text:
    Alan D. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-295
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    Alan D. Taylor, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Alan D. Taylor appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Taylor's sole ground for relief asserted in his motion was that his trial counsel was ineffective for failing to convey to him the State's favorable plea offer. Because this claim was not sufficiently pleaded, we reverse the postconviction court's order and remand to allow Taylor an opportunity to amend his motion.

In 2004, following a jury trial, Taylor was convicted of planting a hoax bomb and robbery. He was sentenced to serve fifteen years in prison on each count, with the sentences running concurrently on each count, but consecutively to a lengthy prison sentence that Taylor was serving out of Alachua County. Taylor's convictions and sentences were affirmed on direct appeal without opinion. See Taylor v. State , 923 So.2d 1184 (Fla. 5th DCA 2006).

In June 2017, Taylor filed the present motion alleging that in August 2015, he first became aware of a plea offer made by the State to his counsel shortly before trial in which the State offered to resolve the case with Taylor serving a thirteen-year prison sentence on count one, to run concurrently with his Alachua County prison sentence, and serving two years in prison on count two, consecutively to his prison sentence from Alachua County. Taylor averred that his counsel never informed him about this plea offer "at any time before, during, or after trial."

The postconviction court ordered the State to respond to Taylor's motion, which it did. The State asserted that Taylor's motion was untimely under rule 3.850 because it was filed more than two years after his judgment and sentence became final and Taylor could not show under the rule 3.850(b)(1) newly discovered fact exception to this two-year filing requirement that he could not have discovered the aforementioned plea offer by the exercise of due diligence. In denying Taylor's motion, the court agreed with the State that Taylor "was less than diligent in his untimely pursuit."

The failure to convey a favorable plea offer to a defendant in a criminal case can constitute ineffective assistance of counsel. Clark v. State , 236 So.3d 481, 483 (Fla. 4th DCA 2018) (citing Jacques v. State , 193 So.3d 1065, 1066 (Fla. 4th DCA 2016) ). To adequately plead this claim, a defendant must allege "that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013).

Here, Taylor's rule 3.850 motion was facially insufficient under Alcorn because he failed to allege that the prosecutor would not have withdrawn the plea offer. Under these circumstances, Taylor must be given at least one opportunity to correct the deficiency in his motion, unless it is apparent that the defect cannot be corrected. See Fla. R. Crim. P. 3.850(f) ; Lamb v. State , 202 So.3d 118, 120 (Fla. 5th DCA 2016) (citing Luckey v. State , 979 So.2d 353, 355 (Fla. 5th DCA 2008) ). Because Taylor had not previously sought or been given leave to amend his rule 3.850 motion, and because the pleading deficiency in his motion is likely correctable, he should be given the chance to do so. Accordingly, we reverse the summary denial and remand with directions that the postconviction court provide Taylor with sixty days to amend his motion, if, in good faith, he can amend it.

REVERSED and REMANDED, with directions.

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

      For the benefit of the postconviction court on remand, we briefly address two other matters. First, if Taylor timely files a legally sufficient amended motion for postconviction relief, and the court again summarily denies the motion based on the records in the case, it must attach to its final order "that portion of the files and records that conclusively shows that [Taylor] is entitled to no relief." See Fla. R. Crim. P. 3.850(f)(5). Otherwise, an evidentiary hearing is required to resolve the motion, including determining whether Taylor exercised due diligence in discovering the plea offer. The present order had no record attachments. Second, the court's indication in its denial order that Taylor essentially failed to establish under Wright v. State , 857 So.2d 861 (Fla. 2003), that "the newly discovered evidence is of such a nature as to probably produce an acquittal" has no application here as Taylor's "newly discovered" claim is based upon an allegedly undisclosed plea offer. See Petit-Homme v. State , 205 So.3d 848, 849 (Fla. 4th DCA 2016) (reversing a summary denial of a newly discovered plea offer claim and remanding for further proceedings to address whether the defendant could have learned of the offer within the two-year time limit of rule 3.850 ).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    TRAFALGAR WOODS HOMEOWNERS ASSOCIATION, INC., Appellant, v. The CITY OF CAPE CORAL, Florida, Appellee.
    Case No. 2D17-1349
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    W. Gus Belcher, II, of Belcher & Epstein, P.A., Fort Myers, for Appellant.
    Dolores D. Menendez, City Attorney, and Steven D. Griffin, Assistant City Attorney, Cape Coral, for Appellee.
   NORTHCUTT, Judge.

The Trafalgar Woods Homeowners Association, Inc., sued the City of Cape Coral in a dispute over credits against special assessments for irrigation water. The circuit court posited that the Trafalgar Woods planned development ordinance provided for the award of irrigation credits only to the project developer, and it dismissed the homeowners' action with prejudice. We reverse because the court misinterpreted the ordinance.

The city approved the planned Trafalgar Woods project in 1992 by adopting Ordinance 88-92. Section III(G)(5) of the ordinance provides:

The developer shall receive a credit for the installation of irrigation lines throughout the project. The credit shall reduce any proposed special assessment when irrigation water becomes available from the City of Cape Coral. The credit shall be applied against any special assessment to be levied against individual lots in the development. Property owners will only be assessed for "off site" improvements such as transmission mains and pumping stations.

In 2016 the homeowners' association filed a complaint against Cape Coral for declaratory judgment, promissory estoppel, and breach of contract. It recounted that although the city had not yet provided irrigation water when Trafalgar Woods was built, the developer had installed on-site irrigation systems and appurtenances as contemplated in the development ordinance. Then, between 1993 and 1995, the developer turned over control of the community to the homeowners pursuant to the subdivision by-laws. Ultimately, the city's irrigation water system was made available to the development. The homeowners' complaint alleged that the parties were in a dispute over the valuation of the credits against special assessments associated with municipal irrigation water.

Cape Coral moved to dismiss, arguing among other things that the homeowners have no claim to the credit. The city based this assertion on the interplay between the above-quoted section III(G)(5) of the development ordinance and section IV(B). The latter states:

This Development Order shall be binding on the developer and its heirs, assignees, or successors in interest. Those portions of this Development Order which clearly apply only to the project developer, shall not be construed to be binding upon future owners of the project lots. It shall be binding upon any builder/developer who acquires any tract of land within the Trafalgar Woods Subdivision.

The city maintained that the first sentence of section III(G)(5) clearly indicates that only the developer may receive a credit for the irrigation improvements and argued that section IV(B) therefore "specifically excludes any such right for the benefit of a lot owner." The circuit court agreed, holding in its order of dismissal that "[a]s a matter of law ... in accordance with Section IV(B) of ... Ordinance 88-92, the Irrigation Water Special Assessment Credit referenced in Section III(G)(5) clearly applies only to the Developer of the Trafalgar Woods ...."

We review the dismissal of the homeowners' action de novo. Ruiz v. Brink's Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001). On a motion to dismiss, the court's consideration is confined to the four corners of the complaint; it accepts all of the plaintiff's allegations as true and draws every reasonable inference arising from those allegations in favor of the plaintiff. Green v. Cottrell, 204 So.3d 22, 30-31 (Fla. 2016). For purposes of the motion, all facts properly pleaded are deemed admitted. Fearick v. Smugglers Cove, Inc., 379 So.2d 400, 402 (Fla. 2d DCA 1980).

The issue before the circuit court was whether under section IV(B) the credit provided in section III(G)(5) inured only to the benefit of the developer or whether it extends as well to the developer's successors in interest. When resolving this question, the court mistakenly relied solely on the first sentence of section III(G)(5). To be sure, in isolation that sentence describes only a credit to the developer. But under a longstanding fundamental principle applicable to statutes and ordinances, "words, phrases, clauses, sentences and paragraphs of a statute may not be construed in isolation[.]" Weitzel v. State, 306 So.2d 188, 192 (Fla. 1st DCA 1974). Rather, the sentence must be read in the context of the entire provision. Id.; see also Fla. Dep't of Envtl. Prot. v. ContractPoint Florida Parks, LLC, 986 So.2d 1260, 1265 (Fla. 2008) (stating that every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts); Angelo's Aggregate Materials, Ltd. v. Pasco County, 118 So.3d 971, 975 (Fla. 2d DCA 2013) (observing that ordinances are subject to the rules of construction applicable to statutes).

Thus, under section III(G)(5) the credit is to reduce any proposed special assessment when irrigation water becomes available. The credit is to apply to special assessments levied against individual lots. And property owners are to be assessed only for off-site improvements. In context, then, the credit referred to in section III(G)(5) does not "clearly apply only to the project developer." It applies as well to the property owners of the individual lots. At the very least, section III(G)(5) cannot form the basis for dismissal of the homeowners' association's complaint.

Accordingly, we reverse the order dismissing the action and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CRENSHAW and SALARIO, JJ., Concur.


author: PER CURIAM.

text:
    Jahmar STEWART, DOC #R81544, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2788
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    Jahmar Stewart, pro se.
   PER CURIAM.

In 2015, Jahmar Stewart pleaded guilty to kidnapping while in actual possession of a firearm and was sentenced to prison for ten years. He thereafter filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting two grounds of ineffective assistance of counsel. The circuit court summarily denied his motion, and Mr. Stewart now appeals that decision. We affirm the denial of ground two of Mr. Stewart's motion without comment. However, we reverse the summary denial of ground one and remand this case for further proceedings.

