text:
    Steven Earl KIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-0204
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Steven Earl Kimmons appeals the final judgment entered December 15, 2015, finding him in violation of probation, revoking his probation, and sentencing him to five years' imprisonment. He also appeals the separate order of revocation of probation, entered on the same date. We affirm the orders to the extent that they find Kimmons violated his probation, and we affirm the revocation of his probation. We remand for the trial court to strike its findings that Kimmons committed all the violations charged in the second amended affidavit of violation of probation and to resentence Kimmons based on only the violations properly found by the court.

While Kimmons was on probation for the offense of grand theft of an automobile he allegedly violated his probation. In paragraphs I. through V. of the second amended violation of probation affidavit, Kimmons was alleged to have failed to report to his probation officer, changed his residence without consent of his probation officer, failed to comply with instructions of his probation officer, failed to pay court costs, and used alcohol or illegal drugs. In paragraphs VI. through X. of the second amended violation of probation affidavit, Kimmons was alleged to have failed to live and remain at liberty without violating any law by committing sexual assault on a victim over twelve with special conditions and by committing four counts of sexual battery upon a mentally defective victim. See § 794.011(4) & (5), Fla. Stat. (2014).

Kimmons was ultimately tried by a jury on three counts of sexual battery. See § 794.011(5)(b), Fla. Stat. (2014). These three counts all concerned the same incidents alleged in the second amended violation of probation affidavit. Kimmons was convicted by the jury of one count. We affirmed his conviction and sentence on appeal. See Kimmons v. State , 2019 WL 994537 (Fla. 1st DCA Mar. 1, 2019). At the sentencing hearing for the new offense, the trial court considered the violation of probation allegations and found that Kimmons "did those things of which he was accused" and thus violated his probation.

The State never presented any evidence to support, and the trial court made no findings regarding, the allegations in paragraphs I. through V. referenced in the order of revocation of probation. Additionally, Kimmons never admitted to violating probation. Kimmons argues on appeal error in the revocation order finding ten violations as grounds for the revocation, when only paragraphs VI. through X. in the second amended affidavit of violation of probation concerned the new law violation. Kimmons also argues that paragraphs VI. through X. referred to in the separate order revoking probation were not the offenses upon which the State proceeded to trial in the new criminal prosecution.

The parties agree that the errors asserted here were unpreserved for appellate review. Accordingly, ordinary error is not enough, and reversal requires a showing of fundamental error. "[R]evoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error." Odom v. State , 15 So.3d 672, 678 (Fla. 1st DCA 2009). However, "[p]robation is properly revoked where a probationer is convicted of a necessarily lesser-included offense of the crime identified in the violation of probation affidavit." McCloud v. State , 249 So.3d 739, 741 (Fla. 1st DCA 2018).

In this case, violations VI. through X. as alleged in the second amended violation of probation affidavit stem from the new criminal charges. Prior to trial of the new charges, the State amended its Information to charge three counts of an offense which constitutes a necessary lesser-included offense of the original charges. See Fla. Std. Jury Instr. (Crim.) 11.3. Kimmons was convicted of one of these necessary lesser-included counts. Accordingly, no fundamental error is demonstrated in the final judgment revoking Kimmons' probation for committing a new law violation, and the judgment is affirmed to the extent that it revokes probation.

However, we remand this case for correction of the separate order of revocation of probation which specified ten grounds upon which the revocation was based including five new law charges. To the extent that order of revocation of probation lists grounds not proved by the State, the trial court is instructed to enter a corrected order striking the unproven violations and reflecting only the actual grounds it found proved by the State and upon which the revocation is based. Odom , 15 So.3d at 678.

The record is clear based on the court's statement at the sentencing hearing that the trial court would have revoked Mr. Kimmons' probation based solely on his conviction of the new offense. However, it is not clear from the record whether the court would have imposed the same five-year sentence based only upon the new law violation. See Williams v. State , 165 So.3d 870 (Fla. 1st DCA 2015). Accordingly, upon remand, the trial court shall also determine whether it would have entered the same sentence upon the violations found by the court, and if not, conduct further proceedings accordingly.

AFFIRMED in part, REVERSED in part, and REMANDED .

