent subsequently prevailed in a runoff election. In March 2014, a grand jury in Orleans Parish indicted respondent on two felony criminal charges arising out of allegations that she was actually domiciled in St. Tammany Parish and that she made false representations about her domicile when she qualified to run for judicial office.

Following the indictment, this court disqualified respondent from exercising any judicial function during the pendency of further proceedings. In re: King , 14-0924 (La. 5/15/14), 140 So.3d 711 (Johnson, C.J., recused). Prior to a final adjudication of the judicial discipline matter against respondent, she lost the status of a judge when she was defeated in the fall 2014 elections. As a result, the ODC assumed jurisdiction over respondent.

In November 2015, a jury found respondent guilty of both counts of the indictment. She was sentenced in February 2016 to a suspended jail sentence and probation.

Thereafter, respondent filed a motion for an out of time appeal of her criminal conviction, which motion was granted. The court of appeal then remanded the case to the trial court with instructions to conduct an evidentiary hearing on a claim of ineffective assistance of counsel. State v. King , 17-0123 (La. App. 4th Cir. 10/27/17), 231 So.3d 110.

Following remand, on December 18, 2017, respondent entered into a plea agreement, whereby the original convictions were vacated. In exchange, respondent pleaded guilty to a misdemeanor violation of La. R.S. 18:1461.3(C)(4) (disobeying any lawful instruction of a registrar, deputy registrar, or commissioner).

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent initially failed to answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. Eight months later, respondent, through counsel, filed an unopposed motion to recall the deemed admitted order. She also sought a stay of the formal charge proceedings pending her criminal appeal. The motion and request for a stay were granted, and the deemed admitted order was recalled.

In April 2018, the ODC filed a supplemental and amending formal charge. Respondent filed an answer and admitted to the factual allegations and rule violations contained in the supplemental and amending formal charge. She also waived a formal hearing and requested the opportunity to submit a written argument on mitigation and appropriate sanction.

In her submission, respondent indicated that she is the sole caregiver for her eighty-eight year old mother and fifty-six year old brother, both of whom are disabled and in need of constant care. After respondent's sister passed away in November 2015, respondent moved to Atlanta, Georgia to take care of them. In May 2018, respondent was forced to move with them back to Louisiana due to financial hardship. During the process, they have been without any home healthcare or transportation assistance services.

Respondent argued that she possesses good character and reputation. In support, she submitted three character reference letters as well as a transcript of her deposition, wherein she testified about her lifetime involvement in church and volunteer work with various juvenile agencies.

Respondent suggested that this matter is guided by the court's ruling in In re: Richmond , 08-0742 (La. 12/2/08), 996 So.2d 282, wherein an attorney was found to have knowingly made false statements under oath regarding his domicile when he qualified as a candidate for public office. For his misconduct, the court suspended the attorney for six months, and in light of the mitigating factors present, deferred all but sixty days of the suspension. Respondent indicated that a similar sanction would be appropriate here, although, unlike Mr. Richmond, respondent did not occupy a position of public trust at the time of her conduct. Respondent requested that any sanction be made retroactive to the date of her interim suspension, and requested that all costs and expenses associated with this proceeding be waived as she has been unemployed since December 2015.

In its submission on sanction, the ODC indicated that it could not stipulate to the presence of "personal problems" as a mitigating factor, inasmuch as there appeared to be no correlation between the acts of dishonesty by respondent in falsifying her domicile in the qualifying process and her mother's health problems and her brother's care needs. The ODC agreed that this matter is guided by Richmond , but noted that unlike respondent, Mr. Richmond was not criminally prosecuted for his conduct. The ODC suggested that respondent be suspended from the practice of law for one year, retroactive to the date of her interim suspension.

