text:
    Edward Keith STODDARD, DOC #R11760, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5103
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018
    Edward Keith Stoddard, pro se.
   PER CURIAM.

Edward Stoddard appeals the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.850.

We affirm without comment the portions of the order that summarily deny grounds two through ten of Mr. Stoddard's motion, but we reverse the portion of the order that summarily denies ground one and remand for further proceedings.

The State charged Mr. Stoddard with first-degree murder after he shot a man in 2008. A jury found him guilty of second-degree murder, and the trial court sentenced him as a prison releasee reoffender to life imprisonment with a twenty-five-year minimum mandatory term for his discharge of a firearm. Mr. Stoddard appealed his judgment and sentence, and this court reversed because the manslaughter instruction given to his jury constituted fundamental error under State v. Montgomery, 39 So.3d 252, 259 (Fla. 2010). Stoddard v. State, 100 So.3d 18, 19 (Fla. 2d DCA 2011). A second jury found Mr. Stoddard guilty of second-degree murder, and the trial court again sentenced him as a prison releasee reoffender to life imprisonment with a twenty-five-year minimum mandatory term. Mr. Stoddard appealed that judgment and sentence, which this court affirmed without a written opinion. Stoddard v. State, 200 So.3d 68 (Fla. 2d DCA 2016) (table decision).

Mr. Stoddard then filed a motion under rule 3.850, asserting in ground one that his trial counsel gave him incorrect advice. He claims that his attorney advised him that the State had to "refile" a notice of intent to seek a prison releasee reoffender sentence for his second trial and that because the State failed to do so, the trial court had discretion to impose a sentence less than life imprisonment if he was again convicted of second-degree murder. Mr. Stoddard further asserts that he relied on this advice when he rejected the State's plea offer of imprisonment for twenty-five years. The postconviction court did not address the legal sufficiency of this claim, instead ruling that it was conclusively refuted by the State's June 9, 2008, notice that Mr. Stoddard qualified as a prison releasee reoffender, the prison releasee reoffender sentence imposed after his first conviction, and trial counsel's statements at the second sentencing hearing that the postconviction court interpreted as an agreement that Mr. Stoddard qualified as a prison releasee reoffender.

While the postconviction court's attachments reflect that Mr. Stoddard was aware that he qualified as a prison releasee reoffender, the attachments do not conclusively refute Mr. Stoddard's claim that his trial counsel incorrectly advised him before his retrial that if he was again convicted of second-degree murder, the court would have discretion to impose a sentence less than life imprisonment because the State did not "refile" a notice of intent to seek prison releasee reoffender sentencing. We note that in the context of a plea agreement, prejudice "is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice. " Alcorn v. State, 121 So.3d 419, 432 (Fla. 2013).

However, we also note that although Mr. Stoddard pleaded facts that support a cognizable claim for relief, see Steel v. State, 684 So.2d 290, 291 (Fla. 4th DCA 1996) ("A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel."), he did not sufficiently plead that he was prejudiced by his counsel's advice pursuant to the requirements set forth in Alcorn, 121 So.3d at 430. Because the postconviction court did not address the legal sufficiency of Mr. Stoddard's motion but instead ruled that this claim was conclusively refuted by the record, it did not enter a nonfinal order granting Mr. Stoddard sixty days to amend this insufficiently pleaded claim. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.").

Accordingly, we reverse only the portion of the postconviction court's order that summarily denies ground one of Mr. Stoddard's motion and remand for the postconviction court to strike this claim and to grant Mr. Stoddard sixty days to amend. If Mr. Stoddard does file a facially sufficient claim, the postconviction court shall determine if the case files and records conclusively refute it. If they do not, the postconviction court shall hold an evidentiary hearing on ground one only. In all other respects, we affirm the postconviction court's order.

Affirmed in part; reversed in part; remanded.

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

      Unlike the violent career criminal and habitual offender sentencing enhancements in section 775.084, Florida Statutes (2007), section 775.082(9) does not require the State to provide written notice before seeking a prison releasee reoffender sentence. See Akers v. State, 890 So.2d 1257, 1259 (Fla. 5th DCA 2005) ("We have analyzed the Prison Releasee Reoffender Act and have found no requirement therein that a defendant be given written notice of the state's intent to seek enhanced penalties as a prison releasee reoffender."). Thus, Mr. Stoddard's claim is that his trial counsel advised him that the State had to "refile" a notice that, in fact, it never had to file in the first place.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael Ryan BAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5652
    District Court of Appeal of Florida, First District.
    August 24, 2018 Rehearing Denied October 4, 2018
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Following a jury trial, Michael Baugh was convicted of burglary of a dwelling, a second-degree felony. The court sentenced him to twenty years as a habitual felony offender ("HFO") with a fifteen-year mandatory minimum sentence as a prison releasee reoffender ("PRR"). At issue in this appeal is the trial court's decision to sentence Baugh to twenty years in prison as an HFO.

At the outset of the sentencing hearing, the State informed the court that it intended to proceed with its previously-filed notices to classify Baugh as both a PRR and an HFO under sections 775.082(9) and 775.084(1)(a), Florida Statutes (2015). Baugh stipulated to the evidence introduced by the State in support of these classifications, and the court found that he met the criteria to be sentenced accordingly.

The defense called Baugh's father, sister, and grandmother to provide mitigating testimony. These character witnesses described Baugh as a good person who made bad choices due to a substance abuse problem for which he needed help. The mitigation evidence concluded with Baugh's testimony expressing remorse and thanking his family for standing by him.

The prosecutor noted for the record that the victim had indicated she wanted to be present for sentencing, but the prosecutor was unable to get in touch with her about the hearing date, despite leaving voice messages. When asked by the court whether the State was comfortable that it had satisfied its constitutional obligation to notify the victim of the sentencing proceeding, the prosecutor answered affirmatively.

Defense counsel requested that Baugh receive only the mandatory PRR sentence of fifteen years. The State then withdrew its notice of HFO classification and requested the same fifteen-year sentence. After an unrecorded bench conference with counsel, the court continued the sentencing hearing to give the victim an opportunity to appear. Neither party objected to the continuance.

At the continuation of the sentencing hearing, the prosecutor informed the court that she was able to reach the victim, but the victim was unable to attend the hearing because she could not miss any more work. Without defense objection, the prosecutor read an email from the victim explaining how the crime had impacted the victim's life. The email stated that when the victim discovered her home had been broken into, she was "not only afraid for her life but for [her] children as well." She was terrified by the knowledge of an unwelcome stranger entering her home and felt as though she had been "robbed of her security." She had to move to a different property with her mother because she no longer felt safe in her home. She requested that the judge impose the maximum sentence.