In ground one, Mr. Stewart claimed that his court-appointed counsel failed to inform him of the elements of an offense the State had threatened to charge him with (tampering with a witness) if he did not accept the State's plea offer; nor, he claims, did his attorney address the availability of any possible defenses to that potential charge. Mr. Stewart further asserts that but for this failure, he would not have entered a guilty plea as to the kidnapping charge in exchange for the State agreeing not to file the additional charge of witness tampering. In fact, in his motion Mr. Stewart alleged that his counsel informed him that he would have no viable defense to the tampering charge if the State were to proceed forward with it, that the State's possession of recorded calls to the witness alone would result in him being found guilty of the tampering offense, and that he could be sentenced to life in prison. In his motion, he states that had he known there was a knowing and intentional element to the tampering offense, he would not have accepted the plea and would have gone to trial. Further, he claims that had he proceeded to trial, he would have presented a misidentification defense with respect to the kidnapping charge.

If counsel failed to advise Mr. Stewart of the necessary elements of and defenses to the threatened tampering charge, and Mr. Stewart's decision to accept a plea offer turned upon the strength of that charge, counsel's performance may have been deficient. See Phillips v. State, 229 So.3d 426, 430 (Fla. 2d DCA 2017) (concluding allegation of ineffective counsel for failure to inform of elements the State needed to establish a violation of probation was sufficiently alleged and unrefuted by the postconviction court); Parhm v. State, 227 So.3d 172, 174 (Fla. 2d DCA 2017) ; Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010). Mr. Stewart's claim that he would have proceeded to trial is credible based on the record before us. See Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013) ("[T]he court must accept the movant's factual allegations as true to the extent that they are not refuted by the record."); Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002). The record on appeal does not conclusively refute Mr. Stewart's allegations; therefore, the trial court must conduct an evidentiary hearing on this claim of his motion. See Jacobs v. State, 880 So.2d 548, 551 (Fla. 2004) ("[I]f the trial court finds that the motion is facially sufficient, that the claim is not conclusively refuted by the record, and that the claim is not otherwise procedurally barred, the trial court should hold an evidentiary hearing to resolve the claim."); see also Bush v. State, 964 So.2d 181, 182-83 (Fla. 4th DCA 2007). Accordingly, we must reverse the order as it pertains to ground one of Mr. Stewart's motion.

On remand, Mr. Stewart is entitled to an evidentiary hearing to determine if his allegation is true that his trial counsel failed to advise him regarding the elements and defenses of a tampering with a witness offense.

Reversed and remanded with instructions.

NORTHCUTT, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.

      See § 914.22(1)(a)-(f), Fla. Stat. (2014) ("(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to: (a) Withhold testimony, or withhold a record, document, or other object, from an official investigation or official proceeding; (b) Alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official investigation or official proceeding; (c) Evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official investigation or an official proceeding; (d) Be absent from an official proceeding to which such person has been summoned by legal process; (e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding; or (f) Testify untruthfully in an official investigation or an official proceeding, commits the crime of tampering with a witness, victim, or informant.").


author: Rowe, J.

text:
    James Alfred JACOBSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-774
    District Court of Appeal of Florida, First District.
    June 8, 2018
    Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

James Alfred Jacobson appeals his conviction for second-degree murder, arguing that the trial court should have granted his motion for judgment of acquittal. Jacobson contends that the State failed to prove that he acted with ill will, hatred, spite, or evil intent and that the shooting of the victim was an accident. We affirm.

The murder victim, Bryan Edwards, lived across the street from Jacobson and his girlfriend, Rebecca Brantley. Jacobson and Brantley frequently purchased marijuana from Edwards, who grew marijuana plants in his home. But after Jacobson failed to pay for marijuana on several occasions, Edwards refused to sell to him again until he paid the $250 he owed Edwards.

Jacobson was in dire financial straits. He and Brantley lived with Brantley's grandmother. Both were unemployed and owed the grandmother $1,200 in unpaid rent. They had also been threatened with eviction.

On the day of the murder, Jacobson told his friend, Joey Waters, that he was preparing for an armed robbery in a couple of hours. Jacobson told Waters that he was going to do "a lick" (slang for robbery), invited Waters to participate in the robbery, and also asked Waters for a "burner" (slang for an untraceable gun). Waters told Jacobson that he could not provide a gun.

Later that day, Jacobson and Brantley were at the home of Brantley's brother and girlfriend, where they were using marijuana. When they ran out of drugs, Jacobson told the others he would approach Edwards and try to sell him a sawed-off shotgun in exchange for money or more marijuana. Jacobson left to see Edwards at his home. Shortly after Jacobson arrived, Edwards was shot in the face at close range with the sawed-off shotgun Jacobson had brought with him. But after Edwards was wounded, Jacobson did not call 911 or seek any assistance to aid Edwards. Instead, Jacobson ransacked Edwards's home, taking marijuana, a pistol, a gold chain, and a camera belonging to Edwards.

Jacobson then returned to the home of Brantley's brother and his girlfriend. Jacobson, Brantley, and the others smoked the marijuana Jacobson had stolen from Edwards. Jacobson confessed to Brantley that he had killed Edwards or at least gravely injured him. Jacobson told Brantley that he intended to sell the shotgun to Edwards, but when Jacobson pulled the shotgun from the bag, the shotgun went off because the hammer was already cocked. Then Jacobson threatened to kill Brantley, saying he "might as well do you, too. At least I know I'll get away with it." Brantley said Jacobson started laughing and said it was a joke.

The next day Jacobson took Brantley to a pawn shop where Brantley pawned the gold chain and camera Jacobson had stolen from Edwards's home. Later, after Jacobson and Brantley had been charged and were in custody in the medical wing of the jail, Jacobson attempted to intimidate Brantley a second time, mouthing to her that "You're fucking dead."

Standard of Review

The appropriate standard of review on a motion for judgment of acquittal is the de novo standard. Dunn v. State , 206 So.3d 802, 804 (Fla. 1st DCA 2016). If the State presents competent evidence to establish every element of the crime, then judgment of acquittal is improper. State v. Odom , 862 So.2d 56, 59 (Fla. 2d DCA 2003). When reviewing a court's ruling on a motion for judgment of acquittal, the evidence must be construed in the light most favorable to the State. Perez v. State , 138 So.3d 1098, 1100 (Fla. 1st DCA 2014).

Analysis

Jacobson argues that the trial court should have granted the motion for judgment of acquittal because his actions amounted to manslaughter by culpable negligence, not second-degree murder. Jacobson contends that the shooting was accidental and that there was no evidence to prove that he acted with ill will, hatred, spite, or evil intent when he shot Edwards. Rather, he argues the shooting was the result of culpable negligence.

The primary distinction between manslaughter and second-degree murder is that "manslaughter is committed when one kills as a result of his culpable negligence and it is murder in the second degree when one kills while perpetrating an act imminently dangerous to another and evincing a depraved mind regardless of human life." Marasa v. State , 394 So.2d 544, 545 (Fla. 5th DCA 1981) ; § 782.04, Fla. Stat. (2013). An act is imminently dangerous to another and evinces a depraved mind when the act is such that "(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life." State v. Montgomery , 39 So.3d 252, 255-56 (Fla. 2010).

When proving the required state of mind for second-degree murder, evidence of "[p]ointing a loaded gun at the head of the victim and then firing has frequently been held to be an act 'imminently dangerous to another and evincing a depraved mind regardless of human life.' " Gibbs v. State , 904 So.2d 432, 435 (Fla. 4th DCA 2005). Here, Jacobson pulled out a loaded shotgun with the hammer cocked, and Edwards was shot in the head at close to point-blank range. Viewed in the light most favorable to the State, the evidence amply demonstrated an act imminently dangerous to another.

In determining whether Jacobson acted with ill will, hatred, spite, or evil intent, the trial court properly considered his conduct before and after the shooting. Sandhaus v. State , 200 So.3d 112, 115 (Fla. 5th DCA 2016). The evidence at trial showed that Jacobson was desperate for money. He was jobless. He owed $1,200 in unpaid rent and had been threatened with eviction. He owed Edwards $250 and Edwards refused to sell him more marijuana until the debt was paid. Hours before the shooting, Jacobson asked his friend Waters to take part in an armed robbery and asked for an untraceable gun. Jacobson then went to see Edwards and purportedly attempted to sell Edwards a sawed-off shotgun in exchange for money or marijuana-despite Jacobson's admission that Edwards had already told him he would not sell marijuana to him until the $250 debt was paid. Considering the evidence in the light most favorable to the State, a reasonable jury could find that Jacobson harbored ill will, hatred, spite, or an evil intent toward Edwards.

Jacobson's conduct following the shooting also demonstrates that he harbored ill will toward Edwards and that the shooting was no accident. After Edwards was shot, Jacobson did not call 911 or seek medical attention for Edwards. Instead, he rummaged through Edwards's house, searched for and took Edwards's possessions that were easy to pawn, and stole marijuana. Jacobson also held onto Edwards's house key and planned to return to the house to steal more items. He then smoked the marijuana he had stolen from Edwards and confessed to Brantley that he shot Edwards. After confessing, Jacobson tried to intimidate Brantley, threatening to kill her, too, stating that he "might as well do you, too. At least I know I'll get away with it." This admission is another indication that Jacobson committed an intentional act when he shot Edwards. When viewed in the light most favorable to the State, a reasonable jury could find that Jacobson shot Edwards in the face out of ill will, hatred, spite, or evil intent.

AFFIRMED .

