text:
    BUSINESS SPECIALISTS, INC. and Continental Business, Inc., Appellants, v. LAND & SEA PETROLEUM, INC., Appellee.
    No. 4D08-1584.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.

      John T. Mulhall III, and Jill G. Weiss of Rutherford Mulhall, P.A., Boca Raton, for appellants.
    James F. Sposato and Gregory J. Ritter of Ritter, Chusid, Bivona & Cohen, LLP, Coral Springs, for appellee.
   MAY, J.

Brokers appeal an adverse summary judgnent on their claim for breach of a marketing agreement for the sale of a business and land. They argue the trial court erred in entering summary judgment because genuine issues of material fact existed. We disagree and affirm.

The brokers filed a complaint against the seller for breach of a brokerage-commission contract. They alleged that the parties entered into a marketing agreement, which provided the following.

Seller agrees that if the listing agreement is cancelled or withdrawn during the listing term or Broker procures a ready, willing and able Buyer, the full commission shall be due and payable to Broker. If the Seller does not comply with the listing terms or for any reason fails to provide disclosure of business records or reasonable access to the business thereby directly or indirectly preventing the sale of the property, the commission is due and payable to the Broker.

The brokers alleged that the seller agreed to pay them 9% of the purchase price.

During the term of the agreement, the seller entered into a contract for the purchase of the business and land with a prospective buyer for $3,600,000. The contract required an $80,000 deposit, $2,520,000 in bank financing, and $1,000,000 to be financed by the seller under “terms to be negotiated during the due diligence period.” The contract also provided for the negotiation of continued employment for the seller’s principal. Within three business days of entering the contract, the purchaser could request financial documents as pai’t of its due diligence. The seller was then required to produce the documents within five business days of the request.

The brokers claimed that the seller breached the brokerage-commission agreement by failing to provide information required during the due-diligence period and by failing to pay the commission. They argued that they fully performed under the terms of the brokerage-commission agreement by providing a “ready, willing and able buyer,” and that the sales contract acknowledged that they had performed their duties pursuant to the brokerage-commission agreement. The seller responded that the sales contract was unenforceable because the essential terms were not agreed upon; i.e., (1) the seller-based financing; and (2) the terms of employment of the seller’s principal.

The seller moved for summary judgment. In response, the brokers filed affidavits of the broker’s agent and the prospective purchaser. The agent attested that the brokers procured a ready, willing, and able buyer, but the seller failed to provide requested information during the due-diligence period. The agent further attested that the essential terms were agreed upon.

The purchaser attested that he was, and remains, ready, willing, and able to close on the contract, but the seller failed to provide the requested financial documents. He further attested that the essential terms of the seller-backed financing were agreed upon. Those terms set the interest rate at 7%, with interest payments only, and a three-year balloon. “[T]he seller would retain 25% of the stock until the mortgage was paid.”

After the hearing on the motion for summary judgment, the court directed the parties to submit additional information. At a second hearing on the motion, the trial court found there was no meeting of the minds with regard to the essential terms of the contract and therefore no enforceable contract. The court granted summary judgment.

The standard of review for orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). We will affirm a summary judgment “only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id.

Before an action for breach of contract can be sustained, there must be an enforceable contract. “[A] meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract.... ” Acosta v. Dist. Bd. of Trs. of Miami-Dade Cmty. Coll., 905 So.2d 226, 228 (Fla. 3d DCA 2005) (quoting Greater N.Y. Corp. v. Cenvill Miami Beach Corp., 620 So.2d 1068, 1070 (Fla. 3d DCA 1993)). When essential terms are left open for negotiation, there is no meeting of the minds. Freedman v. Fraser Eng’g & Testing, Inc., 927 So.2d 949, 952 (Fla. 4th DCA 2006). Financing terms in real estate transactions are essential terms of a contract. David v. Richman, 568 So.2d 922, 924 (Fla.1990). Here, as the trial court found, the buyer and seller had agreed on some terms for the sale of the business and land, but had not agreed on all of the essential terms, which included not only the terms of the seller financing, but the continued employment of the seller’s principal.

To be sure, the seller’s alleged noncompliance during the due-diligence period and the purchaser’s continued willingness to purchase were issues of fact, but they were not genuine issues of material fact. If there was no enforceable agreement, then those factual disputes were not material to the cause of action. See, e.g., Zaydon v. Wilder, 305 So.2d 81, 83 (Fla. 3d DCA 1974) (indicating the controlling legal principle which entitles a broker to a commission is the existence of a binding contract for sale containing terms acceptable to the seller). We therefore affirm the summary judgment.

Affirmed.

POLEN and GERBER, JJ., concur.

      . The prospective buyer could not supply the missing essential terms by verbal agreement because the contract included tire sale of land. See Craig R. Weiner Assocs., Inc. v. Sherden, 444 So.2d 431, 432 (Fla. 4th DCA 1983) ("The Statute of Frauds requires that a contract for the sale of land be proved by a written memorandum that contains all the essential terms of the sale....”). In addition, the contract itself required any modification to be in writing.


source: Caselaw Access Project

author: PER CURIAM-

license: Public Domain

text:
    Lorenzo LLERANA, Appellant, v. AUTONATION, INC., Appellee.
    No. 4D09-2383.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    William R. Amlong, Karen Coolman Am-long, and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.
    Jon K. Stage and Eric K. Gabrielle of Stearns, Weaver, Miller, Weissler, Alha-deff & Sitterson, P.A., Fort Lauderdale, for appellee.
   PER CURIAM-

Affirmed. See Maki v. Autonation, Inc., 895 So.2d 453 (Fla. 4th DCA 2005).

GROSS, C.J., MAY and CIKLIN, JJ., concur.


author: CRENSHAW, Judge.

text:
    Christopher AFFENITO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6140.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    Christopher J. Affenito, pro se.
   CRENSHAW, Judge.

Christopher Affenito appeals the denial of his motions for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Affenito, in part, sought 77 days of jail credit in case 01-6403 for time he spent in jail from July 26, 2002, to October 11, 2002. We find the resolution of this jail credit claim requires factual determinations that are not apparent in the record and cannot be raised in a rule 3.800(a) motion. See Ericson v. State, 932 So.2d 311 (Fla. 2d DCA 2006). Therefore, we affirm the trial court’s orders without prejudice to any right Affenito may have to file a timely and facially sufficient sworn motion seeking jail credit under Florida Rule of Criminal Procedure 3.850. Id. Such motion should not be deemed successive. Id. Finally, because the time for Affenito to file a rule 3.850 motion expired during the pendency of this appeal, “we authorize him to file a motion pursuant to rule 3.850 within sixty days from the date of the mandate issued in this proceeding, which motion the trial court should treat as timely filed.” Clifton v. State, 905 So.2d 1042, 1043 (Fla. 2d DCA 2005).

Affirmed.

WALLACE and LaROSE, JJ., Concur.


author: EVANDER, J.

text:
    R.N., Father of G.N., R.C.N., and A.N., Children, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 5D09-1777.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2010.

      Debra Alexander, St. Augustine, for Petitioner.
    Jeffrey Dana Gillen, Statewide Appeals Director, West Palm Beach, for Respondent Department of Children and Families.
    Annette M. Lizardo, Statewide Guardian Ad Litem office, Orlando, for Guardian Ad Litem Program.
   EVANDER, J.

The petitioner, R.N., (“the father”) seeks certiorari review of an order that amended his case plan to require him to perform additional tasks, including the completion of a batterer’s intervention program. The father contends that the amendment to the case plan was done in contravention of his procedural due process rights. We deny the petition.

R.N. is the father of three minor children. On July 10, 2008, the Department of Children and Families (“DCF”) filed a petition for dependency, alleging that the three children had been abused and/or neglected as the result of their parents’ drug use, domestic violence, use of excessive corporal punishment, and failure to meet the children’s basic needs. The dependency case was referred to mediation where a complete agreement was reached between the parents and DCF. The father subsequently entered a consent plea to the petition and, on October 8, 2008, the trial court entered an order adjudicating the children dependent and accepting the case plan agreed to by the parents and DCF. The trial court’s order provided for the placement of the children with their maternal grandmother. The father was entitled to day-time only, unsupervised visitation. As part of the case plan, the father was ordered to complete a “bio/psycho/social evaluation” and follow the recommendations resulting from the evaluation, complete an anger management program, complete an in-home parenting program after reunification, provide proof of stable housing and employment, pay child support, and not be involved in any illegal activities.

In February 2009, based on an allegation of a new incident of a domestic altercation, DCF filed an expedited motion for modification of visitation. DCF sought to limit the father to supervised visitation only and “to make such orders as the Court deems reasonable and necessary to ensure the well-being of [the children].”

After a duly noticed evidentiary hearing on DCF’s motion, the trial court found that the father had engaged in a domestic altercation with the mother in the presence of the children, during which he had also badly disparaged the mother. The trial court determined that the three children had been traumatized by the incident and granted DCF’s request for supervised visitation. The trial court further determined that a more significant case plan was required. The case plan was amended to 1) require the father to complete a certified batterer’s intervention program (in lieu of the previously-ordered anger management classes), 2) require the father to enroll in a parental alienation counseling program, and 3) require the father to complete a parents, children and divorce class (which had been previously ordered but not completed in the parents’ dissolution case). The order provided that the trial court would consider reinstatement of unsupervised visitation upon proof of the father’s enrollment and active participation in the above-referenced classes.