Rowe and Kelsey, JJ., concur.

      This should have read sexual battery rather than sexual assault since there is no crime by that name under Florida law. But this misnomer is not argued here, and even if had been argued, would be immaterial in this case. See Smith v. State , 44 Fla. L. Weekly D559, --- So.3d ----, 2019 WL 942980 (Fla. 1st DCA Feb. 27, 2019).

      Condition 5 of the order of probation required Kimmons to "live without violating any law." This Condition specified that "[a] conviction in a court of law is not necessary for such a violation of law to constitute a violation of your probation, community control, or any other form of court ordered supervision."

      Even though the jury returned a not guilty verdict on two of the offenses, the trial court may have intended to find Kimmons violated his probation by committing all three of the offenses tried by the jury. If this was the trial court's intention, it would have been permissible since the burden of proof on a violation of probation is based on the greater weight of the evidence as opposed to proof beyond a reasonable doubt. See Stallworth v. State , 21 So.3d 84 (Fla. 1st DCA 2009) ; Morris v. State , 727 So.2d 975 (Fla. 5th DCA 1999).


source: Caselaw Access Project

author: Winsor, J.

license: Public Domain

text:
    Eddie L. HESTER Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1209
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Eddie L. Hester Jr., pro se, Appellant.
    Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Eddie Hester Jr. was convicted of several crimes, all stemming from two Walmart robberies. A jury found him guilty of armed robbery, false imprisonment, kidnapping with a firearm, and-in a separate case-another count of armed robbery. The court sentenced him to consecutive terms based on the 10/20/Life law. See § 775.087, Fla. Stat. Hester appealed in both cases, and this court affirmed without opinion in both cases. See Hester v. State , 136 So.3d 596 (Fla. 1st DCA 2014) (table).

Hester later filed a rule 3.800(a) motion, contending that consecutive minimum-mandatory sentences for certain of the counts were illegal because the offenses arose from a single criminal episode in which he did not fire a gun. See Williams v. State , 186 So.3d 989, 993 (Fla. 2016) (limiting availability of consecutive sentences under 10/20/Life statute). As Hester noted in his motion, the trial court imposed consecutive sentences based on this court's Walton v. State decision, 106 So.3d 522 (Fla. 1st DCA 2013) ( Walton I ), which the Florida Supreme Court later rejected, Walton v. State , 208 So.3d 60 (Fla. 2016) ( Walton II ). Hester was sentenced after Walton I but before Walton II , so the sentence was legal at the time it was imposed. When Hester failed to appeal, the sentence became final.

The question, then, is whether Walton II , on which Hester now relies, applies retroactively. In Osei v. State , this court held that Williams v. State did not apply retroactively because it involved statutory interpretation and was not "constitutional in nature." 226 So.3d 1077, 1078 (Fla. 1st DCA 2017) (evaluating retroactivity of Williams , 186 So.3d at 989 ); see also Jimenez v. State , 810 So.2d 511, 512-13 (Fla. 2001) (finding statutory-interpretation case not retroactive because it was not "constitutional in nature"). Because it was not retroactive, the new rule was not applicable to the postconviction proceeding at issue. Cf. Smith v. State , 598 So.2d 1063, 1066 n.5 (Fla. 1992) (noting that the court had "in numerous instances distinguished collateral cases from 'pipeline' cases, i.e., those not yet final at the time the law changed, applying the change in law retrospectively only to the pipeline cases"). For the same reasons Williams was not retroactive, Walton II is not retroactive. It, like Williams , was a statutory-interpretation case. Therefore, Hester is not entitled to postconviction relief based on Walton II .