B.L. Thomas, C.J., and M.K. Thomas, JJ., concur.


author: Per Curiam.

text:
    Jason M. FRANKLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-386
    District Court of Appeal of Florida, First District.
    June 13, 2018 Rehearing Denied July 26, 2018
    Jason M. Franklin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Ray, and Kelsey, JJ., concur.


text:
    Lonnie Irvan SLOAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1882
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was convicted, after a jury trial, of aggravated assault of a law enforcement officer, resisting a law enforcement officer with violence, battery on a law enforcement officer, possession of burglary tools, and carrying a concealed weapon. On appeal, he challenges only the possession of burglary tools conviction. He contends that the trial court should have granted his motion for judgment of acquittal on that charge. We agree.

To prove the crime of possession of burglary tools, the State is required to prove that the defendant (1) intended to commit a burglary or trespass, (2) had in his possession a tool or implement that he intended to use, or allow to be used, in the commission of the burglary or trespass, and (3) did some overt act toward the commission of a burglary or trespass. See Thomas v. State , 531 So.2d 708, 709-10 (Fla. 1988).

Here, the State failed to present evidence that Appellant committed a burglary or trespass, attempted to commit a burglary or trespass, or otherwise did some overt act toward the commission of a burglary or trespass. Accordingly, it was error for the trial court to deny Appellant's motion. On remand, the trial court is directed to vacate Appellant's possession of burglary tools conviction and to resentence him accordingly.

REVERSED and REMANDED.

COHEN, C.J. and TORPY and EVANDER, JJ., concur.

      "Possession of burglary tools.-Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree ...." § 810.06, Fla. Stat. (2016).


text:
    Serdarus M. SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1319
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Serdarus M. Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Petitioner's response to order for supplemental appendix, filed June 7, 2018, is treated as an amended petition for belated appeal and is denied on the merits.

Bilbrey, Winokur, and Jay, JJ., concur.


text:
    The CJS SOLUTIONS GROUP, LLC, d/b/a The HCI Group, Appellant, v. Maxine SIMMONS, an individual, and Global Information Technology Resources, Inc., a California corporation, Appellees.
    No. 1D18-0916
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Kenneth A. Tomchin and Brett P. Abner of Tomchin & Odom, P.A., Jacksonville; Joshua A. Cossey, Jacksonville, for Appellant.
    T. A. Delegal, III, and James C. Poindexter of Delegal Law Offices, P.A., Jacksonville, for Appellee Maxine Simmons.
    No appearance for Appellee Global Information Technology Resources, Inc.
   Per Curiam.

The Court has determined that as to Appellee Maxine Simmons, the order on appeal is not "one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims." Fla. R. App. P. 9.110(k). Accordingly, the motion, filed on May 10, 2018, is granted and the appeal is dismissed with respect to the order granting in part and denying in part Simmons' motion for summary judgment.

We note that the February 27, 2018, Final Summary Judgment in Favor of Global Information Technology Resources, Inc., is a partial final judgment disposing of the entire case as to Appellee Global Information Technology Resources, Inc., and is subject to immediate appellate review. Fla. R. App. P. 9.110(k). The appeal shall proceed from that order.

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


text:
    Lawrence A. BETHEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1264
    District Court of Appeal of Florida, First District.
    July 19, 2018
    Lawrence A. Bethel, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Marshall BRUMMITT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3974
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 17, 2018
    James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed. See Vennisee v. State, 235 So.3d 947, 951 (Fla. 3d DCA 2017) ; Rogers v. State, 223 So.3d 281, 282 (Fla. 4th DCA 2017) ; Currie v. State, 219 So.3d 960, 960-61 (Fla. 1st DCA 2017).

ORFINGER, EVANDER and BERGER, JJ., concur.


text:
    Gerrell SMITH, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1808
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Gerrell Smith, Century, pro se.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 31, 2016 sentence rendered in Case No. 2008-CF-00822, in the Circuit Court in and for Flagler County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, WALLIS and LAMBERT, JJ., concur.


text:
    Larry D. FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1885
    District Court of Appeal of Florida, First District.
    July 19, 2018
    Larry D. Ford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Makar and Winsor, JJ., concur.


text:
    Thomas J. WIKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1532
    District Court of Appeal of Florida, First District.
    July 19, 2018
    Thomas J. Wike, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Ronnie DEVANE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-705
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Ronnie Devane, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant filed a motion for correction of jail credit pursuant to Florida Rule of Criminal Procedure 3.801. In that motion, he claimed that he was entitled to an additional credit of 194 days in jail. The trial court granted the motion in part, concluding that based on its review of the court records, Appellant was only entitled to twelve additional days of jail credit. Thus the trial court denied the remainder of the requested jail credit. However, the trial court did not attach relevant portions of the record to the order under review. See Fla. R. Crim. P. 3.850(f)(5) ("If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order."). Accordingly, we reverse the order under review and remand this case to the trial court for it to grant the relief requested, conduct an evidentiary hearing, or attach the appropriate records to the order.

REVERSED and REMANDED with instructions.

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

      See Fla. R. Crim. P. 3.801(e) (incorporating into Rule 3.801 the requirements of Rule 3.850(f) ).


text:
    Christopher MILLER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2132
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Robert Wesley, Public Defender, Orlando, and Peter C. Schmer, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the May 30, 2018 judgment and sentences rendered in Case No. 2016-CF-7640-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Orlando ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1135
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Orlando Alvarez, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Orlando Alvarez appeals the summary denial of his amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand the summary denial of Alvarez's first ground for relief, alleging that his trial counsel failed to depose the victim and other relevant witnesses. The ground, as pled, was facially insufficient but Alvarez was not put on notice of the defect. The postconviction court should have granted Alvarez leave to amend. Fla. R. Crim. P. 3.850(f)(3) ; Osorio v. State, 233 So.3d 516, 517 (Fla. 2d DCA 2017). Should Alvarez amend this claim, if the postconviction court wants to summarily deny relief again, it must attach records that conclusively refute this ground for relief. Fla. R. Crim. P. 3.850(f)(5) ; Castro v. State, 240 So.3d 877, 878 (Fla. 5th DCA 2018) (indicating that statement of satisfaction with counsel alone is generally insufficient to conclusively refute claim that counsel was ineffective for failing to call witness). In all other respects, we affirm the trial court's order.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


text:
    Billy Ray HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3419
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without further discussion, the judgments and sentences imposed by the trial court following Appellant's open plea in two cases below. However, because there is a scrivener's error in the order revoking probation entered in Case No. 2015-303740-CFDB, we remand for the trial court to enter an amended order to accurately reflect the conditions of probation that Appellant admitted to violating in that case.

AFFIRMED; REMANDED to correct scrivener's error.

COHEN, C.J., EVANDER and LAMBERT, JJ., concur.


text:
    Nathaniel CARTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3277
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Nathaniel Carter, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Nathaniel Carter, Jr., appeals from an order summarily denying his June 12, 2017, amended postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of that amended motion without comment. However, the record reflects that one of the Appellant's motions for rehearing requested a ruling on the claims in his original rule 3.850 motion. He attached to that motion for rehearing a rule 3.850 motion bearing an institutional mail stamp dated September 29, 2015. Although this motion was not docketed with the trial court, it is considered filed on the date that it was conveyed to prison officials for mailing. See Padro-Guerrero v. State , 123 So.3d 670, 671 (Fla. 5th DCA 2013) ; Lawson v. State , 107 So.3d 1228, 1228-29 (Fla. 2d DCA 2013). This September 29, 2015, rule 3.850 motion was also referenced in the amended rule 3.850 motion, which expressed the intention to add claims to a pending motion and began numbering its claims at ground five. Under these circumstances, we reverse and remand to permit the trial court to rule on the original rule 3.850 motion. See Padro-Guerrero , 123 So.3d at 671 ; Molfetto v. State , 955 So.2d 1153, 1155 (Fla. 2d DCA 2007) ; Sinclair v. State , 959 So.2d 1277, 1278 (Fla. 1st DCA 2007).

AFFIRMED in part, REVERSED in part, and REMANDED .

Wetherell, Rowe, and Winokur, JJ., concur.

      The Appellant filed two different motions for rehearing on the same date, which may have led the trial court to overlook one of the motions, believing it to be a duplicate.


text:
    Walter Lewis JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0768
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Andy Thomas, Public Defender, and Barbara Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm Appellant's judgment and sentence, and remand solely for the court to enter a written adjudication nunc pro tunc of the competency determination the court has already made. See Hunter v. State , 174 So.3d 1011, 1015 (Fla. 1st DCA 2015) (remanding for entry of nunc pro tunc written order). The record reflects that the court made a proper and independent adjudication of Appellant's competency after the court raised a competency concern and had Appellant evaluated. We reject Appellant's other arguments on appeal without further comment.

AFFIRMED ; REMANDED for entry of order.

Lewis, Kelsey, and Winsor, JJ., concur.


text:
    Mark A. BROWNE, Petitioner, v. Holly BLANTON alias Blanton-Arowne, Respondent.
    No. 1D18-0814
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Mark A. Browne, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wolf, Lewis, and Ray, JJ., concur.


text:
    Louis S. ROBERTS, III, in his official capacity as Sheriff of Jackson County, Florida, Appellant, v. Miles David WHIDDON, Appellee.
    No. 1D18-2536
    District Court of Appeal of Florida, First District.
    July 25, 2018
    Matthew J. Carson, Glenn W. Rininger III and Jason Vail of Jolly, Peterson & Truckenbrod, P.A., Tallahassee, for Appellant.
    Will Haselden of William M. Haselden, PA, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Florida Highway Patrol v. Jackson, 238 So.3d 430 (Fla. 1st DCA 2018).