After the father’s motion for rehearing was denied, he filed the instant petition for writ of certiorari, arguing that the trial court’s order constituted a departure from the essential requirements of law. The father claimed that DCF’s expedited motion for modification of visitation did not provide him notice that the case plan might be amended. In making this argument, the father relied on two prior decisions of this court-K.E. v. Dep’t of Children and Families, 958 So.2d 968 (Fla. 5th DCA 2007) and R.H. v. Dep’t of Children and Families, 948 So.2d 898 (Fla. 5th DCA 2007). However, both of these cases are readily distinguishable because they were based on application of the former rule addressing the process for the amendment of case plans — Florida Rule of Juvenile Procedure 8.400(b). In 2007, the case plan amendment rule was significantly modified and is now set forth in Rule 8.420. The new rule was adopted in response to the Legislature’s enactment of section 39.6013, Florida Statutes (2006). See In re Amends. to the Fla. Rules of Juv. Pro., 951 So.2d 804 (Fla.2007).

Rule 8.420 provides, in relevant part:

(a) Modifications. After the case plan has been developed, the tasks and services agreed upon in the plan may not be changed or altered except as follows.
* * *
(3)The case plan may be amended by the court or on motion of any party at any hearing to change the goal of the plan, employ the use of concurrent planning, or add or remove the task the parent must complete in order to substantially comply with the plan, if there is a preponderance of evidence demonstrating the need for the amendment.
(b) Basis to Amend the Case Plan. The need to amend the case plan may be based on information discovered or circumstances arising after the approval of the case plan for:
(1) a previously unaddressed condition that, without services, may prevent the child from safely returning to or remaining in the home;
(2) the child’s need for permanency;
(3) the failure of a party to substantially comply with a task in the original case plan, including the ineffectiveness of a previously offered service;
(4) an error or oversight in the case plan;
(5) information discovered or circumstances arising after the approval of the plan regarding the provision of safe and proper care for the child.

(Emphasis added).

Although Rule 8.420 contemplates an evidentiary basis to support a case plan amendment, the rule does not require that specific prior notice of a possible amendment be given. Here, the trial court’s actions complied with both section 39.6013 and Rule 8.420. The trial court determined, after a duly noticed evidentia-ry hearing, that there was a demonstrated need to amend the case plan based on circumstances that arose after its approval of the initial case plan. The amendment to the case plan was deemed necessary for the protection of the children, if and when, the father was again granted the right of unsupervised contact with his children. Substantial competent evidence supported the trial court’s decision. The father had notice and an opportunity to be heard on the new allegations and was aware that DCF was seeking a restriction on his visitation rights as well as any other relief necessary and reasonable to protect the children. There was no denial of the father’s procedural due process rights.

Petition for Writ of Certiorari DENIED.

GRIFFIN and JACOBUS JJ„ concur.

      . The mother has not sought review of the trial court's order.

      . Prior to the 2007 rule amendments, Rule 8.400(b) provided:
      (b)Amendments.
      (1)The case plan may be amended by:
      (A) the parties at any time provided agreement is unanimous, and the amendment is approved by the court;
      (B) die court on motion of a party after notice to all other parties; or
      (C) the court.
      (2) If any party objects to the amendment of the case plan, the court must conduct a hearing allowing each party to present evidence and information as permitted in rule 8.340(a).
      (3) Any amendment granted by the court must be based on competent evidence.

      . Section 39.6013, Florida Statutes (2009) provides:
      (1) After the case plan has been developed under s. 39.6011, the tasks and services agreed upon in the plan may not be changed or altered in any way except as provided in this section.
      (2) The case plan may be amended at any time in order to change the goal of the plan, employ the use of concurrent planning, add or remove tasks the parent must complete to substantially comply with the plan, provide appropriate services for the child, and update the child’s health, mental health, and education records required by s. 39.6012.
      (3) The case plan may be amended upon approval of the court if all parties are in agreement regarding the amendments lo the plan and the amended plan is signed by all parties and submitted to the court with a memorandum of explanation.
      (4) The case plan may be amended by the court or upon motion of any party at any hearing to change the goal of the plan, employ the use of concurrent planning, or add or remove tasks the parent must complete in order to substantially comply with the plan if there is a preponderance of evidence demonstrating the need for the amendment. The need to amend the case plan may be based on information discovered or circumstances arising after the approval of the case plan for:
      (a) A previously unaddressed condition that, without services, may prevent the child from safely returning to the home or may prevent the child from safely remaining in the home;
      (b) The child's need for permanency, taking into consideration the child's age and developmental needs;
      (c) The failure of a party to substantially comply with a task in the original case plan, including the ineffectiveness of a previously offered service; or
      (d) An error or oversight in the case plan.
      (5) The case plan may be amended by the court or upon motion of any party at any hearing to provide appropriate services to the child if there is competent evidence demonstrating the need for the amendment. The reason for amending the case plan may be based on information discovered or circumstances arising after the approval of the case plan regarding the provision of safe and proper care to the child.
      (6) The case plan is deemed amended as to the child’s health, mental health, and education records required by s. 39.6012 when the child's updated health and education records are filed by the department under s. 39.701(8)(a).
      (7) Amendments must include service interventions that are the least intrusive into the life of the parent and child, must focus on clearly defined objectives, and must provide the most efficient plan to quick reunification or permanent placement given the circumstances of the case and the child's need for safe and proper care. A copy of the amended plan must be immediately given to the persons identified in s. 39.601 L(6)(b).


author: PER CURIAM.

text:
    Gregory DOCTOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6599.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.
    Anabelle Dias of Anabelle Dias, P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is sua sponte treated as one alleging ineffective assistance of appellate counsel. As counsel concedes, her failure to respond to an order of this court resulted in the dismissal of petitioner’s timely direct appeal in case number 1D09-4531. Under these circumstances, reinstatement of that appeal is appropriate. Accordingly, the petition is granted and the appeal in case number 1D09-4531 will be reinstated by separate order in that proceeding.

VAN NORTWICK and CLARK, JJ., and BERGER, WENDY, Associate Judge, concur.


author: ALTENBERND, Judge.

text:
    Mark BRONK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5038.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.

      Mark Bronk, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Mark Bronk appeals the denial of his motion, which is his second motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He seeks additional jail credit in circuit court case number CRC07-03696CFAWS, a felony charge of failure to appear, for the time he spent in jail after being arrested on a bench warrant for failure to appear in case number CRC05-04571CFAWS. The State’s response admits that when a failure to appear in court in one case results in an arrest on a bench warrant prior to the filing of a second information charging the failure to appear as a separate offense, a defendant is entitled to jail credit on the new charge for all time spent in jail as a result of the bench warrant. Accordingly, we reverse and remand for the trial court to award additional jail credit. We note that we have expedited the release of this opinion because the additional jail credit should allow for Mr. Bronk’s release in the very near future.

On February 26, 2007, Mr. Bronk failed to appear at a pretrial conference in case number CRC05-04571, a charge of trafficking in illegal drugs. The trial court issued a bench warrant for Mr. Bronk’s arrest at that time.

On March 6, 2007, Mr. Bronk was arrested on the bench warrant. Mr. Bronk was continuously in jail from this arrest until his sentencing. The State filed a felony information formally charging him with failure to appear on July 6, 2007, in case number CRC07-03696. On July 12, 2007, while in jail, Mr. Bronk was arrested on the new warrant issued due to the filing of the formal charge of failure to appear.

The trial court sentenced Mr. Bronk in both of these cases on July 30, 2007. He received concurrent sentences, each sentence of imprisonment being three years, five months, and twenty-three days in length. However, he received fewer days of jail cx*edit in case number CRC07-03696 because the trial court commenced his credit in that case on July 12, the date he was arrested in jail on the warrant issued in connection with the new information.

Mr. Bronk filed an earlier postcon-viction motion challenging his jail credit. The trial court gave him an additional eighteen days of credit in case number CRC05-04571 but no additional credit in case number CRC07-03696. We affirmed that order on appeal. Our affirmance undoubtedly prompted the trial court to deny this second motion for jail credit. However, on this second review, we realized that we had misunderstood Mr. Bronk’s claim and the interrelationship between the two cases because the first pro se pleading had not adequately explained the nature of the bench warrant. The fact that this court affirmed a denial of his claim in a previous postconviction motion does not preclude relief when the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice. See State v. McBride, 848 So.2d 287 (Fla.2003); Cillo v. State, 913 So.2d 1233 (Fla. 2d DCA 2005); Lawton v. State, 731 So.2d 60 (Fla. 2d DCA 1999); Allen v. State, 989 So.2d 731 (Fla. 4th DCA 2008).

Section 921.161(1), Florida Statutes (2006), provides in pertinent part that “the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” The statutory entitlement to pre-sentence jail credit starts with the initial arrest for a criminal offense. See Gethers v. State, 838 So.2d 504, 506-07 (Fla.2003); Bedford v. State, 880 So.2d 1265, 1266-67 (Fla. 2d DCA 2004). Jail credit continues to accrue until an actual release from custody. See Green v. State, 979 So.2d 395 (Fla. 2d DCA 2008).

Failure to appear is an unusual offense because the first warrant issued for the criminal act is often issued in an earlier case. A single act is essentially an act of disobedience or contempt in the first case and a separate felony offense in the second case. The question, thus, is whether jail credit for the separate offense runs from the arrest on the bench warrant in the earlier case or only from the arrest following the filing of the second information.