We reach this conclusion even though Hester's motion was under rule 3.800(a), which allows correction of an illegal sentence "at any time," and even though the statute's meaning has never changed. When the Florida Supreme Court interprets a statute (as it did in Walton II ), it explains not just what the statute means now, but also what the statute has always meant. Cf. Rivers v. Roadway Exp., Inc. , 511 U.S. 298, 313 n.12, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("[W]hen this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. ... [G]iven the structure of our judicial system, the [later] opinion finally decided what [the statutory provision] had always meant ...."). Thus, when Hester was sentenced, the statute already meant (for our purposes) what the Florida Supreme Court said it meant in Walton II several years later. Nonetheless, the same retroactivity analysis applies with rule 3.800(a) motions as in other postconviction proceedings. In Hughes v. State , for example, the Florida Supreme Court concluded Apprendi v. New Jersey did not apply retroactively. 901 So.2d 837, 838 (Fla. 2005) (evaluating Apprendi , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). And it did so in a case where the underlying motion was filed pursuant to rule 3.800(a). Id. Similarly, in State v. Johnson , the supreme court approved a district court decision holding Blakely v. Washington did not apply retroactively. 122 So.3d 856, 857 (Fla. 2013) (evaluating Blakely , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ); see also Johnson v. State , 18 So.3d 623, 624 (Fla. 1st DCA 2009) (noting case originated with a 3.800(a) motion). The Court explained that the lower court's contrary decision "could effectively open the floodgates for postconviction claims any time a court interprets a criminal statute or comments on its own decisional law." Johnson , 122 So.3d at 863.

More recently, this court has explained that "Rule 3.800(a) does not provide a substitute for retroactivity analysis." King v. State , 259 So.3d 317, 319 n.3 (Fla. 1st DCA 2018). Instead, "a defendant whose sentence is final before an opinion interpreting a relevant sentencing statute is issued may not receive the benefit of that opinion unless it is proved that the opinion requires retroactive application." Id. ; see also id. ("Generally, if the sentence was not illegal at the time it was imposed, the defendant is not entitled to relief under Rule 3.800(a) by virtue of a later-decided case. This is especially true where, as here, a binding opinion at the time of sentencing permitted the sentence.").

Hester's sentence was lawful when issued. The relevant change in law was not retroactive, so the trial court correctly denied Hester's 3.800(a) motion.

AFFIRMED .

Lewis and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Luis Angel RODRIGUEZ and State of Florida, Respondents.
    Case No. 5D18-3841
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Joyce L. Miller, Assistant General Counsel, of Department of Children and Families, Tavares, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee, State of Florida.
    No Appearance for Other Respondent.
   PER CURIAM.

The Department of Children and Families ("the Department") petitions this Court for certiorari review, challenging the trial court's order involuntarily committing Luis Angel Rodriguez to its care. We grant the petition.

Before Rodriguez could be brought to trial on multiple criminal offenses, a question arose as to his competency to proceed. The trial court properly ordered an evaluation pursuant to section 916.12, Florida Statutes (2018), and Florida Rule of Criminal Procedure 3.210(b). A psychologist evaluated Rodriguez and concluded that he was intellectually disabled and not competent to proceed to trial. While the evaluating psychologist recommended that Rodriguez participate in certain treatment, she specifically opined that Rodriguez was "not likely restorable to competency." After receiving the evaluating psychologist's report, the trial court rendered an order adjudicating Rodriguez incompetent to proceed to trial and committing him to the Department's care pursuant to section 916.13(1), Florida Statutes (2018).

The trial court erred in involuntarily committing Rodriguez under section 916.13(1) because requirements for such a commitment include the existence of "a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c), Fla. Stat. (2018) (emphasis added). Because the evaluating psychologist opined that Rodriguez was not likely restorable to competency, he could not be committed under section 916.13(1). See Dep't of Child. & Fams. v. Gilliland , 947 So.2d 1262, 1262-63 (Fla. 5th DCA 2007) (citing Oren v. Judd , 940 So.2d 1271, 1274 (Fla. 2d DCA 2006) ) (quashing order of continued commitment under section 916.13(1)(c) where uncontradicted testimony established little or no probability respondent would become competent in future).

We grant the Department's petition for writ of certiorari, quash the order of involuntary commitment below, and remand for further proceedings.

PETITION FOR CERTIORARI GRANTED; ORDER QUASHED; and REMANDED.

COHEN, BERGER, and SASSO, JJ., concur.


author: SASSO, J.

text:
    Jarrod L. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-213
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Marcia Jean Silvers, of Marcia J. Silvers, P.A., Miami, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   SASSO, J.