The State reasserted its intent to seek HFO sentencing. The defense again urged the court to impose only the fifteen-year mandatory minimum, emphasizing that Baugh had accepted responsibility for his actions. The court proceeded to sentence Baugh to twenty years in prison as an HFO, with a fifteen-year mandatory minimum sentence as a PRR.

Baugh raises two issues in this appeal. In the first issue, he argues the HFO portion of his sentence must be reversed because the court abandoned neutrality by sua sponte continuing the sentencing hearing after the State withdrew its notice of HFO classification and requested the mandatory fifteen-year PRR term. He contends the court, which lacked any discretion in sentencing at that point, could not maintain neutrality while prompting the State to locate the victim.

Because Baugh did not object to the continuance of the sentencing hearing, we review this issue for fundamental error. § 924.051(3), Fla. Stat. (2015) ; Sparks v. State , 740 So.2d 33, 35 (Fla. 1st DCA 1999) ("Fundamental error has been defined as error that goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.").

Fundamental error can occur when a trial court abandons neutrality. See Smith v. State , 205 So.3d 820, 821 (Fla. 2d DCA 2016) (finding fundamental error where trial court called its own fact witness who provided substantial portion of testimony against defendant). "While a trial court may ask relevant questions of witnesses at a hearing, the court commits fundamental error when it assumes the role of prosecutor and introduces its own evidence." Id. A court abandons its neutral role and commits fundamental error by sua sponte prompting the prosecution to present evidence or take certain actions that allow the State to prove its case when it otherwise may not have done so. See Sparks , 740 So.2d at 37 ("[T]he trial court judge crossed the line from neutral magistrate to advocate by directing the prosecutor's attention to evidence on the core issue of the credibility of the defendant."); Lyles v. State , 742 So.2d 842, 843 (Fla. 2d DCA 1999) (finding fundamental error where trial court sua sponte ordered defendant's fingerprints to be taken to satisfy a "deficiency in the State's proof").

Though courts must remain neutral, a court does not necessarily abandon neutrality by acting on its own, even if the action ultimately benefits one of the parties. In Kirkpatrick v. State , the trial court sua sponte continued a probation revocation hearing over defense objection to hear from three additional witnesses regarding the defendant's alleged violation. 769 So.2d 515, 517 (Fla. 1st DCA 2000). After considering the additional testimony, the court found that the defendant violated his probation. Id. On appeal, we rejected the defendant's argument that the court abandoned its neutral role and deprived the defendant of a fair and impartial trial. Id. at 518. We explained that although the testimony was conflicting, there was sufficient evidence presented during the State's initial presentation of its case to support a finding of a violation. Additionally, the trial judge "had no idea how the requested witnesses would testify and merely identified these witnesses as individuals he wanted to hear from as part of his search for the truth." Id. We concluded, "the trial court's actions ... did not cross the line and were, in fact, nothing more than the actions of a neutral fact finder attempting to resolve conflicts in the testimony presented." Id.

Here, too, we do not believe the court crossed the line between neutral arbiter and prosecutor by continuing the sentencing hearing to give the victim another opportunity to be heard. The court, after all, was informed at the initial sentencing hearing that the victim wanted to be present, but she could not be reached. Our state constitution establishes that a victim's rights include the rights to be present "and to be heard when relevant" during "all crucial stages of criminal proceedings." Art. I, § 16(b), Fla. Const. The legislature further instructs that the sentencing court must permit the victim of the crime to "[a]ppear before the sentencing court for the purpose of making a statement under oath for the record." § 921.143(1)(a), Fla. Stat. (2015).

Like in Kirkpatrick , the court in this case had no way of knowing what the victim would say or whether she would provide any statement at all. Nor could the victim's statement have any impact on Baugh's HFO status, as he stipulated to that classification and was habitualized at the initial sentencing hearing. Thus, even assuming the court departed from its neutral role, its actions did not rise to the level of fundamental error. See Valley v. State , 105 So.3d 596, 600 (Fla. 4th DCA 2013) (declining to find fundamental error where there was sufficient evidence to support trial court's ruling without the evidence obtained as a result of court's departure from neutrality); Mathew v. State , 837 So.2d 1167, 1170 (Fla. 4th DCA 2003) ("[N]ot every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error.").

In Baugh's second issue, he contends the trial court fundamentally erred by relying on the victim's unsworn statement in fashioning his sentence. He points to this Court's decision in Patterson v. State , which held that section 921.143, Florida Statutes (2016), bars the admission of an unsworn victim impact statement in a sentencing hearing. 994 So.2d 428 (Fla. 1st DCA 2008). But see Dickie v. State , 216 So.3d 35 (Fla. 2d DCA 2017) (certifying conflict with Patterson ).

Patterson involved a claim of ineffective assistance of trial counsel for failing to object to the introduction of an unsworn statement from the victim's family member at the sentencing hearing. 994 So.2d at 429. In a short opinion, we construed section 921.143 to require that written statements from victims or their families be made under oath in order to be considered by the sentencing court. Id. In that case, because it was "apparent that the sentencing judge relied on the erroneously admitted evidence when imposing appellant's sentence," we reversed the summary denial of the claim and remanded for an evidentiary hearing. Id.

Based on Patterson , the trial court erred in accepting the victim's unsworn statement in this case. However, the error did not rise to the level of fundamental error. Unlike the facts in Patterson , it is not apparent from the record that the court relied on the victim's unsworn statement in sentencing Baugh to twenty years in prison, rather than the fifteen years mandated by the PRR statute. The State did not argue for an enhanced sentence based on the victim's statement, nor did the court give any indication that it was influenced by the statement. Additionally, the twenty-year sentence was well within the court's discretion to impose and far less than the maximum of thirty years allowed by the sentencing statute and recommended by the victim.

To the extent Baugh argues the court committed fundamental error by depriving him of his rights to confrontation under section 775.084(3)(a) 3., Florida Statutes, that argument is without merit. Section 775.084(3)(a) provides that in a proceeding to "determine if the defendant is a habitual felony offender ... all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel." As discussed above, the victim's unsworn statement had no bearing on the court's determination of Baugh's HFO status. The court adjudicated Baugh as an HFO at the beginning of the initial sentencing hearing in full compliance with the statute and with Baugh's stipulation that he satisfied the conditions for habitualization.

AFFIRMED .

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.

      Section 921.143 provides in pertinent part as follows:
      (1) At the sentencing hearing, and prior to the imposition of sentence upon any defendant who has been convicted of any felony or who has pleaded guilty or nolo contendere to any crime, including a criminal violation of a provision of chapter 316, the sentencing court shall permit the victim of the crime for which the defendant is being sentenced, the victim's parent or guardian if the victim is a minor, the lawful representative of the victim or of the victim's parent or guardian if the victim is a minor, or the next of kin of the victim if the victim has died from causes related to the crime, to:
      (a) Appear before the sentencing court for the purpose of making a statement under oath for the record; and
      (b) Submit a written statement under oath to the office of the state attorney, which statement shall be filed with the sentencing court.


author: M.K. Thomas, J.

text:
    Delvin DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4068
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   M.K. Thomas, J.