Wolf, Lewis, and Ray, JJ., concur.


author: GENOVESE, Justice JOHNSON, C.J., dissenting. WEIMER, J., concurring.

text:
    IBERVILLE PARISH SCHOOL BOARD v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION and the State of Louisiana Through the State Department of Education
    Louisiana Association of Educators, Caddo Association of Educators, Calcasieu Association of Educators, Inc., Concordia Association of Educators, the East Baton Rouge Association of Educators, Lafayette Parish Association of Educators, Madison Association of Educators, Monroe Association of Educators, St. Landry Association of Educators, St. Mary Association of Educators, Ann Burruss, Rev. Oscar Hamilton, Deborah Hargrave, Melinda Waller Mangham and Thomas Tate Versus State of Louisiana, the Louisiana State Board of Elementary and Secondary Education and the State of Louisiana Through the Department of Education
    No. 2017-C-0257 No. 2017-C-0633 No. 2017-C-0634
    Supreme Court of Louisiana.
    March 13, 2018
   GENOVESE, Justice

We are called upon to determine whether the lower court erred in declaring unconstitutional certain provisions of Senate Concurrent Resolution No. 55 of 2014, which applies the formula contained in La.R.S. 17:3995 and allocates Minimum Foundation Program ("MFP") funding to New Type 2 charter schools. In accordance with our legally-mandated de novo review, we find the court of appeal erred in declaring the constitution prohibits the payment of MFP funds to New Type 2 charter schools. Thus, the appellate court's declaration of unconstitutionality is reversed.

FACTS AND PROCEDURAL BACKGROUND

In the 2014 regular session, the Louisiana Legislature passed Act 15, a general appropriations bill for the 2014-2015 fiscal year which contained Senate Concurrent Resolution No. 55 ("SCR 55"). SCR 55 is the vehicle by which the legislature approved the 2014-2015 MFP formula adopted by the Louisiana Board of Elementary and Secondary Education ("BESE") as required by La. Const. art. VIII, § 13 (B), which dictates that BESE "annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools."

The MFP is Louisiana's principal source for funding public elementary and secondary education. The formula developed and adopted by BESE takes into consideration the number of students in each school district and the special characteristics of those students. Presently, once a school system receives its MFP allocation from the state, individual charter schools are allocated their share of those funds pursuant to La.R.S. 17:3995.

The plaintiffs, Iberville Parish School Board ("IPSB") and the Louisiana Association of Educators ("LAE"), each filed petitions for injunctive and declaratory relief, naming as defendants BESE and the State of Louisiana through the Department of Education ("Department"). The suits were consolidated.

The plaintiffs challenged the constitutionality of SCR 55(II)(B) and also sought preliminary and permanent injunctive relief. The plaintiffs alleged SCR 55(II)(B) is an unconstitutional diversion of MFP funds, pursuant to La. Const. art. VIII, § 13 (B), which requires the state to annually develop and adopt a formula to determine a minimum foundation program of education in public elementary and secondary schools, and to equitably allocate the funds to parish and city school systems. The plaintiffs asserted SCR 55(II)(B) unconstitutionally allocated MFP funds that are constitutionally allocated to parish and city school systems to new charter schools outside the parish or city school system, i.e., New Type 2 charter schools. Additionally, the plaintiffs contended SCR 55(II)(B) unconstitutionally diverts the local portion of the per-pupil amount mandated in the MFP. IPSB, not LAE, also sought damages for all MFP funds which defendants allegedly unlawfully diverted from IPSB to New Type 2 charter schools.

SCR 55 dictates that MFP funds shall be paid to New Type 2 charter schools. The provisions of SCR 55 to which the plaintiffs object state, in pertinent part:

II. FORMULA CALCULATIONS FOR STATE-APPROVED PUBLIC SCHOOLS
....
B. NEW TYPE 2 CHARTER SCHOOLS
A New Type 2 [c]harter school is a Type 2 [c]harter school[ ] approved after July 1, 2008 by the State Board of Elementary and Secondary Education.
1. State Cost Allocation.
a. Any New Type 2 [c]harter [s]chool shall annually be provided a State Cost Allocation as determined by the formula contained in R.S. 7:3995.
b. The State Cost Allocation equals the number of students multiplied by the average State Cost Allocation Per Pupil for the system in which the student resides.
c. Mid-Year Adjustments shall adhere to the guidelines established in this document.
2. Local Cost Allocation.
a. Any New Type 2 [c]harter school shall annually be provided a Local Cost Allocation by applying the formula contained in R.S. 17:3995.
b. The Local Cost Allocation equals the number of students multiplied by the Local Cost Allocation Per Pupil for the system in which the student resides.
c. One exception to R.S. 17:3995 is that the Local Cost allocation will be funded with a transfer of the MFP monthly amount representing the Local Cost Allocation from the city or parish school system in which the attending students reside.
d. The city or parish where students attending the New Type 2 [c]harter school reside is the local taxing authority and shall provide the local support for the students.
e. Mid-Year Adjustments will adhere to the guidelines established in this document.
....
4. Where student attendance is from multiple school systems, the Department of Education shall determine the Local Cost Allocation based on students reported by the schools. The student membership count of the New Type 2 charter schools shall be included in the membership count of the city or parish school board in which the student resides to determine the Local Cost Allocation.
5. In the first year of operation, a New Type 2 [c]harter school shall be allocated funding based on an estimated student count since a February 1 student count does not exist. The allocation will be finalized based on the October 1 student count.
6. The exclusion of any portion of local revenues specifically dedicated by the legislature or by voter approval to capital outlay or debt service shall be applicable only to a charter school housed in a facility or facilities provided by the district in which the charter school is located.

SCR 55(II)(B).

After a three-day trial, the district court entered a judgment in favor of defendants, dismissing plaintiffs' claims. In oral reasons, the district court ruled that SCR 55(II)(B) does not violate the constitution. The district court first determined that Type 2 charter schools are public schools, noting "all parties agree that the Type 2 charter schools are public schools, are public entities." Next, the district court considered whether or not the funds through the MFP go to New Type 2 charter schools, as defendants contend, or if the constitution says the funds through the MFP go only to the city and parish school systems, as plaintiffs assert. The district court rejected plaintiffs' assertion, focusing on the word "public" in La. Const. art. VIII, § 13 (B). The district court found the MFP formula adopted by BESE does not violate La. Const. art. VIII, § 13 (B), because charter schools are public schools, and as such, BESE is required to "annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems." La. Const. art. VIII, § 13 (B) (emphasis added). In addition, the district court rejected the plaintiffs' contention that SCR 55(II)(B) unconstitutionally diverts the local portion of the per-pupil amount mandated in the MFP.

The court of appeal reversed the district court, declaring unconstitutional the diversion of MFP funds to New Type 2 charter schools pursuant to SCR 55(II)(B). A majority of a five-judge panel found that SCR 55(II)(B) unconstitutionally diverts MFP funds constitutionally mandated to be allocated to parish and city school systems to new charter schools outside the parish or city school system, in violation of La. Const. art. VIII, § 13 (B). Relying largely on Louisiana Federation of Teachers v. State of Louisiana , 13-0120, 13-0232, 13-0350 (La. 5/7/13), 118 So.3d 1033, the majority concluded that "New Type 2 charter schools are not public schools in the sense of the Louisiana Constitution." Iberville Par. Sch. Bd. v. La. State Bd. of Elementary & Secondary Educ. , 15-1416, 15-1417, p. 10 (La.App. 1 Cir. 1/9/17), 2017 WL 90541 (unpub'd). The majority remanded IPSB's damage claim to the district court.

Two judges dissented, finding "no exceptions in the language of the constitution that provide that public schools that are not part of the parish or city school systems are somehow different from other public schools or that they should be funded differently." Id. at 14. The dissenting judges would, however, have required a remand for further examination of the local tax dedications that provide revenue support for the parish school system.

The defendants filed two identical writ applications (2017-C-0257 and 2017-C-0633), seeking reversal of the court of appeal's judgment which declared that New Type 2 charter schools are not public schools, and that the methodology in SCR 55(II)(B), applying the formula in La.R.S. 17:3995, which provides MFP funding to New Type 2 charter schools, is unconstitutional. IPSB filed a writ application (2017-C-0634), seeking a determination that damages should have been awarded for the unconstitutional diversion of MFP funds to New Type 2 charter schools. We granted writs pursuant to our appellate jurisdiction, see La. Const. art. V, § 5 (D), to review the appellate court's declaration of unconstitutionality. LaPointe v. Vermilion Par. Sch. Bd. , 15-0432, p. 5 (La. 6/30/15), 173 So.3d 1152, 1157 ; World Trade Ctr. Taxing Dist. v. All Taxpayers, Prop. Owners , 05-0374, p. 1 (La. 6/29/05), 908 So.2d 623, 626.

DISCUSSION

At the forefront of our review is Article VIII of the Louisiana Constitution of 1974, entitled "Education," which contains the substantive provisions regarding the state's obligations to the public educational system. Under La. Const. art. VIII, § 1, the legislature is required to "provide for the education of the people of the state and shall establish and maintain a public educational system." The requirement to fund public elementary and secondary education is set forth in La. Const. art. VIII, § 13. Under La. Const. art. VIII, § 13 (A), the legislature "shall appropriate funds to supply free school books and other materials of instruction prescribed by [BESE] to the children of this state at the elementary and secondary levels." The legislature is also required under La. Const. Art. VIII, § 13 (B), to "fully fund the current cost to the state" of a "minimum foundation program of education in all public elementary and secondary schools[,]" and the "funds appropriated shall be equitably allocated to parish and city school systems[.]"