Appellant, Jarrod L. Taylor, challenges the judgments and sentences entered upon his convictions of one count of unlawful possession of materials depicting sexual performance by a child (ten or more images) and fifty-five counts of unlawful possession of materials depicting sexual performance by a child. We affirm in all respects and write to address Taylor's argument that his convictions and sentences violate the prohibition against double jeopardy.

The facts relevant to Taylor's double jeopardy argument are straightforward. Taylor was arrested and charged with multiple counts of possession of child pornography. Each count of the information listed a unique file name corresponding to one of the unique images giving rise to the charges. The jury convicted Taylor, as charged, of count one - unlawful possession of materials depicting sexual performance by a child (ten or more images), contrary to section 775.0847(2) and (3)(a), Florida Statutes (2014), a second-degree felony. The jury also convicted Taylor, as charged, of counts three through twenty-one and twenty-three through fifty-eight-unlawful possession of materials depicting sexual performance by a child, contrary to section 827.071(5), Florida Statutes (2014), third-degree felonies. Like the information, each count of the verdict form listed a unique file name. The court sentenced Taylor on each count to a concurrent prison term of 228.75 months.

Taylor argues that all of his convictions must be reversed because his conviction of count one was predicated on possession of the images charged as counts three through fifty-eight. He contends that permitting the State to utilize other charged offenses to prove count one subjected him to multiple convictions and punishments for the same criminal conduct contrary to the prohibition against double jeopardy. Whether double jeopardy is violated based on undisputed facts is a question of law subject to a de novo standard of review. Armas v. State , 250 So.3d 817, 819 (Fla. 5th DCA 2018).

Both the federal and state constitutions protect an accused from being "twice put in jeopardy" for "the same offense." See Amend. V, U.S. Const. ("No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ...."); Art. I, § 9, Fla. Const. ("No person shall ... be twice put in jeopardy for the same offense ...."). Even so, "there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments." Valdes v. State , 3 So.3d 1067, 1069 (Fla. 2009) (citation omitted).

As both the United States Supreme Court and the Florida Supreme Court have observed, "the role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act." Hayes v. State , 803 So.2d 695, 699 (Fla. 2001) (citing Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ). When the Florida Legislature provides clear direction as to whether a person may be separately convicted or sentenced for offenses arising from the same criminal transaction, the specific legislative directive controls. See, e.g. , State v. Meshell , 2 So.3d 132 (Fla. 2009) (recognizing legislative intent that distinct acts constituting certain sexual offenses may provide basis for separate convictions and sentences even when committed within single criminal episode). Accordingly, in analyzing Taylor's claim, we must first determine whether the Legislature intended to authorize separate punishments.

Our first (and often only) step in determining what the Legislature intended is to ask what the Legislature actually said in the text of the statute. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 313 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part). To that end, section 827.071(5)(a), Florida Statutes (2014), makes it unlawful for any person "to knowingly possess, control, or intentionally view [an] ... image ... he or she knows to include any sexual conduct by a child." That section expressly states that the possession of "each such ... image ... is a separate offense " and provides that a violation constitutes a third-degree felony. § 827.071(5)(a), Fla. Stat. (2014) (emphasis added). Section 775.0847(2), Florida Statutes (2014), provides:

(2) A violation of s. 827.071, s. 847.0135, s. 847.0137, or s. 847.0138shall be reclassified to the next higher degree as provided in subsection (3) if:
(a) The offender possesses 10 or more images of any form of child pornography regardless of content; and
(b) The content of at least one image contains one or more of the following:
1. A child who is younger than the age of 5.
2. Sadomasochistic abuse involving a child.
3. Sexual battery involving a child.
4. Sexual bestiality involving a child.
5. Any movie involving a child, regardless of length and regardless of whether the movie contains sound.

(Emphasis added). Consequently, the plain language of sections 775.0847(2) and 827.071(5)(a) outlines a clear legislative directive. Read together, those sections authorize a separate charge for each violation of section 827.071(5) and permit the State to reclassify each violation if the offender possesses ten or more images and the statutory criteria set forth in section 775.0847(2)(b) are satisfied. See also State v. Farnham , 752 So.2d 12, 14 (Fla. 5th DCA 2000) ("As a means of discerning legislative intent where the defendant is charged with possession of multiple articles of the same type of contraband, our courts have focused on whether the legislature used the word 'any' or the word 'a' in describing the contraband. If the word 'a' is used, the courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution ...." (citation omitted) ).

