text:
    FRS-FAST RELIABLE SEAWAY, LLC., et al., Petitioners, v. BOARD OF PILOT COMMISSIONERS of the State of Florida, et al., Respondents.
    No. 3D18-1154
    District Court of Appeal of Florida, Third District.
    Opinion filed December 26, 2018
    Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Jordan S. Cohen, Fort Lauderdale, Brandon J. Hechtman, Coral Gables and Alyssa M. Reiter, Fort Lauderdale, for petitioners.
    Radey Law Firm, and Donna E. Blanton, Brittany Adams Long, and Lauren Thompson (Tallahassee), for Biscayne Bay Pilots, Inc.; Panza, Maurer & Maynard, P.A., and Thomas F. Panza and Jennifer K. Graner (Fort Lauderdale), for Florida-Caribbean Cruise Association; Marlene K. Stern and Clark Jennings, Assistant Attorneys General (Tallahassee), for Pilotage Rate Review Committee, for respondents.
    Before SALTER, SCALES and LINDSEY, JJ.
   SCALES, J.

Petitioners FRS-Fast Reliable Seaway, LLC., Antillean Marine Shipping, Corp., Betty K Agencies (USA), L.L.C., God Is Able Shipping, LLC, and River Terminal Services, Inc. (collectively, "Petitioners") challenge, via petition for writ of certiorari, a final order rendered by respondent Pilotage Rate Review Committee ("the Committee"), a committee of the Board of Pilot Commissioners of the State of Florida ("Board"). Because we lack jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(2) to review final orders of administrative agencies, and because Petitioners are not "parties" for the purposes of final agency action review under section 120.68 of the Florida Statutes, we dismiss the petition without prejudice to Petitioners filing a declaratory judgment and/or injunction action in the Circuit Court.

I. Parties

Respondent Board is a division of Florida's Department of Business and Professional Regulation. The duties of the ten-member Board are described in chapter 310 of the Florida Statutes. Primarily, the Board determines the number of pilots necessary for efficient piloting services in each port and disciplines pilots for misconduct and other violations of duty or law. See §§ 310.061, 310.101, Fla. Stat. (2017).

Pursuant to section 310.151 of the Florida Statutes, the legislature established the Committee to set pilotage rates at the various ports within the state of Florida. This seven-member Committee establishes the rates that pilots may charge for piloting vessels in and out of Florida's various ports. Any pilot or group of pilots or person(s) whose substantial interests are directly affected may apply to the Committee for a change of pilotage rates. § 310.151(2), Fla. Stat. (2017).

Respondent Florida Caribbean Cruise Association ("Association") is a trade association composed of fifteen cruise line companies that are either based at PortMiami or call on PortMiami regularly. Respondent Biscayne Bay Pilots, Inc. ("Pilots") is an association of harbor pilots who perform pilotage services at PortMiami.

Petitioners are five individual shipping companies working within PortMiami that object to pilotage rate changes the Committee adopted in a final order dated May 9, 2018, but that did not participate in the lower tribunal proceedings.

II. Factual and Procedural Background

In March of 2014, Association filed an application to the Committee seeking a twenty-five percent decrease in pilotage rates for passenger vessels calling on PortMiami. Two years later, in March of 2016, Pilots filed a competing application seeking a set of increases, including a six percent increase in pilotage rates for each of the following five years and additional vessel charges and surcharges. The applications of Association and Pilots eventually were consolidated for the Committee's consideration.

The Committee conducted a three-day hearing on May 16-19, 2017, and preliminarily approved an increase to pilotage rates, but to a lesser extent than the rates proposed by Pilots in their application. Pursuant to section 310.151(4)(a), on September 21, 2017, the Committee issued its notice of intent ("NOI") to modify the pilotage rates, as the Committee preliminarily approved at its May 2017 meeting.

Then, pursuant to section 310.151(4)(a)'s hearing request provision, both Association and Pilots requested that a hearing be conducted before an administrative law judge (ALJ) designated by the Division of Administrative Hearings. The Committee concluded that the hearing requests raised disputed issues of material fact, thus necessitating a formal hearing by the ALJ. Id. Petitioners did not object to the rates noticed in the September 21, 2017 NOI, and therefore, did not request an administrative hearing.

On January 22, 2018, the ALJ determined there was a defect in the Committee's September 21, 2017 NOI. The ALJ terminated the administrative proceedings and relinquished jurisdiction to the Committee to proceed with its statutory obligations under section 310.151(4)(a). After relinquishment, the Committee, on January 30, 2018, then issued a corrected NOI to address the infirmities of the September 21, 2017 NOI. The Committee's corrected NOI did not yield a renewed round of administrative review. In fact, no hearing request was filed by any party after the Committee's issuance of the corrected NOI. Instead, Association and Pilots entered into settlement negotiations. Again, Petitioners did not object to the rates noticed in the January 30, 2018 corrected NOI, so they did not request an administrative hearing.

Association and Pilots reached a tentative settlement agreement, and their proposed settlement was presented to the Committee at a noticed meeting on April 27, 2018, at which the Committee approved the negotiated rates outlined in the settlement agreement. The approved rates varied considerably from the rates noticed in the January 30, 2018 corrected NOI. The Committee adopted these negotiated rates and rendered the challenged final order on May 9, 2018.

Petitioners filed the instant petition for certiorari relief, seeking a writ from this Court quashing the Committee's final order.

III. Discussion and Analysis

A. Petitioners' Challenge and the Response

Petitioners assert that they were denied due process because, in adopting the increased pilotage rates in the May 9, 2018 final order, the Committee failed to follow the notice requirements of section 310.151(4)(a). Thus, Petitioners argue, the Committee failed to provide the designated point of entry into the administrative process, as required by section 310.151(4)(a).

Respondents make two, principal counterarguments as to why this Court should not review the merits of the petition. First, Respondents assert that rate-making is a legislative function, and therefore is not subject to certiorari review. Second, Respondents assert that, because Petitioners never sought an administrative hearing challenging the rates re-noticed in the January 30, 2018 corrected NOI, they lack standing to challenge the rates.

B. Availability of Relief to the Petitioners

In order to reach the merits of Petitioners' claims, we initially must decide whether, under the facts of this case, we have jurisdiction to adjudicate a petition seeking certiorari review of a final administrative order. Generally, without jurisdiction, we do not reach the merits of a controversy. See Kincaid v. World Ins. Co., 157 So.2d 517, 517 (Fla. 1963) ; see also Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (explaining that a district court should dismiss, rather than deny, a certiorari petition if the petition fails to establish a basis for jurisdiction). Similarly, without petitioner standing to seek judicial review under Florida's Administrative Procedures Act ("APA"), we do not reach the merits of a controversy. Norkunas v. Fla. Building Comm'n., 982 So.2d 1227, 1228 (Fla. 1st DCA 2008). Our jurisdiction to review a final order from an administrative agency subject to the APA must derive from either Florida Rule of Appellate Procedure 9.030(b)(2) or section 120.68 of the Florida Statutes. We review each in turn.

1. Rule 9.030(b)(2)

Rule 9.030(b) essentially paraphrases the jurisdictional provisions of article V, section 4(b) of Florida's Constitution. See Fla. R. App. P. 9.030 committee notes (1977). Rule 9.030(b)(2) prescribes the district courts' certiorari jurisdiction, and reads, in its entirety, as follows:

(2) Certiorari Jurisdiction . The certiorari jurisdiction of district courts of appeal may be sought to review
(A) non-final orders of lower tribunals other than as prescribed by rule 9.130; [ ]
(B) final orders of circuit courts acting in their review capacity.