We note that in most criminal cases, the initial arrest will precede the filing of formal charges. The entitlement to jail credit starts with the initial arrest, even if the accused is later arrested again while in jail due to the filing of the formal charges and even if the offense reflected at the time of arrest is not the offense ultimately alleged in the information.

When this court commenced its review of this second postconviction appeal, we became concerned that Mr. Bronk had alleged a valid claim even though he had cited no case law that was directly on point. Accordingly, we asked the State to respond.

The State responded and disclosed this court’s decision in Lee v. State, 890 So.2d 1292 (Fla. 2d DCA 2005), which squarely supports Mr. Bronk’s claim. The State also recognized that the doctrine of law of the case did not prevent an award of additional jail credit at this time. This court acknowledges and appreciates the professionalism of the attorney who filed the State’s response.

Accordingly, Mr. Bronk is entitled to an award of jail credit in case number CRC07-03696 from March 6, 2007, to July 12, 2007. See Foley v. State, 857 So.2d 292 (Fla. 2d DCA 2003).

We reverse with directions for the post-conviction court to award this jail credit. Because Mr. Bronk may be entitled to a release from prison in February 2010 and the State has recognized the error in this case, we issue our mandate with this opinion to provide the trial court with the power to award the credit forthwith.

Reversed and remanded with directions.

CASANUEVA, C.J., and VILLANO!, J., Concur.


author: WHATLEY, Judge.

text:
    Clemons WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4988.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.
    Clemons Wilson, pro se.
   WHATLEY, Judge.

Clemons Wilson appeals the order summarily denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Although Wilson filed his motion fifteen years after he was sentenced, that is not fatal to his claim because “[a] rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed .... ” State v. Callaway, 658 So.2d 983, 988 (Fla.1995).

In the first ground of his motion, Wilson argued that the trial court improperly sentenced him as a habitual offender upon revocation of his probation in case numbers 90-13867 and 90-14091 when he was not originally sentenced as a habitual offender in those cases.

A habitual offender sentence imposed when the defendant is not, as a matter of law, subject to habitualization, is illegal and may be corrected if the error is apparent on the face of the record. See Mack v. State, 823 So.2d 746, 751 (Fla.2002) (holding that Mack was improperly habitualized upon the revocation of his probation when he was not originally sentenced as a habitual offender).

The improper sentencing of Wilson is apparent on the face of the record attachments to the trial court’s order. Accordingly, we reverse Wilson’s sentences in case numbers 90-13867 and 90-14091 and remand for further proceedings.

In the second ground of his motion, Wilson argued that his habitual offender sentences for the subsequent offenses that triggered the revocation of his probation were illegal because they were imposed in violation of the sequential conviction requirement. See Bover v. State, 797 So.2d 1246, 1250 (Fla.2001) (“[T]he court must have imposed sentence for the two prior convictions separately from each other. Thus, although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences camiot be part of the same sentencing proceeding.”). However, the sequential conviction requirement was added to the habitual offender statute effective June 17,1993, after being repealed in 1988. Ch. 93-406 §§ 2, 44, Laws of Fla. According to his motion, Wilson was arrested for the offenses in case number 92-6001 on April 28,1992, and the judgment and sentence in that case show a date of March 1, 1993. Consequently, the sequential conviction requirement did not apply to Wilson’s sentencing as a habitual offender in case no. 92-6001. Accordingly, Wilson’s second ground is without merit.

Affirmed in part; reversed in part, and remanded with directions.

LaROSE, J., Concurs.

KELLY, J., Concurs in result only.


author: LaROSE, Judge.

text:
    Patricia P. BURGESS, Appellant, v. Gerald M. PRINCE, Appellee.
    No. 2D09-52.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.
    Matthew J. Conigliaro and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, for Appellant.

      Joseph W. Fleece, III, of Baskin Fleece, Clearwater, for Appellee.
   LaROSE, Judge.

Patricia Burgess appeals from a partial final judgment in which the trial court removed her as Trustee of the Prince Family Trust and ruled that the Trust may not compensate her for managing Salt Creek Art Works, a Trust asset. We reverse the trial court’s ruling that Ms. Burgess, as a Trust beneficiary, may not be compensated for managing a Trust asset and ordering all compensation she received to be charged against her distributive share of the Trust. We affirm the remainder of the partial final judgment without further discussion.

In interpreting the terms of a trust agreement, we look to the plain language of the document. See Fleck-Rubin v. Fleck, 933 So.2d 38, 39-40 (Fla. 2d DCA 2006); Robbins v. Hunyady, 498 So.2d 955, 957 (Fla. 2d DCA 1986). We review the trial court’s construction of the document de novo. See Doe v. Doe, 20 So.3d 892, 896 (Fla. 2d DCA 2009) (“circuit court’s ruling on the proper interpretation of ... trusts is a question of law subject to de novo review”); Roberts v. Sarros, 920 So.2d 193 (Fla. 2d DCA 2006) (construing trust based on contract construction rules).

Section 6.2 of the Trust provides that a beneficiary may not receive compensation for serving as Trustee:

Any Trustee, whether an individual or corporate trustee, who may serve under the Trust shall be entitled to receive compensation for its services as Trustee in accordance with its schedule of rates in effect at the time the services are rendered, including minimum fees and additional compensation for special investment and interests in a closely-held business. Any Trustee who is also a beneficiary under the Trust shall serve without compensation.

(Emphasis added.) Our record demonstrates, however, that Ms. Burgess did not receive compensation for her service as Trustee. Rather, she received a modest monthly payment from the Trust for operating the ongoing business of Salt Creek Art Works. The payments she received were not contrary to the terms of the Trust. Indeed, the Trust allows compensation to a Trustee serving in other capacities. Section 6.4 empowers the Trustee:

[T]o employ accountants, actuaries, appraisers, attorneys, brokers, building contractors, custodians, investment managers, realtors, and other agents including any Tmstee, if such employment be deemed necessary or desirable and to pay reasonable compensation for their services without diminution of any fiduciary’s commissions....

(Emphasis added.)

Finally, section 6.5 allows the Trustee to compensate a beneficiary for business management duties:

To determine in his or her discretion the manner and extent of his or her active participation in the business, and to delegate all or any part of his or her power to supervise and operate to such person or persons as he or she may select, including any associate, partner, officer or employee of the business.
To hire and discharge officers and employees, fix them compensation and define their duties; and to employ, compensate and discharge agents, attorneys, consultants, accountants and such other representatives as the Trustee may deem appropriate; including the right to employ any beneficiary or individual fiduciary in any capacity.

(Emphasis added.)

Relying on the plain language of the Trust document, we must conclude that the trial court erred in ruling that Ms. Burgess could not be compensated for managing Salt Creek Art Works.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

WALLACE and CRENSHAW, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Larry WOMBAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2849.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.
    Larry Wombaugh, pro se.
   NORTHCUTT, Judge.

Larry Wombaugh challenges the order of the postconviction court denying his motion for jail credit which was filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although not specifically delineated in the motion, Wombaugh sought credit against his prison sentence for time spent in jail in North Carolina following his arrest there on a fugitive warrant and also for time spent in jail in Pinellas County following his extradition to Florida. We affirm the postconviction court’s order as it relates to the claim for out-of-state jail credit. However, we reverse the denial of the claim for Pinellas County jail credit and remand for further proceedings on this issue.

Wombaugh filed the present motion in trial court case number 07-4247. Wom-baugh pleaded nolo contendere in trial court case number 06-9737 to aggravated stalking and felony battery. In 07-4247, he pleaded nolo contendere to failure to appear. On November 13, 2007, the trial court sentenced Wombaugh in both cases to concurrent sentences of forty-two months in prison on all three felony convictions. Wombaugh was awarded 277 days’ jail credit on both counts of 06-9737 and 258 days’ credit on 07-4247. Subsequently, Wombaugh filed a postconviction motion seeking credit in 06-9737 for the time he spent in jail in North Carolina following his arrest there on January 15, 2007. In that case, the postconviction court found that Wombaugh was actually arrested on January 16, 2007, on the fugitive warrant and was then transferred to Pinellas County on February 11, 2007. It awarded him an additional 27 days’ jail credit for a total of 304 days’ credit.

In the present motion, Wombaugh alleged that he was also arrested on 07-4247 in North Carolina on January 15, 2007. He further alleged that he remained in custody until he was sentenced on November 13, 2007, and that he is entitled to a total of 303 days’ jail credit rather than the 258 days awarded. The postconviction court ultimately denied the motion, finding that Wombaugh was awarded out-of-state jail credit in 06-9737 and that he failed to present any documentation showing that he was arrested in North Carolina on 07-4247. The postconviction court further found that Wombaugh was not arrested on the offense of failure to appear, which was charged in 07-4247, until March 1, 2007, at which time he was already in custody in the Pinellas County jail on 06-9737.

The North Carolina waiver of extradition attached to Wombaugh’s motion indicates that the offenses for which Florida was seeking extradition were “Fta/stalking.” The North Carolina fugitive warrant, also attached to the motion, indicates that Wombaugh was arrested for “FTA STALKING.” FTA is as an acronym for failure to appear. Thus, the documentation establishes that Wombaugh was arrested for failing to appear for a scheduled court date in 06-9737. The failure to appear subsequently became the basis of the charge in 07-4247. We therefore conclude that the postconviction court was incorrect when it found that Wombaugh failed to present any documentation that he was arrested in North Carolina on the charge of failure to appear, and we hold that he was in fact arrested on that charge when taken into custody on the fugitive warrant in North Carolina. Wombaugh claimed that the waiver of extradition and the fugitive warrant were part of the trial court record, and the postconviction court, in its orders, does not dispute this assertion.