Delvin Dawson pled guilty to possession of marijuana and possession of a controlled substance, but reserved his right to appeal the trial court's denial of his Motion to Suppress, in which he alleged evidence supporting his conviction was obtained as a result of an illegal search of his person. We affirm the conviction and sentence, but write to explain why his arrest and subsequent search were supported by probable cause.

Inside a nightclub, an off-duty officer observed Dawson and another man smoking what appeared to be marijuana. The off-duty officer informed Investigator Hearn of the Panama City Police Department of the suspected illicit activity and provided a detailed description of the men. As a result of the tip, Investigator Hearn dressed in plain clothes and entered the nightclub. He easily located the two males described by the off-duty officer. Positioning himself near the two men, Investigator Hearn soon smelled burnt marijuana. He isolated the smell to the area occupied by the two men. A short time later, he witnessed Dawson smoking what he believed was a marijuana cigarette. Investigator Hearn then notified backup officers, who escorted Dawson out of the nightclub. Dawson was arrested and searched incident to arrest. The search uncovered an unsmoked marijuana blunt and a baggie filled with a controlled substance.

Dawson alleges probable cause did not exist to arrest and subsequently search him because a finding of probable cause must be particularized to a specific individual. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person ... Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person."). Dawson relies on Robinson v. State , 976 So.2d 1229, 1233 (Fla. 2d DCA 2008), to support his contention that the odor of marijuana emanating from his direction did not amount to probable cause sufficient to justify his arrest and subsequent search. In Robinson , police were combing the parking lot of a nightclub when they came upon a group of individuals standing together. As they approached, an officer smelled burnt marijuana but did not observe any of the individuals actually smoking. In reversing the denial of Robinson's Motion to Suppress evidence seized as a result of a search of his person, the Second District held, "standing with a group of men surrounded by the odor of burned marijuana was insufficient to support more than a 'mere suspicion' that Robinson was in possession of marijuana" and did not provide probable cause for a warrantless search. Id. ; see also D.H. v. State , 121 So.3d 76, 82 (Fla. 3d DCA 2013) (holding the smell of marijuana coming from the direction of a group of individuals does not, without more, provide probable cause to arrest and search any particular individual in that group).

This case is readily distinguishable from Robinson . Here, Dawson's arrest and search were not based on one factor - the smell of marijuana in Dawson's general area. Instead, multiple factors supported probable cause to arrest and search him: 1) an off-duty officer smelled marijuana confined to Dawson's location; 2) the off-duty officer observed Dawson smoking what appeared to be a marijuana cigarette; 3) Investigator Hearn, a second officer, noted the smell of burnt marijuana coming from area occupied by Dawson; and 4) Hearn witnessed Dawson smoking what appeared to be a marijuana blunt. See State v. J.J. , 143 So.3d 1050, 1052 (Fla. 4th DCA 2014) ("The smell of marijuana on appellant's person, combined with his handling of the cigar, provided the officer sufficient probable cause to effectuate a search incident to arrest.").

As probable cause to arrest was sufficiently individualized to Dawson, we affirm his judgment and sentence.

AFFIRMED .

Osterhaus and Winokur, JJ., concur.


author: VILLANTI, Judge.

text:
    Helen K. TIDWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-545
    District Court of Appeal of Florida, Second District.
    Opinion filed August 31, 2018
    Helen K. Tidwell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Notwithstanding any earlier rulings of this court to the contrary as to case CF98-000732-XX, we affirm without prejudice to Helen Tidwell's filing in the circuit court, if she can do so in good faith, a facially sufficient motion seeking relief pursuant to Florida Rule of Criminal Procedure 3.800(a) and Heggs v. State, 759 So.2d 620 (Fla. 2000). See Lopez v. State, 890 So.2d 534, 534 (Fla. 1st DCA 2005) ("A Heggs claim is cognizable in a rule 3.800(a) motion so long as the error is apparent on the face of the record. Because a rule 3.800(a) motion is not constrained by time limits, the trial court erroneously denied his claim as untimely." (citation omitted) ); see also Heggs, 759 So.2d at 627 ("[I]f a person's sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that person shall not be entitled to relief under our decision here."). The circuit court shall not consider such a motion successive. See, e.g., Huffman v. State, 192 So.3d 687, 690-91 (Fla. 2d DCA 2016) (noting that "the doctrines of law of the case and collateral estoppel will not apply to preclude consideration of a successive rule 3.800(a) motion when doing so would result in a defendant serving a sentence that exceeds the sentence that could have been legally imposed").

Affirmed.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: PER CURIAM.

text:
    Martha M. MILLER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3931
    District Court of Appeal of Florida, Second District.
    Opinion filed August 31, 2018.
    Howard L. Dimmig, II, Public Defender and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the judgment and sentence imposed by the trial court following the revocation of Ms. Miller's probation without comment. However, our independent review of the record reveals a technical error which does not affect the outcome of the case but for which we must remand for entry of a corrected revocation order.

The revocation order states in relevant part that Ms. Miller "admitted violating Conditions (5), (7) and the Order of Modification of Probation." However, Ms. Miller did not admit to violating the order of modification. Accordingly, we affirm Ms. Miller's judgment and sentence; however, we remand with directions that the trial court correct the revocation order to reflect only that Ms. Miller admitted to violating conditions five and seven of her probation. See Rodgers v. State, 171 So.3d 803, 803 (Fla. 2d DCA 2015) ("When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order." (quoting Lee v. State, 67 So.3d 1199, 1201 (Fla. 2d DCA 2011) ) ).

Affirmed; remanded with instructions.

LaROSE, C.J., and SILBERMAN and LUCAS, JJ., Concur.


text:
    Christopher COLLIER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2142
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 21, 2018
    Christopher Collier, Graceville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, 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 February 22, 2018, judgment and sentence rendered in Case No. 2017-CF-774 in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Rene Louis ISMER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2899
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   LaROSE, Chief Judge.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm Rene Louis Ismer's judgment and sentences in all respects, but we remand for correction of a scrivener's error.

The jury found Mr. Ismer guilty of trafficking in methamphetamine and possession of drug paraphernalia. Possession of drug paraphernalia is a first-degree misdemeanor, in violation of section 893.147(1), Florida Statutes (2016). Because our full and independent review of the record reveals the written judgment incorrectly lists the first-degree misdemeanor offense as a first-degree felony, we remand for correction of the scrivener's error. See Anderson v. State, 890 So.2d 428, 429 (Fla. 1st DCA 2004) (affirming judgment and sentence, and remanding for correction of scrivener's error when judgment "erroneously list[ed] the first-degree misdemeanor offense as a third-degree felony").