(Footnote omitted).

Rule 9.030(b)(2)(A) expressly contemplates district courts exercising certiorari jurisdiction to review non-final orders of lower tribunals. This rule plainly does not provide for a district court exercising such jurisdiction to review a final order of an administrative agency. Petitioners have provided us with no authority authorizing such review, and our research similarly has uncovered no authority that would expand rule 9.030(b)(2)(A)'s scope to include review of final orders of administrative agencies subject to the APA. We decline Petitioner's invitation to expand the scope of our certiorari jurisdiction to review the Committee's final order.

2. Section 120.68

This does not conclude our inquiry, though, because Article V, section 4(b)(2) of the Florida Constitution provides that district courts shall have direct review of administrative actions "as prescribed by general law." Section 120.68, in turn, expressly provides for judicial review of final agency action by the district courts. It reads, in relevant part, as follows:

(1)(a) A party who is adversely affected by final agency action is entitled to judicial review.
....
(2)(a) Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed.
....
(7) The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that:
....
(c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure ...

§ 120.68(1)(a), (2)(a), (7)(c), Fla. Stat. (2017) (emphasis supplied).

The statute provides express jurisdictional authority for a district court to review a final order of an administrative agency, and to quash the order if, as asserted here, the fairness of the agency's proceedings were impaired by the agency's failure to follow the prescribed statutory procedures. Critically, though, by the express terms of the statute, only a "party" may invoke such jurisdiction. § 120.68(1)(a), Fla. Stat. (2017).

Section 120.52(13) of the Florida Statutes defines a "party" for the purposes of the APA, and reads in relevant part:

(13) "Party" means:
(a) Specifically named persons whose substantial interests are being determined in the proceeding.
(b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
(c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceeding as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.

§§ 120.52(13)(a), (b), (c), Fla. Stat. (2017).

While Petitioners might indeed have been adversely affected by the Committee's final order, we are unable to fit Petitioners into any of the statutory definitions of "party" under the APA. Norkunas, 982 So.2d at 1228.

Petitioners assert that, in response to the NOIs, they did not request an administrative hearing because they had no quarrel with the noticed rates. Petitioners argue that it would be absurd to challenge proposed agency action - that they support - simply to achieve "party" status under the APA. Petitioners further assert, without citation to authority, that we should exercise common law certiorari jurisdiction and reach the merits in this case because the impediment to Petitioners' standing was caused by the very conduct they challenge: i.e., the Committee's failure to provide Petitioners with a meaningful point of entry into the administrative process in derogation of section 310.151(4)(a)'s notice requirements. While we are not unsympathetic to Petitioners' arguments in this regard, we nevertheless are constrained by the plain and unambiguous text of the statute, section 120.68(1)(a), and cannot graft an exception onto the statute out of some amorphous sense of fairness. In sum, Petitioners are not "parties" as defined in the APA; therefore, Petitioners lack standing to seek review of the Committee's final order under section 120.68.

IV. Conclusion

We lack certiorari jurisdiction to review the Committee's final order; and, because no Petitioner is a "party" under the APA, Petitioners lack standing to assert a challenge to the final order under section 120.68. We, therefore, do not reach the merits of Petitioners' claims, and are compelled to dismiss the petition. Our dismissal, though, is without prejudice to Petitioners bringing an action for declaratory judgment and/or injunction in the Circuit Court.

Petition dismissed.

      Pilots navigate large ships in and out of the ports of Florida. " 'Pilot' means a licensed state pilot or a certificated deputy pilot." § 310.002(2), Fla. Stat. (2017).

      This section reads in its entirety as follows:
      The applicant shall be given written notice, either in person or by certified mail, that the committee intends to modify the pilotage rates in that port and that the applicant may, within 21 days after receipt of the notice, request a hearing pursuant to the Administrative Procedure Act. Notice of the intent to modify the pilotage rates in that port shall also be published in the Florida Administrative Register and in a newspaper of general circulation in the affected port area and shall be mailed to any person who has formally requested notice of any rate change in the affected port area. Within 21 days after receipt or publication of notice, any person whose substantial interests will be affected by the intended committee action may request a hearing pursuant to the Administrative Procedure Act. If the committee concludes that the petitioner has raised a disputed issue of material fact, the committee shall designate a hearing, which shall be conducted by formal proceeding before an administrative law judge assigned by the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57(1), unless waived by all parties. If the committee concludes that the petitioner has not raised a disputed issue of material fact and does not designate the petition for hearing, that decision shall be considered final agency action for purposes of s. 120.68. The failure to request a hearing within 21 days after receipt or publication of notice shall constitute a waiver of any right to an administrative hearing and shall cause the order modifying the pilotage rates in that port to be entered. If an administrative hearing is requested pursuant to this subsection, notice of the time, date, and location of the hearing shall be published in the Florida Administrative Register and in a newspaper of general circulation in the affected port area and shall be mailed to the applicant and to any person who has formally requested notice of any rate change for the affected port area.
      § 310.151(4)(a), Fla. Stat. (2017).

      The ALJ ascertained that he did not have subject matter jurisdiction because the Committee had not complied with procedures set forth in section 310.151(3) that are a prelude to its issuance of an NOI, thereby causing the September 21, 2017 NOI to be ineffective.

      The March 22, 2018 notice for this April 27, 2018 meeting, which included the Committee's agenda, referred to a discussion item related to the proposed settlement agreement, but otherwise did not notice a proposed modification to those pilotage rates the Committee had noticed in its January 30, 2018 NOI, nor did the meeting notice contain the NOI formalities required by section 310.151(4)(a).

      Within rule 9.130 is a schedule of non-final orders that may be reviewed by direct appeal. Fla. R. App. P. 9.130(3).

      Our conclusion in this regard is somewhat ameliorated by the Committee's concession that the final order - as a quasi-legislative action - may be reviewable in the Circuit Court via a declaratory judgment and/or injunction action. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 526 n.3 (Fla. 1995).

      We express no opinion as to the viability or merits of any such action.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dontavion KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1715
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 21, 2018
    Dontavion King, Century, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The motion for postconviction relief under review is not contained within the record and cannot be located by the lower court, the lower court clerk or the State. Accordingly, this cause is reversed and remanded with directions that Appellant be permitted to re-file an amended motion within thirty days after the mandate issues, upon which the trial court shall render a ruling. See Peraza v. State , 920 So.2d 188 (Fla. 2d DCA 2006).

REVERSED AND REMANDED.

ORFINGER, TORPY and BERGER, JJ., concur.


text:
    Jean Raymond RODNEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1948
    District Court of Appeal of Florida, Third District.
    Opinion filed January 2, 2019
    Jean Raymond Rodnez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 124 So.3d 757 (Fla. 2012) (holding that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively). See also State v. Green, 944 So.2d 208, 210 (Fla. 2006) (holding that the two-year limitations period for filing a motion to withdraw plea for failure of the trial court to advise a defendant that the plea could result in deportation "commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation"); Jules v. State, 233 So.3d 1196 (Fla. 3d DCA 2017).


author: LOGUE, J.

text:
    Rodney E. SHANDS, et al., Appellants, v. CITY OF MARATHON, etc., et al., Appellees.
    No. 3D17-1859
    District Court of Appeal of Florida, Third District.
    Opinion filed January 2, 2019
    Andrew M. Tobin, P.A., and Andrew M. Tobin (Tavernier), for appellants.
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke and Hudson C. Gill (Fort Lauderdale), for appellees.
    Before LAGOA, C.J. and LOGUE, and SCALES, JJ.
   LOGUE, J.