A claim that a defendant is entitled to out-of-state jail credit is not cognizable in a rule 3.800(a) motion but must be raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of trial counsel. Garnett v. State, 957 So.2d 32, 33 (Fla. 2d DCA 2007) (en banc). Although Wom-baugh’s motion was under oath and therefore met the requirements of rule 3.850, he did not allege that trial counsel was ineffective in failing to request that the trial court award out-of-state jail credit, and the motion is facially insufficient under rule 3.850. Our affirmance is therefore without prejudice to any right Wombaugh may have to file a facially sufficient rule 3.850 motion alleging that trial counsel was ineffective in failing to request out-of-state jail credit. Wombaugh shall have sixty days from the date of the mandate in this case in which to file such a motion, and the postconviction court shall consider the motion timely filed.

Although Wombaugh made no distinction between out-of-state and in-state jail credit, the postconviction court’s order granting jail credit in 06-9737 and the order denying rehearing in the present case indicate that Wombaugh was extradited to Pinellas County on February 11, 2007, following his arrest in North Carolina for failing to appear for a court date in 06-9737, but that he was not formally arrested in Pinellas County for the offense of failure to appear until March 1, 2007. If this is correct, Wombaugh is entitled to credit from February 11 to March 1, 2007. Wombaugh properly alleges that the trial court’s records demonstrate his entitlement to credit, and he has presented a facially sufficient rule 3.800(a) claim regarding the Pinellas County jail credit. We therefore reverse that portion of the order denying Wombaugh’s claim to instate jail credit and remand for further proceedings on this issue.

Affirmed in part, reversed in part, and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . Wombaugh spent one day in jail on 06-9737, which accounts for the discrepancy between the 304 days' total amount of credit he was awarded in that case and the 303 days’ total credit he seeks in the present case.

      . We note that when the postconviction court is deciding whether to award such credit, it should consider whether the defendant was being held in a different state solely for the Florida offense for which he is seeking credit. See McRae v. State, 820 So.2d 1048, 1049 (Fla. 2d DCA 2002) (en banc). Furthermore, the exercise of the postconviction court’s discretion is not unbridled but is subject to the test of reasonableness. When the postconviction court denies a claim for out-of-slate jail credit, it must attach documentation or state the reason for denying the claim. Id.


text:
    Charles Ryan HICKMAN and Carol Cavanagh Hickman, Appellants, v. BARCLAY’S INTERNATIONAL REALTY, INC. a Florida Corporation, Robert Wyner, and Bjorn Q. Aaserod, Appellees.
    No. 4D09-6.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellants.

      Jennifer S. Carroll and David Noel of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, and Edwin E. Mortell, III, of Peterson Bernard, Stuart, for appellee, Robert Wyner.
   PER CURIAM.

Affirmed. See Alioto-Alexander v. Toll Bros., Inc., 12 So.3d 915 (Fla. 4th DCA 2009).

FARMER, HAZOURI, JJ., and BOWMAN, JOHN, Associate Judge, concur.


author: KNOLL, Justice.

text:
    Susan BLACK v. ST. TAMMANY PARISH HOSPITAL, Dr. Robert Capitelli, Patti Ellish, Judy Gracia, and Barbara Oakes.
    No. 2008-CC-2670.
    Supreme Court of Louisiana.
    Nov. 6, 2009.

      The Kullman Firm, Charles Hatfield Hollis, New Orleans, for applicant.
    The Law Offices of J. Arthur Smith, Joseph Arthur Smith, III, for respondent.
   KNOLL, Justice.

| tThis whistle blower action presents the issue of whether La.Rev.Stat. § 46:1063 provides an exclusive, mandatory venue provision for suit against a hospital service district, which controls over the general venue provision for political subdivisions set forth in La.Rev.Stat. § 13:5104(B). Pursuant to La.Rev.Stat. § 13:5104(B), plaintiff, Susan Black, a former medical clinic employee, filed the instant action in Washington Parish, where her cause of action allegedly arose, against the clinic’s owner, St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital (“hospital”), among other defendants. In response, defendants filed a declinatory exception of improper venue, arguing that, under La.Rev.Stat. § 46:1063, the hospital must be sued in St. Tammany Parish, where it is domiciled. The district court granted defendant’s exception and transferred the suit to St. Tammany Parish. On supervisory review, the court of appeal reversed and remanded the matter, finding the provisions of La. Rev.Stat. § 13:5104(B) controlling. We granted writ to address the correctness ml non of the court of appeal’s ruling. Black v. St. Tammany Parish Hospital, 08-2670 (La.5/15/09), 8j2_So.3d 569. For the following reasons, we find in accord with well-established rules of statutory interpretation that the specific venue provisions of La.Rev.Stat. § 46:1063 governing hospital service districts prevail as an exception to the general venue provisions contained in La.Rev.Stat. § 13:5104(B). Accordingly, we reverse the judgment of the court of appeal and reinstate the district court’s ruling on the declinatory exception of improper venue, remanding this matter to the 22nd Judicial District Court for the Parish of St. Tammany.

FACTS AND PROCEDURAL HISTORY

As alleged in the petition, plaintiff was employed at the Family Medical Clinic in Washington Parish as a Licensed Practitioner Nurse (LPN) when the clinic was taken over by the hospital in January 2004. At that time, plaintiff continued her employment with the clinic as an employee of the hospital. Then, some time around July 2004, plaintiff “discovered that another employee was mishandling medications and improperly managing controlled substances by writing prescriptions without the legal authority to do so, refilling medications without the legal authority to do so, and things of that nature.” Petition for Damages at p. 1, Black v. St. Tammany Parish Hospital, 96083 (22nd JDC, Div. “G”, Parish of Washington 7/30/07), 2007 WL 6867995. Plaintiff reported this misconduct to the human resources department. Following her report, plaintiff became the subject of harassment by her fellow employees and supervisors. During this time, plaintiff “was never given any ‘write-ups’ or other corrective materials or oral warnings or remindersId. at p. 2. Even so, on or about July 13, 2006, plaintiff was placed on leave. Her employment with the Family Medical Clinic was then terminated without explanation on August 1, 2006.

Subsequently, on July 30, 2007, plaintiff, a resident and domiciliary of Washington Parish, filed this whistle blower action pursuant to La.Rev.Stat. § |s23:967 in the 22nd Judicial District Court for the Parish of Washington against the hospital, in its capacity as owner of the Family Medical Clinic. Plaintiff also named as defendants several executives of the hospital and a manager of the Family Medical Clinic.

In response, defendants collectively filed a declinatory exception, raising the objection of improper venue, citing the provisions of La.Rev.Stat. § 46:1063, which provide:

The police jury creating a hospital service district, with corporate powers, shall designate the domicile of such corporation, at which domicile it shall be sued and service of citation made on the director, and in his absence, upon the chairman of the commission, and in his or their absences, then upon the vice chairman of the commission; provided that in fixing the domicile of the district the police jury shall at all times fix the same at some place within the district.

Defendants argued that under the plain language of the statute, the hospital must be sued in St. Tammany Parish, where it is domiciled.

Plaintiff opposed the exception, citing the provisions of La.Rev.Stat. § 13:5104(B), which provide:

All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

|4Pursuant to La.Rev.Stat. § 13:5104(B), plaintiff argued that the cause of action arose in Washington Parish, where the alleged acts of harassment and retaliation occurred, therefore making venue appropriate there.

Following arguments on the exception, the district court sustained the defendants’ declinatory exception, transferring this matter to the 22nd Judicial District Court for the Parish of St. Tammany. In his oral reasons, the district judge explained:

So the Court has to do kind of a balancing act here. And I think I agree with you. Although I think there’s some — you can read all these codal articles. And one of them says shall. And one will come back and be conflicting in another sense. And so, it’s really, you can come up with just about any conclusion you want to. But I do think that 13:5104 permits the plaintiff to go forward in Washington Parish. She said she is a resident here.
But looking at 46:1063, I think between that and 13:5104, it gives the Court the prerogative of saying, doing my balancing act. And I think that’s one of the things the judge has to do. You have to balance all the apples and all the oranges and see where best justice would be, would be addressed.
And so accordingly, the Court is going, the Court rules that St. Tammany will be the site of this suit.

Transcript of Proceedings at pp. 14-15, Black v. St. Tammany Parish Hospital, 96083 (22nd JDC, Div. “G”, Parish of Washington 1/14/08).

From this ruling, plaintiff sought supervisory review. The First Circuit Court of Appeal granted plaintiffs application, reversed the district court’s ruling, and remanded this matter. Black v. St. Tammany Parish Hospital, 08-0855 (La.App. 1 Cir. 8/21/08), 994 So.2d 113. The appellate court recognized that the more recent law specific to political subdivisions was controlling over the general and older enactment:

In considering the respective arguments of the parties, we note that laws on the same subject matter must be interpreted in reference to each other. La. Civ.Code art. 13. It is generally recognized that the more specific and most recent law is controlling over the general and older enactment. Berteau v. Police Jury of Parish of Ascension, 214 La. 1003, 39 So.2d 594 (1949). Louisiana Revised Statute 13:5104(B) was added by Acts 1975, No. 434 § 1, some twenty-five years after the |flenactment of La. R.S. 46:1063 and La. R.S. 46:1064 by Acts 1950, No. 420, §§ 13 and 14. Insofar as La. R.S. 13:5104(B) is the most recent law and was specifically designed to provide for venue in suits against political subdivisions, including hospital service districts, which were previously recognized as political subdivisions pursuant to La. R.S. 46:1064, we find that La. R.S. 13:5104(B) is applicable in this case.