Hearing Committee Report

After considering the record, the hearing committee made factual findings consistent with the underlying facts set forth above. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent violated duties owed to the public of this State. Her actions were knowing and intentional when she falsified her domicile in an attempt to be elected as a juvenile court judge in Orleans Parish. Her actions caused harm to the public's trust in individuals seeking a position such as a judgeship. Respondent admitted that her behavior caused an undue burden on the legal system and shed a "negative light on the judiciary and legal profession." After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

The committee determined that the following aggravating factors are present: a dishonest or selfish motive and substantial experience in the practice of law (admitted 1993). The committee determined that the following mitigating factors are present: absence of a prior disciplinary record, "cooperation with the investigation by the disciplinary counsel," imposition of other penalties or sanctions, and remorse. The committee did not find that respondent's issues with her personal family life had any bearing on her choice to falsify documents.

After further considering the prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, retroactive to the date of her interim suspension. Due to respondent's financial strains, the committee further recommended that she be assessed with one-half of the costs and expenses associated with this proceeding.

Respondent filed a notice of no objection to the hearing committee's report. In an appellate memorandum to the disciplinary board, the ODC found the committee's findings of fact and conclusions of law are supported by the record, but argued that the committee erred in recommending respondent be assessed with one-half of the costs and expenses associated with this proceeding. The ODC argued that all costs should be assessed against respondent at this time, as there are procedures available for her to challenge specific costs at the conclusion of her case.

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, and that the committee correctly found respondent violated the Rules of Professional Conduct as charged.

The board determined that respondent knowingly and intentionally violated duties owed to the public of this State. As noted by the committee, her actions caused harm to the public's trust in individuals who seek election as a judge, an officer who upholds the law and the integrity of the judicial system. Her behavior caused an undue burden on the legal system and, as noted by the committee, shed "negative light on the judiciary and legal profession." The board agreed with the committee that the baseline sanction is suspension.

The board agreed with the committee's determination of aggravating factors and determined that the following mitigating factors are present: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse. The board also agreed that respondent's issues with her personal family life had no bearing on her choice to falsify documents.

After further considering the prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year, retroactive to the date of her interim suspension. The board declined to adopt the committee's recommendation that respondent be cast with one-half of the costs and expenses of this proceeding. The board noted that respondents are generally provided an opportunity to execute a promissory note and work out a payment plan. Moreover, at the conclusion of the case, respondent will be entitled to request a hardship exemption from the repayment of costs if she can present appropriate evidence showing that the payment of costs, even pursuant to the terms of a promissory note, would be a hardship for her.

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.

Respondent pleaded guilty to a misdemeanor criminal offense involving statements as to her domicile in connection with qualifying as a candidate for public office. Respondent has acknowledged that her conduct violated Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent's ethical misconduct.

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).

There appears to be no dispute that this matter is guided by Richmond and that a one-year suspension from the practice of law is an appropriate sanction for respondent's misconduct. We agree, and accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for one year, retroactive to March 14, 2016, the date of her interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Yolanda Julie King, Louisiana Bar Roll number 22096, be and she hereby is suspended from the practice of law for a period of one year, retroactive to March 14, 2016, the date of her interim suspension. 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.

      Johnson, C.J., recused.

      La. R.S. 18:1461.3 provides in pertinent part as follows:
      C. No person shall knowingly, willfully, or intentionally:
      * * *
      (4) Disobey any lawful instruction of a registrar, deputy registrar, commissioner-in-charge or commissioner or a law enforcement officer providing assistance to maintain order at a polling place.
      * * *
      D. Whoever violates any provision of Subsection C of this Section shall be fined not more than five hundred dollars or be imprisoned in the parish jail for not more than six months, or both.

      Mr. Richmond's misconduct occurred while he was serving in the Louisiana Legislature.

      Supreme Court Rule XIX, § 10.1(D) provides that "[a] lawyer ordered to pay costs and expenses shall do so within thirty days of the date upon which the assessment becomes final unless a periodic payment plan has been approved by the board and disciplinary counsel."