In this inverse condemnation case, Appellants, Rodney Shands, Robert Shands, Kathryn Edwards, and Thomas Shands (collectively "the Shands"), appeal a summary judgment entered in favor of the City of Marathon. We reverse.

FACTS

The Shands sued the City of Marathon for inverse condemnation alleging that zoning and environmental regulations deprived them of all or substantially all economic use of an island they owned within the boundaries of the City. This is the second time this case has come before us. We had previously reversed an order dismissing this case as barred by the statute of limitations. Shands v. City of Marathon, 999 So.2d 718 (Fla. 3d DCA 2008). In that prior case, we described the facts as follows:

Dr. R.E. Shands purchased the 7.9-acre Little Fat Deer Key in 1956, and seven acres of adjacent bay bottom in 1959, before any state land use policies existed. He died in 1963, and his wife inherited the property, now known as Shands Key. She conveyed title to their children, the appellants, in 1985. From the time it was purchased until 1986, Shands Key was within Monroe County jurisdiction and was zoned General Use.
In 1986, Monroe County adopted the State Comprehensive Plan and development regulations that altered Shands Key's zoning status to Conservation Offshore Island (OS), and placed it in the Future Land Use category. When the City of Marathon incorporated in 1999, it adopted the 1986 Monroe County comprehensive land use plan, and Shands Key was within the City bounds. In 2005, the City adopted the City of Marathon Comprehensive Plan; the land use and zoning designations of Shands Key remained unchanged.
In 2004, the Shands filed an application for a dock permit. The application was denied, referring to the City's prohibition on development in areas classified as high quality hammocks, or areas with known threatened or endangered species. The Shands then filed a Beneficial Use Determination (BUD) application as required by the City of Marathon Code of Ordinances, Article 18. The Special Master at the conclusion of the BUD hearing found that the Shands had reasonable economic investment-backed expectations that they could build a family residence on the Key, as planned in the late 1950s. The Special Master recommended that the City grant a building permit for a single family home exempt from the Rate Of Growth Ordinance (ROGO) requirements of 0.1 units per acre, or purchase the property for a mutually agreeable sum. After a public hearing, the Marathon City Council rejected the Special Master's recommendations and denied the Shands' BUD application.
The Shands then brought suit against the City, claiming that the City's acts resulted in an as-applied regulatory taking of their property without just compensation, in violation of state and federal law.

Id. at 720-22 (footnotes omitted).

Based upon the agreement of the parties, the trial court stayed this case until a decision was reached in the Beyer v. City of Marathon, case no. 3D12-277, which was then pending before this court. Once this Court upheld a summary judgment for the City in Beyer v. City of Marathon, 197 So.3d 563 (Fla. 3d DCA 2013), the City moved for summary judgment in this case. Finding the facts of Beyer"indistinguishable from the instant case," the trial court entered summary judgment for the City. The Shands timely appealed.

ANALYSIS

This Court reviews a trial court's ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id.

Summary judgment "is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings." Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it "is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law." Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329, 334-35 (Fla. 3d DCA 2015).

A court considering summary judgment must avoid two extremes. On one hand, a "party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict."

Perez-Rios v. Graham Companies, 183 So.3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So.2d 1105, 1108 (Fla. 4th DCA 2000) ). On the other hand, "a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Perez-Gurri Corp. v. McLeod, 238 So.3d 347, 350 (Fla. 3d DCA 2017).

The Shands argue the trial court improperly granted summary judgment for the City because the regulations at issue constituted a facial, categorical taking of their property. In the prior appeal of this matter, an earlier dismissal of this case based on the statute of limitations was reversed precisely because we characterized the Shands' claim as being "as applied" and not "facial." Shands, 999 So.2d at 726 ("As this is not a claim for a facial taking, but an as applied taking, it follows that the statute of limitations did not begin to run until February 27, 2007, when the City of Marathon rejected with finality the Special Master's BUD recommendation and denied the Shands' BUD application."). The trial court therefore properly treated this case as an "as applied" challenge.

The Shands' main argument is that the summary judgment for the City is improper because the trial court erred by determining Beyer was factually on all fours with the instant case. We affirmed summary judgment in Beyer, because "under an 'as applied' takings analysis, the Beyers were not deprived of all economically beneficial use of the property." Beyer, 197 So.3d at 566-67. This was so because the "City assigned the Beyers sixteen points under its Residential Rate of Growth Ordinance, having a value of $150,000," and therefore "[t]he award of ROGO points, coupled with the current recreational uses allowed on the property, reasonably meets the Beyers' economic expectations under [the facts of that case]." Id.

While Beyer involved the same regulations in the same municipality, it did not involve the same property. "In an as-applied taking claim, the landowner challenges the specific impact of the regulation on a particular property." Shands, 999 So.2d at 723. Unlike the record in Beyer, the record here, for example, contains no valuation of the ROGO points. Without a valuation of the ROGO points, it cannot be said, as the trial court did here, that the facts of Beyer are "indistinguishable from the instant case," and therefore it cannot be said that the City is entitled to a judgment as a matter of law. The valuation of the ROGO points and other facts of Beyer cannot mechanically be imported into this case both because a motion for summary judgment can only be granted based on the record in a particular case and, as mentioned above, an "as applied" takings challenge can only be resolved based upon the impact of the regulation on a particular parcel of property.

Reversed.


text:
    Ryan Anthony PLUMMER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-937
    District Court of Appeal of Florida, Third District.
    Opinion filed January 2, 2019
    Carlos J. Martinez, Public Defender, and James A. Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SALTER, LOGUE, and SCALES, JJ.
   PER CURIAM.

Based on the trial court's findings of fact after conducting a hearing where Appellant testified, Appellant's counsel was present, and the State was present, we affirm the trial court's denial of the Appellant's motion to withdraw his plea. Sheppard v. State, 17 So.3d 275, 287 (Fla. 2009).

Affirmed.


author: SILBERMAN, Judge.

text:
    Jahmontae A. HAMMOND, a/k/a Jahmontae Alexander Hammond, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3705
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowtiz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Jahmontae A. Hammond appeals the order revoking his probation and the resulting corrected sentences on five felony counts. We affirm the order revoking his probation and the corrected sentences without discussion. However, we remand for the trial court to vacate a second judgment entered upon revocation of probation.

Hammond had originally been adjudicated guilty on the five felony counts in 2014, and his probation was revoked in 2017. The trial court entered a revocation order and sentences and later entered a corrected judgment and sentences. When a judge originally adjudicates a defendant guilty, a second judgment upon revocation of probation is unauthorized and can cause confusion in the future. See Fountain v. State, 249 So.3d 786, 787 (Fla. 2d DCA 2018) ; Schaufler v. State, 255 So.3d 929, 929 (Fla. 2d DCA 2018). Here, the confusion is exacerbated because the 2017 corrected judgment contains an adjudication on a misdemeanor for count six that does not appear in the 2014 original judgment. Therefore, we remand for the trial court to vacate the unauthorized corrected judgment of September 13, 2017. See Fountain, 249 So. 3d at 787.

Affirmed in part and remanded with instructions.

BLACK and SALARIO, JJ., Concur.

      The sentences were corrected to continue Hammond's status as a youthful offender on all counts.


author: MORRIS, Judge.

text:
    Gregory KENNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-180
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Gregory Kennon, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Gregory Kennon appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we conclude that the postconviction court erred by summarily denying claims one and two of Kennon's motion, we reverse and remand in part for further proceedings. We affirm the portion of the order denying the remaining claims without further comment.