Id. at p. 9, 994 So.2d at 118-19.

Finding the cause of action giving rise to this litigation arose in Washington Parish, where the plaintiff was formerly employed and worked on a day-to-day basis, the court of appeal concluded Washington Parish was a proper venue in the instant proceeding under La.Rev.Stat. § 13:5104(B) and reversed the district court’s judgment. Id. at p. 11, 994 So.2d at 120. The appellate court then rendered judgment overruling the defendants’ decli-natory exception of improper venue and remanded this matter to the 22nd Judicial District Court for the Parish of Washington. Id. at pp. 11-12, 994 So.2d at 120.

The hospital then sought review from this Court of the issue of whether venue in this matter involving a suit against a hospital service district is controlled by the provisions of La.Rev.Stat. § 46:1063 or La. Rev.Stat. § 13:5104(B).

LAW AND DISCUSSION

The fundamental question at issue in this case is whether the phrase “at which domicile [the hospital service district] shall be sued” in La.Rev.Stat. § 46:1063 super-cedes the general venue provisions for political subdivisions set forth in La.Rev.Stat. § 13:5104. To answer this question, we must examine the relevant provisions with guidance from the rules of venue as well as statutory construction.

Venue

As this Court has previously stated, venue refers to the parish where an action may properly be brought and tried under the rules regulating the subject. Underwood v. Lane Memorial Hosp., 97-1997, p. 3 (La.7/8/98), 714 So.2d 715, 716; La.Code | (iCiv. Proc. art. 41. Venue provisions are based on legislative considerations for allocating cases, according to the particular action and the particular parties, among the various parishes, which have an interest in the action (over which some Louisiana court has the constitutional power to exercise jurisdiction). Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 3 (La.1/17/07), 947 So.2d 15, 18; Underwood, 97-1997 at p. 3, 714 So.2d at 716.

Although the original concept of venue was that “one must be sued before his own judge,” this concept has become anachronistic with the ever-increasing number of legislative exceptions to venue at the party’s domicile. Colvin, 06-1104 at p. 3, 947 So.2d at 18; Underwood, 97-1997 at p. 3, 714 So.2d at 716-17. On this point, we have explained:

The 1960 Code of Civil Procedure divided the rules of venue into three categories: (1) Article 44 provides a non-waivable mandatory venue for actions such as nullity of judgment; (2) Articles 78 through 83 provide a preferred but waivable venue which governs exclusively when the rule conflicts with any article except Article 44; and (3) Article 42 provides a general venue in which the defendant must be sued at his “home base,” but is subject to numerous exceptions in Articles 71 through 77, which provide specific optional venues that the plaintiff may choose as an alternative to the venue in Article 42.

Underwood, 97-1997 at p. 3, 714 So.2d at 717. Consequently, the rules of venue today are less designed to provide protection for the defendant, who has no constitutional right to be tried in a particular forum, and more designed to allocate cases among parishes with an interest in the proceeding so as to provide for efficient disposition of caseloads. Colvin, 06-1104 at p. 4, 947 So.2d at 18; Underwood, 97-1997 at p. 3, 714 So.2d at 717.

Accordingly, the venue provisions for suits against political subdivisions set forth in La.Rev.Stat. § 13:5104(B) specify two parishes in which such entities can be sued. Colvin, 06-1104 at p. 4, 947 So.2d at 18; Underwood, 97-1997 at p. 5, 714 So.2d at 718. The first is the parish in which the political subdivision is located, ie., the classic home base provision. Underwood, 97-1997 at p. 5, 714 So.2d at 718. The second is the parish in which the cause of action arises, ie., the more modern interest/efficiency provision. Id.

More in keeping with the original home base concept, venue in suits against hospital service districts is only proper in the parish of their designated domicile under La.Rev.Stat. § 46:1063. Significantly, because hospital service districts are declared to be political subdivisions under La.Rev.Stat. § 46:1064(A), they are governed by the provisions of both La.Rev. Stat. § 13:5104(B) and La.Rev.Stat. § 46:1063.

In Underwood, this Court reasoned, though dicta, that the use of the word “shall” in La.Rev.Stat. § 13:5104(B) indicated a legislative intent that a single political subdivision can be sued only in one of the two specified parishes and that no other exceptions are applicable. 97-1997 at p. 5, 714 So.2d at 718. This Court’s reasoning was premised upon the Legislature’s 1985 amendment to the statute’s provisions, which substituted the mandatory “shall” for the permissive “may”:

Section 5104 does not fit neatly into any of the three categories of venue established by the Code. At least prior to the 1985 amendment changing the word “may” in Subsection B to “shall,” Section 5104 appeared to provide a general rule of venue similar to Article 42’s provision for venue at the defendant’s “home base,” with a specific exception similar to Article 74. When the word “may” was used in both subsections, Section 5104 arguably could have been construed either as providing for preferred venue in one of two parishes or as providing for general venue subject to all of the exceptions. The legislative change in the wording of Subsection B to “shall” has been construed by several intermediate courts to mean that the venue for actions against a political subdivision is in one of the two specified parishes and no other, given the rule of construction that “shall” is mandatory.
In the context of venue, the permissive “may” and the mandatory “shall” have often been interchanged. Indeed, Article 42, the general venue statute, employs the word “shall” to define the general venue for different types of defendants, yet is subject to the numerous statutory exceptions. Nevertheless, the fact that the Legislature in 1985 expressly |sdeleted the word “may” and substituted the word “shall” in Section 5104 B indicates a legislative intent that a single political subdivision can be sued only in one of the two specified parishes and that no other exceptions are applicable.
When a single political subdivision is the only defendant, the choice of venues provided by Section 5104 B is logical and consistent with the legislative intent that a political subdivision generally must be sued at its “home base” or in the parish which gave rise to the cause of action. And even when a political subdivision is one of several defendants, that legislative intent arguably is still applicable, especially when a parish of proper venue under Section 5104 B is also proper venue for the other defendants.

Underwood, 97-1997 at pp. 4-5, 714 So.2d at 717-18.

Although one of the defendants in Underwood was a hospital service district, its reasoning did not take into consideration the provisions of La.Rev.Stat. § 46:1063. However, the issue of which provision, La. Rev.Stat. § 13:5104(B) or La.Rev.Stat. § 46:1063, governs venue in a suit against a hospital service district was presented to this Court in White v. Beauregard Memorial Hosp., 02-0902 (La.6/14/02), 821 So.2d 481.

In White, the plaintiff filed suit in Calca-sieu Parish against several defendants, including Beauregard Memorial Hospital, properly named Hospital Service District No. 2 of Beauregard Parish, d/b/a Beauregard Memorial Hospital. In response, the hospital filed a declinatory exception of improper venue, arguing first that pursuant to La.Rev.Stat. § 46:1063, the hospital service district could only be sued at its domicile, Beauregard Parish, or alternatively that La.Rev.Stat. § 13:5104 established Ran exclusive venue in Beauregard Parish. The district court denied the exception and the court of appeal affirmed. White v. Beauregard Memorial Hosp., 01-1418 (La.App. 3 Cir. 3/6/02), 809 So.2d 1275. This Court, in a per curiam opinion, granted writs, reversing the lower courts’ judgments and remanding the matter to the district court with instructions to grant defendant’s motion. Quoting Underwood, this Court held:

Granted. In Underwood v. Lane Memorial Hospital, 97-1997, at p. 5 (La.7/8/98), 714 So.2d 715, 718, we held that the use of the word “shall” in La. Rev.Stat. 13:5104(B) “indicates a legislative intent that a single political subdivision can be sued only in one of the two specified parishes and that no other exceptions are applicable.” The court of appeal therefore erred in applying La. Code Civ. Proc. art. 73 to this case. Accordingly, the judgments of the trial court and court of appeal are reversed. The matter is remanded to the trial court which is instructed to grant defendant’s motion of improper venue.

White, 02-0902 at p. 1, 821 So.2d at 481. Most notably, although the Court resolved the issue of venue in favor of the application of La Rev.Stat. § 13:5104(B) in accordance with Underwood’s reasoning, the Court again did not address the provisions of La.Rev.Stat. § 46:1063 in relation to La.Rev.Stat. § 13:5104(B). Thus, we now examine and interpret these provisions in relation to each other to determine which of these two provisions governs venue in the instant case. Our examination begins with the applicable rules of statutory construction.

Statutory Construction

As the fundamental question in all cases of statutory interpretation is legislative intent, the rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Colvin, 06-1104 at p. 6, 947 So.2d at 19; SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 11 (La.6/29/01), 808 So.2d 294, 302. One determines the meaning and intent of a law “by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that |inis consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.” Colvin, 06-1104 at p. 6, 947 So.2d at 19. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intent of the Legislature in enacting it. Colvin, 06-1104 at p. 6, 947 So.2d at 19; SWAT 24, 00-1695 at p. 11, 808 So.2d at 302. The text of the law is the best evidence of legislative intent. La. Rev.Stat. § 24:177(B)(1).