Mr. Ismer need not be present for the correction of the scrivener's error. See Rodriguez v. State, 223 So.3d 1053, 1055 (Fla. 2d DCA 2017).

Affirmed; remanded to correct scrivener's error.

SILBERMAN and LUCAS, JJ., Concur.


text:
    Tavoris SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2075
    District Court of Appeal of Florida, First District.
    September 24, 2018
    Tavoris Simmons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(5), 9.141(d)(6)(C).

Makar, Osterhaus, and Jay, JJ., concur.


text:
    Christopher COLLIER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2141
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 21, 2018
    Christopher Collier, Graceville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, 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 February 22, 2018, judgment and sentence rendered in Case No. 2017-CF-773 in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Bruce MCCRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3317
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Bruce McCray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Rowe, and Ray, JJ., concur.


text:
    Alan L. HAMILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2323
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Alan L. Hamilton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Fla. R. App. P. 9.141(d)(5).

Roberts, Ray, and Winsor, JJ., concur.


text:
    Steven James COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2369
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Steven James Collins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition for belated appeal is denied on the merits.

Roberts, Rowe, and Ray, JJ., concur.


text:
    Jerome BANES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2011
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Jerome Banes, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Gayla Grant and Eric Salvatore Giunta, Assistant General Counsels, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

Because Petitioner seeks a belated appeal of an order entered in a civil proceeding, the petition for belated appeal is denied. See Powell v. Fla. Dep't of Corr. , 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    B. E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-43
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

B.E., a child, challenges her adjudication of delinquency for battery on a public employee, simple battery, misdemeanor criminal mischief, and burglary of an occupied dwelling. She contends the trial court erred in denying her motion for judgment of acquittal, and in failing to hold a competency hearing after it appointed an expert to conduct an evaluation. We affirm the first issue without further discussion. However, we agree with B.E. on the second issue, and reverse and remand.

Shortly after the State filed its petition for delinquency, B.E.'s counsel filed a notice of incompetency and moved for an updated expert evaluation on the basis the child may be incompetent to stand trial. An expert had previously conducted a competency evaluation and found B.E. to be competent. The trial court granted the motion, appointing the same expert to conduct an updated evaluation. Notwithstanding this appointment, no further proceedings regarding B.E.'s competency were conducted, and no further orders were entered addressing the issue.

Although B.E. did not raise the lack of a competency hearing below, she has a due process right to an independent competency finding once her competency is questioned. Sheheane v. State , 228 So.3d 1178, 1179 (Fla. 1st DCA 2017). We review this issue de novo. See A.L.Y. v. State , 212 So.3d 399, 402 (Fla. 4th DCA 2017) ("Whether the circuit court fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review.").

Here, because the trial court granted counsel's motion and appointed an expert to conduct an updated evaluation, it had reasonable grounds to question B.E.'s competency. See Reynolds v. State , 177 So.3d 296, 298 (Fla. 1st DCA 2015). Once the trial court had reasonable grounds to question competency, it was required to conduct a hearing on the issue and enter an order independently finding her competent to proceed before conducting the adjudicatory hearing. See § 985.19(1)(b), Fla. Stat.; Fla. R. Juv. P. 8.095(a)(2) ; see also Trueblood v. State , 193 So.3d 1060, 1061-62 (Fla. 1st DCA 2016). However, the trial court failed to do either.

Therefore, we reverse and remand for the trial court to decide whether a nunc pro tunc competency determination can be conducted which comports with due process. If it is possible, the trial court shall conduct a hearing and enter a written order accordingly. See Pearce v. State , 250 So.3d 791 (Fla. 1st DCA 2018) (permitting a nunc pro tunc competency evaluation where a sufficient number of expert and lay witnesses who have examined or observed the defendant at or near time of trial are available to offer pertinent evidence). If a retroactive determination is not possible or the trial court determines B.E. was not competent at the time of the hearing, the trial court must conduct a new adjudicatory hearing once it determines she is competent to proceed.

REVERSED and REMANDED for further proceedings.

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


text:
    Brian Keith JIMERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2221
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Brian Keith Jimerson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Rowe, and Ray, JJ., concur.


text:
    C. C., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, the Guardian Ad Litem, and Jewish Family Services, Respondents.
    No. 1D18-2935
    District Court of Appeal of Florida, First District.
    September 25, 2018
    C.C., pro se, Petitioner.
    Ward L. Metzger, Appellate Counsel, Children's Legal Services, Jacksonville, for Respondent Department of Children and Families.
    No appearance for Guardian ad Litem or Jewish Family Services, Respondents.
   Per Curiam.

The petition for writ of mandamus is denied on the merits. See Clark v. Nichols M. N. P. , 225 So. 3d 416 (Fla. 1st DCA 2017) (holding that to be entitled to mandamus relief compelling a ruling on a pending matter, a petitioner must demonstrate that he has noticed the matter for hearing in the lower tribunal).

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


text:
    Zachary S. GAME, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1967
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 25, 2018
    Zachary S. Game, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Koons v. State, 165 So.3d 718 (Fla. 5th DCA 2015).

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


text:
    Barrett R. BEASLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1974
    District Court of Appeal of Florida, First District.
    September 27, 2018
    Barrett R. Beasley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

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


text:
    Mark Allen BIR, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4431
    District Court of Appeal of Florida, First District.
    September 26, 2018
    Mark Allen Bir, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Marcus GOGGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2141
    District Court of Appeal of Florida, First District.
    September 26, 2018
    Marcus Goggins, 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.

Makar, Osterhaus, and Jay, JJ., concur.


text:
    George NORWOOD, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2637
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    George Norwood, Malone, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, 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 February 22, 2018, judgments and sentences rendered in Case No. 2016-CF-2138, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, EDWARDS and HARRIS, JJ., concur.


text:
    Jonathan GLASS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2439
    District Court of Appeal of Florida, First District.
    September 27, 2018
    Jonathan Glass, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Christopher COLLIER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2140
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Christopher Collier, Graceville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, 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 February 22, 2018, judgment and sentence rendered in Case No. 2017-CF-772 in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Marquise M. LEWIS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1809
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Marquise M. Lewis, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, 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 October 31, 2017 judgments and sentences rendered in Case No. 2017-CF-001466-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, EISNAUGLE and HARRIS, JJ., concur.


text:
    Ronald BRAUN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-886
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Ronald W. Braun, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED, without prejudice to Appellant filing a legally sufficient petition for writ of mandamus. See Williams v. State , 189 So.3d 909 (Fla. 2d DCA 2016) ; Farmer v. State , 927 So.2d 1075 (Fla. 2d DCA 2006).