As the Second District observed in Walsh v. State , 198 So.3d 783 (Fla. 2d DCA 2016), section 775.0847 therefore does not require the State to limit the charges to one offense per ten images in order to reclassify, and the State may instead charge the possession of each image as a separate second-degree felony. Id. at 785 (noting that because section 827.071(5)(a) provides possession of each image is a separate offense, "[t]his is not double jeopardy").

Because the plain language of the relevant statutes is clear, we do not resort to an analysis of the factors in section 775.021(4), Florida Statutes, commonly referred to as the Blockburger test, as urged by Taylor. See Kelso v. State , 961 So.2d 277, 281 (Fla. 2007) (stating that if statute itself is "a 'clear statement of legislative intent' with regard to whether convictions and sentences for multiple ... offenses can result from a single criminal transaction, then resort to the analysis outlined in section 775.021(4) of the Florida Statutes... is inappropriate"); Carawan v. State , 515 So.2d 161, 167 (Fla. 1987) ("[T]he only purpose of section 775.021(4) is as an aid in determining the intent behind particular penal statutes when that intent is unclear." (superseded by statute , ch. 88-131, § 7, Laws of Fla., as recognized in Valdes , 3 So.3d at 1071 ) ). Likewise, Taylor's reliance on Gil v. State , 118 So.3d 787 (Fla. 2013), and Ramirez v. State , 113 So.3d 105 (Fla. 5th DCA 2013), is misplaced as the statutes analyzed in those cases lacked the unambiguous legislative directive present in the statutes analyzed here. See Gil , 118 So.3d at 798 (holding that dual prosecutions under section 322.34(2) and 322.34(5) are statutorily and constitutionally prohibited); Ramirez , 113 So.3d at 107 (applying Blockburger test in absence of clear legislative intent).

In sum, the Legislature specifically contemplated the type of charges Taylor received. As a result, his convictions and sentences do not violate the prohibition against double jeopardy.

AFFIRMED.

COHEN and EISNAUGLE, JJ., concur.

      Taylor was acquitted of count two and the court vacated his conviction of count twenty-two on double jeopardy grounds because it contained the same file name as count fourteen.

      See Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: Per Curiam.

text:
    Norris B. HAWKINS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D18-1258
    District Court of Appeal of Florida, First District.
    April 9, 2019
    Norris B. Hawkins, pro se, Appellant.
    Ashley Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of (1) the order dismissing his September 2017 mandamus petition challenging the lien imposed on his inmate trust account for his filing of a February 2016 mandamus petition, and (2) the order imposing a lien on his inmate trust account for his filing of the September 2017 mandamus petition. We dismiss the appeal of the first order based on Roberts v. State , 172 So.3d 478 (Fla. 1st DCA 2015), and we affirm the second order based on Ruggirello v. Jones , 202 So.3d 935 (Fla. 1st DCA 2016).

DISMISSED in part; AFFIRMED in part.

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


author: Long, Jr., Robert E., Associate Judge.

text:
    Christopher D. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3615
    District Court of Appeal of Florida, First District.
    April 9, 2019
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Long, Jr., Robert E., Associate Judge.

Christopher Powell appeals his convictions for the first-degree murder of one woman and the attempted first-degree murder of another woman, both committed on February 20, 2016. Because the evidentiary errors he asserts on appeal were unpreserved at trial, reversal is available only if Powell shows that the errors were fundamental. Williams v. State , 209 So.3d 543, 557 (Fla. 2017).

Powell contends that the trial court committed fundamental error by allowing testimony from a co-defendant regarding the events leading up to the charged incidents - that a BOLO (be on lookout) had been issued for Powell, a warrant had been issued for Powell's arrest, and that Powell "beat [his wife] up."