BACKGROUND

Kennon was originally convicted of two counts of first-degree murder and one count of armed burglary of a dwelling. He was sentenced to life in prison, and this court affirmed his judgment and sentence. Kennon v. State, 127 So.3d 512 (Fla. 2d DCA 2013) (table decision). He subsequently filed his postconviction motion raising eight claims. The postconviction court summarily denied seven of the claims and denied the last remaining claim after an evidentiary hearing.

In his first claim, Kennon argued that his trial counsel provided ineffective assistance by failing to call as a witness one of Kennon's adversaries. Kennon asserted that the adversary would have testified that he and Kennon had gotten into a fight on the sidewalk at the apartment complex where the murder victim lived. Kennon argued that such testimony would have explained why Kennon's blood was located near the crime scene thereby proving his innocence. He alleged that he told his counsel about the adversary and that the adversary was available to testify at the time of trial.

The postconviction court summarily denied the first claim, concluding that Kennon could not establish prejudice due to "all the evidence implicating [Kennon] in the home invasion." Specifically, the postconviction court noted that a nurse and a physician's assistant who treated Kennon for an injury to his arm twelve days after the crimes occurred both testified that his injury was consistent with a gunshot wound and did not match up with his explanation for the injury. The postconviction court also noted that law enforcement recovered a ten millimeter firearm magazine from Kennon's vehicle which matched the caliber of ammunition used in the underlying armed burglary. The postconviction court explained that it was unlikely that testimony about a fight would have changed the outcome of the trial.

In his second claim, Kennon argued that his trial counsel provided ineffective assistance by failing to interview and call Kennon's mother who was available to testify that Kennon had been with her when the underlying crimes took place. Kennon argued that such evidence would have provided him with an alibi that would have resulted in the jury concluding that he was not guilty.

The postconviction court summarily denied the second claim, first noting that the State's summarization of the evidence during closing arguments referenced the facts that Kennon knew one of the identified perpetrators, had an injury that was consistent with a gunshot, and had access to a ten millimeter firearm and ten millimeter ammunition. The postconviction court then determined that "[t]he forensic evidence presented, while circumstantial, was nonetheless compelling enough to secure a jury verdict." The postconviction court also determined that it was "improbable that uncorroborated alibi testimony from [Kennon's] mother, whose bias would be self-evident, would have changed the outcome of [Kennon's] trial."

ANALYSIS

A postconviction claimant is entitled to an evidentiary hearing if he alleges "specific facts which are not conclusively rebutted in the record and which demonstrate a deficiency in trial counsel's performance that prejudiced the outcome of his trial." Meus v. State, 968 So.2d 706, 710 (Fla. 2d DCA 2007). On review of a summarily denied claim, we must accept the claimant's "factual allegations as true to the extent that they are not refuted by the record." Id. (citing Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) ).

"If potential witnesses-available to testify at trial-may have been able to cast doubt on the defendant's guilt, the failure to investigate and call them at trial can constitute ineffective assistance of counsel." Id. at 712. "The credibility and weight to be given to" such testimony is a jury issue. Id. The fact that there may have been some evidence that tended to support a guilty verdict was not a sufficient reason to summarily deny Kennon's claims that counsel was ineffective for failing to interview and/or call his adversary and his mother as witnesses. Indeed, the Florida Supreme Court holds that "a claim of ineffectiveness in failing to present important exculpatory evidence cannot be resolved on the basis of the mere existence of conflicting evidence in the record." Jacobs v. State, 880 So.2d 548, 555 (Fla. 2004). Similarly, "the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses." Id. "Rather, the record evidence must conclusively rebut the claim if the claim is to be resolved without a hearing." Id.

However, "[t]ypically, it will be necessary to hold an evidentiary hearing to determine why trial counsel did not call a particular witness." Terrell v. State, 9 So.3d 1284, 1288-89 (Fla. 4th DCA 2009). Indeed, "a State response must be ordered and considered before determining if a hearing is required unless the record demonstrates a reasonable explanation or otherwise conclusively refutes the claim." Jacobs, 880 So.2d at 555. Here, the record does not conclusively refute Kennon's first and second claims.

According to Kennon, his adversary was available to testify and his testimony would have provided an explanation for the presence of Kennon's blood near the crime scene. Such testimony was exculpatory in nature. Aside from the blood evidence-which was the very evidence for which Kennon claimed to have an explanation-the postconviction court cited to evidence that only circumstantially linked Kennon to the crime. And some of that evidence, such as the testimony regarding Kennon's alleged gunshot wound, did not clearly link Kennon to the crime because there was no definitive testimony as to when the injury occurred. The testimony that Kennon's adversary could have provided may have cast doubt on Kennon's guilt. Thus, the postconviction court erred by summarily denying the first claim. See Jacobs, 880 So.2d at 555.

Regarding Kennon's second claim, the postconviction court determined that the forensic evidence was compelling enough to secure a jury verdict, but again, the fact that there exists some evidence of guilt is generally insufficient to rebut a claim of ineffectiveness for failure to present an alibi witness. See Jacobs, 880 So.2d at 555 ; McCullough v. State, 247 So.3d 6, 7 (Fla. 4th DCA 2018). In order to summarily deny such a claim, "the record evidence must conclusively rebut the claim." Jacobs, 880 So.2d at 555. Yet here, the forensic evidence only circumstantially tied Kennon to the crime. And, like the testimony that Kennon's adversary could have provided, Kennon's mother's testimony could have cast doubt on Kennon's guilt. Thus the postconviction court erred by summarily denying the second claim. See Jacobs, 880 So.2d at 555 ; McCullough, 247 So.3d at 7.

Accordingly, because the postconviction court erred by summarily denying claims one and two of Kennon's motion, we reverse and remand that portion of the postconviction court's order with instructions for the postconviction court to either attach records conclusively refuting Kennon's claims or, in the alternative, to conduct an evidentiary hearing. All other portions of the order are affirmed.

Affirmed in part, reversed in part, and remanded.

BLACK and LUCAS, JJ., Concur.

      We note that the postconviction court referred to the armed burglary as a home invasion in its order.

      Because we are reversing only the denial of the first two claims, we need not detail the allegations of the remaining claims.

      According to the witnesses, Kennon provided different explanations for how he received the injury.

      See also McCullough v. State, 247 So.3d 6, 7 (Fla. 4th DCA 2018) (applying Jacobs and reversing where appellant alleged ineffective assistance of counsel based on counsel's failure to call his grandmother who would have testified that he was at home with her when the crimes were committed).

      The example provided by the Florida Supreme Court of a conclusive rebuttal to a claim of ineffectiveness for failure to call a witness was where the record demonstrated that the witness actually testified. Jacobs, 880 So.2d at 555.


author: Per Curiam.

text:
    Julian Lamont FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1830
    District Court of Appeal of Florida, First District.
    January 8, 2019
    Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, Kaitlin Weiss, Assistant Attorney General, for Appellee.
   Per Curiam.

On June 30, 1995, following a jury trial, Appellant was sentenced for six offenses committed while he was a juvenile. He moved for post-conviction relief as to two of his sentences contending that those sentences were unconstitutional pursuant to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

In an order filed April 5, 2016, the trial court granted Appellant post-conviction relief in part and ordered that Appellant be resentenced on count twenty-one, armed robbery with a firearm, since Appellant's life sentence without parole for a nonhomicide offense was unconstitutional pursuant to Graham . The trial court denied Appellant's motion for post-conviction relief to the extent that it challenged his life sentence for count 43, second-degree murder. The trial court ruled, consistent with then binding case law, that since the life sentence was discretionary not mandatory, Miller did not apply. See Mazer v. State , 152 So.3d 20 (Fla. 2d DCA 2014), and Mason v. State , 134 So.3d 499 (Fla. 4th DCA 2014), disapproved of by Landrum v. State, 192 So.3d 459 (Fla. 2016).