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.


text:
    Matthew PIRIE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-730
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Matthew Pirie appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. While the court properly determined that Pirie's motion was facially insufficient, it should have given him at least one opportunity to amend. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."); Spera v. State, 971 So.2d 754, 761-62 (Fla. 2007) (holding that trial court must give defendant one opportunity to amend facially deficient claims).

Accordingly, we reverse the summary denial and remand with directions that the court strike Pirie's motion and grant him sixty days to file an amended motion if he can do so in good faith.

REVERSED and REMANDED.

ORFINGER, EVANDER and HARRIS, JJ., concur.


text:
    Rush VITALIY, a/k/a Rush Vitaly, Appellant, v. WELLS FARGO BANK, N.A., as Trustee FOR the POOLING AND SERVICING AGREEMENT DATED AS OF NOVEMBER 1 2004 ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2004-WHQ2, Joulia Vitaliy and Argent Mortgage Co, Appellees.
    Case No. 5D17-1904
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Latasha Scott, of Lord Scott, Tampa, and Richard J. Mockler, of Stay in My Home, P.A., St. Petersburg, for Appellant.
    W. Bard Brockman, and Christian J. Bromley, of Bryan Cave LLP, Atlanta, Georgia, for Appellee, Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement Dated as of November 1, 2004 Asset-Backed Pass-Through Certificates Series 2004-WHQ2.
    No Appearance for other Appellees.
   PER CURIAM.

We reverse the final judgment of foreclosure entered in favor of Appellee, Wells Fargo Bank, N.A., against Appellant, Rush Vitaliy. In his answer to Appellee's foreclosure complaint, Appellant alleged that Appellee failed to provide him with the notice of default letter required by paragraph 22 of the mortgage. At trial, Appellee attempted to prove compliance with paragraph 22; however, the court sustained Appellant's objection that the proffered evidence was hearsay. At the conclusion of Appellee's case, Appellant moved for an involuntary dismissal based on Appellee's failure to prove that it actually mailed a default letter to Appellant. The trial court denied Appellant's motion and entered final judgment in favor of Appellee.

At best, Appellee's evidence proved only that Appellee prepared a default letter addressed to Appellant; however, there was no proof that the default letter was actually mailed. Thus, Appellee failed to prove that it complied with paragraph 22 of the mortgage. See Madl v. Wells Fargo Bank, N.A. , 244 So.3d 1134, 1137 (Fla. 5th DCA 2017). Accordingly, the trial court erred by denying Appellant's motion for involuntary dismissal and for entering judgment in favor of Appellee. We reverse the final judgment and remand to the trial court with instructions to enter an order involuntarily dismissing the case.

REVERSED AND REMANDED.

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


text:
    T.W., Father of B.L. and S.W., Minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-2775
    District Court of Appeal of Florida, First District.
    September 28, 2018
    Dana A. Taylor of the Law Office of Dana A. Taylor, P.A., Live Oak, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children's Legal Services, Jacksonville, for Appellee.
    Thomasina Moore, Statewide Director of Appeals, and Sara Elizabeth Goldfarb, Appellate Counsel, Guardian ad Litem Program, Tallahassee.
   Per Curiam.

Appellant, the father in this termination of parental rights case, seeks review of an April 3, 2018, order of disposition terminating his parental rights. The appeal was not filed within 30 days of rendition of the order of disposition. In response to our order to show cause, Appellant argues the order is not final because additional judicial labor is required and contemplated. Specifically, the order directs the Department of Children and Families to file an Adoption Case Plan pursuant to section 39.811(8), Florida Statutes (2017), which the court will accept and adopt upon filing. However, the trial court's acceptance and adoption of an amended case plan pursuant to section 39.811(8) at some time in the future does not interfere with the finality of the order of disposition for purposes of a parent's right to appeal.

Because Appellant did not timely seek review of the order of disposition, the appeal is hereby DISMISSED. This dismissal is without prejudice to Appellant's right to seek relief in the trial court. In the Interest of E.H. , 609 So. 2d 1289 (Fla. 1992).

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Sharonda RIVERS, Appellant, v. BRITE HOUSES LLC, Patricia Getford, Appellees.
    No. 1D18-2649
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Sharonda Rivers, pro se, Appellant.
    Robert W. Bauer and Maria Perez Youngblood of The Law Office of Robert W. Bauer, P.A., Gainesville, for Appellees.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of July 3, 2018, the Court has determined that it lacks jurisdiction over this appeal. Appellant seeks review of an order titled Final Order Granting Defendants' Motion for Directed Verdict. The order is neither a final order, nor an appealable non-final order. Although it concludes that Appellant has failed to state a cause of action on claims of breach of contract and fraud, the order directs that the jury be instructed to return a verdict in favor of the defendants on those causes of action. It does not enter judgment or otherwise dispose of the pending action.

Appellees' motion to dismiss, filed on June 27, 2018, is denied.

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


text:
    Christopher Ray BERRYHILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2477
    District Court of Appeal of Florida, First District.
    October 2, 2018
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED . Regarding Appellant's appeal of the prison releasee reoffender sentence of thirty years, we affirm pursuant to Williams v. State , 143 So.3d 423, 424 (Fla. 1st DCA 2014).

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


text:
    Charles M. LALA, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-5456
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Charles M. LaLa, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

We grant the petition for writ of certiorari, quash the order of the circuit court, and remand with instructions to the circuit court to allow Petitioner to file a reply. See Bard v. Wolson , 687 So.2d 254 (Fla. 1st DCA 1996).

Makar, Osterhaus, and Jay, JJ., concur.


text:
    State of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. James M. KAMAU, Respondent.
    No. 1D15-497
    District Court of Appeal of Florida, First District.
    October 3, 2018
    Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, State of Florida, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Respondent.
    ON MOTION TO ENFORCE MANDATE
   Per Curiam.

Respondent's motion to enforce this Court's mandate in Florida Department of Highway Safety & Motor Vehicles v. Kamau , 174 So.3d 1054 (Fla. 1st DCA 2015), is denied. The motion is based on the premise that the circuit court did not comply with our mandate to "follow the correct law" when it denied Respondent's petition for writ of certiorari on remand because the court did not apply Wiggins v. Florida Department of Highway Safety and Motor Vehicles , 209 So.3d 1165 (Fla. 2017), which was issued after the mandate. That premise is flawed because Wiggins did not overrule the well-established rule cited in our prior opinion that the circuit court in a first-tier certiorari proceeding is not permitted to reweigh the evidence presented to the hearing officer. Rather, the decision merely recognized a narrow exception to that rule in cases where the hearing officer's findings are directly contradicted by a video recording. Id. at 1172, 1175. Here, because there was no video recording of the stop that led to the suspension of Respondent's driver's license, Wiggins has no bearing on the law that the circuit court was required to apply in ruling on the petition for writ of certiorari. Accordingly, because we determined in our prior opinion that the circuit court "improperly reweighed the evidence concerning the lawfulness of Respondent's detention and arrest" when it granted the petition for writ of certiorari, it follows that the court complied with the mandate when it declined to "reconsider[ ] the merits" and denied the petition on remand. See Brunner Enters., Inc. v. Dep't of Revenue , 452 So.2d 550, 552 (Fla. 1984) ("[I]t is a well-settled rule of law that 'the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act.' " (quoting O.P. Corp. v. Vill. of N. Palm Beach , 302 So.2d 130, 131 (Fla. 1974) ) ).