      Rule XIX, Appendix A, Rule 7 provides in pertinent part as follows:
      In any matter concluded by a final order of the board or by any decision or order of the Court which imposes discipline on the respondent, the board administrator shall file in the board record and shall serve on the respondent a supplemental itemized statement of costs incurred in the matter subsequent to the filing and serving of the first itemized statement and any prior supplemental itemized statements. Respondent shall have fifteen (15) days following service of the supplemental cost statement to file in the record and to serve on disciplinary counsel any objection to that cost statement. If any objection is filed, the administrator shall refer the cost statement and the objection to the board for a ruling on the objection.


author: PER CURIAM:

text:
    STATE of Louisiana v. John CHAMBERS
    No. 2019-KH-0391
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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

Hughes, J., would grant and assigns reasons.

Hughes, J., would grant and assigns reasons.

It is never a good idea for a trial judge to enter the jury room during deliberations, even with consent of counsel. The better practice is to bring the jury into the courtroom and put it on the record.


text:
    STATE of Louisiana v. Gerard HOWARD
    No. 2019-KH-0389
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant 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, applicant's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

Applicant has now fully litigated another 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. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, J., recused.


text:
    STATE of Louisiana v. Jorell Murphy YOUNG
    No. 2019-KP-0221
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Applicant shows no lower court error.

Applicant has now fully litigated an 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. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Shon P. SHAW
    No. 2019-KH-0411
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant 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, his sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

Applicant has now fully litigated another 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. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Crichton, J., recused.


text:
    STATE of Louisiana v. Robert BAILEY
    No. 2018-KP-1755
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant 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).

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


text:
    STATE of Louisiana v. Nate WALKER
    No. 2018-KH-1589
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; see State ex rel. Glover v. State , 93-2330, pp. 9-11 (La. 9/5/95), 660 So.2d 1189, 1195-96 (distinguishing habeas corpus from post-conviction relief and endorsing La.C.Cr.P. art. 351 and its cmt. (c), which states that "habeas corpus is not the proper procedural device for petitioners who may file applications for post conviction relief;" rather, it "deals with pre-conviction complaints concerning custody.").

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


text:
    STATE of Louisiana v. Eddie Robert LANE, Jr.
    No. 2018-KH-1501
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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

Crichton, J., recused.


text:
    STATE of Louisiana v. Joseph HUMBLES
    No. 2019-KP-0024
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    Chad WILSON v. Timothy HOOPER
    No. 2018-KH-1586
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Warren CIRAVOLA
    No. 2018-KH-1019
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and he fails to show a particularized need for the requested documents. State ex rel. Bernard v. Cr.D.C. , 94-2247 (La. 4/28/95), 653 So.2d 1174. His remaining claims are repetitive. La.C.Cr.P. art. 930.4.

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

Hughes, J., would grant.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Jimmy BROWN
    No. 2018-K-0627
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
   JOHNSON, C.J., would grant.

CRICHTON, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant the writ for the following reasons:

I would grant this writ for the reasons set forth in the trial court's PER CURIAM and for the reasons assigned in Judge Love's dissent.

Additionally, I find the appellate court employed the wrong standard of review, disregarded the mandate of La.Code Crim.P. art. 736 relative to service requirements, and denied the due process notice requirements afforded under our federal and state constitutions.


text:
    STATE of Louisiana v. Elbert CHINN
    No. 2018-KH-1505
    Supreme Court of Louisiana.
    May 20, 2019
    Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 08-6437; to the Court of Appeal, Fifth Circuit, No. 18-KH-379
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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

Hughes, J., would grant.


text:
    EMBRACE HOME LOANS, INC. v. Linia Thomas BURL a/k/a Linia T. Burl a/k/a Linia Burl
    No. 2018-OC-1876
    Supreme Court of Louisiana.
    May 20, 2019
    Second application for reconsideration not considered. Judgment is final. See La. Code Civ. P. art. 2167. No further filings shall be accepted in this matter.


text:
    STATE of Louisiana v. Emanuel RANDALL
    NO. 2019-KH-0094
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    Regina Bourdais VOLPE v. Salvador VOLPE, Jr.
    NO. 2019-C-0479
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


author: WEIMER, J., recused.

text:
    Joseph KOLWE, Jr. v. CIVIL AND STRUCTURAL ENGINEERS, INC.
    NO. 2019-C-0483
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   WEIMER, J., recused.


