author: SALARIO, Judge.

text:
    Andrew QUIJANO, Doc #T92384, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2541
    District Court of Appeal of Florida, Second District.
    Opinion filed May 8, 2019.
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   SALARIO, Judge.

Andrew Quijano appeals from an order revoking his sex offender probation and imposing a ninety-nine-month prison sentence. We affirm the trial court's finding that Mr. Quijano violated his probation by possessing pornographic material but remand for the trial court to render an amended order of revocation finding a violation of condition 33 rather than condition 21, the condition identified in the revocation order. We affirm the remainder of the revocation order and sentence without comment.

Mr. Quijano argues that the trial court erred by finding him in violation of condition 21 for possessing pornographic material because the evidence admitted at the violation hearing failed to show that the pornographic material he possessed bore any relationship to the pattern of deviant behavior that led to the order of sex offender probation in the first place. But as the State correctly points out, the evidence at the violation hearing unquestionably showed that Mr. Quijano did violate condition 33 of his probation, which prohibits him from possessing pornographic material at all, regardless of whether it is related to his prior deviant behavior. That is enough to sustain the trial court's revocation order under the facts of this case.

A little background is helpful to understand why. Section 948.30, Florida Statutes, has long required that a trial court impose as a condition of sex offender probation a prohibition on possessing or viewing pornographic material unless otherwise provided in a statutorily required treatment plan. See, e.g., § 948.30(1)(g), Fla. Stat. (2013). Prior to 2014, the sole statutory provision on this subject required that the pornographic material subject to the prohibition be material that was related to the defendant's pattern of deviant behavior. Id. In 2014, the legislature amended the statute to include a provision applicable only to defendants whose offenses were committed on or after October 1, 2014, requiring the imposition of a condition of probation that prohibits the defendant from possessing or viewing any pornographic material (unless otherwise provided in the treatment plan) without regard to whether the pornographic material bears a relationship to the defendant's deviant behavior. See ch. 2014-4, § 15, Laws of Fla.; see also § 948.30(5), Fla. Stat. (2014). Thus, an individual placed on sex offender probation for a crime that occurred after October 1, 2014 is subject to a statutorily required condition prohibiting the possession of any pornographic material. See § 948.30(5). The 2014 amendment did not, however, eliminate the earlier provision regarding pornography related to the defendant's deviant behavior. See § 948.30(1)(g).

The offenses underlying Mr. Quijano's order of sex offender probation were committed after October 1, 2014, and the statutory change in the probation conditions is reflected in that order. While condition 21 prohibits "viewing, accessing, owning, or possessing" pornographic material that is "relevant to the offender's deviant behavior pattern"-a condition section 948.30 has always required-condition 33, which only applies to "offenders whose crime was committed on or after October 1, 2014," contains the same prohibition without the additional relevance requirement. Mr. Quijano has not argued in the trial court or here that the imposition of both conditions of probation is legally problematic. Nor has he argued that the 2014 amendments to the statute are somehow invalid or are otherwise improperly applied to him. The only problem before us in this appeal is this: The State's affidavit of violation of probation alleged-and the trial court found-a violation only of condition 21, not condition 33. The question we must answer is whether the probation order can nonetheless be affirmed on the theory that Mr. Quijano's conduct violated condition 33.

On the facts of this case, it can. It is, of course, a violation of due process and fundamental error to revoke a defendant's probation based on conduct that was not alleged in the affidavit. Cherington v. State, 24 So. 3d 658, 660 (Fla. 2d DCA 2009) ("[A] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation." (alteration in original) (quoting Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000) )); Wells v. State, 60 So. 3d 551, 553 (Fla. 1st DCA 2011) ("[R]evoking an individual's probation for conduct not alleged in the charging document deprives the individual of due process and constitutes fundamental error."). However, not every defect in an affidavit of violation amounts to a violation of due process. "In order to violate due process, the affidavit must be insufficient to give the defendant notice of the nature of the charges against him and result in prejudice to his ability to prepare a defense." Jackson v. State, 807 So. 2d 684, 685 n.3 (Fla. 2d DCA 2001) (citing Hines v. State, 358 So. 2d 183, 185 (Fla. 1978) ).

On the other hand, where the defendant is not found in violation based on conduct that was not alleged in the affidavit, a defect in an affidavit of violation is not fundamental error and is subject to a harmless error analysis. Hines, 358 So. 2d at 185. When a defendant's probation is revoked based on an affidavit which alleges a violation with less-than-exacting precision but which nonetheless puts the defendant on notice of the misconduct of which he is accused, as is the case here, the deficiency is considered harmless so long as the State offers sufficient evidence that the defendant is guilty of the conduct (although not necessarily the condition) actually alleged in the affidavit. See, e.g., Smith v. State, No. 1D17-2771, 268 So.3d 831, 832-34, 2019 WL 942980, at *1-2 (Fla. 1st DCA Feb. 27, 2019) (holding that an error in an affidavit of violation which alleged that the defendant violated the terms of his probation by committing "sexual assault"-which, technically speaking, is not an offense under Florida law-was harmless because the defendant was "clearly on notice of the crimes for which he was arrested and charged"); Langbaum v. State, 799 So. 2d 391, 392-93 (Fla. 4th DCA 2001) (en banc) (holding that an error in an affidavit of violation which alleged without elaboration that the defendant had been arrested for DUI was harmless where the "[d]efendant expressed no doubt at the VOP hearing as to what he was accused of doing to warrant revocation of his probation" and "[t]he VOP charge was supported by testimony that he was in fact convicted of precisely the offense stated in the VOP charge"); cf. McCloud v. State, 249 So. 3d 739, 741 (Fla. 1st DCA 2018) ("A revocation based on a necessarily lesser-included offense of the one alleged in the violation of probation affidavit does not violate a probationer's due process rights because a necessarily lesser-included offense is one 'in which the statutory elements are always subsumed within those of the charged offense.' Because the State presented evidence of McCloud's convictions for a necessarily lesser-included offense of the one alleged in the violation of probation affidavit, the trial court did not err in revoking probation ...." (citation omitted) (quoting Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006) )).