The plaintiffs argue that MFP funds cannot be diverted to New Type 2 charter schools because La. Const. art. VIII, § 13 (B), restricts MFP funds to "parish and city school systems." The defendants contend the plaintiffs failed in their burden to prove clearly and convincingly that the constitution imposes substantive limits or requirements on how the MFP is to be developed or implemented. Defendants argue what is clear is that La. Const. art. VIII, § 13 (B), requires the state to fund New Type 2 charter schools because they are public schools.

Constitutional Interpretation Principles

The constitutionality of legislation is a legal question, which is reviewed by this court de novo . La. Mun. Ass'n v. State , 04-0227, p. 45 (La. 1/19/05), 893 So.2d 809, 842 (citing Cleco Evangeline, LLC v. La. Tax Comm'n , 01-2162, p. 3 (La. 4/3/02), 813 So.2d 351, 353 ). In our de novo review, we are mindful that certain principles apply. There is a presumption that legislative instruments are constitutional; therefore, the party challenging its validity has the burden of proving its unconstitutionality. La. Fed'n of Teachers , 13-1020 at p. 21, 118 So.3d at 1048 (citing State v. Citizen , 04-1841, p. 11 (La. 4/1/05), 898 So.2d 325, 334 ; Louisiana Mun. Ass'n , 04-0227 at p. 45, 893 So.2d at 842 ; Bd. of Comm'rs of N. Lafourche Conservation, Levee & Drainage Dist. v. Bd. of Comm'rs of Atchafalaya Basin Levee Dist. , 95-1353, p. 3 (La. 1/16/96), 666 So.2d 636, 639 ).

The provisions of the Louisiana Constitution are not grants of power; instead, they are limitations on the otherwise plenary power of the people exercised through the legislature. La. Fed'n of Teachers , 13-0120 at p. 21, 118 So.3d at 1048 (citing La. Mun. Assoc. , 04-0227 at p. 45, 893 So.2d at 842 ; Bd. of Comm'rs of N. Lafourche Conservation, Levee & Drainage Dist. , 95-1353 at p. 3, 666 So.2d at 639 ). The Louisiana Legislature, whom the people elect, may enact any legislation that the constitution does not prohibit. World Trade Ctr. Taxing Dist. , 05-0374 at p. 11, 908 So.2d at 632 (citing Polk v. Edwards , 626 So.2d 1128, 1132 (La.1993) ). In order to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature. World Trade Ctr. Taxing Dist. , 05-0374 at p. 11, 908 So.2d at 632 (citing Polk , 626 So.2d at 1132 ; In re Am. Waste & Pollution Control Co. , 588 So.2d 367 (La.1991) ; Bd. of Dirs. of La. Recovery Dist. v. All Taxpayers, Prop. Owners , 529 So.2d 384 (La.1988) ). In that context, the party challenging the constitutionality of legislation must cite to the specific provision of the constitution that would prohibit the enactment of the legislation and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislation in question. La. Fed'n of Teachers , 13-0120 at p. 21, 118 So.3d at 1048 (citing World Trade Ctr. Taxing Dist. , 05-0374 at p. 11, 908 So.2d at 632 ; Caddo-Shreveport Sales & Use Tax Comm'n v. Office of Motor Vehicles Dep't of Pub. Safety & Corrs. , 97-2233, pp. 5-6 (La. 4/14/98), 710 So.2d 776, 779 ; Polk , 626 So.2d at 1132 ).

Because there is a presumption that the legislature acts within its constitutional authority, we must construe legislative instruments so as to uphold constitutionality when it is reasonable to do so. La. Fed'n of Teachers , 13-0120 at p. 22, 118 So.3d at 1048 (citing State v. Fleury , 01-0871, p. 5 (La. 10/16/01), 799 So.2d 468, 472 ; Moore v. Roemer , 567 So.2d 75, 78 (La.1990) ). Stated differently, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality. La. Fed'n of Teachers , 13-0120 at p. 22, 118 So.3d at 1048 (citing Hondroulis v. Schuhmacher , 553 So.2d 398, 416-17 (La.1988) ). Nevertheless, the constitution is the supreme law of this state to which all legislative instruments must yield. La. Fed'n of Teachers , 13-0120 at p. 22, 118 So.3d at 1048 (citing World Trade Ctr. Taxing Dist. , 05-0374 at p. 12, 908 So.2d at 632 ; Caddo-Shreveport Sales & Use Tax Comm'n , 97-2233 at p. 6, 710 So.2d at 780 ). When a legislative instrument conflicts with a constitutional provision, the legislative instrument must fall. La. Fed'n of Teachers , 13-0120 at p. 22, 118 So.3d at 1048 (citing Caddo-Shreveport Sales & Use Tax Comm'n , 97-2233 at p. 6, 710 So.2d at 780 ).

Diversion of MFP Funds

There is no dispute that New Type 2 charter schools receive both a state-funded allocation and a local-revenue allocation via SCR 55(II)(B). The issue on appeal is whether SCR 55(II)(B) unconstitutionally diverts these state and local funds. Thus, we must first address whether New Type 2 charter schools are public schools. If New Type 2 charter schools are public schools, then we must address the use of local funds to support New Type 2 charter schools. Louisiana Constitution Article VIII, § 13 (B), which establishes the MFP, specifies:

(B) Minimum Foundation Program. The State Board of Elementary and Secondary Education, or its successor, shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. Prior to approval of the formula by the legislature, the legislature may return the formula adopted by the board to the board and may recommend to the board an amended formula for consideration by the board and submission to the legislature for approval. The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools. Neither the governor nor the legislature may reduce such appropriation, except that the governor may reduce such appropriation using means provided in the act containing the appropriation provided that any such reduction is consented to in writing by two-thirds of the elected members of each house of the legislature. The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation. Whenever the legislature fails to approve the formula most recently adopted by the board, or its successor, the last formula adopted by the board, or its successor, and approved by the legislature shall be used for the determination of the cost of the minimum foundation program and for the allocation of funds appropriated.

Plaintiffs posit that La. Const. art. VIII, § 13 (B), mandates BESE "shall annually develop and adopt a formula ... to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems[;]" thus, there is no discretion-BESE shall give MFP funds only to parish or city school systems. However, despite the restriction of La. Const. art. VIII, § 13 (B), that MFP funds be allocated only to parish or city school systems, plaintiffs argue SCR 55(II)(B) unconstitutionally allocates an MFP local share and an MFP state share to New Type 2 charter schools. Plaintiffs assert that our holding in Louisiana Federation of Teachers squarely supports their position.

Defendants contend that La. Const. art. VIII, § 13 (B), imposes no substantive limits or requirements on how the MFP is to be developed or implemented. The constitution explicitly mandates funding of public schools, vesting BESE with the sole authority and discretion to develop the funding formula, after which the legislature may either approve the formula or recommend amendments to the formula for BESE's consideration. The defendants frame the issue as being the state's funding of Louisiana public schools not under the jurisdiction of a parish or city school board. The defendants argue that while the court of appeal's judgment specifically applies to only one category of schools, i.e., New Type 2 charter schools, its rationale would cut off state funding to all public schools that are not under the jurisdiction of a parish or city school board.

The primary basis for the appellate court's declaration of unconstitutionality is its definition of a "public school," which it equates to being synonymous with the phrase "city and parish school systems." The appellate majority relied largely on this court's holding that the diversion of MFP funds from public schools to nonpublic schools violates La. Const. art. VIII, § 13 (B). See La. Fed'n of Teachers , 118 So.3d 1033. In the present matter, the appellate majority opined:

According to SCR 55, the definition of city, parish, or local public school systems and schools shall include:
city or parish school systems, Recovery School District including operated and Type 5 charter schools, Louisiana School for Math, Science, and the Arts (LSMSA), New Orleans Center for Creative Arts (NOCCA), New Type 2 [c]harter schools, Legacy Type 2 [c]harter schools, Office of Juvenile Justice (OJJ) schools, and Louisiana State University and Southern University Lab schools.
Thus, by its own terms, SCR 55 distinguishes, among others, New Type 2 charter schools from city or parish school systems.
....
... SCR 55, by its own terms, defines parish and city school systems as unique elements separate and apart from New Type 2 charter schools. Further, New Type 2 charter schools are not public schools in the sense of the Louisiana Constitution. The court in Louisiana Federation of Teachers recognized that "[n]onpublic schools are not owned or operated by 'parish and city school systems.' " Louisiana Federation of Teachers , 118 So.3d at 1055. The case distinguishes between "public schools" and "nonpublic schools" and concludes that MFP funds cannot be diverted to nonpublic schools. See Louisiana Federation of Teachers , 118 So.3d at 1055. So, while the New Type 2 charter schools may be subject to the same requirements as public schools and may not necessarily be considered "private" schools, they clearly do not meet the constitutional definition of "public schools" and, therefore, are not entitled to MFP funding.