Words and phrases must be read with their context and construed according to the common and approved usage of the language. La.Rev.Stat. § 1:3. “The word ‘shall’ is mandatory and the word ‘may’ is permissive.” Id. Further, every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Colvin, 06-1104 at p. 6, 947 So.2d at 19; Moss v. State, 05-1963, p. 15 (La.4/4/06), 925 So.2d 1185, 1196. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and sur-plusage if a construction giving force to and preserving all words can legitimately be found. Colvin, 06-1104 at p. 6, 947 So.2d at 19-20; Moss, 05-1963 at p. 15, 925 So.2d at 1196.

Where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws. LeBreton v. Rabito, 97-2221, p. 7 (La.7/8/98), 714 So.2d 1226, 1229; Chappuis v. Reggie, 222 La. 35, 44, 62 So.2d 92, 95 (1952); La. Civ.Code art. 13. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. LeBreton, 97-2221 at p. 7, 714 So.2d at 1229; Kennedy v. Kennedy, 96-0732, p. 2 (La.9/9/97), 699 So.2d 351, 358 (on rehearing).

__LyPursuant to these well-established rules of statutory construction, we are called upon in the present case to harmonize the provisions of La.Rev.Stat. § 13:5104(B) and La.Rev.Stat. § 46:1063, if possible, but in the case of conflict, to interpret the more specific statute to prevail as an exception to the more general statutory provision. See LeBreton, 97-2221 at p. 7, 714 So.2d at 1229; Chappuis, 222 La. at 43, 62 So.2d at 95.

Significantly, these statutes present two seemingly mandatory venue provisions. One deals generally with political subdivisions, La.Rev.Stat. § 13:5104(B), and the other deals specifically with one particularly enumerated political subdivision — the hospital service district, La.Rev.Stat. § 46:1063. One allows for venue in suits against political subdivisions in either the parish where the cause of action arose or where the political subdivision is located, while the other sets venue only in the parish where the hospital service district, a political subdivision, is domiciled. Therein lies the conflict.

The court of appeal resolved this conflict by concluding that the provisions of La.Rev.Stat. § 13:5104(B) were controlling based on its erroneous finding that of these two statutes La.Rev.Stat. § 13:5104(B) was the more specific as well as the most recent, specifically designed to provide for venue in suits against political subdivisions, including hospital service districts. However, in this suit against a hospital service district, La.Rev.Stat. § 46:1063, by its plain language, is the statute specifically directed to the matter at issue. La.Rev.Stat. § 13:5104(B), though the more recently enacted, is more general in character as to venue in suits against hospital service districts. In accordance with the general rules of statutory construction addressed above, the conflict between these provisions must be resolved by interpreting the more specific provision governing venue in suits against hospital | l2service districts under La. Rev.Stat. § 46:1063 as an exception to the more general venue provision governing political subdivisions contained in La.Rev. Stat. § 13:5104(B).

Such an interpretation gives force to all words in the statutory provisions and effect to all parts of the statutes by construing no sentence, clause, or word as meaningless or surplusage. See Colvin, 06-1104 at p. 6, 947 So.2d at 19-20; Moss, 05-1963 at p. 15, 925 So.2d at 1196. It further allows La.Rev.Stat. § 13:5104(B) to retain its mandatory nature as to all political subdivisions not subject to more specific venue provisions, such as hospital service districts, which are specifically provided for in the mandatory provisions of La.Rev. Stat. § 46:1063.

Moreover, while La.Rev.Stat. § 13:5104(B) states that political subdivisions shall be sued in the parish where the entities are located or where the cause of action arose, consideration of the plain language of La.Rev.Stat. § 46:1063 indicates a legislative intent that the parish of the hospital service district’s domicile would constitute the exclusive venue for actions against the hospital service district. It logically follows that, by using the phrase “at which domicile it shall be sued,” the Legislature envisioned that hospital service districts, though political subdivisions, would be sued only in the parish of their domicile and not alternatively in the parish where the cause of action arose, as would otherwise be proper under La.Rev.Stat. § 13:5104(B).

Contrarily, to find as White and the court of appeal in this case did that La. Rev.Stat. § 13:5104(B) is controlling, would render the mandatory provisions of La.Rev.Stat. § 46:1063 superfluous. Likewise, if we would attempt to harmonize the provisions by reading the statutes in pari materia and interpreting the phrase “at which domicile it shall be sued” in La.Rev. Stat. § 46:1063 as referring to the parish | isthat would serve as the hospital service district’s location for the purposes of La. Rev.Stat. § 13:5104(B), we would necessarily “read out” the mandatory provision of La.Rev.Stat. § 46:1063 that the hospital service district shall be sued and service of citation made on the director in the designated domicile. Neither of these interpretations allows the mandatory provision of La.Rev.Stat. § 46:1063 to survive.

Furthermore, if La.Rev.Stat. § 46:1063 does not apply in the current situation involving a suit against a hospital service district, there is simply no instance in which La.Rev.Stat. § 46:1063 would apply. It would effectively be written out of our law in contravention of the presumed intent of the Legislature that every statutory provision serve some useful purpose and that some effect be given to each such provision. See Colvin, 06-1104 at p. 6, 947 So.2d at 19; Moss, 05-1963 at p. 15, 925 So.2d at 1196.

Therefore, we find that a careful study of the two relevant provisions renders only one interpretation logically consistent with the presumed purpose and intent of the Legislature and conclude that La.Rev.Stat. § 46:1063 is a specific and mandatory provision which serves as an exception to the general rules of venue governing political subdivisions contained in La.Rev.Stat. § 13:5104(B). To the extent that our holding in White conflicts with this finding, it is hereby overruled.

Accordingly, we find that, pursuant to La.Rev.Stat. § 46:1063, the hospital in the present case can only be sued in the domicile designated by the policy jury, i.e., | l4St. Tammany Parish, and reverse the judgment of the court of appeal, overruling defendants’ declinatory exception of improper venue.

CONCLUSION

In conclusion, we find La.Rev.Stat. § 46:1063 provides an exclusive, mandatory venue provision for suit against a hospital service district, which controls over the general venue provisions for political subdivisions set forth in La.Rev.Stat. § 13:5104(B). As the more specific statute, La.Rev.Stat. § 46:1063 prevails as an exception to La.Rev.Stat. § 13:5104(B)’s more general venue provisions, and White’s holding to the contrary is hereby overruled. Therefore, pursuant to La.Rev. Stat. § 46:1063, we find venue in this matter is only appropriate in St. Tammany Parish, the designated domicile of the hospital, and that the district court correctly sustained defendants’ declinatory exception of improper venue, transferring this matter to the 22nd Judicial District Court for the Parish of St. Tammany. Accordingly, we reverse the judgment of the court of appeal, reinstate the judgment of the district court sustaining defendants’ declinatory exception, and remand this matter to the 22nd Judicial District Court for the Parish of St. Tammany.

DECREE

For the foregoing reasons, we reverse the judgment of the court of appeal and reinstate the judgment of the district court, sustaining defendants’ declinatory exception of improper venue and remanding this matter to the 22nd JDC for the Parish of St. Tammany for further proceedings

REVERSED and REMANDED.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . This provision is referred to as Louisiana’s Whistle Blower Statute.

      . Plaintiff named as defendants: (1) Dr. Robert Capitelli, the hospital’s Senior Vice President and Chief Medical Officer; (2) Patti Ellish, the hospital's President and Chief Executive Officer; (3) Judy Gracia, the hospital's Vice President of Human Resources; and (4) Barbara Oaks, a manager at the Family Medical Clinic. Defendants collectively answered the suit and asserted a re-conventional demand, seeking attorney fees and court costs pursuant to La.Rev.Stat. § 23:967(D).

      . The proper name for Lane Memorial Hospital is Hospital Service District No. 1 of East Baton Rouge d/b/a Lane Memorial Hospital. Underwood, 97-1997 at p. 2 n. 2, 714 So.2d at 716 n. 2.
      Additionally, the Underwood court was presented with a situation in which two political subdivisions located in different parishes were joined as defendants and alleged to be joint or solidary obligors as to the same transaction or occurrence with each asserting its "right" to be sued in the parish where it was located. Underwood, 97-1997 at pp. 5-6, 714 So.2d at 718. All defendants in the present case reside and are domiciled in St. Tammany Parish, and only one defendant, the hospital, is a political subdivision. Therefore, Underwood is clearly distinguishable.

      . In its writ denial in Hatten v. Schwerman Trucking Co., 04-1005 (La.App. 3 Cir. 12/8/04), 889 So.2d 448, writ denied, 05-0076 (La.3/18/05), 896 So.2d 1009, the Third Circuit advanced such an argument. In Hatten, the Third Circuit harmonized the provisions of La.Rev.Stat. § 13:5104(B) and La.Rev.Stat. § 33:3816, whose provisions are essentially identical to those of La.Rev.Stat. § 46:1063 except that they govern waterworks districts, by reading the provisions in pari materia. 04-1005 at p. 3, 889 So.2d at 450. Although we denied writs, writ denials do not make law, and the denial of writs neither blesses nor adopts the court of appeal’s factual determinations or expressions of law. McClendon v. State, Dept. of Transp. and Development, 94-0111 (La.9/6/94), 642 So.2d 157, 158, n. 1.


author:
VICTORY, J.
     WEIMER, J.,

text:
    STATE of Louisiana v. Bruce WALLACE.
    No. 2009-KK-1621.
    Supreme Court of Louisiana.
    Nov. 6, 2009.