The State's and trial court's erroneous citation of condition 21 instead of condition 33 is not a violation of due process and is subject to the harmlessness analysis here. Even though it cited condition 21, the affidavit of violation put Mr. Quijano on notice of the exact conduct the State had to prove in order to establish a violation of condition 33-that he possessed pornographic material. To that end, the State proved that Mr. Quijano possessed a pornographic magazine called "Barely Legal." Thus, the conduct for which Mr. Quijano's probation was revoked was both alleged in the affidavit and proved by evidence at the hearing. Mr. Quijano had the opportunity to-and indeed did-offer evidence and argument at the revocation hearing to rebut the State's argument that he had violated his sex offender probation. And, importantly, the only argument he made at the hearing (that the magazine did not belong to him) related to a component of the conduct common to both conditions 21 and 33. He did not come to the violation hearing defending on the basis that the magazine was not related to his deviant behavior. Thus, any error that did occur was harmless because, on these facts, Mr. Quijano had notice of the conduct alleged to violate his probation, his ability to prepare a defense to those charges was not prejudiced, and the State offered sufficient evidence to prove that he was guilty of the conduct alleged. See Jackson, 807 So. 2d at 685 n.3 ; Smith, 268 So.3d at 833-34, 2019 WL 942980, at *2 ; Langbaum, 799 So. 2d at 393. We therefore affirm the revocation of Mr. Quijano's sex offender probation and remand for the trial court to issue a revocation order denoting that he committed a violation of condition 33 instead of condition 21.

Affirmed; remanded with instructions.

LaROSE, C.J., and BADALAMENTI, J., Concur.

      We note that in a case somewhat similar to this one we treated an erroneously cited condition number in both the affidavit and the revocation order as a scrivener's error that could be corrected on remand without reversing the substantive portions of the order. See Washington v. State, 228 So. 3d 707, 708 (Fla. 2d DCA 2017) (affirming the revocation of community control and remanding to correct a scrivener's error in the revocation order where "[t]he affidavit of violation described a violation of condition 16 for failing to be at his approved residence but merely cited the wrong condition number" and "[t]he State presented evidence that proved and the trial court found that Washington was away from his approved residence in violation of his community control, a violation of condition 16"). The difference here is that Mr. Quijano's conduct, based on the date of his offense, might have been proven by the State as both a violation of the condition cited and a violation of the more-expansive condition that was actually proven. It is, although harmless, more than the misstatement of the condition number in Washington.

      Mr. Quijano was originally placed on sex offender probation after pleading guilty to lewd and lascivious battery on a person older than twelve but younger than sixteen. See § 800.04(4)(a)(1), Fla. Stat. (2014). It is difficult for us to imagine a circumstance under which possession of a pornographic magazine titled "Barely Legal" would not be relevant to whatever behavior by Mr. Quijano led to that plea such that a finding of a violation condition 21 would have been proper. But beyond the title of the magazine, the State's evidence on the relevance requirement was close to nonexistent, and the State has not defended its proof of relevance on appeal. See Brown v. State, 117 So. 3d 484, 486 (Fla. 2d DCA 2013) (holding that the State failed to prove the relevance requirement where "[a]bsolutely nothing about ... Brown's deviant behavior pattern was presented by the State" and the prosecutor argued simply that at least some of the pornography "dealt with what at least appeared to be younger adults"). Without deciding the issue, we resolve the case on the basis stated in the text.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Lina Nickie DUNKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3063
    District Court of Appeal of Florida, Fourth District.
    May 8, 2019
    Craig J. Trocino of Michael A. Gottlieb, P.A., Fort Lauderdale, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Mitchell Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Lina Dunkley, appeals the trial court's denial of her Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. After ordering the State to respond to the motion, the trial court summarily denied Dunkley's motion without waiting for a State response and without attaching portions of the record which conclusively refute her claims. As the State concedes on appeal, this was reversible error, requiring remand.

A postconviction court's decision of whether to grant an evidentiary hearing on a rule 3.850 motion is ultimately based on written materials before the court. Therefore, the court's ruling is tantamount to a pure question of law, subject to de novo review. See Van Poyck v. State , 961 So.2d 220, 224 (Fla. 2007). When reviewing the summary denial of a claim raised in a rule 3.850 motion, the court must accept the movant's factual allegations as true to the extent that they are not refuted by the record. Occhicone [ v.State , 768 So.2d 1037, 1041 (Fla. 2000) ]. Generally, a defendant is entitled to an evidentiary hearing on a rule 3.850 motion unless: (1) the motion, files, and records in the case conclusively demonstrate that the movant is entitled to no relief; or (2) the motion or particular claim is legally insufficient. Freeman v. State , 761 So.2d 1055, 1061 (Fla. 2000). The defendant bears the burden of establishing a prima facie case based on a legally valid claim; mere conclusory allegations are insufficient. Id.

Jennings v. State , 123 So.3d 1101, 1121 (Fla. 2013).

In denying the motion without an evidentiary hearing, the trial court stated in some detail its analysis and reasons for denying the motion. However, as noted above, the State concedes that the trial court's order does not comply with the rule because no documents were attached to the order and the trial court did not incorporate by reference a response by the State which contained attachments showing documents in the lower tribunal record refuting the claim. The order does not indicate that the motion was denied as untimely or that the motion was insufficient on its face. Rather than accepting all of Dunkley's allegations in the motion as true, many of the statements explaining the trial court's reason for denial appear to be based on the trial court's conclusions about what happened on the record, with no attachments to support the conclusions.