Appellant appealed the denial of his post-conviction relief as to the second-degree murder sentence. The appeal was stayed by this court while the Florida Supreme Court considered Landrum . In Landrum , the Court noted that " Miller requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence." Landrum, 192 So.3d at 465( quoting Montgomery v. Louisiana, --- U.S. ----, 136 S.Ct. 718, 735, 193 L.Ed.2d 599 (2016) ). The Court in Landrum therefore reversed a discretionary sentence of life without possibility of parole following a conviction for second-degree murder.

As the State appropriately acknowledges, the holding in Landrum applies to Appellant's sentence for second-degree murder, and he is entitled to be resentenced. We therefore reverse and remand for resentencing pursuant to Landrum .

REVERSED and REMANDED .

Rowe, Bilbrey, and Winsor, JJ., concur.

      During the pendency of the instant appeal, the trial court purported to grant on the authority of Landrum Appellant's motion to correct sentencing error filed pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure. However, we have previously held that rule 3.800(b)"was designed for use only in a direct appeal from the sentence at issue." Cooper v. State, 919 So.2d 516, 519 (Fla. 1st DCA 2005).


text:
    Andrew ZIMZORES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1101
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 8, 2019
    Jonathan Edwin Mills, Orlando, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFRIMED. See Patterson v. State , 188 So.3d 913 (Fla. 5th DCA 2016).

EVANDER, C.J., and EDWARDS and HARRIS, JJ., concur.


text:
    Henry J. LAGI, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4447
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Henry J Lagi, pro se, Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of orders denying his motions to dismiss. The orders on appeal are not within the scope of Florida Rule of Appellate Procedure 9.140(b), which lists the types of orders a criminal defendant may appeal. Interlocutory orders are not generally appealable by criminal defendants. Cf. Hijuelos v. State , 73 So.3d 364, 365 (Fla. 1st DCA 2011) (noting "a defendant in a criminal proceeding may not bring a separate appeal, which is independent of the plenary appeal from the judgment and sentence, for review of an order denying a motion to suppress"). Accordingly, the appeal is dismissed for lack of jurisdiction.

Wetherell, Osterhaus, and Winsor, JJ., concur.


text:
    Patrice KERR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4005
    District Court of Appeal of Florida, First District.
    January 14, 2019
    Patrice Kerr, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    A.B. M-T O/B/O A.M.-T., a Child, Appellant, v. J.C.V., Father of A.M.-T., a Child, Appellee.
    Case No. 5D18-3246
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 16, 2019
    Joseph R. Lackey, of the Law Firm of Joseph R. Lackey, L.L.C., Miami, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See In re K.B.L.V. , 176 So.3d 297 (Fla. 3d DCA 2015).

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: CLARK, J., would grant.

text:
    Alecia CELESTINE v. BOYD GAMING CORP. et al.
    NO. 2018-CC-1609
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE 27TH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. LANDRY
    Writ denied.
   CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.

GENOVESE,J., dissents and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

I would grant the writ of defendant, The Old Evangeline Downs, LLC, reverse the district court's ruling on the motion to strike, and remand for a hearing on the motion for summary judgment without consideration of the untimely opposition and affidavit. See La. Code Civ. P. art. 966(B)(2) ; Newsome v. Homer Memorial Medical Center , 10-0564 (La. 4/9/10), 32 So.3d 800 ; Buggage v. Volks Constructors , 06-0175 (La. 5/5/06), 928 So.2d 536

GENOVESE, J., dissents and assigns the following reasons:

Subsequent to defendant's filing of its motion for summary judgment in this matter, plaintiff failed to meet the filing deadline of La.C.C.P. art. 966(B)(2), which states that "[u]nless extended by the court and agreed to by all of the parties ... any opposition shall be filed and served ... not less than fifteen days prior to the hearing on the motion" (emphasis added). The hearing on defendant's motion occurred on May 11, 2018. Plaintiff filed her opposition seven days prior to the hearing on May 4, 2018, and filed her affidavit four days prior on May 7, 2018. Defendant filed a motion to strike plaintiff's opposition as untimely, which the trial court denied. As the court and the parties did not agree to extend the filing deadline as required by La.C.C.P. art. 966(B), I find the trial court erred in denying defendant's motion to strike plaintiff's affidavit and opposition. The trial court, court of appeal, and the majority of this court disregarded the mandates of La.C.C.P. art. 966(B). The 2015 amendment to the summary judgment article, specifically La.C.C.P. art. 966(B), requires that an opposition be filed not less than fifteen days prior to the hearing on the motion. This was not done in this case. These timelines have meaning and are not mere suggestions. They are mandatory and not to be arbitrarily ignored. A disregard of any of the timelines in the summary judgment article will thwart the efficacy and core of the procedure. I strongly disagree with the majority's indifference in not holding the line on the filing requirements of the summary judgment procedure. I would reverse the trial court's ruling, grant defendants motion to strike, and remand the matter to the trial court to reconsider and rule upon defendant's motion for summary judgment without plaintiff's opposition.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Roderick WHITE
    No. 2018-KO-0379
    Supreme Court of Louisiana.
    January 14, 2019
    ON WRIT OF CERTIORARI TO THE 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
    Writ denied.
    WEIMER, J., would grant and docket and assigns reasons.
   HUGHES, J., would grant.

WEIMER, J., would grant and docket.

In this second degree murder case, the state's main witness against the defendant sustained an injury-unrelated to the murder incident-that caused the witness to suffer memory loss. At trial, the witness testified to having no memory of the incident, and no memory of making a video-recorded statement for police after the witness was interrogated as a possible accomplice following the incident. During the recorded statement, the witness, who had been accompanied during his interrogation by his father, himself a police officer, implicated the defendant for the murder and for an antecedent attempted robbery. Notwithstanding the witness' inability to meaningfully answer questions on cross-examination about the incident or the recording, the trial court allowed the jury to view the video.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Our state constitution additionally provides, under the heading of "Right to a Fair Trial," that "[a]n accused is entitled to confront and cross-examine the witnesses against him." La. Const. art. I, § 16 (emphasis added).

Commentators have opined that additional wording of the Louisiana Constitution appears to require greater protections to an accused:

With the language "confront and cross-examine," the Louisiana confrontation clause is broader than its federal counterpart and grants arguably greater protections to a criminal defendant. Consequently, the right to cross-examination should be more meaningful to defendants in criminal trials in Louisiana. However, Louisiana courts have not construed the state confrontation clause as granting more rights than the federal one.

BOBBY MARZINE HARGES AND RUSSEL L. JONES, LOUISIANA EVIDENCE, APPENDIX A, p. 417 (2018 ed.).

In a similar vein, the Co-ordinator of legal research for the Constitutional Convention of 1973 made this observation: "The section [on the Right to a Fair Trial] continues the right of an accused to confront the witnesses against him."

LEE HAR GRAVE, THE DECLARATION OF RIGHTS OF THE LOUISIANA CONSTITUTION OF 1974, 35 LA. L. REV.1, 55 (1974). That is, the previous constitution contained the right to confront witnesses. However, the present constitution "also adds language to specify that this includes cross-examination." Id .