      Orleans Public Defenders Thomas Michael Nosewicz, for applicant.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Alyson R. Graugnard, Assistant District Attorneys, for respondent.
    Edward King Alexander, Jr., for amicus curiae, Louisiana Association of Criminal Defense Lawyers.
    William Patrick Quigley, for amicus curiae, Center for Constitutional Rights.
   VICTORY, J.

hWe granted this writ application to address an issue in Orleans Parish Criminal District Court involving individuals arrested without a warrant not receiving a probable cause determination within 48 hours of arrest, as required by La. C. Cr. P. art. 230.2, and to clarify the duties of judicial officers pursuant to this article. After reviewing the record and the applicable law, we reverse the judgment of the magistrate court and find that, because this defendant did not receive the required probable cause determination within 48 hours of his arrest, he was entitled to immediate release on his own recognizance.

FACTS AND PROCEDURAL HISTORY

Defendant, Bruce Wallace, was arrested at 12:04 p.m., Monday, June 8, 2009, for possession of cocaine in violation of La. R.S. 40:967(C)(2). The police did not have a warrant for defendant’s arrest. Defendant was booked at 4:35 a.m. on June 9, 2009. According to the elected magistrate, Gerard Hansen, defendant’s paperwork, including the arresting officer’s affidavit of probable cause, came to the magistrate court at 3:00 p.m. on June 9, 2009. However, Magistrate Hansen did not make a probable cause determination within 48 hours of defendant’s arrest as required by La. C. Cr. P. art. 230.2. Instead, defendant appeared before Magistrate Hansen on June 11, |22009, at which time Magistrate Hansen made a probable cause determination, and also set defendant’s bond. At this hearing, defendant’s attorney moved for his release, citing the language of Article 230.2. Magistrate Hansen readily admitted that 48 hours had elapsed from the time of his arrest, but found the defect “cured” because defendant appeared before him within 72 hours for bond setting, an apparent reference to La. C. Cr. P. art. 230.1, and within 48 hours of when the proper paperwork for defendant’s arrest arrived in magistrate court on the afternoon of June 9, 2009. Furthermore, Magistrate Hansen stated that the “probable cause determination was made at the time he was arrested.”

|3Pefendant filed a writ application in the Fourth Circuit, which denied relief on July 2, 2009. State v. Wallace, 09-885 (La.App. 4 Cir. 7/2/09). Defendant then filed a writ in this Court, after which we ordered the state to respond and asked Magistrate Hansen to submit a per cwriam opinion. We granted defendant’s writ application. State v. Wallace, 09-KK-1621 (La.8/5/09), 17 So.3d 365.

DISCUSSION

The United States Supreme Court has addressed the delay between a warrantless arrest and a probable cause determination made by a judicial officer in order to determine if probable cause existed for the arrest. In Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975), the Supreme Court held Florida procedures were unconstitutional because they allowed persons arrested without a warrant to remain in police custody for thirty days or more without a probable cause determination. In reaching this conclusion, the Court considered the states’ interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where there has been no opportunity for a prior judicial determination of probable cause. 420 U.S. at 112, 95 S.Ct. at 862. The Court also recognized that prolonged detention based on incorrect or unfounded suspicion may unjustly “imperil [a] suspect’s job, interrupt his source of income, and impair his family relationships.” Id., 420 U.S. at 114, 95 S.Ct. at 862. After balancing these competing interests, the Court concluded that the Fourth Amendment requires every state to “provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after |4arrest.” Id., 420 U.S. at 125, 95 S.Ct. at 868. The Court offered little direction on the timing of this step, stating only that the determination should be “prompt.” Id., 420 U.S. at 126, 95 S.Ct. at 869. In Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.E.2d 49 (1991), the Court addressed the timing issue and held that the judicial determination of probable cause cannot occur more than 48 hours from arrest unless a bona fide emergency or other extraordinary circumstances exist. The Court described the 48-hour requirement as follows:

Our task is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment. Although we hesitate to announce that the Constitution compels a specific time limit, it is important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds. Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be | ¡¡busy processing other suspects or securing the premises of an arrest, and other practical realities.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon is reasonably feasible, but in no event later than 48 hours after arrest.

500 U.S. at 56-57, 111 S.Ct. at 1670.

In response to this decision, states quickly codified the 48-hour probable cause determination rule. Louisiana’s enactment of the 48-hour rule is found in La. C. Cr. P. art. 230.2, which provides:

Art. 230.2. Probable cause determination; persons arrested without a warrant and continued in custody
A. A law enforcement officer effecting the arrest of a person without a warrant shall promptly complete an affidavit of probable cause supporting the arrest of the person and submit the same to a magistrate. Persons continued or remaining in custody pursuant to an arrest made without a warrant shall be entitled to a determination of probable cause within forty-eight hours of arrest. The probable cause determination shall be made by a magistrate and shall not be an adversary proceeding. The determination may be made without the presence of the defendant and may be made upon affidavits or other written evidence. A magistrate’s determination of probable cause hereunder shall not act as | fia waiver of a person’s right to a preliminary examination pursuant to Article 292.
B. If a probable cause determination is not timely made in accordance with the provisions of Paragraph A of this Article, the arrested person shall be released on his own recognizance. (Emphasis added.)

As can be seen, the above statute is particularly straightforward in mandating the release of a person arrested without a warrant for whom a probable cause determination has not been made within 48 hours of the that person’s arrest. However, in spite of this clear language, the Orleans Parish Criminal District Court consistently has had problems following the mandates of La. C. Cr. P. art. 230.2. Only six months ago, in State v. Charles, 09-0877 (La.4/22/09), 7 So.3d 1175, this Court issued the following;

Writ denied as moot. If the Commissioners of the Orleans Parish Criminal Court are not currently adhering to the constitutional guidelines set forth in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), and codified into state law in La. C.Cr. P. art. 230.2, they should do so in the future. Absent a bona fide emergency or other extraordinary circumstance, probable cause determinations are to be held within forty-eight hours of arrest. Riverside, 500 U.S. at 56-7, 111 S.Ct. 1661. In addition, probable cause hearings should not be delayed for the purpose of gathering additional evidence to justify the arrest. Id.

Additionally, in recent months, the Fourth Circuit has reviewed several cases from Orleans Parish and ordered that defendants be released on them own recognizance under La. C. Cr. P. art. 230.2 because the Orleans Parish Criminal District Court system did not provide them with timely probable cause determinations. See State v. Miles, 09-0687 (La.App. 4 Cir. 05/27/09), unpub’d; State v. Gudiel, 09-0785 (La.App. 4 Cir. 6/19/09), unpub’d; State v. Williams, 09-1032 (La.App. 4 Cir. 8/04/09), unpub’d; State v. Meredith, 09-1119 (La.App. 4 Cir. 8/17/09), unpub’d.

Ironically, in spite the above matters, the Orleans Parish Criminal District Court has adopted an even stricter rule whereby “absent extreme circumstances, the | Rearing shall take place within twelve hours from the time defendant is taken into custody.” La. Dist. Ct. Rules, Appx. 3, § 6(c). The hearing covered by the rule is referred to as a “first appearance” hearing, at which the magistrate is to conduct the following:

(a) Set bail
(b) Advise the defendant of the charges against him
(c) Advise the defendant of his rights under the Constitution of the United States and the Constitution and laws of the State of Louisiana
(d) Appoint counsel if the defendant is indigent
(e) Set a date and time for a status hearing
(f) Set a date and time for a preliminary hearing to determine whether there is probable cause that the defendant committed the offense with which he is charged. (The hearing shall be set on written motion by the defense, the District Attorney or by motion of the Court.)
(g) Additional duties and revision thereof are subject either to a determination by the Magistrate Judge or the Court En Banc.
(h) All forfeiture proceedings shall originate in the magistrate section.

La. Dist. Ct. Rules, Appx. 3, § 1. After setting forth a duty schedule for the magistrate and four appointed commissioners, the local rules specify the time sequence at which first appearance hearings are to proceed, as follows:

First appearance hearings shall proceed in the manner described below from the time of arrest:
(a) Arrest
(b) Booking at Central Lockup
(c) Defendant immediately transferred to Magistrate Section by the arresting officers for a first appearance hearing. Absent extreme circumstances, said hearing shall take place within twelve hours from the time the defendant is taken into custody.

La. Dist. Ct. Rules, Appx. 3, § 6. Although the Local Rules do not specifically include within the “first appearance” hearing the probable cause determination required by La. C. Cr. P. art. 230.2, in practice, it appears that is generally when the magistrate first considers whether probable cause existed for a warrantless arrest, along with the other pretrial procedures listed in the local rule. In fact, a reference to this required probable cause determination is found in the same section of the rules providing for a first appearance hearing, and states that “[i]f the Magistrate finds 1 ^probable cause, a minute entry should reflect the charge for which probable cause is found.” It was at such a first appearance hearing, conducted three days after his arrest, that the defendant in this case was denied release on his own recognizance in spite of an untimely determination of probable cause.