Rule 3.850(f)(5) provides:

If the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of law or by reliance upon the records in the case, the motion shall be denied without a hearing by the entry of a final order. 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.

Fla. R. Crim. P. 3.850(f)(5). When an appeal is filed as to an order that denies rule 3.850 relief without an evidentiary hearing, Florida Rule of Appellate Procedure 9.141(b)(2)(A) requires the clerk of the lower tribunal to "electronically transmit to the court, as the record, the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, ... and attachments to any of the foregoing, together with the certified copy of the notice of appeal." Fla. R. App. P. 9.141(b)(2)(A). Rule 9.141 further provides that "[o]n appeal from the denial of [ rule 3.850 ] relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P. 9.141(b)(2)(D). The record simply does not support the grounds asserted by the trial court for denying the motion.

Accordingly, we reverse and remand for an evidentiary hearing or for the attachment of records conclusively refuting Dunkley's claims. See Williams v. State , 141 So.3d 686, 687 (Fla. 4th DCA 2014) (construing Florida Rule of Criminal Procedure 3.801(e), which incorporates rule 3.850(f)(5), as requiring order denying relief to attach records conclusively refuting the motion).

Reversed and remanded.

Warner, Gross and Conner, JJ., concur.


text:
    Samantha Deeter CURRIE, Appellant, v. Robert L. COLVIN, individually, Wayne Lung, individually, Michelle Colvin, individually, Gabriel Chavez, individually, Jaime Gonzalez, individually, ACME Plumbing, Inc., a Florida Corporation, and SRW Cooling and Heating, Inc., a Florida Corporation, Appellees.
    No. 1D19-0887
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Samantha Deeter Currie, pro se, Appellant.
    No appearance for Appellees.
   Per Curiam.

DISMISSED . Johnson v. First City Bank of Gainesville , 491 So. 2d 1217 (Fla. 1st DCA 1986) (stating that in civil cases, this court has consistently held that an order which grants a motion to dismiss the complaint, but does not actually dismiss the complaint, is not an appealable order and such an order is not a final order).

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


author: Winsor, J.

text:
    Christopher Alexander LINDSAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-122
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Benjamin Louis Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Christopher Lindsay was convicted of second-degree murder and sentenced to life in prison. On appeal, he raises a single issue: he contends that the trial court abused its discretion in denying his motion for continuance. Because the trial court acted within its substantial discretion, we affirm.

We review a trial court's order denying a continuance only for an abuse of discretion. Lebron v. State , 799 So. 2d 997, 1018 (Fla. 2001). Here, as in Lebron , the "[record does not reflect that good cause was shown for [the] request for a continuance, or that any prejudice resulted from denial of the motion." Id.

The victim was Lorie Musil. Evidence at trial showed that Lindsay and Musil were both at the Bridge Bar and Sunset Lounge on Pensacola Bay. The two interacted at the bar and eventually left together. Less than an hour later, Lindsay returned to the bar, shirtless, wet, and alone. He was then belligerent, incoherent, and frantic, and bar employees tried to get him to leave. As he was leaving, Lindsay announced that he "drowned the bitch." The next evening, authorities found Musil's body by the water. An autopsy showed drowning caused the death.

Shortly before trial, Lindsay's counsel argued that a continuance was necessary so that the watch found on Musil's body could be tested for fingerprints. Lindsay argued that fingerprints from someone else would support his defense. Counsel acknowledged, though, that there had been sufficient time for fingerprinting; counsel said he'd simply forgotten to take care of it. The court denied the continuance, but it did enter an order allowing testing of the watch, if it could be done before trial. It is not clear whether testing took place pursuant to this order, so Lindsay has not shown prejudice. Moreover, because counsel had neglected to arrange for testing earlier, there was no good cause shown to support a continuance.

Lindsay also argues that he needed more time to secure additional bank records supporting his defense. He does not specify on appeal the nature of those records or how they would have helped his defense, but below he argued that he needed to collect "receipts from his transactions and actions ... within the window of death." At the time, counsel said those records were secured, but that they were in the process of finding a records custodian to testify at trial. Lindsay has not shown prejudice in this regard; he did, in fact, find a records custodian to testify about his transactions. Records custodians from Walmart and a pizzeria testified about certain transactions, and a credit union employee testified that Lindsay had a $ 154 charge at the Bridge Bar and Sunset Grill the day he was seen there with Musil. He has not shown on appeal that a continuance would have led to additional records or testimony.

On the other hand, the State argued that it had out-of-state witnesses already traveling in for trial, along with members of the victim's family. This record shows that the trial court did not abuse its discretion in denying the motion for continuance.

AFFIRMED.

Roberts and Kelsey, JJ., concur.


text:
    Nathan DYGART, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4977
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

This court earlier affirmed Dygart's convictions, concluding that there was no double-jeopardy violation. See Dygart v. State , 247 So. 3d 655 (Fla. 1st DCA 2018). The Florida Supreme Court has now quashed that decision, remanding for reconsideration based on the intervening decision in Lee v. State , 258 So. 3d 1297 (Fla. 2018). See Dygart v. State , 247 So.3d 655 (Fla. 2019).

In Lee , the Florida Supreme Court held "that to determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court may consider only the charging document." Lee , 258 So. 3d at 1304. Looking only at the information in this case, we cannot conclude one way or the other whether the State based the two charged counts (one for solicitation and one for travel following solicitation) on the same solicitation. In this circumstance, Lee requires that we reverse the lesser conviction.

AFFIRMED in part; REVERSED in part.