In a case cited by the defendant, this court has previously recognized that the federal and state constitutions contain different wording regarding the confrontation rights of an accused. See State v. Robinson , 2001-0273, p. 5 (La. 5/17/02), 817 So.2d 1131, 1135. In Robinson , the court reviewed both state and federal jurisprudence regarding the right of confrontation and cross-examination, and found the trial court had improperly curtailed the defendant's questioning of a witness about the witness' alleged mental disability. Id. , 2001-0273 at 5-9, 817 So.2d at 1135-37. Our ultimate finding of a constitutional violation relied on the federal Sixth Amendment; thus, this court left for another day the question of whether the different wording of the federal and Louisiana Constitutions means that Louisiana's Constitution provides more stringent procedures. See id. , 2001-0273 at 7-8, 817 So.2d at 1136-37.

From the record presently before this court, it appears that the day has arrived where the court is squarely faced with deciding whether the Louisiana Constitution's explicit mention of the right of cross-examination is broader than its federal counterpart. Thus, I respectfully disagree with the majority's writ denial, and instead would grant and docket this case to explore, among other issues, whether the Louisiana Constitution requires greater safeguards than the Sixth Amendment.

      Although I find the constitutional issues in this case most pressing, I note that statutorily, someone who "[t]estifies to a lack of memory of the subject matter of his statement" is considered "unavailable as a witness" and certain out-of-court statements of such a witness are therefore deemed admissible. See La. C.E. art. 804(A)(3) and (B). From all that presently appears, the witness' statements here might not qualify for admissibility under the situations described in La. C.E. art. 804(B).

      By contrast, Article 1, § 9 of the Louisiana Constitution of 1921 in pertinent part described only the right to confront witnesses, and was silent on cross-examination: "The accused in every instance shall have the right to be confronted with the witnesses against him ...."


text:
    STATE of Louisiana v. Rhyeme STEVENSON
    No. 2019-KK-0009
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY AND/OR REMEDIAL WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
    Writ denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant in part for the reasons assigned by Justice Genovese.

GENOVESE, J., would grant in part and assigns reasons

GENOVESE, Justice, would grant in part and assigns reasons.

I would grant the defendant's writ in part, as I find that the Trial Court's denial of the defendant's request to call more than one witness at his bond reduction hearing impinged upon his constitutional right to present a defense and his ability to advance his arguments regarding the considerations for fixing the amount of his bail pursuant to La. C.Cr.P. art. 316. See La. C.Cr.P. art. 731. In all other aspects, I agree with this Court's denial of the writ.


text:
    Kendale SMITH v. Gary S. SEXTON, Sheriff of Webster Parish, Louisiana Also Known as Webster Parish Sheriff's Office, Deputy Carter, Deputy Sides, Deputy Couch, and Deputy Smith
    No. 2018-CC-1839
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE 26TH JUDICIAL DISTRICT COURT FOR THE PARISH OF WEBSTER
    Writ denied.
    CRICHTON, J., would grant and docket and assigns reasons.
    CRICHTON, J., would grant and docket and assigns reasons:
   I would grant and docket the writ application of Webster Parish Sheriff Gary Sexton, Danny Couch, John Sides and Sherry Bagwell pursuant to La. C.C.P. art. 966(H). In my view, it appears the trial court incorrectly found that there was a genuine issue of material fact as to the contamination of the water to which plaintiff, as a pre-trial detainee at Bayou Dorcheat Correctional Center, was provided access. Whether plaintiff's speculative allegation that the water was contaminated, without more, constitutes competent evidence to raise a "genuine issue" of material fact under La. C.C.P. art. 966(D) warrants further study. Such evidence is particularly troubling in that it is inconsistent with plaintiff's prior statements that he refused to drink the water because he did not like the taste of it.


text:
    Floyd PRYER, Sr. et al. v. OUR LADY OF THE LAKE HOSPITAL, INC., et al.
    NO. 2018-CC-1577
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
    Writ denied.
    HUGHES, J., would grant for reasons assigned by Judge Holdridge.
    CRICHTON, J., additionally concurs and assigns reasons.
    Crichton, J., additionally concurs and assigns reasons.
   I agree with the denial of this writ application. I write separately to note that, because the evidentiary issues presented here are uniquely complicated, in my view the trial court should provide the jury with specific caution on how to receive and evaluate the evidence presented.


text:
    STATE of Louisiana v. Donald Lee LEGER, Jr.
    No. 2017-KP-0416
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY
    Writ denied.
    WEIMER, J., would grant for the reasons assigned by Justice Crichton.
    CRICHTON, J., would grant and docket and assigns reasons.
    Crichton, J., would grant and docket and assigns reasons:
   I would grant and docket the State's application to answer two significant questions of law before allowing the post-conviction evidentiary hearing, which will require a substantial expenditure of time and resources, to proceed in this matter. First, this court has never squarely addressed the standard by which a claim of ineffective assistance of counsel based on counsel's failure to assert a Batson challenge during jury selection would be evaluated, or whether such a claim is even cognizable on state collateral review. Second, this court has yet to articulate a standard to determine whether the state's ability to respond to an application for post-conviction relief has been materially prejudiced by events not under the control of the State which have transpired since the date of the original conviction. See La.C.Cr.P. art. 930.8(B). Both of these issues are presented here, and I believe that in the interest of economy this court should address them before allowing post-conviction proceedings to continue.


author: PER CURIAM:

text:
    STATE of Louisiana v. Latellas Delanio MOORE
    No. 2018-KP-0130
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

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

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.

HUGHES, J., would grant to order an evidentiary hearing.

CRICHTON, J., additionally concurs and assigns reasons.

Crichton, J., additionally concurs and assigns reasons.

I agree with the denial of this application, because defendant's excessiveness claim is not cognizable on collateral review. See La. C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 (per curiam) (" La. Code Crim. Proc. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides no basis for review of claims of excessiveness or other sentencing error post-conviction."). I write separately to note, however, that though I agree the defendant has earned a substantial sentence, in my view, the sentence of 20 years hard labor as a multiple offender, where the defendant has no convictions of crimes of violence and the conviction at issue arises from marijuana charges, is excessive. As I have repeatedly stated, use of the Habitual Offender Law by prosecutors should be cautiously exercised with discretion. See , e.g. , State v. Ellison , 18-0053 (La. 10/29/18), 255 So.3d 568 (in dissent) (collecting cases). See also State v. Ladd , 14-1622 (La. 3/27/15), 164 So.3d 184 (Knoll, J., additionally concurring and Crichton, J., additionally concurring for the reasons assigned by Justice Knoll) ("In view of the defendant's non-violent criminal record and the sentencing court's imposition of twenty years without the benefit of parole, probation, or suspension of sentence under the Habitual Offender Law, this sentence on its face seems very harsh.").

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE EX REL. Gerald HATCHER v. STATE of Louisiana
    No. 2017-KH-1970
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   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 also fails to show entitlement to DNA testing. La.C.Cr.P. art. 926.1.

Relator has now fully litigated at least four applications 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. Torrell BROWN v. STATE of Louisiana
    No. 2017-KH-2112
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

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

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.

WEIMER, J., recused.


text:
    STATE EX REL. Terrance BURTON v. STATE of Louisiana
    No. 2017-KH-1915
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator is not entitled to an out-of-time appeal. See State v. Counterman , 475 So.2d 336 (La. 1985). By pleading guilty unconditionally, he waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby , 338 So.2d 584, 586 (La. 1976). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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 of Louisiana v. Okyeame WOODARD
    No. 2018-KH-1005
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   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 two applications 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.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Victor LOVE
    No. 18-KH-0072
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator's complaint about the indictment fails because the time for testing the sufficiency of an indictment or bill of information is before trial, by way of a motion to quash or a motion for a bill of particulars. State v. Thibodeaux , 98-1673, p. 18 (La. 9/8/99), 750 So.2d 916, 930 (La. 1999) (citing State v. Gainey , 376 So.2d 1240, 1243 (La. 1979) ); cf. State v. Williams , 480 So.2d 721, 722, n.1 (La. 1985) (post-verdict attacks on indictment generally fail unless the indictment did not provide fair notice of the offense charged or failed to set forth any identifiable offense).