Under Gerstein, courts may choose to combine probable cause determinations with other pretrial proceedings, as is done in Orleans Parish. 420 U.S. at 124, 95 S.Ct. at 868. However, as clarified in Riverside, when the probable cause determination is combined with another pretrial proceeding, that combined hearing must take place within 48 hours of the arrest. Riverside, supra, 500 U.S. at 58-59, 111 S.Ct. at 1670-71. Further, the Supreme Court emphasized that “[t]he fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance” sufficient to prolong the required 48 hour period. Id., 500 U.S. at 57, 111 S.Ct. at 1670. Thus, while the Orleans Parish Criminal District Court is free to combine the 48-hour probable cause determination required by La. C. Cr. P. art. 230.2 with the other proceedings held at the first appearance hearing, if it does so, then, by law, this hearing must be held within 48 hours of the defendant’s arrest.

However, we note this practice makes the probable cause determination ripe for delay, as the procedures required of the 48 hour hearing are not as cumbersome as most other pre-trial procedures. For example, the Fourth Amendment does not require an adversary determination of probable cause. Gerstein, supra, 420 U.S. at 123, 95 S.Ct. at 868; La. C. Cr. P. art. 230.2(A) (the probable cause determination “shall not be an adversary proceeding”). In addition, the determination may be made without the presence of the defendant, making delays in the transportation of liiprisoners irrelevant. La. C. Cr. P. art. 230.2(A). Finally, the determination may be made upon affidavits or other written evidence. Gerstein, supra, 420 U.S. at. 120, 95 S.Ct. at 866 (“probable cause to believe the suspect has committed a crime-traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof’); La. C. Cr. P. art. 230.2(A) (requiring the law enforcement officer arresting a person without a warrant to “promptly complete an affidavit of probable cause supporting the arrest of the person and [to] submit the same to a magistrate” and providing that “[t]he determination may be made ... upon affidavits or other written evidence”). Thus, all that is required is that the magistrate review the affidavit and other written evidence provided by the law enforcement officer and make a probable cause determination as soon as reasonably feasible, but not later than 48 hours after the person’s arrest.

Upon review of Magistrate Hansen’s stated basis for denying defendant’s release, it is obvious that some misconceptions exist regarding the requirements of the 48-hour probable cause determination. Probable cause required under this rule is not determined at the time of arrest by the law enforcement officer; the Fourth Amendment clearly requires a judicial determination of probable cause when a person is arrested without a warrant. Ger-stein, supra. The time does not begin to run from the time the magistrate court is presented with the relevant documents, rather it begins to run when the person is arrested. La. C. Cr. P. art. 230.2. Further, the determination cannot be delayed in order to allow the collection of additional evidence to find probable cause, and, weekends and legal holidays are counted in the 48 hour time | inperiod. Riverside, supra. In addition, La. C. Cr. P. art. 230.2 applies to all cases in which a person is arrested without a warrant, including domestic violence cases. See State v. Miles, supra. Finally, a finding of probable cause made at a “first appearance” or 72-hour hearing does not “cure” the magistrate court’s failure to make a probable cause determination within 48 hours. To the extent the magistrate court and the State rely on State v. Varmall, 539 So.2d 45 (La.1989) and State v. Wallace, 392 So.2d 410 (La.1980), for this proposition, we find these cases to be inapplicable. Vamnall involved the failure of the state to institute prosecution within the time limits provided by La. C. Cr. P. art. 701 and Wallace involved the failure of the court to provide the 72-hour hearing required of La. C. Cr. P. art. 230.1 for the appointment of counsel. Neither involved the constitutional protections provided by the 48-hour probable cause determination. Further, those cases were decided before Riverside, when the U.S. Supreme Court made clear that the Fourth Amendment required a probable cause determination to be made within 48 hours of arrest. Those cases were also decided before La. C. Cr. P. art. 230.2 was enacted. Further, Riverside instructed that if a probable cause determination is combined with another pretrial procedure (such as the 72-hour hearing required by La. C. Cr.P. art. 230.1), that combined hearing likewise must take place within 48 hours. Finally, the idea that a violation of the 48-hour rule can be cured by a probable cause determination made after the 48 hours has expired ignores the clear language of the statute.

CONCLUSION

In sum, we find the magistrate did not comply with the requirements of La. C. Cr. P. art. 230.2. In order to regulate compliance with this rule, the Orleans Parish Criminal District Court must put rules and practices in place that comply with the requirements of La. C. Cr. P. art. 230.2, Riverside, and this opinion.

InDECREE

For the reasons stated herein, the judgment of the magistrate court is reversed. The Orleans Parish Criminal District Court is ordered to comply with the mandates of this opinion in ensuring that probable cause determinations required under La. C. Cr. P. art. 230.2 are being held within 48 hours of arrest. In the absence of a bona fide emergency or other extreme circumstances, all persons arrested without a warrant for whom a probable cause determination is not made within 48 hours must be immediately released from custody on their own recognizance.

REVERSED.

WEIMER, J., additionally concurs and assigns reasons.

WEIMER, J.,

additionally concurring.

| tI additionally concur to emphasize one point made by the majority opinion.

A failure to comply with LSA-C.Cr.P. art. 230.2 results in the immediate release of the person arrested, but does not prevent a potential subsequent conviction. “[A] conviction will not be vacated on the ground that the defendant was detained pending trial without a probable cause determination.” Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975).

We are a people who cherish liberty and abhor extended incarceration based on mere accusation. To protect our liberty, we have enshrined protections in state and federal constitutions and in statutory enactments. In our system of justice, one is presumed innocent until proven guilty beyond a reasonable doubt. This presumption of innocence mandates that those accused of a crime cannot be incarcerated for an extensive period of time without a judicial determination that probable cause exists.

This ruling does not provide a “free pass” to those who are guilty of a crime; this ruling assures that those who are presumptively innocent when accused of a crime are afforded prompt judicial review within the time limits the statutory law of this state mandates and the constitution of this nation requires according to the U.S. Supreme Court. See LSA-C.Cr.P. art. 230.2 and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). As stated by Justice Scalia in his dissent in Riverside, 500 U.S. at 71, 111 S.Ct. 1661, a rule which requires the review by a neutral judge of each warrantless arrest has “as its primary beneficiaries the innocent ... those so blameless that there was not even good reason to arrest them.”

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . The transcript of the hearing records the following interchange:
      [Counsel for the Defense]: Your Honor, but there was no probable cause determination within 48 hours.
      By the Court: That's fine. Five thousand dollars bond. Probable cause determination is made when he comes to court. He’s now in court. I read the gist. I have probable cause (sic).
      rCounsel for the Defense]: But Your Honor, please note my objections. That determination must be made within 48 hours from arrest. Your Honor, the Louisiana Supreme Court recently overturned a Commissioner—
      By the Court: They overturned a Commissioner in setting a 48 hour hearing on the gist, which they said was loo long. Setting a bond is 72 hours and the bond has been set.
      [Counsel for the Defense]: But the probable cause determination was not made, Your Honor.
      By the Court: You made your point. Go to the Supreme Court and tell them I'm wrong. If I'm wrong, I’ll be—
      [Counsel for the Defense]: I’m just trying to make my record, Your Honor. The Louisiana Supreme Court has just in the last two months ordered Magistrate Court to comply with Riverside. Riverside requires that 48 hours — that it doesn't go beyond 48 hours for probable cause determination, and no probable cause determination was made within 48 hours in this case. There is no discretion on that.
      By the Court: Probable cause determination was made at the time that he was arrested. If you want further probable cause determination, you do it after he appears before me. He's appeared before me within 48 hours but he was arrested 72 hours ago. I find there's probable cause. Have a seat sir. Let's go on.

      . Although the defendant was arraigned on July 14, 2009 and the magistrate court no longer has jurisdiction over this case, we did not deny this writ application as moot as it "falls squarely within the ambit of the special exception permitting courts to consider moot issues that are capable of repetition, yet forever evading appellate review.” State v. Neisler, 93-1942 (La.2/28/94), 633 So.2d 1224, 1227.

      . Notably, the Court held that a violation does not void a subsequent conviction, reasoning as follows:
      Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Thus, ..., although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a probable cause determination.

        Gerstein, 420 U.S. at 119, 95 S.Ct. at 865-66.

      . This is a reference to the fact that under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. Riverside clarified that these combined proceedings must take place within 48 hours of arrest and necessarily are limited to those proceedings that arise very early in the pretrial process, such as bail hearings and arraignments. 500 U.S. at 58, 111 S.Ct. 1661.

      . La. C. Cr. P. art. 230.2 was enacted by Act No. 674, § 1 of the 1992 Regular Session. Several jurisdictions require a probable cause determination in less than 48 hours. See Alaska Stat. § 12.25.150 (24 hours, with criminal penalties for non-compliance); Ariz. R.S.Crim. P. 4.1(a) (24 hours); Del.Code Ann. Tit. 11, § 1909 (24 hours); Fla. R.Crim. P. 3.130(a) (24 hours); MD Rules, rule 4 — 212(f) (24 hours); Minn. R.Crim. P. 4.02(5) (36 hours except Sundays and legal holidays); Mo.Rev.Stat. § 544.170 (24 hours, criminalizing non-compliance); N.H.Rev.Stat. Ann. § 594:20-a (24 hours except weekends and holidays). See also Riverside, supra, 500 U.S. at 59, 68-71, 111 S.Ct. 1661, Justices Stevens, Marshall, and Blackman, dissenting (approving of a 36-hour limit), and Justice Scalia, dissenting (suggesting a 24-hour time limit).

      . Neither Gerstein nor Riverside required the determination be made in the presence of the defendant.

      . This is apparently referred to in criminal court as "the gist.”