Winokur and Winsor, JJ., concur; Makar, J., concurs in result only.


author: PER CURIAM.

text:
    Joshua W. STAMM, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1009
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because Appellant was extradited to Ohio, his underlying petition for writ of habeas corpus has been rendered moot and the appeal is dismissed. See Young v. State , 104 So. 3d 1100 (Fla. 2d DCA 2012) (unpublished disposition) (dismissing appeal, holding the fact that the defendant was extradited rendered his underlying petition for writ of habeas corpus moot); see also M.M. v. Wood , 152 So. 3d 1280, 1281 (Fla. 1st DCA 2015) (concluding that "while the issue [of first impression] may conceivably recur, it will not necessarily evade review if it does so" and declining "to exercise our jurisdiction to address a question that has been rendered moot by petitioner's release from secure detention").

DISMISSED .

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


author: B.L. Thomas, C.J.

text:
    Michael Jon MOSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3328
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Andy Thomas, Public Defender, Joanna Aurica Mauer and Kathleen Pafford, Assistant Public Defenders, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his judgment and sentence, arguing that his use of a firearm could not be used to reclassify his offense under section 775.087(1), Florida Statutes.

The jury found Appellant guilty of attempted first-degree murder. The jury also found by separate interrogatory that Appellant actually possessed a firearm during the commission of the offense. After a hearing on Appellant's motion to prohibit reclassification, the court ruled that the attempted first-degree murder offense would be reclassified to a life felony.

Section 775.087(1)(a), Florida Statutes, allows attempted first-degree felonies to be reclassified as life felonies, if the defendant uses a firearm during the commission of the felony, except where the use of a firearm is an essential element of the crime. Appellant argues that possession of a firearm was essential to the offense, where the attempted murder resulted from shooting a firearm at a residence and Appellant was sentenced to a mandatory minimum term under "10-20-Life," section 775.087(2), Florida Statutes.

The elements of attempted first-degree murder are (1) an act intending to cause death that went beyond just thinking or talking about it; (2) a premeditated design to kill; and (3) the commission of an act which would have resulted in the death of the victim except that someone prevented the defendant from killing the victim or the defendant failed to do so. Gordon v. State , 780 So. 2d 17, 21 (Fla. 2001) ; § 782.04(1) Fla. Stat. (2017) ; § 777.04(1), Fla. Stat. (2017). Even where the defendant's "only 'act toward commission of the murder' was the firing of a gun," the use of a firearm does not constitute an essential element of the offense, as "a conviction of attempted first-degree murder does not require that the act be committed with a firearm, or in any other specific way ...." Lentz v. State , 567 So. 2d 997, 998 (Fla. 1st DCA 1990). Therefore, the use of a firearm is not an essential element of attempted murder, and the trial court did not err in enhancing the penalty from a first-degree felony to a life felony.

Appellant cites to Alleyne v. United States , 570 U.S. 99, 107, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Supreme Court stated that a fact "that increase[s] the ceiling," that is, a fact that increases the maximum punishment for an offense, "is an element of the offense." (citing Apprendi v. New Jersey , 530 U.S. 466, 483 n.10, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). Appellant argues that because the use of a firearm increased the maximum punishment of Appellant's attempted murder charge under 10-20-Life, the use of firearm is an element of the charged offense, and thus this fact cannot be used for enhancement under section 775.087(1), Florida Statutes.

However, "[t]he sentence enhancement created in section 775.087(1) is not itself a substantive offense or an element of any underlying offense." Birch v. State , 248 So. 3d 1213, 1219 (Fla. 1st DCA 2018). While the use of a firearm constitutes an "element" in the context of Apprendi because it is a fact that must be submitted to a jury, the enhancement does not alter the underlying offense to include possession of a firearm as an "essential element." See Birch , 248 So. 3d at 1219 (holding "a jury's 10-20-Life finding has no legal bearing on the findings or evidence required to convict of an underlying crime"). In other words, had the jury found Appellant did not actually possess a firearm while committing the attempted murder Appellant would not have been acquitted of attempted murder; rather, he only would not be subjected to a twenty-year mandatory minimum term under 10-20-Life. Therefore, the use of a firearm is not an "essential element" of attempted murder, and the trial court did not commit a constitutional error in reclassifying Appellant's offense.

We reject all other arguments made by Appellant.

AFFIRMED .

Kelsey, J., concurs; Winokur, J., concurs specially with opinion.

Winokur, J., concurring specially.

I concur in the decision to affirm Moss' sentence against his claim that Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), prohibits reclassification of attempted first-degree murder under section 775.087(1), Florida Statutes, from a first-degree felony to a life felony. However, I do not think this result flows from a distinction between "element," as that term is used in Alleyne , and "essential element," as that phrase is used in section 775.087(1), Florida Statutes.

Alleyne held that, consistent with the Sixth Amendment, "facts that increase mandatory minimum sentences must be submitted to a jury." 570 U.S. at 116, 133 S.Ct. 2151. This holding does not apply to the reclassification of Moss' offense under section 775.087(1) because reclassification does not create a mandatory minimum sentence. More importantly, Alleyne 's holding did not alter the definition of the term "element."

Moss' argument to the contrary takes Alleyne out of context in an attempt to undermine section 775.087(1). In fact, Moss' interpretation would render section 775.087(1) meaningless: an offense is only eligible for section 775.087(1) reclassification if it does not require use of a firearm as an element, yet an allegation that the offender used a firearm in an offense would automatically transform the offense into one that requires use of a firearm, thus precluding section 775.087(1) reclassification. This would apply to any attempt to reclassify under section 775.087(1). Nothing about the language or intent of Alleyne shows that it was meant to invalidate reclassification statutes like section 775.087(1).

Under Alleyne , an offense that does not require use of a firearm is a "core crime," and use of a firearm in that offense to enhance the available sentence is an "aggravated crime." 570 U.S. at 113, 116, 133 S.Ct. 2151 (noting that "the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury" and "the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime") (footnote omitted). Thus, the unaggravated crime, a "core crime" under Alleyne , is the same as the crime "in which the use of a weapon or firearm is [not] an essential element" under section 775.087(1). And because this "core crime" does not require use of a firearm, it can be reclassified under section 775.087(1). This observation is enough to show that Alleyne does not redefine "element" in a way to invalidate section 775.087(1).