text:
    WORKBOX, L.L.C. v. KENWORTH OF SOUTH LOUISIANA, L.L.C.
    No. 2019-C-0132
    Supreme Court of Louisiana.
    May 20, 2019
    Rehearing denied.


text:
    STATE of Louisiana v. Clarence GABRIEL
    NO. 2019-K-0125
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Joshua Rae SWAN
    NO. 2019-KO-0151
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Emanuel RANDALL
    NO. 2018-KH-0866
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Robert E. JACKSON, Jr.
    NO. 2018-KH-1176
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana v. Huey RANDOLPH
    NO. 2018-KH-1180
    Supreme Court of Louisiana.
    May 20, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. State ex rel. Randolph v. State, 16-2170 (La. 3/2/18), 237 So.3d 497.


text:
    STATE of Louisiana v. Bryant R. ROGERS
    NO. 2018-KH-1625
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana v. Ahmad Lyndell LAWSON
    NO. 2018-KO-2048
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.


author: HUGHES, J., would grant.

text:
    Kenneth H. LOBELL v. Cindy Ann Rosenberg DENN, et al.
    NO. 2019-C-0357
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
    CLARK, J., would grant for the reasons assigned by Judge Lobrano.
   HUGHES, J., would grant.

CRICHTON, J., would grant for the reasons assigned by Judge Lobrano.


text:
    STATE of Louisiana v. Terry Wayne PARRIS
    NO. 2019-KH-0385
    Supreme Court of Louisiana.
    May 20, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Farris v. State, 15-0700 (La. 2/5/16), 183 So.3d 505.


text:
    Beverly Himel RAFFERTY v. Bradley BENNETT, Baton Rouge Police Department, City of Baton Rouge
    NO. 2019-CC-0447
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Pastor Harry JOSEPH, Sr., Genevieve Butler, Humanitarian Enterprise of Loving People, Gulf Restoration Network, Atchafalaya Bas Inkeeper, and Bold Louisiana v. SECRETARY, LOUISIANA DEPARTMENT OF NATURAL RESOURCES
    NO. 2019-00454
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    SUCCESSION OF Fred Langford HOUSTON
    No. 2019-C-0458
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    SAND BEACH PROPERTIES, LLC v. CITY OF SHREVEPORT
    NO. 2019-C-0485
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Eldridge T. BELL, III and Susan Bell v. SPEEG MEDICAL CORP., et al.,
    NO. 2019-CC-0503
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE IN the INTEREST OF B.H.
    NO. 2019-CJ-0523
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana v. Nathaniel BRYANT
    NO. 2019-KK-0471
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Chasity Summer MAY, Individually and on Behalf of Her Minor Child, Christopher Seth Denison v. Barbara NOGUCHI, M.D.
    NO. 2019-CC-0474
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana
    IN the INTEREST OF C.B. and B.M.
    NO. 2019-CJ-0495
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   HUGHES, J., would grant.


text:
    SUCCESSION OF Ray E. ROMERO
    18-923
    Court of Appeal of Louisiana, Third Circuit.
    May 8, 2019
   Ian A. Macdonald, Jones Walker LLP, 600 Jefferson Street, Suite 1600, Lafayette, Louisiana 70501, (337) 593-7617, COUNSEL FOR DEFENDANT-APPELLANT: Douglas E. Waters

Tyler J. Rench, Jones Walker, LLP 201 St. Charles Ave., Suite 5100, New Orleans, LA 70170, (504) 582-8336, COUNSEL FOR DEFENDANT-APPELLANT: Douglas E. Waters

Raymond A. Beyt, Aaron D. Beyt, P.O. Box 52157, Lafayette, LA 70503, (337) 233-6771, COUNSEL FOR PLAINTIFFS-APPELLEES Clifford Gerard Ellender, et. al.

Clifford Gerard Ellender, et al., c/o Larry Lovas, 216 Kees Circle, Lafayette, LA 70506, PRO SE PLAINTIFFS-APPELLEES Clifford Gerard Ellender, et al.