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.


author: Hughes, J., would grant the writ.

text:
    Hubert ARVIE v. Arthur CULLIVAN
    No. 2018-CC-1871
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE 14th JUDICIAL DISTRICT COURT FOR PARISH OF CALCASIEU
    Writ denied.
    JOHNSON, C.J., would grant for the reasons assigned by Justice Hughes.
    HUGHES, J., would grant and assigns reasons.
   Hughes, J., would grant the writ.

Respectfully, the trial court denied the motion to proceed in forma pauperis without a hearing and without reasons, by merely writing "denied" on the motion.

Plaintiff is entitled to the presumption provided by La. Code Civ. P. art. 5183(B). The law is clear. It was error to deny the motion without a hearing and evidence to rebut the presumption.


text:
    STATE EX REL. Leonard Emanuel BLACKBURN v. STATE of Louisiana
    No. 17-KH-2007
    Supreme Court of Louisiana.
    January 14, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   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 three applications 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

HUGHES, J., would grant to order an evidentiary hearing.


text:
    Nathan and Sharon MITCHELL d/b/a Shapes Gym v. AARON'S, INC. and Wal-Mart Stores, Inc.
    NO. 2018-C-1882
    Supreme Court of Louisiana.
    January 18, 2019
    Writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant in part and assigns reasons.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASCENSION

GENOVESE, J., would grant in part and assigns the following reasons.

I write solely to maintain the efficacy of La.Code Civ.P. art. 934 relative to sustaining a peremptory exception. In this case, both defendants filed peremptory exceptions of res judicata, which were sustained by the trial court, affirmed on appeal, and their requests for rehearing were denied. The majority herein has voted to deny this writ. I disagree in part only to the extent of not following the mandate of La.Code Civ.P. art. 934 (emphasis added), which reads in part as follows: "When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court."

The trial court sustained defendants' exceptions of res judicata and dismissed plaintiffs' claims with prejudice; however, there was neither a determination nor ruling by the trial court as to whether "the objection pleaded by the peremptory exception may be removed by amendment of the petition...." Id. Thus, the dismissal with prejudice is premature as La.Code Civ.P. art. 934 was not followed.

Therefore, I would grant the writ in part and remand the matter to the trial court for a ruling as to whether an amendment to the petition would or could remove the objections to the petition as set forth in La.Code Civ.P. art. 934. Notwithstanding such, I would deny the writ.


text:
    STATE of Louisiana v. Dolan MCGINNIS
    No. 2019-KK-77
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
    Denied.
    HUGHES, J., would grant and assigns reasons.
   Hughes, J., would grant the writ.

La. C. Crim. Proc. article 312(F) provides that after sentence and until final judgment, bail shall be allowed if a sentence of 5 years or less is actually imposed.


text:
    STATE of Louisiana v. Darnay THIBODAUX
    No. 2017-KP-1452
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator's guilty plea waived all non-jurisdictional defects in the proceedings leading to her conviction. State v. Crosby , 338 So.2d 584, 586 (La. 1976).

Relator has now fully litigated her 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 she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kenneth P. JONES aka Kenneth Paul Jones v. STATE of Louisiana
    No. 2017-KH-1910
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DESOTO
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 of Louisiana v. Tarika WILSON
    No. 2018-KH-0037
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

Relator has now fully litigated her 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 she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Darrell HOLMES
    No. 2018-KP-1146
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he 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.


author: PER CURIAM

text:
    Carl EDGEFIELD v. AUDUBON NATURE INSTITUTE, INC., Audubon Commission and Scottsdale Insurance Company
    NO. 2018-CC-1782
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
   PER CURIAM

Granted. We find the court of appeal erred in construing relator's appeal as being limited to the September 26, 2017 judgment denying the motion for new trial. As explained by the dissenting judge in the court of appeal, the arguments in relator's appellate brief are broad enough to encompass both the September 7, 2017 final judgment granting summary judgment and dismissing relator's suit with prejudice as well as the September 26, 2017 interlocutory judgment denying the motion for new trial.

It is well settled that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. U.S. Fire & Insurance Co. v. Swann , 424 So.2d 240 (La. 1982). In the absence of any clear indication that relator intended to limit his appeal to the September 26, 2017 interlocutory judgment, we find the court of appeal erred in converting relator's timely appeal to an application for supervisory writs.

Accordingly, the September 12, 2018 judgment of the court of appeal is vacated and set aside. Relator's appeal is reinstated. The case is remanded to the court of appeal for consideration of the appeal on the merits.

      Because of our action, we pretermit any consideration of the remaining assignments of error in relator's writ application to this court, and we express no opinion on the merits.


text:
    STATE of Louisiana v. Brandon STEVENSON
    No. 2017-KP-1754
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing.

State ex rel. Stevenson v. Cain , 15-1084 (La. 9/25/15), 175 So.3d 392.


text:
    STATE EX REL. Dalduran J. BRANDON v. STATE of Louisiana
    No. 2017-KH-1906
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DESOTO
   PER CURIAM:

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

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.

Hughes, J., would grant in part and assigns reasons.

Hughes, J., would grant in part.

Relator is entitled to a hearing on his claim that his trial attorney failed to file a motion to suppress his alleged coerced confession.


text:
    STATE EX REL. Jonathan J. FOX v. STATE of Louisiana
    No. 2017-KH-1926
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he 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 several applications 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:
    STATE of Louisiana v. Jason Quinn BLACKWELL
    No. 2018-KP-0076
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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 of Louisiana v. Terry JONES
    No. 2018-KP-1225
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden of proof. La.C.Cr.P. art. 930.2 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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:
    IN RE: Gerald Joseph ASAY
    NO. 2018-B-2002
    Supreme Court of Louisiana.
    January 18, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent entered an Alford plea to one count of negligent injuring. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition, IT IS ORDERED that the Petition for Consent Discipline be accepted and that Gerald Joseph Asay, Louisiana Bar Roll number 31604, be and he hereby is suspended from the practice of law for a period of three years, retroactive to July 21, 2015, the date of his interim suspension.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    STATE of Louisiana v. Tyrone JONES
    No. 2018-KH-0070
    Supreme Court of Louisiana.
    January 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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:
    IN RE: Bernadette Lockett THOMAS
    NO. 2019-OB-0002
    Supreme Court of Louisiana.
    January 16, 2019
    ORDER
   Considering the Petition for Transfer to Disability Inactive Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Bernadette Lockett Thomas, Louisiana Bar Roll number 2145, be and she hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

IT IS FURTHER ORDERED that the motion to seal filed by respondent be denied as moot. Pursuant to Supreme Court Rule XIX, § 16(C), "[p]roceedings for transfer to or from disability inactive status are confidential."