It is true that section 775.087(1) excludes crimes that do not include firearm use as an "essential element," a term slightly different from the term "element" used in Alleyne . But it is not this difference that controls the result. It is the fact that section 775.087(1) has always defined "element" in a manner that permits reclassification of crimes such as attempted first-degree murder, and no reasons exists to alter this conclusion because the Supreme Court found in 2013 that the Sixth Amendment requires a jury finding for each "element." Because Alleyne is in fact consistent with the longstanding interpretation of section 775.087(1), Moss' argument the should be rejected.

      Generally, Moss' twenty-year mandatory sentence would have been permissible even if the offense had not been reclassified. See § 775.087(2)(a) 2., Fla. Stat. (mandating that a person who discharges a firearm in the commission of certain felonies "shall be sentenced to a minimum term of imprisonment of 20 years"). However, Moss sought sentencing as a youthful offender, which could have removed the mandatory twenty-year sentence, but is unavailable for life felonies. § 958.04(1) & (2), Fla. Stat.

      Even though Alleyne does not apply, Florida law has long required the jury to make the finding of firearm use before an offense could be reclassified under section 775.087(1). State v. Overfelt , 457 So. 2d 1385 (Fla. 1984). See also Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").


author: Warner, J.

text:
    Jennifer Larose MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-855
    District Court of Appeal of Florida, Fourth District.
    May 15, 2019
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

In this appeal of an order revoking probation and imposing sentence, appellant contends that the court erred in finding a willful and substantial violation of various conditions, where the State failed to prove that she had the ability to comply with the conditions. She also argues that double jeopardy barred consideration of one violation because it had been the basis of a prior modification of probation. We agree that double jeopardy barred consideration of one violation. However, we conclude that the court did not err in finding that appellant had the ability to comply with the other conditions, but the State concedes that the order of violation contains two findings contrary to the oral findings of the court.

Appellant was adjudicated guilty of theft and placed on probation for one year. The order of probation included, among others, as conditions: 1) no possession or consumption of alcohol and drugs; 2) completion of required seventy-five hours of community service at a rate of no less than ten hours a month; 3) four hours of theft abatement class; and 4) payment of costs and fees of supervision.

In July 2017, appellant's probation officer randomly tested her for drugs, and she tested positive for marijuana. The officer recommended that, as a first-time offender, she enter the alternative sanctions program. She agreed. The Technical Violation Notification, which she signed, notified her that she was charged with violating condition seven of the order of probation by testing positive for marijuana. The probation officer recommended that she complete a substance abuse evaluation and follow any treatment recommendations. By signing the form, she also acknowledged the rights that she was giving up. The court approved her entry into the program through an order, which found a violation of probation based upon her positive marijuana test, and modified her probation by ordering her to complete the sanction of substance abuse evaluation.

A month prior to the expiration of appellant's probationary term, the State filed an affidavit of violation alleging six violations:

Violation of Special Condition (1) of the Order of Probation , by failing to undergo a drug/alcohol evaluation, and as grounds for belief that the offender violated her probation, Officer Laura Fagley states that on September 5, 2017, the offender was instructed to attend the evaluation at DAF, and as of December 11, 2017 the offender has not attended the evaluation, as told to Officer Laura Fagley by Diana Ebersol of DAF on December 8, 2017.
Violation of Condition (2) of the Order of Probation , by failing to pay the State of Florida the amount of $ 50.00 per month toward cost of supervision ....
Violation of Condition (7) of the Order of Probation , by using intoxicants to excess or possessing any drugs or narcotics, unless prescribed by a physician, and as ground for belief that the offender violated her probation, Officer Laura Fagley states that on or about June 14, 2017, the offender was in possession of a drug or narcotic not prescribed by a physician, to-wit: marijuana as shown by analysis of a urine sample obtained from the offender on July 5, 2017, and confirmed by the offender's admission on July 5, 2017.
Violation of Condition (8) of the Order of Probation , by failing to successfully complete 75 hours of community service, at a rate of 10 hours per month ....
Violation of Condition (10) of the Order of Probation , by failing to make court costs payments to the probation officer as directed in accordance with the payment instructions of the court ....
Violation of Special Condition (28) of the Order of Probation , by failing to successfully complete a Theft Abatement Program and as grounds or belief that the offender violated her probation, Officer Laura Fagley states that the offender was instructed to attend the Theft Abatement Program at PRIDE, on March 16, 2017, and as of December 8, 2017, the offender has failed to attend the program, as told to Officer Laura Fagley by Sandra Rizo of PRIDE on December 11, 2017.

The court held a final VOP hearing. A case manager for the Drug Abuse Foundation, the entity responsible for substance abuse evaluations, testified that appellant had an appointment for a substance abuse evaluation scheduled at the DAF office in Belle Glade. To her knowledge, appellant was never evaluated at DAF.

Appellant's probation officer testified, over objection, that appellant had tested positive for marijuana in July 2017 and accepted the alternative sanction of modification of her probation. Defense objected that pursuant to statute, the admission to drug use by appellant in the alternative sanction recommendation could not be used against her. Although the court agreed, it admitted the positive drug test, which formed the basis of the violation of probation in July.

With respect to the substance abuse violation, the officer testified that she instructed appellant to get the evaluation, which required a forty-eight-dollar fee. Appellant told her that she could not afford it. The evaluation was not performed, to the officer's knowledge. She also recalled that later appellant did tell her that she had paid thirty dollars, but appellant did not have the remaining money to finish the evaluation.

As to the costs of supervision, the officer testified that appellant had not paid those, nor had she filled out paperwork to get the fees waived. While appellant told her that she had multiple sclerosis and had been hospitalized, the officer stated that she did not have anything showing that she was disabled.