B.L. Thomas, C.J., and Wetherell and Ray, JJ., concur.


text:
    DEPARTMENT OF REVENUE, ON BEHALF OF Ashly Nichol JACKSON, Appellant, v. Danny Etian RIVERA, Appellee.
    No. 1D17-5380
    District Court of Appeal of Florida, First District.
    October 4, 2018
    Pamela Jo Bondi, Attorney General, Toni C. Bernstein, Senior Assistant Attorney General, and Carrie R. McNair, Assistant Attorney General, Office of the Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

DISMISSED . See Dep't of Revenue, on behalf of Marquez v. Lopez , 43 Fla. L. Weekly D1753, 252 So.3d 823, 2018 WL 3638010 (Fla. 1st DCA Aug. 1, 2018).

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


text:
    Delveckia WISE v. Julie PRICE, Tiny Ballard and PHC-Morgan City L.P. d/b/a Teche Regional Medical Center
    No. 2018-CC-0874
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE 16TH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. MARY
    Writ denied.
    CRICHTON, J., would grant and assigns reasons:
   I find the trial court's ruling was an abuse of discretion and in direct contravention of La. C.C.P. art. 966 and La. Dist. Ct. Rules 9.8 and 9.9. Therefore, I would grant this writ application and remand the matter to the trial court to rule on the motion for summary judgment based on all pleadings, affidavits, depositions, answers to interrogatories, and admissions on file as of September 20, 2017. See Newsome v. Homer Memorial Medical Center , 10-0564 (La. 4/9/10), 32 So.3d 800.


author: WEIMER, J., would grant.

text:
    SUCCESSION OF Mary Lou THRASHER
    No. 2018-C-774
    Supreme Court of Louisiana.
    September 28, 2018
    WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES
    Writ denied.
   WEIMER, J., would grant.

HUGHES, J., dissents and assigns reasons.

Accepting demonstrably wrong expert opinion over an authentic act sworn to by a Louisiana attorney and two witnesses is a dereliction of duty by the courts.


text:
    Delveckia WISE v. Julie PRICE, Tiny Ballard and PHC-Morgan City L.P. d/b/a Teche Regional Medical Center
    No. 2018-CC-0879
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE 16TH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. MARY
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
   I find the trial court's ruling was an abuse of discretion and in direct contravention of La. C.C.P. art. 966 and La. Dist. Ct. Rules 9.8 and 9.9. Therefore, I would grant this writ application and remand the matter to the trial court to rule on the motion for summary judgment based on all pleadings, affidavits, depositions, answers to interrogatories, and admissions on file as of September 20, 2017. See Newsome v. Homer Memorial Medical Center , 10-0564 (La. 4/9/10), 32 So.3d 800.


text:
    STATE of Louisiana v. Michael PETERS
    NO. 2018-KK-1417
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE 19th JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE
    Writ denied.
    HUGHES, J., would grant for the reasons assigned by Crichton, J.
    CRICHTON, J., would grant and assigns reasons:
   I previously wrote separately to spotlight the importance of compliance with Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and La. C.Cr.P. art. 556.1, see State v. Trahan , 16-2083 (La. 4/16/18), 241 So.3d 286, and I reiterate those concerns here. In response to the state's minute entries associated with defendant's three guilty pleas to misdemeanor DWI in Mississippi, which do not indicate whether defendant was advised of his Boykin rights in accordance with State v. Jones , 404 So.2d 1192 (La. 1981) (per curiam), defendant testified that neither the judge who accepted the pleas nor the lawyer who negotiated the plea agreements ever advised him of any of the rights he was waiving by pleading guilty. I would grant defendant's writ application to examine whether defendant's sworn denial constitutes "affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea" sufficient to shift the burden back to the state to produce a perfect Boykin transcript. See State v. Carlos , 98-1366, pp. 6-7 (La. 7/7/99), 738 So.2d 556, 559.


author: PER CURIAM:

text:
    STATE EX REL. Alonzo GONZALES v. STATE of Louisiana
    No. 2017-KH-1225
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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


text:
    STATE EX REL. John BURKS, III v. STATE of Louisiana
    No. 17-KH-1763
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

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

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


text:
    STATE EX REL. Troy LEBOUEF v. STATE of Louisiana
    No. 2017-KH-1026
    Supreme Court of Louisiana.
    September 28, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator shows no lower court error.

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

Weimer, J., recused.


text:
    W & T OFFSHORE, L.L.C. v. TEXAS BRINE CORPORATION and Texas Brine Company, L.L.C.
    Texas Brine Company, L.L.C. v. W & T Offshore, L.L.C.
    NO. 2018-C-0956
    Supreme Court of Louisiana.
    October 8, 2018
    Granted.
    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 8th day of October, in the year of our Lord, Two Thousand-Eighteen.


text:
    W & T OFFSHORE, L.L.C. v. TEXAS BRINE CORPORATION and Texas Brine Company, L.L.C.
    Texas Brine Company, L.L.C. v. W & T Offshore, L.L.C.
    NO. 2018-C-0950
    Supreme Court of Louisiana.
    October 8, 2018
    Granted.
    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 8th day of October, in the year of our Lord, Two Thousand-Eighteen.
    John Tarlton Olivier Clerk of Court
    /s/
    Deputy Clerk of Court


text:
    STATE of Louisiana v. Kera MOSELEY
    NO. 2017-K-2046
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Timmy W. DOUCET
    NO. 2018-K-0077
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Todd HUVAL and Chad Boyer v. STATE of Louisiana THROUGH the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of State Police; Master Trooper Hal Hutchinson; Lieutenant Rhett Trahan; Investigator Buzzy Trahan; Lieutenant Kevin Devall; Investigator Bart Morris; Investigator Hampton Guillory; and Lieutenant Colonel Stanley Griffin
    NO. 2018-CC-0959
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    STATE EX REL. Edward ODOM, Jr. v. STATE of Louisiana
    NO. 2017-KH-1155
    Supreme Court of Louisiana.
    October 8, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Odom v. State, 15-1971 (La. 1/9/17), 208 So.3d 876.
   WEIMER, J., recused.