Iberville Par. Sch. Bd. , 15-1416 at pp. 8-10 (emphasis added). The dissent opined that while the constitution does not define "public schools," the constitution is clear that "all public schools are to be funded regardless of whether or not they are part of a city or parish school system." Id. at p. 2 (dissent). The minority poignantly noted that both Louisiana State University and Southern University Lab schools existed when this constitutional provision was enacted; neither are part of a city or parish school system; and both are public schools. Id.

It bears noting that the plaintiffs in Louisiana Federation of Teachers , 118 So.3d 1033, urged that La. Const. art. VIII, § 13 (B), restricts MFP funds "to parish and city school systems." Plaintiffs herein employ the same argument. In Louisiana Federation of Teachers , this court found MFP funds being diverted to non-public schools unconstitutional, but expressly noted it was not defining the "breadth of the term 'parish and city school systems[.]' " Id. at 1051, n. 18.

We disagree with the appellate court's ruling and find the New Type 2 charter schools are in fact public schools. While there is no definition of "public elementary and secondary schools" in the constitution, our legislature has expressed that charter schools are "independent public school[s]." La.R.S. 17:3973(2)(a). We agree with defendants' contention that affirming the court of appeal's rationale, i.e., denying MFP funding because the school is not under the jurisdiction of a parish or city school board, could potentially have adverse consequences to other charter schools, not just New Type 2 charter schools. To interpret La. Const. art. VIII, § 13 (B), in the manner the plaintiffs propose would lead to absurd consequences, because some public schools would be funded by the MFP but other public schools would not.

The constitution mandates funding of public schools, vesting BESE with the sole authority and discretion to develop the formula, after which the legislature may either approve the formula or recommend amendments to the formula for BESE's consideration. Louisiana Constitution Article VIII, § 13 (B), does not contain a clear and convincing prohibition of MFP funding being allocated to New Type 2 charter schools. Plaintiffs have failed to carry their burden of proving clearly and convincingly that applying the MFP formula to public New Type 2 charter schools in SCR 55 is unconstitutional. Therefore, we reverse the ruling of the court of appeal in this regard.

Local Cost Allocation

Because we have found the diversion of MFP funds to New Type 2 charter schools is constitutional, it is necessary for us to address the issue of whether SCR 55(II)(B) violates La. Const. art. VIII, § 13 (C), through its use of local funds to support New Type 2 charter schools. As La. Const. art. VIII, § 13 (B), requires a contribution to the MFP fund "by every city and parish school system," La. Const. art. VIII, § 13 (C), identifies proceeds from certain local taxes as the source of this contribution. In pertinent part, La. Const. art. VIII, § 13 (C), provides:

(C) Local Funds. Local funds for the support of elementary and secondary schools shall be derived from the following sources:
First: Each parish school board, Orleans Parish excepted, and each municipality or city school board actually operating, maintaining, or supporting a separate system of public schools, shall levy annually an ad valorem maintenance tax not to exceed five mills on the dollar of assessed valuation on property subject to such taxation within the parish or city, respectively.
....
Third: For giving additional support to public elementary and secondary schools, any parish, school district, or subschool district, or any municipality or city school board which supports a separate city system of public schools may levy an ad valorem tax for a specific purpose, when authorized by a majority of the electors voting in the parish, municipality, district, or subdistrict in an election held for that purpose. The amount, duration, and purpose of the tax shall be in accord with any limitation imposed by the legislature.

Plaintiffs argue that local taxes dedicated to public schools have been unlawfully diverted to New Type 2 charter schools operated by private foundations. As just one example, plaintiffs submit a 31-mill property tax which is dedicated in large part to "constructing or purchasing any work of public improvement ... title to which improvements shall vest in the public." This 31-mill property tax produces about one-third of the local revenue transfer and was voted on and approved by a majority of the electors of Iberville Parish before its New Type 2 charter school existed. Plaintiffs further argue that to the extent that New Type 2 charter schools, which are owned by private foundations, use the funds to acquire facilities, they are not "public improvements," and title does not "vest in the public." Therefore, title to the facilities vests in private foundations, which plaintiffs contend violates local tax dedications as well as the Louisiana Constitution.

Defendants argue that the mandate to "equitably allocate" MFP funds contemplated in La. Const. art. VIII, § 13 (B), also applies to local taxes levied pursuant to La. Const. art. VIII, § 13 (C). Defendants urge that the MFP formula is meant to fund students of public schools. Because each of the local taxes at issue herein specify they are for the purpose of supporting public schools, and because New Type 2 charter schools are public schools, New Type 2 charter schools are likewise entitled to the inclusion of these funds in the MFP formula.

Under the "First" local funds provision of La. Const. art. VIII, § 13 (C), a property tax is required to fund the local "system of public schools." As public schools, New Type 2 charter schools are entitled to receive the benefits of this local tax provision.

The "Third" local funds provision is a discretionary property tax, and it is to be imposed "for a specific purpose" on the condition that "the tax shall be in accord with any limitation imposed by the legislature." The aforementioned 31-mill property tax comes under this "Third" provision. We interpret the use of "any limitation" in this "Third" provision to account for the legislature's power to establish future limitations, i.e., which would include local funds in the calculation of the MFP formula. Any ad valorem tax passed under this optional "Third" provision is subject to the overarching constitutional requirement to conform to the legislature's direction. Under La. Const. art. VIII, § 13 (C), tax dedication language cannot be engineered to prevent local tax revenue from being calculated in the MFP formula when determining allocations to public schools, which includes New Type 2 charter schools.

In City of New Orleans v. Louisiana Assessors' Retirement & Relief Fund , 05-2548 (La. 10/1/07), 986 So.2d 1, one of the issues was whether the statutory funding provision of the Assessors' Retirement Fund was an unconstitutional diversion of taxes dedicated to other purposes. This Court reversed the district court's declaration that the statutory funding provision allowed an unconstitutional diversion of dedicated or special taxes to purposes other than those for which they were designated. This Court reasoned that the statute at issue provided only the method of identifying and calculating the amount due, it did not identify the source of the monies to be remitted to the Assessors' Retirement Fund.

In this case, the plaintiffs' view is that local taxes are being used to improve privately-owned facilities to which the public has no title or interest. This is a mischaracterization. Akin to the funding mechanism in City of New Orleans , local revenue is considered in the allotment of MFP funds to public schools. Calculation of the local cost allocation includes sales and ad valorem taxes levied by the local school board. These figures are used to calculate a per-pupil local cost allocation. A public school's allotment of MFP funding is based on the number of students enrolled in that particular public school irrespective of whether the improvements made to that particular public school are vested in the public or not. Thus, the use of a phrase in an ad valorem tax, such as "improvements shall vest in the public" does not prohibit the use of local revenue in the funding of New Type 2 charter schools and cannot be used as defense to thwart the goal of La. Const. art. VIII, § 13 (C). Thus, SCR 55 does not transfer actual local tax revenue to charter schools.

DECREE

After de novo review, we find La. Const. art. VIII, § 13, does not prohibit the allocation of state or local MFP funding to New Type 2 charter schools. Accordingly, the declaration of unconstitutionality from the court of appeal is reversed.

REVERSED.

JOHNSON, C.J., dissenting.

I agree with the court of appeal panel that declared the methodology set forth in Senate Concurrent Resolution no. 55 ("SCR 55) (2014) in applying the formula contained in La. R.S. 17:3995, violates La. Const. art. VII § 13 in that it allows the diversion of public school funds to non-public schools.

La. Const. art. VII § 13 provides that the State Board of Elementary and Secondary Education ("BESE") must annually adopt a formula to determine the cost of a Minimum Foundation Program ("MFP") to fund education in all public and elementary and secondary schools. The funds appropriated by the legislature must be equitably allocated to parish and city school systems so that each system has the resources to meet minimum standards.

The state argues that public schools are not explicitly defined in the Constitution and the definition can be expanded to include Legacy Charter schools, New Type 2 Charter schools, and any other new independent schools created by a charter between BESE and a nonprofit corporation.

Charter schools are not a new phenomena. In fact, this state has a long history where the legislature has appropriated funding for alternative schools. We have the aforementioned Legacy schools, such as LSU and Southern University Laboratory schools, that have been funded separately by the state for more than fifty (50) years. These schools provide wonderful education opportunities. They are also allowed to charge tuition and have selective admission standards.

Historically, we have defined "public schools" as elementary and secondary schools operated and administered by a locally elected parish or city School Board which provides free and open enrollment to every child in the school district.

Local Cost Allocation

In my view, SCR 55 (11)(B) violates La. Const. art. VII § 13 (C) through its use of local funds to support New Type 2 Charter Schools. We have long recognized the taxing authority of local school districts. Mandating school funding is not a novelty. In 1888, the issue arose as to whether the police jury in DeSoto Parish should be required to levy taxes for common (public) schools. See Par. Bd. of Sch. Directors v. Police Jury , 5 So. 23, (La. 10/17/1888) 40 La. Ann. 755. Since then, we have recognized that the Constitution allows for the collection of ad valorem taxes, and sales and use taxes by the parish school boards to fund public schools. See La. Const. art. VIII sec. 13 . Historically, these funds are specifically dedicated to School Board use, as were the "Sixteenth Section" lands, which were reserved for the benefit of public schools.

SCR 55 requires that legacy Type 2 Charter Schools and New Type 2 Charter Schools be allotted a local cost allocation according to the formula set out in La. R.S. 17:3995. These local ad volorem and sales and use taxes were instituted by majority vote following a ballot initiative. The public vote for institution (or renewal) of school taxes was based on the fact that the taxes were pledged for operation of parish and city schools There can be no diversion of this local tax money to charter schools.