Prior to the hearing, appellant had not provided her probation officer any verification that she had completed the required community service hours. However, at the hearing, appellant provided the officer with documentation that she had completed her community service.

Appellant had also been ordered to complete a theft abatement class. She told her officer that she did not have the money to take the course and could not get transportation. She requested to take the course online; however, the state attorney denied the request. She also told the officer that due to her medical condition she could not sit through a four-hour class. She did not provide documentation and had not completed the course.

Appellant testified on her own behalf, admitting to the use of marijuana, which resulted in the alternative sanctions. She said that she paid thirty dollars to get the evaluation, but she did not have the remaining eighteen dollars to complete the payment. While she did start the evaluation, the evaluator would not send the report until the full amount was paid. She had not attended the theft abatement class because she could not get rides to West Palm Beach, where the course was held. In addition, she had a flare up of her medical issues and was hospitalized for a time in October 2017. With respect to the requirement of the theft abatement class, she confirmed that she could not sit through a four-hour class and wanted to take it online. Her medical records, confirming her condition, were admitted in evidence. She had been fired from her job much earlier because of her medical issues, and she was still awaiting a determination that she qualified for social security disability payments.

The court found that appellant willfully and substantially violated her probation. She violated special condition one because she failed to undergo the drug and alcohol evaluation. The court did not find that her finances prevented her from coming up with the additional eighteen dollars for the evaluation. Instead, the court decided that even without the additional payment of money, the drug evaluation could have taken place. The court also found that she violated condition seven of her probation based on her admission that she used marijuana.

And, if the admission was not legally permitted to be considered, it found that the tests that Officer Fagley performed showed appellant had THC in her system as a result of marijuana use. Next, the court found a violation of condition eight because she failed to provide proof of service of community service. It determined that her testimony as to her completion of this requirement was not credible. Finally, the court found a violation of special condition twenty-eight because appellant failed to complete the Theft Abatement Class, concluding that she had the ability to enroll in that class and complete it.

The court found her guilty of the violation of probation, terminated her probation, adjudicated her guilty of petit theft for which she had been on probation, and sentenced her to four months in the county jail. Appellant filed a notice of appeal. She subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error on grounds that the court must file a written order revoking probation. The court responded by filing a written Order of Revocation of Probation, which contained the violations listed above and an additional violation of condition ten (failing to pay the court costs payments). The court had orally found that violations of conditions two and ten were not willful because Mitchell did not have the ability to pay.

We first consider appellant's double jeopardy claim. The standard of review in deciding whether double jeopardy is violated is de novo. State v. Losada , 175 So. 3d 911, 912 (Fla. 4th DCA 2015). The Double Jeopardy clause of the United States and Florida Constitutions provides protection from multiple prosecutions in three ways:

Both the United States Constitution and the Florida Constitution guarantee that no individual will be put in jeopardy more than once for the same offense. The guarantee against double jeopardy consists of three separate constitutional protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. " North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L.Ed. 2d 656 (1969) (footnotes omitted) (emphasis added).

Lippman v. State , 633 So. 2d 1061, 1064 (Fla. 1994) (footnotes omitted). In Lippman , the court determined that a modification of probation where the court found that no violation had occurred constituted an enhancement of the sentence, violating the protection against multiple punishments for the same offense. "Thus, the double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation." Id. Furthermore, "[t]he prohibition against double jeopardy is 'fundamental.' " Id. (quoting Benton v. Maryland , 395 U.S. 784, 795-96, 89 S. Ct. 2056, 23 L.Ed. 2d 707 (1969) ). Thus, the failure to raise a double jeopardy claim in a direct appeal from the modification order does not waive that claim. Id.

Appellant contends that double jeopardy prevented the court from finding her in violation of both special condition one, failure to obtain a substance abuse evaluation, and condition seven, testing positive for marijuana. Appellant had been charged with violating condition seven through the positive drug test and her admission of using marijuana. That violation led to the modification of her probation and imposition of special condition one, requiring her to obtain a substance abuse evaluation and abide by any treatment recommendations. This was an enhancement of her original sentence, as it added additional terms of probation, the violation of which could subject her to revocation of probation and imposition of an increased sentence. Since her probationary sentence had already been enhanced for the same violation of this condition, a second enhancement or punishment based upon the same violation would impose multiple punishments for the same offense.

We recognize that Scott v. State , 937 So. 2d 746 (Fla. 4th DCA 2006), states that double jeopardy does not apply to probation violation hearings, but that case is distinguishable. There, a violation of probation was dismissed because the officer failed to appear at the hearing. Id. at 748. A second violation was filed based upon the exact same incident, and the defendant sought a writ of prohibition. Id. We held that, "The Double Jeopardy Clause does not bar a second probation violation proceeding for the same alleged violation, wherein the subject of the earlier proceeding was dismissed by the court without any testimony being taken or evidence offered." Id. None of the cases cited in Scott for the proposition that the Double Jeopardy Clause does not apply to probation proceedings involved a case where a violation of probation was dismissed or granted after an evidentiary hearing. Furthermore, according to Lippman , the Double Jeopardy Clause does apply to the enhancement of probation conditions. Thus, in some circumstances, the clause is applicable.

Therefore, having previously found a violation of appellant's probation based upon the identical violation of condition seven, and having imposed enhanced probation conditions as a result, the court could not again increase the sentence based upon that same violation. We thus reverse the finding of violation based upon the violation of condition seven.

Appellant claims that the court also erred in finding a willful violation of condition one and condition twenty-eight, where both provisions required the payment of fees which appellant did not have the means to pay. Revocation of probation based on an inability to pay for conditions of probation is fundamental error. Del Valle v. State , 80 So. 3d 999, 1004 (Fla. 2011). However, a trial court's finding of a willful and substantial violation of probation is reviewed for competent substantial evidence, and the trial court's decision to revoke probation is reviewed for abuse of discretion. Davis v. State , 945 So. 2d 607, 608 (Fla. 4th DCA 2006).