text:
    Christopher JOHNSON and Sandra Sylvester v. LAFOURCHE PARISH CONSOLIDATED GOVERNMENT, Lafourche Parish Fire District No. 1 and Ken Valure
    NO. 2018-CC-0962
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Donald W. ABSHIRE and The Other Petitioners Named Herein v. The STATE of Louisiana, through the Department of Insurance of the State of Louisiana; The Department of Insurance of the State of Louisiana; The State of Louisiana, through the Office of Financial Institutions of the State of Louisiana; The Office of Financial Institutions of the State of Louisiana; The Louisiana Insurance Guaranty Association; and Standard Analytical Service, Inc. and All Consolidated Cases
    NO. 2018-00979
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE EX REL. Rodney HAMILTON v. STATE of Louisiana
    NO. 2017-KH-1176
    Supreme Court of Louisiana.
    October 8, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Hamilton v. State, 15-1916 (La. 12/16/16), 208 So.3d 357.


text:
    STATE EX REL. Kenwin PAIGE v. STATE of Louisiana
    NO. 2017-KH-1224
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: JOHNSON, C.J., recused.

text:
    GREENFIELD ADVISORS, LLC v. Camilo K. SALAS III and Salas & Co., L.C.
    NO. 2018-CC-0990
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   JOHNSON, C.J., recused.


text:
    Dorothy PENNINGTON v. OCHSNER CLINIC FOUNDATION, Fadi Hawawini, D.O., Brent Thibodeaux, Andrew Todd, M.D., Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D.
    NO. 2018-C-1034
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrone K. DAVENPORT and Dale M. Elmore
    NO. 2017-K-1950
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Rita BROWN v. Terrebornne Parish Sheriff's Office, Sheriff Jerry J. LARPENTER, and XYZ Insurance Company
    Sommer Brown v. Terrebornne Parish Sheriff's Office, Sheriff Jerry J. Larpenter, and XYZ Insurance Company
    NO. 2018-00964
    Supreme Court of Louisiana.
    October 8, 2018
    Writ not considered. Not timely filed. See La.S.Ct. Rule X, § 5.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Randy C. MARSHALL
    NO. 2018-KO-0067
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   CRICHTON, J., recused.


text:
    David LACERTE v. STATE of Louisiana, Daryl Purpera, individually and in his official capacity as Louisiana Legislative Auditor, Stephen Street, Jr., individually and in his official capacity as State Inspector General
    NO. 2018-CC-0966
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE EX REL. Timothy BERNARD, Sr. v. STATE of Louisiana
    NO. 2017-KH-1142
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    WOODROW WILSON CONSTRUCTION LLC f/k/a Woodrow Wilson Construction Co., Inc. v. ORLEANS PARISH SCHOOL BOARD
    NO. 2018-C-0971
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Joe L. BRIDGES, III, Jordan M. Bridges, and Branden J. Herring v. BATON ROUGE POLICE DEPARTMENT, City of Baton Rouge; Donlad Dewayne White (in His Official Capacity as Chief of Police of the Baton Rouge Police Department), Kenneth Clark (Individually and in His Official Capacity as an Officer for the Baton Rouge Police Department), Steven Woodring (Individually and in His Official Capacity as an Officer for the Baton Rouge Police Department), Dustin Johnson (Individually and in His Official Capacity as an Officer for the Baton Rouge Police Department), and XYZ Insurance Company
    NO. 2018-C-0997
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    Uletom HEWITT v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT and Lafayette Municipal Fire and Police Civil Service Board
    NO. 2018-C-0980
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   GENOVESE, J., recused.


text:
    DELOITTE TAX LLP v. AMEDISYS, INC. (A DELAWARE CORPORATION), et al.
    NO. 2018-CC-0993
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   WEIMER, J., would grant.


text:
    Patricia HENDERSON, et ux. v. Amy LASHOUTO, et al.
    NO. 2018-C-0996
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Ken DESPAUX v. RSC EQUIPMENT RENTAL, INC., et al.
    NO. 2018-C-1009
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE EX REL. Warren J. DUCOTE v. STATE of Louisiana
    NO. 2017-KH-1175
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Wilbert JONES v. Timothy HOOPER, Warden
    NO. 2017-KP-2012
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   WEIMER, J., would grant.


text:
    Ronald Dean GRAY v. 721 BOURBON, INC.
    NO. 2018-CC-0986
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    WHOLESALE AUTO GROUP, INC. v. LOUISIANA MOTOR VEHICLE COMMISSION
    NO. 2018-C-1017
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   WEIMER, J., would grant.


text:
    STATE EX REL. Travis RICHARDSON v. STATE of Louisiana
    NO. 2017-KH-1221
    Supreme Court of Louisiana.
    October 8, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Richardson v. State, 15-1125 (La. 10/17/16), 202 So.3d 480.


text:
    STATE EX REL. Marvin M. WALLACE v. STATE of Louisiana
    NO. 2017-KH-1227
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: CRICHTON, J., would grant.

text:
    LOUISIANA PUBLIC SERVICE COMMISSION, and in their Capacities as Commissioners Lambert C. Boissiere, III, James M. Field, Foster L. Campbell, Eric Skrmetta, and Clyde C. Holloway v. LOUISIANA STATE LEGISLATURE
    NO. 2018-C-0978
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   CRICHTON, J., would grant.


text:
    Ruby Lee LEWIS v. GEICO CASUALTY COMPANY
    NO. 2018-CC-1024
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrone K. DAVENPORT and Dale M. Elmore
    NO. 2017-K-1947
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Corey D. FACIANE
    NO. 2017-K-2069
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Ulrich "Ric" Adam STEINES
    NO. 2017-KO-2174
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Jonathan M. LOPEZ
    NO. 2018-KK-1038
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Hardy ALLEN
    NO. 2017-KO-2180
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Maurice BANKS
    NO. 2018-KO-G060
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.


text:
    Frank BUTLER and Rhonda Butler v. Christian KALIVODA
    NO. 2018-C-0955
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Keith Joseph LAFRANCE
    NO. 2018-KO-0395
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Antonio GALLAGHER
    NO. 2018-KK-1003
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Neville PATTERSON v. RACELAND EQUIPMENT COMPANY, LLC and Raceland Raw Sugar LLC d/b/a Raceland Sugar Mill
    NO. 2018-C-1018
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   WEIMER, J., recused.