For the reasons above, I respectfully dissent.

WEIMER, J., concurring.

While I agree with the result reached by the majority, I suggest a different analysis to resolve the two salient issues: 1) whether New Type 2 Charter Schools are public schools for funding purposes; and 2) whether local taxes are unconstitutionally diverted to fund New Type 2 Charter Schools in Iberville Parish.

On the first issue, I certainly agree with the majority's determination that charter schools are public schools and the observation that the constitution contains no ban against the legislature funding the New Type 2 Charter Schools. Due to its plenary authority, the legislature is not prohibited from funding charter schools through the Minimum Foundation Program (MFP). However, I find the provision relied on by the majority, i.e ., La. Const. art. VIII, § 13 (B), actually contains an affirmative requirement to fund these schools. Twice within La. Const. art. VIII, § 13 (B) it is stated that the MFP serves "all public elementary and secondary schools." (Emphasis added.) The second such statement is notable for requiring the legislature to "fully fund the current cost to the state of such a program ... in order to insure a minimum foundation of education in all public elementary and secondary schools." Id. (Emphasis added.) Significantly, a New Type 2 Charter School is authorized by a statute ( La. R.S. 17:3973(2)(b)(ii) ), which procedurally either converts "a preexisting public school" or authorizes the creation of "a new school," and in either case the statute requires collaboration "between the nonprofit corporation created to operate the school and the State Board of Elementary and Secondary Education [BESE]." Thus, given the mechanism of its creation and being subject to an ongoing collaboration with BESE, a New Type 2 Charter School sufficiently fits the constitutionally-mandated criteria for funding "all public elementary and secondary schools." La. Const. art. VIII, § 13 (B).

On the local funding issue, I again agree with my learned colleagues, inasmuch as they find this issue can be resolved based on La. Const. art. VIII, § 13 (C). However, I attach a lesser significance to the clause indicating that "the purpose of the [local] tax shall be in accord with any limitation imposed by the legislature." Id. I find it is unnecessary to hold, as the majority does, that the quoted clause empowers the legislature "to establish future limitations, i.e., which would include local funds in the calculation of the MFP formula." Iberville Parish School Board v. La. State Board of Elementary and Secondary Education , 17-0257, 17-0633, 17-0634, op. at 16 (La. 3/13/18), --- So.3d at ----. Rather, I find that other clauses better resolve the local funding issue.

The very first clause of La. Const. art. VIII, § 13 (C) indicates that "[l]ocal funds for the support of elementary and secondary schools shall be derived from the following sources," and then goes on to indicate the various taxes, some mandatory and some optional, which are described more fully in the majority's opinion. The import of the very first clause of La. Const. art. VIII, § 13 (C) is that any educational tax, whether mandatory or optionally, enacted by a given electorate, is subject to being taken into account when deriving the MFP formula. This is so because Section 13 © must be read in context of Section 13 (B), which, in pertinent part, provides that the MFP "formula shall provide for a contribution by every city and parish school system."

Of course, different city and parish school systems will contribute different amounts because the taxes they levy and their respective tax bases vary considerably. The MFP exists-as its name suggests-to provide a basis for funding the various educational systems across the state. As this court has previously explained, "[t]he purpose of [the MFP] is to insure that each public school child in this state receives an equal educational opportunity regardless of the wealth of the parish in which the child resides." Louisiana Ass'n of Educators v. Edwards , 521 So.2d 390, 391 (La. 1988) (citing State of Louisiana Constitutional Convention of 1973, Verbatim Transcripts Volume XXVIII, 87th day, November 16, 1973, 108; 88th day, November 17, 1973, 12).

The fact of differing tax contributions to the MFP is accounted for by another provision in La. Const. art. VIII, § 13 (B). As to the more traditional parish and city schools, a special division of funds is required: "[t]he funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation." Id.

The requirement for "equitably allocat[ing] to parish and city school systems" allows BESE and the legislature to make adjustments geared toward equalizing state funding notwithstanding that local revenues vary widely. Indeed, the quoted language was approved by the state electorate via a constitutional amendment, in part, as a response to the perception that "the [MFP] formulas adopted by BESE during the 1970s and 1980s considered only a small portion of the wealth of local school districts when distributing state funds, resulting in considerable disparities in educational funding between poor and rich parishes." Jackie Ducote, The Education Article of the Louisiana Constitution , 62 La. L. Rev. 117, 132 (2001) (The commentator further noted the constitutional amendment "included a provision 'for a contribution by every city and parish school system.' ").

Notably, the funding priority in La. Const. art. VIII, § 13 (B), to "equitably allocate[ ] to parish and city school systems," is not described as a solitary funding priority. It does not override the first stated directive in La. Const. art. VIII, § 13 (B) to fund "all public ... schools." Thus, there is nothing in La. Const. art. VIII prohibiting an MFP formula from being developed that would allocate funds to New Type 2 Charter Schools in a manner that includes local tax revenues.

What emerges from an evaluation of all of the constitutional provisions cited above is that any optional local taxes, which are the taxes at issue here, are to be evaluated by BESE and the legislature in confecting the MFP formula. As such, BESE and the legislature can formulate and approve an MFP that accounts for any optional local tax in the state's ultimate distribution of funds. According to La. Const. art. VIII, § 13 (B), as between parish and city school systems, the MFP distribution must be "equitably allocated." When New Type 2 Charter Schools are added to the mix of schools to be funded, because the constitution does not otherwise direct how these public schools shall be funded relative to other schools, the MFP may be funded in any manner that does not impinge upon the "equitabl[e] allocat[ion]" that must occur between parish and city schools. See City of New Orleans , 05-2548 at 11-12, 986 So.2d at 12 ("Because the provisions of the Louisiana Constitution are not grants of power but instead are limitations on the otherwise plenary power of the people, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit.").

Here, appellees fail to allege, let alone demonstrate, that accounting for the optional local taxes in Iberville Parish as part of the funding for New Type 2 Charter Schools has impinged in any way on the balance of "equitabl[e] allocat[ion]" of funding between any parish and city schools, which is the only balance explicitly required by La. Const. art. VIII, § 13 (B). Indeed, the Iberville Parish School Board represents to this court that the direction in SCR 55 to transfer MFP money to Type 2 Charter Schools is done on a per-pupil cost basis for "the city or parish school system in which the attending students reside." More specifically, after receiving MFP funds, the local school board is directed to produce from those state funds a "Local Revenue Allocation" which "is the per-pupil amount produced for the School Board from local sources." Because this "Local Revenue Allocation" is done on a per-pupil basis, which is indexed to the whole student population in the parish, it appears to me that BESE and the legislature have chosen a distribution of state MFP funds that is equitable to all schools concerned. Given that past disparities in funding among systems with differing tax bases have provoked earlier amendments to La. Const. art. VIII, § 13, it further appears that BESE and the legislature have accounted for the raising of local revenues in this instance. Thus, I respectfully concur within the constitutional scheme.

Hughes, J., dissents.

The majority opinion rests on the overly simplistic analysis that Type 2 Charter schools are "public schools."

They certainly are, by legislative definition. But no one disputes that they are public schools, or that the Legislature is free to allocate funds to public schools. The deeper issue, which the majority glosses over, is whether the MFP formula may be used to allocate funds to individual public schools. It has never been done before, because the Louisiana Constitution provides that MFP funds shall be allocated to "school systems" (School Boards).

While the Legislature is free to allocate funds to individual Type 2 Charter Schools, or to any public schools for that matter, to do so through the MFP formula is an unprecedented unconstitutional action and this court whiffs in addressing the constitutional issue. Sending money directly to individual schools may seem desirable, but the Constitution requires that funds from the MFP formula are to be allocated to school systems, not individual schools. As the concurrence acknowledges, referring to it as a "requirement", the Constitution provides that the MFP funds appropriated "shall be equally allocated to parish and city schools systems ." There is no "plenary authority" to ignore the plain words of the Constitution.

There is no question that the funds allocated are ultimately for the benefit of school children. What difference does it make? The Constitutional amendment that requires MFP funds to be allocated to public school systems, rather than individual schools, was voted on by the people . Only the people may change this requirement, not the Legislature. City and parish school systems are managed by elected School Board members, giving property owners and taxpayers a means of assuring responsibility and accountability. Short cuts around the Constitution, even for what may seem laudable or politically expedient, are inimical to democracy and are not cool.

      Louisiana Revised Statutes 17:3995 provides, in pertinent part:
      A. (1) For the purpose of funding ... Type 2 charter schools ... acting as its own local education agency shall receive a per pupil amount each year authorized by the state board each year as provided in the approved minimum foundation program formula. The per pupil amount provided to a Type 1, 2, 3, 3B, or 4 charter school shall be computed annually and shall be equal to the per pupil amount provided through the minimum foundation program formula, determined by the allocation weights in the formula based upon student characteristics or needs, received by the school district in which the student resides from the following sources based on the district's membership count used in the minimum foundation program formula:
      (a) The state-funded per pupil allocation, based upon the weighted student membership count, received by the district pursuant to the most recent legislatively approved minimum foundation program formula, including all levels and allocation weights based upon student characteristics or needs as provided in the formula except any supplementary allocations for specific purposes. Supplementary allocations for specific purposes shall be provided to charter schools based solely on the funds generated by the charter school within each specific allocation.
      (b)(i) Local revenues received during the prior year by the school district from the following sources:
      (aa) Sales and use taxes, less any tax collection fee paid by the school district.
      bb) Ad valorem taxes, less any tax collection fee paid by the school district.
      (cc) Earnings from sixteenth section lands owned by the school district.