However, our review of the trial transcript reveals that the co-defendant's comments were isolated, passing references to explain some of Powell's actions being related by the witness. The State never mentioned these portions of the co-defendant's testimony in any argument, and, taken in context of the entire trial, these references did not become a feature of the trial. The admission of these statements was not fundamental error. See Calloway v. State , 210 So.3d 1160, 1191 (Fla. 2017) (unpreserved error "so fundamental as to require reversal 'must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' ").

Powell also argues that the trial court fundamentally erred by allowing two sheriff's deputies to testify regarding out of court statements made by the surviving victim during the investigation of the case. The surviving victim testified at trial prior to the testimony of these officers. The record shows that even if contemporaneous objections had been raised, the testimony of these officers did not improperly bolster the witness' credibility in a simple swearing match between witnesses. The surviving victim was not the only witness to Appellant's acts and the record of the entire trial demonstrates overwhelming evidence to support the jury's verdict. Any error in admitting hearsay evidence from these witnesses was harmless and, in the context of the entire trial, certainly not fundamental error. See Floyd v. State , 850 So.2d 383, 400 (Fla. 2002).

AFFIRMED .

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


author: Wetherell, J.

text:
    Janette NAZZAL, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D18-1103
    District Court of Appeal of Florida, First District.
    April 9, 2019
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Brian C. Keri, Tallahassee, for Appellee.
   Wetherell, J.

In this Whistle-blower's Act case, the trial court entered a final summary judgment in favor of the Department of Corrections because Appellant failed to establish that she made disclosures protected under the Act. We find no error in this ruling and accordingly affirm the final summary judgment.

Facts

Appellant was re-hired by the Department as a correctional probation officer in October 2013. She and her supervisor, Pamela McCoy, did not get along from the start, and Appellant claimed that Ms. McCoy created a "hostile work environment" by constantly harassing and demeaning her.

On January 7, 2014, Appellant submitted an Incident Report to Ms. McCoy's supervisor in which she identified three separate incidents in November and December 2013 in which she claimed that Ms. McCoy acted unprofessionally towards her. In the first incident, Ms. McCoy refused to approve a probation violation recommended by Appellant and "stammered away angrily" when Appellant tried to explain her recommendation. In the second incident, Ms. McCoy told Appellant to change another probation violation recommendation and got "agitated" when Appellant did not start working on it immediately. In the third incident, Ms. McCoy came into Appellant's office, "got in her face," and told her that she was cancelling Appellant's vacation because Appellant did not turn in her schedule on time, and then, on the way out of the office, Ms. McCoy turned off the lights leaving Appellant in the dark. The Incident Report also included a conclusory assertion that Appellant "has been subjected to disparate treatment which is in direct violation of the 1964 civil rights act[ ]."

Ms. McCoy also submitted an Incident Report to her supervisor documenting her interactions with Appellant. The report, which predated the Incident Report submitted by Appellant, discussed the three incidents documented by Appellant, as well as several other incidents in which Ms. McCoy had to speak to Appellant about her work product, policy violations, and complaints that Ms. McCoy received about Appellant's disrespectful and unprofessional treatment of probationers.

Appellant was fired on March 6, 2014. According to the Department official who made the decision to fire Appellant, the reasons for her firing included her "fail[ure] to complete assigned work correctly and on time" and her "lack of cooperation with her supervisor."

In December 2014, Appellant filed a complaint against the Department alleging national origin discrimination under 42 U.S.C. § 2000e, retaliation, and violation of the Whistle-blower's Act. The Department removed the case to federal court, and in March 2016, the federal court granted summary judgment in favor of the Department on the federal discrimination and retaliation claims. The court declined to exercise supplemental jurisdiction over the state Whistle-blower's Act claim and remanded that claim back to the trial court. Thereafter, the Department filed a motion for summary judgment on the Whistle-blower's Act claim and Appellant filed a response in opposition to the motion.

In February 2018, after a hearing and a review of the evidence filed in support of and in opposition to the Department's motion for summary judgment, the trial court entered a final summary judgment in favor of the Department. The court determined that (1) Appellant did not establish a prima facie case under the Whistle-blower's Act because the undisputed evidence failed to establish that she made any statutorily-protected disclosures, and (2) even if Appellant had established a prima facie case, the undisputed evidence established that the Department had legitimate reasons for firing Appellant that were not pretextual.