text:
    STEPHENS TPS, INC. v. Robert LAPOINT
    Robert Lapoint v. Stephens Tps, Inc.
    NO. 2018-CC-1394
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Brigette WHALEY v. B.B. RAYBURN CORRECTIONAL CENTRE
    NO. 2018-CC-0957
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Charles W. GETTYS, Jr. and Tammy Abide v. William G. GETTYS, Floellen Sanchez-Rickard, Victoria Foght Virga and Michael Virga
    NO. 2018-C-0992
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Reginald GREEN, et al. v. Franklin Eliezer GARCIA-VICTOR, et al.
    NO. 2018-CC-0994
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Dorothy PENNINGTON v. OCHSNER CLINIC FOUNDATION, Fadi Hawawini, D.O., Brent Thibodeaux, Andrew Todd, M.D., Jim Aubry Jones, M.D. and Gretchen Ulfers, M.D.
    NO. 2018-C-1020
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Edward Trent ROBINSON v. The CITY OF NEW ORLEANS; Dr. Jared Monster, in his Capacity as the Director of the Department of Safety and Permits; and The Board of Zoning Adjustments
    NO. 2018-C-0998
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Brendon BANKS, Sr., Husband of/and Chalai's Banks v. PROGRESSIVE PALOVERDE INSURANCE COMPANY and RLH Investments, LLC
    NO. 2018-CC-1037
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Patrick CUMMINS v. R.A.H. HOMES, LLC, et al.
    NO. 2018-C-0906
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    Tasha GRIGGS, individually and on behalf of her minor son, Austin Griggs v. BOUNCE N' AROUND INFLATABLES, L.L.C. and Jack Alan LeBlanc
    NO. 2018-C-0726
    Supreme Court of Louisiana.
    October 8, 2018
    Granted.
    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.


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

text:
    Clarence SMITH, Jr., Individually and as Natural Tutor of His Minor Son, Kyle Smith v. ST. CHARLES PARISH PUBLIC SCHOOLS
    NO. 2018-C-1001
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.
   JOHNSON, C.J., would grant.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Sasha RICKETSON, Tina Ramus, on Behalf of Madison Ricketson and Xander Ramus, and Daniell Berry on Behalf of Dylan Berry, Individually and on Behalf of Stephen Ricketson v. Anita MCKENZIE, Robert D. Frank, Illinois Central Railroad Company, State of Louisiana Through Department of Transportation and Development, Parish of Tangipahoa, Town of Amite City
    NO. 2018-CC-0952
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Thaddius BROTHERS
    NO. 2017-KO-2160
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


text:
    STATE of Louisiana v. Frank DANIELS
    NO. 2018-KK-1614
    Supreme Court of Louisiana.
    October 8, 2018
    Denied.


author: GUIDRY, J.

text:
    STATE of Louisiana v. Michael HEPWORTH
    NUMBER 2017 CA 1061
    Court of Appeal of Louisiana, First Circuit.
    APRIL 18, 2018
    Hillar C. Moore, III, District Attorney, Sarah Tirrell, Assistant District Attorney, Baton Rouge, LA, Counsel for Plaintiff/Appellee, State of Louisiana
    R. Neal Wilkinson, Baton Rouge, LA, Counsel for Defendant/Appellant, American Surety Company
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

American Surety Company appeals from a judgment of the trial court denying its motion for release from bond obligation. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant, Michael Hepworth, was arrested on November 5, 2015, for aggravated arson, aggravated criminal damage to property, theft, and resisting an officer. His bail was set in the amount of $27,500. On November 12, 2015, A American Bail Bonds of Louisiana executed a bond on behalf of the defendant, backed by commercial surety, American Surety Company (American Surety).

Thereafter, the defendant was charged by bill of information with aggravated criminal damage to property in violation of La. R.S. 14:55. The matter was set for arraignment on June 14, 2016, and notice was sent to American Surety; however, the defendant failed to appear in court for arraignment. The trial court ordered that a bench warrant be issued for the arrest of the defendant and rendered judgment in favor of the State of Louisiana and against the defendant and American Surety, jointly and in solido, in the full amount of the bond. The court further ordered that the notice of the entry of the forfeiture be sent to the defendant and to American Surety. The trial court signed a bond forfeiture judgment on June 15, 2016.

On October 7, 2016, American Surety filed a motion for release from bond obligation, asserting that on August 11, 2016, the defendant was arrested and incarcerated in Davenport, Scott County, Iowa, and that the East Baton Rouge Parish Sheriff's Office was notified but failed to transport the defendant and he was released from custody. Therefore, American Surety asserted that it was entitled to be released from its bond obligation.

A hearing on American Surety's motion was set for November 17, 2016. After several continuances, the matter was finally heard on April 5, 2017, at which time the trial court denied the motion. The trial court signed a judgment in conformity with its ruling on May 16, 2017, and American Surety now appeals from this judgment.

DISCUSSION

Louisiana Code of Criminal Procedure article 345(D), which was in effect at the time American Surety filed its motion for release from bond obligation, provided:

If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.
(2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion, shall be deemed adequate proof of the incarceration of the defendant.
(3) The defendant's sureties pay the officer originally charged with the defendant's detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant's detention prior to the defendant's return.

A plain reading of the statute shows that a surety must meet all three conditions before the surety's obligation is satisfied and released. State v. Davila, 01-0418, p. (La. App. 1st Cir. 3/28/02), 814 So.2d 56, 60. In the instant case, American Surety filed a motion within the period allowed for surrender of the defendant and submitted proof of the defendant's incarceration, although at the time the motion was filed, American Surety acknowledged that the defendant had been released from custody. However, American Surety failed to pay ''the reasonable cost of returning the defendant." As such, American Surety failed to meet the requirements of La. C.Cr.P. art. 345(D) so as to prove entitlement to release from its bond obligation.

Furthermore, we find no merit to American Surety's argument that the trial court erred in failing to find that the flooding in East Baton Rouge Parish in 2016 constituted a fortuitous event under La. C.Cr.P. art. 345(1). At the time American Surety filed its motion, La. C.Cr.P. art. 345(1) allowed a judgment of bond forfeiture to be set aside "with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible [for the surety] to perform as required under the contract." American Surety's motion did not raise the issue of a fortuitous event, nor did it make any reference to the flooding of 2016. Furthermore, while counsel for American Surety referenced the flooding during the hearing on its motion, it did not present any evidence that the flooding "made it impossible to perform as required under the contract." See La. C.Cr.P. art. 345(1).

Therefore, after a thorough review of the record, we find no error in the trial court's judgment denying American Surety's motion for release from bond obligation.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to American Surety Company.

AFFIRMED.

      Louisiana Code of Criminal Procedure article 345 was repealed by 2016 La. Acts No. 613, § 4 effective January 1, 2017, and replaced with La. C.Cr.P. art. 331. The substance of La. C.Cr.P. art. 331(D), in conjunction with La. C.Cr.P. art. 311(4) defining constructive surrender, retains the requirement that the surety must pay the officer the reasonable costs of returning the defendant to the jurisdiction where the arrest warrant was issued. Because the issue on appeal involves whether American Surety was required to comply with this particular requirement in seeking release from its bond obligation, we do not address whether La. C.Cr.P. art. 331 should be applied retroactively to this matter, as this requirement is the same under both articles.