Porteus R. Burke, Burke & Cestia, P.O. Box 10337, New Iberia, LA 70562-0337, (337) 365-6628, COUNSEL FOR OTHER APPELLEE: Carolyn Romero Rink

Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.

SAVOIE, Judge.

In connection with this court's docket number 18-923, the Defendant-Appellant Douglas Waters ("Mr. Waters"), who is the Executor of the Succession of Ray Romero, appeals the trial court's judgment dismissing Plaintiffs' Petition for declaratory relief without prejudice, arguing that the Petition should have been dismissed with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Ray Romero passed away on November 13, 2016. On October 20, 2017, a group of eighteen of Mr. Romero's purported nieces and nephews ("Plaintiffs") filed a Petition for Declaratory Judgment concerning their inheritance rights with respect to Mr. Romero's estate. They named as Defendants, Mr. Waters, individually and as Executor of Mr. Romero's succession, and Carolyn Rink, who was Mr. Romero's only biological child and born of Mr. Romero's first marriage. Plaintiffs further alleged that after Mr. Romero's first marriage ended, Mr. Romero married Martha Waters Romero. Mr. Romero and Martha did not have any biological children together, however, Martha had two children from prior relationships: Mr. Waters, who is the Executor herein, and Virginia Waters Johnson.

In their Petition, Plaintiffs further alleged that Mr. Romero died testate, noting a Will dated October 14, 1993 ("the Will"), which left Mr. Romero's assets to the Trustees of the Romero Living Trust of 1991 ("the 1991 Trust"). However, according to Plaintiffs, the 1991 Trust terminated pursuant to a document dated September 17, 2007. They also alleged that Martha had predeceased Mr. Romero and the Will disinherited Ms. Rink. Therefore, according to Plaintiffs, Mr. Romero's estate should be divided among them as the surviving children of Mr. Romero's four deceased siblings pursuant to the rules of intestacy. According to Plaintiffs, the only estate asset is a Merrill Lynch account, which was formerly held in the 1991 Trust, but had been returned to Mr. Romero by virtue of the termination and distribution of the 1991 Trust property on September 1, 2007. Both Mr. Waters and Ms. Rink filed separate Answers to Plaintiffs' Petition.

On March 16, 2018, Mr. Waters filed a Motion for Summary Judgment seeking dismissal of Plaintiffs' Petition with prejudice insofar as it sought a determination that the Merrill Lynch account was part of Mr. Waters' estate. He argued that the account and its proceeds were property of The Romero Living Trust of 2007 ("the 2007 Trust"), which replaced the 1991 trust. Mr. Waters further described the various transactions that replaced the 1991 Trust with the 2007 Trust and transferred the Merrill Lynch Account to the 2007 Trust. He also noted that after Mr. Romero passed away on November 13, 2016, he was named Executor at the time of probate in March 2017 in accordance with the Will, and under the terms of the 2007 Trust, he also became the successor trustee and liquidated the Merrill Lynch account. Mr. Waters' Motion for Summary Judgment also sought dismissal of Plaintiffs' claims arguing that "the small amount of property owned by the estate" could not be distributed to Plaintiffs because "they have not sufficiently proven their relatedness to the decedent[.]" Mr. Waters did not seek a hearing date with respect to his Motion for Summary Judgment, no hearing date was set, and Plaintiffs did not file any opposition thereto.

On May 8, 2018, Plaintiffs submitted a Motion and Order to Dismiss, seeking the voluntary dismissal of their action without prejudice. Mr. Waters filed an opposition on May 9, 2018, arguing that Plaintiffs' Petition should be dismissed with prejudice, rather than without prejudice. The trial court signed an order on May 11, 2018, granting Plaintiffs' motion and dismissing their Petition without prejudice.

Mr. Waters appeals. In his sole assignment of error, he states: "The Trial Court abused its discretion when it dismissed [Plaintiffs'] petition without prejudice in the face of a then-pending Motion for Summary Judgment, which sought dismissal of the same petition with prejudice."