This appeal followed.

Analysis

We review the final summary judgment under the de novo standard of review. See Futch v. Wal-Mart Stores, Inc. , 988 So.2d 687, 690 (Fla. 1st DCA 2008). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. In determining whether material facts are in dispute, the court must view the evidence and draw all inferences in the light most favorable to the non-moving party. Id.

The Whistle-blower's Act prohibits state agencies from taking retaliatory action against employees who report violations of law or disclose information alleging certain conduct on the part of an agency, public officer, or employee. § 112.3187(4), Fla. Stat. The Act authorizes an employee who suffers an adverse employment action as a result of making a protected disclosure to file a civil action against the agency. § 112.3187(8), Fla. Stat. The Act is remedial in nature and should be given a liberal construction. Irven v. Dep't of Health & Rehab. Servs. , 790 So.2d 403, 405 (Fla. 2001)

To establish a prima facie case under the Whistle-blower's Act, the plaintiff must show that (1) prior to her termination, she made a disclosure protected by the Act; (2) she suffered an adverse employment action; and (3) some causal connection exists between the first two elements. See Dep't of Transp. v. Fla. Comm'n on Human Relations , 842 So.2d 253, 255 (Fla. 1st DCA 2003). Here, it is undisputed that the second and third elements were met; the only issue is whether Appellant made a statutorily-protected disclosure.

The Whistle-blower's Act protects disclosures of:

(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

§ 112.3187(5), Fla. Stat.

The only disclosures at issue in this case are those contained in the Incident Report submitted by Appellant in January 2014. Those disclosures-even when viewed in the light most favorable to Appellant as required-do not show that Ms. McCoy violated any law, rule, or policy. Indeed, Appellant admitted in her deposition testimony that Ms. McCoy did not violate any law, rule, or Department policy when she rejected Appellant's probation violation recommendations. Nor do the disclosures reflect any malfeasance or misfeasance, as those terms have been defined. See Irven , 790 So.2d at 407 n.3 ("Misfeasance is defined as the 'improper doing of an act which a person might lawfully do; and 'malfeasance' is the doing of an act which a person ought not to do at all.") (quoting Black's Law Dictionary 1000 (6th ed. 1990) ). Indeed, contrary to Appellant's argument in her briefs that Ms. McCoy's conduct "bordered on assault," Appellant admitted in her deposition testimony that Ms. McCoy never raised her voice or used any inappropriate language when speaking to her.

Appellant's reliance on Rosa v. Department of Children and Families , 915 So.2d 210 (Fla. 1st DCA 2005), is misplaced. That case does not, as Appellant argues in her briefs, stand for the broad proposition that any letter to a supervisor complaining about personal conflicts with another employee or the allocation of duties and responsibilities within the agency is sufficient to create a triable issue of misfeasance. Rather, the opinion merely held that the specific letter in that case was susceptible to raising a claim of misfeasance because it described an "another [agency] employee acting negligently." Id. at 212. Here, by contrast, the Incident Report submitted by Appellant did not allege any negligent acts by Ms. McCoy (or any other Department employee) and merely expressed Appellant's displeasure with Ms. McCoy's management style and interpersonal skills.

Finally, we have not overlooked Appellant's argument that her statement in the Incident Report that she was "subjected to disparate treatment which is in direct violation of the 1964 civil rights act[ ]" was a statutorily-protected disclosure. We reject this argument because Appellant did not elaborate on how (or by whom) she was treated disparately or how any such disparate treatment was based on a protected characteristic such as her national origin. Appellant did not mention her national origin in the Incident Report, and seemingly in conflict with her claim of disparate treatment, she asserted that she "is also aware of other [unprofessional] encounters with other officers that [Ms.] McCoy has had trouble with in the past." Accordingly, under these circumstances, the single conclusory statement in the Incident Report about "disparate treatment" was not sufficient to qualify as a protected disclosure. See Stanton v. Fla. Dep't of Health , 129 So.3d 1083, 1084 (Fla. 1st DCA 2013) ; Caldwell v. Fla. Dep't of Elder Affairs , 121 So.3d 1062, 1064 (Fla. 1st DCA 2013).