Unlike Del Valle, which involved the payment of restitution and court costs, the requirements of conditions one and twenty-eight were not monetary obligations. They required appellant to obtain an evaluation and to attend a class, with nominal fees required. With respect to the failure to have the substance abuse evaluation, the court determined that she willfully violated that requirement. The court discounted her inability to pay the eighteen dollars remaining for the evaluation after having paid thirty dollars. A close reading of her testimony shows that she never testified that she could not pay the money, merely that she did not have the eighteen dollars when she went to have the evaluation. She testified that the evaluator told her to bring in the remaining eighteen dollars to complete the evaluation, but she was hospitalized at the time of her second appointment and then failed to make any effort to complete this task over the then-remaining four months of her probation. As to condition twenty-eight, the requirement that she attend the theft abatement class, her main complaint during her testimony was her inability to get to the class in West Palm Beach and that she could not sit for four hours due to her medical condition. In her testimony, she never asserted that financial inability was the reason she could not take the class. Furthermore, there was no evidence presented that there was a fee to attend that class. While there was scant evidence regarding her ability to pay, she did testify that she was paying people for transportation until she obtained a bus pass due to disability, thus revealing that she had some money to spend. Based upon the totality of the evidence, and the court's credibility determinations, the court did not abuse its discretion in finding a willful violation of these provisions.

The State concedes, however, that the court erred in finding a violation of conditions two and ten in its order of revocation of probation, as the court orally found that those violations were not willful. On remand, those findings should be stricken from the order of probation.

In conclusion, the court erred by finding a violation of condition seven, but it did not abuse its discretion in finding violations of conditions one, twenty-eight, and eight (regarding community service hours). The court did not find any willful violation of the other conditions. Because the violation of condition seven appears to have figured so prominently in the court's determination, we reverse and remand for the court to reconsider the revocation and sentence.

Gross and Levine, JJ., concur.

      The Notice and Acceptance of the Alternative Sanction was not included in the record, even though it was clearly referred to at the hearing on the violation. This court ordered that the State file the form, and counsel did file a copy of the form, showing that it had been filed with the Clerk's office.


author: PER CURIAM:

text:
    STATE of Louisiana v. Julius HANKTON
    No. 2018-K-1457
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM:

Writ granted in part. The decision of the court of appeal is reversed to the limited extent that it amended and affirmed the sentences as amended. Instead, defendant's sentences are vacated and the case is remanded to the trial court for resentencing. Pursuant to La.C.Cr.P. art. 881.4, the court of appeal erred in unilaterally resentencing the defendant. On remand, the trial court is ordered to resentence defendant to a punishment that is not unconstitutionally excessive and to articulate its reasons for the sentences imposed, including as to whether some or all of the sentences should be served consecutively.


text:
    STEVENS CONSTRUCTION AND DESIGN, L.L.C. v. ST. TAMMANY FIRE PROTECTION DISTRICT NO. 1
    No. 2019-CD-0712
    Supreme Court of Louisiana.
    May 9, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
    Writ granted.
    WEIMER, J., dissents and assigns reasons.
   GENOVESE, J., would deny the writ as premature.

WEIMER, J., dissenting.

Out of respect for the court of appeal's authority and prerogative to manage its own docket and because relator neither sought nor requested the relief afforded by the majority, I would deny the writ application as premature. While this court has general supervisory jurisdiction over all other courts and can intervene under its own supervisory powers whether or not an intermediate court has properly acted on the matter, out of proper deference to the lower courts, the court will exercise this jurisdiction only in extraordinary circumstances, which this case does not present. See, Marionneaux v. Hines , 05-1191, pp. 4-5 (La. 5/12/05), 902 So.2d 373, 376.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Henri Pierre LYLES
    NO. 2019-KO-0203
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. JOHN
    ORDER
   IT IS ORDERED that the writ application is granted limited to the following question: Whether petitioner's habitual offender adjudication and sentence are governed by R.S. 15:529.1 as it existed at the time of commission of his instant offense, as it was amended by 2017 La. Acts 282, or as it was amended by 2018 La. Acts 542.

GUIDRY, J., recused.

Attachment

SUPREME COURT OF LOUISIANA

No. 2019-KO-0203

STATE OF LOUISIANA

VERSUS

HENRI PIERRE LYLES

On Writ of Certiorari and/or Review Fortieth Judicial District Court, Parish of St. John, No. 15,42, Division C; Court of Appeal, Fifth Circuit, No. 18-KA-283.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 20th day of May, in the year of our Lord, Two Thousand-Nineteen. __________________________ John Tarlton Olivier Clerk of Court Deputy Clerk of Court


text:
    In re: Andrea ADAMS, et al. v. ALLIED SHIPYARD, INC., et al.
    No: 2017-CC-2077 2017-CC-2079
    Supreme Court of Louisiana.
    March 2, 2018
    Dear Counsel:
    This is to advise that the Court took the following action on your Motions for Extension of Time in the above entitled matters.
    GRANTED


text:
    In re: Andrea ADAMS, et al. v. ALLIED SHIPYARD, INC.
    No: 2017-CC-2077
    Supreme Court of Louisiana.
    March 2, 2018
    Dear Counsel:
    This is to advise that the Court took the following action on your Motion to Expand Page Limit of Appendix Two in the above entitled matter.
    GRANTED.