      LAE was joined by nine local affiliates and five private taxpayers-all are listed in the caption. Unless otherwise noted, this opinion refers to all parties so aligned as plaintiffs.

      Later intervening in the district court as parties aligned with BESE and the Department were the following charter schools: Community School for Apprenticeship Learning, Inc. d/b/a Madison Preparatory Academy; Lake Charles Charter Academy Foundation, Inc.; International School of Louisiana; New Orleans Military and Maritime Academy, Inc.; Delta Charter Group; Delhi Charter School; Glencoe Education Foundation, Inc. d/b/a V.B. Glencoe Charter School; and Louisiana Association of Public Charter Schools. Unless otherwise noted, this opinion refers to all parties so aligned as defendants.

      A Type 2 charter school is defined by La.R.S. 17:3973(2)(b)(ii), in pertinent part, as "a new school or a preexisting public school converted and operated as the result of and pursuant to a charter between the nonprofit corporation created to operate the school and the State Board of Elementary and Secondary Education."

      The record indicates this matter was briefed and argued once before a three-judge panel and twice before a five-judge panel before an opinion was eventually rendered.

      The plaintiffs urge it is implicit in the decision to remand that defendants use of the MFP to seize IPSB's dedicated tax revenue and transfer it to New Type 2 charter schools is unconstitutional.

      The second (2017-C-0633) was filed to foreclose any question of timeliness as the first (2017-C-0257) was filed before the appellate court denied rehearing.

      IPSB asserts herein that the appellate court erred in opining that evidence and argument offered during trial was limited to declaratory and injunctive relief. See Iberville Par. Sch. Bd. , 15-1416 at p. 6, n. 5.

      This court granted and consolidated the applications in order to expeditiously resolve all of the issues presented. Iberville Par. Sch. Bd. v. La. State Bd. of Elementary & Secondary Educ. , 17-0257 (La. 5/12/17), 220 So.3d 745, and Iberville Par. Sch. Bd. v. La. State Bd. of Elementary & Secondary Educ. , 17-0633, 17-0634 (La. 6/5/17), 219 So.3d 1110.

      During the trial testimony of Jolain Landry, Chief Financial Officer for Iberville Parish School Board, each local tax was introduced into the evidentiary record.

      The March 8, 2008 Tax Resolution was introduced into evidence as plaintiffs' exhibit 15:
      PARISHWIDE PROPOSITION
      SUMMARY: 20 YEAR, 31 MILLS PROPERTY TAX FOR GIVING ADDITIONAL AID TO PUBLIC SCHOOLS IN THE PARISH, INCLUDING PAYMENT OF SALARIES AND BENEFITS OF TEACHERS AND EMPLOYEES, AND CONSTRUCTING OR PURCHASING ANY WORK OF PUBLIC IMPROVEMENT (INCLUDING ACQUIRING AND/OR IMPROVING LANDS FOR BUILDING SITES; PURCHASING, ERECTING AND/OR IMPROVING SCHOOL BUILDINGS AND OTHER SCHOOL RELATED FACILITIES AND ACQUIRING THE NECESSARY EQUIPMENT AND FURNISHINGS THEREFOR) TITLE TO WHICH IMPROVEMENTS SHALL VEST IN THE PUBLIC.
      Shall Consolidated School District No. 5 of the Parish of Iberville, State of Louisiana (the "District"), be authorized to levy and collect a special tax of thirty[-]one (31) mills on all property subject to taxation within the District (an estimated $10,540,000 reasonably expected at this time to be collected from the levy of the tax for an entire year), for a period of twenty (20) years, beginning with the year 2008 and ending with the year 2027, for the purpose of giving additional aid to public schools in the Parish, including payment of salaries and benefits of teachers and employees, and constructing or purchasing any work of public improvement (including acquiring and/or improving lands for building sites; purchasing, erecting and/or improving school buildings and other school related facilities and acquiring the necessary equipment and furnishing therefor) title to which improvements shall vest in the public?

      The "Second" local funds provision of La. Const. art. VIII, § 13 (C), pertains only to New Orleans and is inapplicable herein.

      See City of New Orleans v. Louisiana Assessors' Retirement and Relief Fund , 05-2548, pp. 11-12, 986 So.2d 1, 12 (La. 10/1/07).

      Although my reasoning on the effect of La. Const. art. VIII, § 13 (B) differs somewhat from that of the majority, I fully agree with the majority's observation that the instant case is distinguishable from Louisiana Federation of Teachers v. State of Louisiana , 13-0120, 13-0232, 13-0350 (La. 5/7/13), 118 So.3d 1033. While Louisiana Federation of Teachers interpreted La. Const. art. VIII, § 13 (B), unlike the instant case, Louisiana Federation of Teachers addressed MFP funding for schools that were irrefutably nonpublic schools, and this court explicitly indicated it did not purport to define the "breadth of the term 'parish and city school systems.' " Id. , 13-0120, 13-0232, 13-0350 at 26 n.18, 118 So.3d at 1051 n.18.

      "In seeking to discover constitutional intent, we are guided by many of the same rules followed in interpreting laws and written instruments. ... Provisions on the same subject matter are interpreted with reference to each other." Caddo-Shreveport Sales and Use Tax Comm'n v. Office of Motor Vehicles, Dep't of Pub. Safety and Corrections , 97-2233, p. 6 (La. 4/14/98), 710 So.2d 776, 780.

      See 1987 La. Acts 948, approved November 21, 1987, effective December 27, 1987.

      La. Const. art. VIII, § 13 (B).

      Senate Concurrent Resolution 55 of 2014 or "SCR 55" is the legislative instrument which approved the MFP at issue in this case.


author: PER CURIAM WEIMER, J., concurring.

text:
    THREE RIVERS COMMONS CONDOMINIUM ASSOCIATION v. Donna GRODNER, et al.
    No. 2017-C-0974
    Supreme Court of Louisiana.
    April 2, 2018
   PER CURIAM

We granted defendant's application for a writ of certiorari on October 27, 2017. After considering the briefing and oral argument of the parties, the record and the applicable law, we conclude the judgment below does not require the exercise of this court's supervisory authority. Accordingly, we recall our order of October 27, 2017 as improvidently granted, and we deny defendant's writ application.

WEIMER, J., concurring.

Although I respectfully disagree with the decision to recall the writ, I concur because ultimately I reach the same result. On this record, I would affirm the result reached by the majority of the court of appeal.


author: PER CURIAM

text:
    IN RE: Trisha A. WARD
    NO. 2018-OB-1057
    Supreme Court of Louisiana.
    July 3, 2018
   PER CURIAM

This proceeding arises out of an application for reinstatement to the practice of law filed by petitioner, Trisha A. Ward, a suspended attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On December 28, 2013, petitioner intentionally entered the home of S.S. and his wife, J.H., without authorization. During her sworn statement to the Office of Disciplinary Counsel ("ODC"), petitioner acknowledged that she did not have express permission to enter the residence. Petitioner was arrested and charged with unauthorized entry of an inhabited dwelling, a felony. This charge was dropped as part of a plea bargain. On October 30, 2015, petitioner pleaded guilty to stalking and to violation of a protective order, both misdemeanors.

On December 1, 2016, the court interimly suspended petitioner from the practice of law pursuant to a joint petition by the parties. In re: Ward , 16-2003 (La. 12/1/16), 207 So.3d 397. On September 29, 2017, the court considered petitioner's misconduct, as set forth above, and suspended her from the practice of law for one year and one day, retroactive to the date of her interim suspension. In re: Ward , 17-1047 (La. 9/29/17), 227 So.3d 251.

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

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

1. Petitioner must continue to receive medical and emotional care from her providers for her physical and mental conditions until, in the professional opinion of those providers, such ongoing treatment can be reduced or terminated, with periodic reports of her condition, prognosis, and treatment submitted to the ODC;
2. Although not raised in the disciplinary proceeding or the reinstatement proceeding, tangential evidence presented to the committee indicates a lack of vigor in petitioner's attention to her financial affairs, including late-filed tax returns, being sued for non-payment of a student loan, and substantial unpaid student loans in forbearance, among other things. The committee recommends that, if petitioner enters into the practice of law requiring the maintenance and supervision of a client trust account, a practice monitor be appointed to monitor compliance with trust account rules, accounting procedures, law office management procedures, and diligence in the maintenance of her financial obligations;
3. Petitioner must not violate any of the Rules of Professional Conduct during the period of her conditional reinstatement. Should she have a disciplinary complaint lodged against her at any time during the period of her conditional reinstatement, she must promptly and fully cooperate with any investigation conducted by the ODC.

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

DISCUSSION

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

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Trisha A. Ward, Louisiana Bar Roll number 31485, be immediately reinstated to the practice of law in Louisiana, subject to a five-year period of probation governed by the conditions set forth herein. The probationary period shall commence from the date petitioner and the ODC execute a formal probation plan. Should petitioner fail to comply with the conditions of probation, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated immediately, or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.

      Prior to the disciplinary hearing in this matter, the Office of Disciplinary Counsel filed a motion seeking a protective order pursuant to Supreme Court Rule XIX, § 16(D) to "protect the identity of the victims arising from the Respondent's misconduct and under circumstances that are sensitive, highly personal, and injurious." The hearing committee chair granted the motion. Accordingly, we have referred to the victims by their initials.