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY COUNSEL NO. 2018-INT-1244
    NO. 2018-OB-1935
    Supreme Court of Louisiana.
    January 14, 2019
    Granted for the sole purpose of transferring the matter to the Office of the Disciplinary Counsel for review by the Chief Disciplinary Counsel, See Supreme Court Rule XIX, § 11(A).


text:
    STATE EX REL. Thomas WILLIAMS v. STATE of Louisiana
    NO. 2017-KH-1310
    Supreme Court of Louisiana.
    January 14, 2019
    Not considered. See La.S.Ct.R. IX § 6.
    WEIMER, J, recused.


text:
    Carey DORSEY v. PROTEMP STAFFING SOLUTIONS INC.
    NO. 2018-C-1378
    Supreme Court of Louisiana.
    January 14, 2019
    Not considered. See La.S.Ct.R. IX § 6.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Albert COX
    NO. 2018-KO-0455
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE EX REL. Fard A. DICKERSON v. STATE of Louisiana
    NO. 2017-KH-1239
    Supreme Court of Louisiana.
    January 14, 2019
    Reconsideration denied.


text:
    STATE EX REL. Nathaniel PAYTON v. STATE of Louisiana
    NO. 2017-KH-1893
    Supreme Court of Louisiana.
    January 14, 2019
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Payton v. State, 15-1538 (La. 9/16/16), 201 So.3d 243.


text:
    STATE of Louisiana v. Adam COMEAUX
    NO. 2018-KO-0428
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    STATE of Louisiana v. Ronald OLIVIER
    NO. 2018-KO-0492
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    IN RE: Leonard E. YOKUM, Jr.
    NO. 2018-OB-1809
    Supreme Court of Louisiana.
    January 14, 2019
    Petition for reinstatement denied. Petitioner may not reapply for reinstatement until at least two years have passed from the date of this judgment. Supreme Court Rule XIX, Section 24(I).


text:
    Gerard BELL, et al. v. MARATHON PIPELINE, LLC, Shell Pipeline
    No. 2018-C-1366
    Supreme Court of Louisiana.
    January 14, 2019
    Not considered. See La.S.Ct.R. IX § 6.


author: WEIMER, J., would grant rehearing.

text:
    STATE of Louisiana v. Christopher ALEXANDER
    NO. 2018-KK-1772
    Supreme Court of Louisiana.
    January 14, 2019
    Rehearing denied.
   WEIMER, J., would grant rehearing.

GUIDRY, J., would grant rehearing.

CLARK, J., would grant rehearing.


text:
    STATE of Louisiana v. Coelious C. DYSON AKA Corlious Corall Dyson
    NO. 2017-K-1048
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: GENOVESE, J., recused.

text:
    STATE EX REL. Aaron Orlando RICHARDS v. STATE of Louisiana
    NO. 2017-KH-2016
    Supreme Court of Louisiana.
    January 14, 2019
    Reconsideration granted; relief denied.
    HUGHES, J., would grant reconsideration and grant relief.
   GENOVESE, J., recused.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Robert IOVENITI
    NO. 2018-K-0329
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Carlton BROOKS
    NO. 2018-KO-0705
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   CRICHTON, J., recused.


text:
    Gustave J. LABARRE, Jr., et al. v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2018-CC-1796
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    Gustave J. LABARRE, Jr., Ramona H. Talbot, Howard J. Dupre, III, Gail D. Boudreaux, Floyd A. Labarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes, Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. LeBlanc, Jr., Pierre F. V. Delabarre, IV, Mary G. Delabarre, Katherine D. Labarre, Andre P. V. Delabarre, Gilbert J. Dupre, Jr., Grant J. Dupre, Grantlyn D. Wheeler, Elena R. LeBlanc, Helen H. Shaw, Anita H. Williams, Gertrude L. Landry, Lydia L. Shavers, Merrill L. Cornay, Harry J. Simoneaux, Sr., Harry J. Simoneaux, Jr., Amy Simoneaux, Lyle T. Simoneaux, Joie A. Simoneaux, Simone S. Lawson, Christopher A. Simoneaux, Gregory J. Dupre, Augusta L. Riffert, Albert H. LeBlanc, Jr., Maria Carmen Delabarre, Lizarraga Enterprises, LLC v. TEXAS BRINE COMPANY, LLC and Georgia Gulf Chemical & Vinyls, LLC
    NO. 2018-CC-1854
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    KHOOBEHI PROPERTIES, L.L.C. v. KAILAS FAMILY LIMITED PARTNERSHIP, Kailas Properties, L.L.C., Chandra Mohan Kailas, Praveen Kailas, Naveen Kailas, and Denise Gaines
    NO. 2018-CC-1862
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   GUIDRY, J., recused.


text:
    CAJUNS FOR CLEAN WATER, LLC, et al. v. CECELIA WATER CORPORATION D/B/A Cecilia Water Corporation, et al.
    NO. 2018-01789
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   GENOVESE, J., recused.


text:
    Tonyel SINGLETON v. UNITED SERVICES AUTOMOBILE ASSOCIATION
    NO. 2018-C-1814
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., recused.


text:
    CAMBRIE CELESTE, LLC v. F.I.N.S. CONSTRUCTION, LLC, et al.
    Cambrie Celeste, LLC v. F.I.N.S. Construction, LLC, et al.
    NO. 2018-CC-1863
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: GUIDRY, J., would grant.

text:
    Towanda M. SAVOY v. The STANDARD FIRE INS. CO., et al.
    NO. 2018-CC-1805
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   GUIDRY, J., would grant.

CRICHTON, J., would grant.


text:
    Alfred MORAN v. DEPARTMENT OF POLICE
    NO. 2018-C-1818
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant.


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

text:
    Courtney QUEEN v. WOMAN'S HOSPITAL FOUNDATION
    NO. 2018-C-1822
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Ryad Ym SYOUF
    NO. 2018-KK-1842
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Donald Lee LEGER, Jr. v. Darrel VANNOY, Warden, Louisiana State Penitentiary, Angola, Louisiana
    NO. 2018-KP-0695
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
    WEIMER, J., would vacate recusal and remand.
    GENOVESE, J., would vacate recusal and remand.


text:
    STATE of Louisiana v. Billy Ray HARRIS
    NO. 2018-KO-0902
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    STATE of Louisiana v. Anthony AYROW
    NO. 2018-KH-1904
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Warkaneski Brandon SCOTT
    NO. 2018-KO-1031
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   WEIMER, J., recused.


text:
    FLORIDA GAS TRANSMISSION CO., et al. v. TEXAS BRINE COMPANY, L.L.C., et al.
    NO. 2018-CC-1858
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    Ann Coffey BEAN v. Jonathan S. BEAN, et al.
    Succession of Theo B. Bean, Jr.
    NO. 2018-CC-1689
    Supreme Court of Louisiana.
    Supreme Court of Louisiana January 14, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Janie R. EMERY and James S. Emery v. OUR LADY OF THE LAKE HOSPITAL, INC. D/B/A Our Lady of the Lake Regional Medical Center, Dwayne Anderson, M.D., Radiology Associates, L.L.C., April Adler, R.N., Kellie Schneller, R.N., Cheryl Small, R.N. and Paula N. Vaughn, R.N.
    NO. 2018-CC-1853
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    FLORDIA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, L.L.C.
    NO. 2018-CC-1859
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    RAIN CII CARBON LLC v. WESTPORT INSURANCE CORPORATION, Certain Underwriters at Lloyd's of London, London, Infrassure Ltd., Aspen Specialty Insurance Company, Great Lakes Reinsurance (UK) PLC, Steadfast Insurance Company and XL Insurance America, Inc.
    NO. 2018-CC-1780
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.


text:
    STATE of Louisiana, THROUGH ORLEANS PARISH CRIMINAL DISTRICT COURT, Clerk of Court, Arthur Morrell v. CITY OF NEW ORLEANS, THROUGH the CITY COUNCIL
    NO. 2018-CC-1785
    Supreme Court of Louisiana.
    January 14, 2019
    Denied.