text:
    In re: Helen MOORE, et al. v. MACQUARIE INFRASTRUCTURE REAL ASSETS, et al.
    No: 2018-C-0088
    Supreme Court of Louisiana.
    March 2, 2018
    Dear Counsel:
    This is to advise that the Court took the following action on your Motion for Leave to Exceed Page Limit for Supplemental Appendix in the above entitled matter.
    GRANTED.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO: 18-PDB-080
    NO. 2019-OB-0289
    Supreme Court of Louisiana.
    May 6, 2019
    Leave to appeal denied.


text:
    STATE of Louisiana v. James Richard WEEMS
    NO. 2018-KH-1171
    Supreme Court of Louisiana.
    May 6, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Weems v. State, 17-0980 (La. 9/14/18), 252 So.3d 459.


text:
    SANTANDER CONSUMER USA, INC v. Scott Wayne FOLDS
    NO. 2019-CC-0422
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex LIG, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0530
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    Enrico BUNYOG, et al. v. BERKLEY INS., CO., et al.
    NO. 2019-C-0423
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    Travis HIGGINS v. WILLIAMS ENERGY PARTNER, L.P., Williams Olefins, L.L.C., the Williams Company, Inc., XYZ Insurance Company, Chicago Bridge and Iron Company, and X Insurance Company
    Artie Hudson, Jeffery D. Wells v. Williams Olefins Development, L.L.C., et al.
    Emile Wade and Patrica Wade v. The Williams Companies, Inc. et al.
    Leroy Mitchell v. Williams Companies, Inc., et al.
    Mark Bateast, Terrence Crosby, Blake Joseph, Tyrone Lawson, Alvin Long, Jr., Cheri Owens-Griffin, Mary Robinson, Bernard Sears, Aaron Stafford, Donitello Thomas, Calvin Vanner, Donald Wheaton, Asiag Williams, Marcus Wilson and Marcus Yates v. The Williams Companies, Inc., et al.
    No. 2019-C-0049
    Supreme Court of Louisiana.
    May 6, 2019
    Rehearing denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0529
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0528
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    STATE of Louisiana v. Cardell E. TORRENCE
    NO. 2019-KO-0398
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    SUCCESSION OF Frank ANDERSON, Jr.
    NO. 2019-C-0445
    Supreme Court of Louisiana.
    May 6, 2019
    Not Considered. Not timely filed. See La.S.Ct.R. X, § 5(a).


text:
    Juan CAMPOS v. UNLIMITED MASTER CONTRACTORS, LLC, et al
    NO. 2019-C-0427
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Joe STEPHENS
    NO. 2018-KH-0905
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    Earl J. VOISIN, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2018-CI-1023
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0534
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied as moot.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0536
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied as moot.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    Larry BIZE, Sr. and Michelle R. Bize v. Malcolm LARVADAIN, et al.
    NO. 2019-C-0419
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    Sandra L. DUPUY v. Fred A. MILLER, D.C. Individually änd d/b/a Doctors Chiropractic and Physical Therapy Group and/or The Back Pain Center, Fred A. Miller, D.C., L.L.C., Individually and d/b/a Doctors Chiropractic and Physical Therapy Group and/or The Back Pain Center, Mark S. Richard, D.C. Individually and d/b/a Doctors Chiropractic and Physical Therapy Group and/or The Back Pain Center and ABC Insurance Company
    NO. 2019-CC-0433
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-CC-0535
    Supreme Court of Louisiana.
    May 6, 2019
    Stay recalled. Writ denied as moot.
    HUGHES, J., would grant and remand for evidentiary hearing.
    CRICHTON, J., would grant and remand for evidentiary hearing.
    GENOVESE, J., would grant and remand for evidentiary hearing.


text:
    STATE of Louisiana v. Matthew G. STEPHENS
    NO. 2018-KH-1063
    Supreme Court of Louisiana.
    May 6, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. State ex rel. Stephens v. State, 15-2340 (La. 3/4/16) 186 So.3d 94.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO: 18-PDB-088
    NO. 2019-OB-0288
    Supreme Court of Louisiana.
    May 6, 2019
    Leave to appeal denied.


text:
    Carlton CHARLES v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-KH-1064
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


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

text:
    STATE of Louisiana v. Dnerius ANTOINE
    NO. 2019-KK-0047
    Supreme Court of Louisiana.
    May 6, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Carlton CHARLES v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-1441
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    SENIOR'S CLUB LLC /SENIORS CLUB ADHC AND PCA CENTER, Mr. T.J. McCoy, Jr. and Mrs Karen McCoy v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS, et al.
    NO. 2019-CC-0075
    Supreme Court of Louisiana.
    May 6, 2019
    Reconsideration denied.


text:
    STATE of Louisiana v. Charles H. PARKER, Jr.
    NO. 2018-KH-1178
    Supreme Court of Louisiana.
    May 6, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing.
    State ex rel. Parker v. State, 15-1237 (La. 5/27/16), 193 So.3d 1155.


text:
    STATE OP Louisiana v. Brandon MOORE
    NO. 2018-KH-1443
    Supreme Court of Louisiana.
    May 6, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Moore v. State, 17-1581 (La. 11/5/18), 255 So.3d 1040.


text:
    STATE of Louisiana v. Chad Jerome MOORE
    NO. 2019-KO-0376
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    STATE of Louisiana v. Kevin BESSE
    NO. 2018-KH-1559
    Supreme Court of Louisiana.
    May 6, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Besse v. State, 14-2636 (La. 2/26/16), 184 So.3d 1272.


text:
    STATE of Louisiana v. Curtis KING
    NO. 2019-KK-0413
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


text:
    STATE of Louisiana v. Yusef L. CHEW
    NO. 2019-KK-0414
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Jade BERRY
    NO. 2019-KK-0448
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.
   GUIDRY, J., would grant.


text:
    Joe STEPHENS v. Darrell VANNOY, Warden, Louisiana State Penitentiary
    NO. 2019-KH-0368
    Supreme Court of Louisiana.
    May 6, 2019
    Denied.