ANALYSIS

Louisiana Code of Civil Procedure Article 1671 states as follows with respect to a voluntary dismissal:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

"After the defendant has appeared, the trial judge has wide discretion to dismiss without prejudice, and such a decision will not be set aside absent clear abuse of discretion. In short, [ La.Code Civ.P. art.] 1671 leaves to the discretion of the trial court the decision to dismiss without prejudice." LaRocca v. Bailey , 01-618, p. 11 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263, 1270 (internal citations omitted). The "only rule which must be followed by the court in the exercise of its discretion" is that it "cannot dismiss an action without prejudice, after the defendants have made an appearance of record, if substantive rights of the defendant would be lost by the dismissal or if the dismissal would deprive the defendant of a just defense." Mowad v. General Motors Corp. , 02-1189, p. 2 (La.App. 3 Cir. 3/5/03), 839 So.2d 1089, 1091.

Mr. Waters argues on appeal that dismissal of Plaintiffs' claims without prejudice deprives him "of the opportunity to defend against the claims in a timely and efficient manner." He further argues that "[i]n the face of a motion or exception that threatens to permanently end a plaintiff's case, a plaintiff is not permitted to avoid responding by voluntarily dismissing his case and reserving the right to re-file at a later date." (footnote omitted). In support of this argument, Mr. Waters cites to Borrello v. City of Kenner , 99-420 (La.App. 5 Cir. 11/30/99), 750 So.2d 230 ; however, we conclude that Borrello does not support Mr. Water's argument.

In Borrello , the plaintiffs filed a petition on July 1, 1997, arising out of a July 3, 1996 accident wherein a child was injured on a playground. The plaintiffs named the City of Kenner and the Recreational Director of the City of Kenner as Defendants, but asked that service be withheld. The City was not served until July 9, 1998. The defendants responded with prescription exceptions, arguing that under then-applicable La.R.S. 13:5107(D), dismissal was appropriate because the plaintiffs had failed to serve the City within ninety days of filing the petition. However, on the day prior to the scheduled hearing on the exceptions, the plaintiffs instituted a second action nearly identical to the first, but this time requested service on the City. The day after filing the second action, the trial court allowed the plaintiffs to voluntarily dismiss their first action without prejudice. The defendants filed res judicata and prescription exceptions in the second action, which were denied. The defendants appealed the voluntary dismissal, and their supervisory writ application regarding the denials of their exceptions in the second action was consolidated with their appeal.

In finding that the trial court abused its discretion in granting the plaintiffs' motion for voluntary dismissal of the first action, it noted that the timeliness of the first action directly affected the timeliness of the second action. The second action was prescribed on its face, and its timeliness was dependent upon a determination that the first action had interrupted the prescriptive period. As noted by the Borrello court, had the defendants obtained a judgment of dismissal in the first action due to untimely service, the first action would not have been deemed to interrupt prescription as specifically set forth in then-applicable La.R.S. La.R.S. 13:5107(D), and the second action would be prescribed. Therefore, the Borrello court found that the voluntary dismissal deprived the defendants of a prescription defense in the second action.

Contrary to Mr. Waters' assertion, Borrello does not state that it is an abuse of discretion for a trial court to grant a voluntary dismissal without prejudice when a motion or exception that would otherwise end the litigation is pending. Rather, the Borrello court found that the voluntary dismissal was improper because it deprived the defendants of a prescription defense. In the instant case, Mr. Waters does not allege that the voluntary dismissal of Plaintiffs' claims deprives him of a prescription defense, or any other defense; therefore, we find Borrello is inapplicable. Instead, Mr. Waters is concerned that Plaintiffs may file the same claim for declaratory relief in the future. However, the mere possibility that Plaintiffs may seek declaratory relief in the future is not a basis for us to find an abuse of discretion on the part of the trial court when there has been no showing that Mr. Waters would be deprived of any defense or substantive rights. Therefore, we affirm the ruling of the trial court.

CONCLUSION

For the reasons set forth above, we affirm the trial court's ruling in this matter. Costs of this appeal are assessed to Defendant-Appellant, Douglas Waters. AFFIRMED.

      We do not consider at this time the merits of docket numbers 18-924 and 18-982, which have been consolidated herewith, per the request of counsel who have noted a potential settlement.