Conclusion

In sum, because the undisputed evidence failed to establish that Appellant made a disclosure protected under the Whistle-blower's Act, the trial court properly entered summary judgment in favor of the Department. Accordingly, we affirm the final summary judgment.

AFFIRMED .

Lewis and Winokur, JJ., concur.

      §§ 112.3187 - 112.31895, Fla. Stat. (2013).

      Appellant previously worked for the Department from October 2003 to March 2013.

      Based on this conclusion, we need not address the trial court's alternative determination that summary judgment in favor of the Department was also warranted because the undisputed evidence showed that the Department's reasons for firing Appellant were legitimate and not pretextual. See § 112.3187(10), Fla Stat. ("It shall be an affirmative defense to any action brought pursuant to this section that the adverse action was predicated upon grounds other than, and would have been taken absent, the employee's ... exercise of rights protected by this section.").


author: Kuntz, J. May, J., concurring in part and dissenting in part.

text:
    James A. MACHIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2787
    District Court of Appeal of Florida, Fourth District.
    April 10, 2019
    ON MOTION FOR REHEARING EN BANC
   Kuntz, J.

The State of Florida moves for rehearing and rehearing en banc. We grant the motion for rehearing en banc on the narrow issue of the proper disposition of an appeal when this Court determines the circuit court failed to hold a competency hearing or enter an order adjudicating competency after previously finding reasonable grounds to question the defendant's competency. On that issue, we are bound to conclude that the proper disposition is to remand the case for further proceedings. See Fowler v. State , 255 So.2d 513, 515 (Fla. 1971).

As the panel opinion explained, before trial, Machin moved for the appointment of an expert to examine him for competency to proceed. See Fla. R. Crim. P. 3.210(b). The circuit court granted the motion and appointed an expert who then recommended the court find Machin competent to proceed. But the record does not include a transcript of an evidentiary hearing or a written order finding Machin competent to proceed. The panel held the court erred when it failed to find Machin competent to proceed after previously questioning his competence. The panel vacated the court's judgment and remanded the case for the court to determine whether it could conduct a nunc pro tunc competency evaluation. If so, the panel instructed the circuit court to do so and reinstate the judgment. If a nunc pro tunc competency evaluation could not be completed, the panel instructed the court to adjudicate Machin's current competency and, if found competent, proceed to a new trial. Based on these remand instructions, the panel vacated and remanded Machin's conviction and sentence.

The State now moves for rehearing en banc, arguing the panel prematurely vacated the conviction and, in so doing, conflicted with Dortch v. State , 242 So.3d 431, 433 (Fla. 4th DCA 2018) (en banc), review granted , No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018). In Dortch , the en banc Court provided similar instructions but reversed the conviction and sentence as opposed to vacating it. 242 So.3d at 433. The State also cites other cases in which this Court simply remanded the case, neither vacating the conviction nor reversing it. See, e.g. , Charles v. State , 246 So.3d 436, 437-38 (Fla. 4th DCA 2018) ; Ramsay v. State , 259 So.3d 132, 133 (Fla. 4th DCA 2018) ; Pollard v. State , 254 So.3d 984, 986 (Fla. 4th DCA 2018).

We agree that the disposition in the panel opinion is inconsistent with the cases cited by the State and, particularly, the Court's recent en banc opinion in Dortch . We also believe the disposition language in Dortch is inconsistent with controlling authority from the Florida Supreme Court. See Fowler , 255 So.2d at 515-16.

In Fowler , the Florida Supreme Court held that the circuit court erred when it failed to hold a hearing before determining the defendant's competency. Id . at 515. But that conclusion did "not require vacation of the judgment and sentence entered against defendant at this time." Id . (citing Knight v. State , 164 So.2d 229 (Fla. 3d DCA 1964) ; United States v. Walker , 301 F.2d 211 (6th Cir. 1962) ). Instead, the Florida Supreme Court remanded the case to the circuit court to determine whether it could make a nunc pro tunc competency determination. Id . If not, the circuit court was directed to vacate the conviction. Id . If so, the circuit court was directed to make the nunc pro tunc competency determination and return the case to the Florida Supreme Court. Id .

The Florida Supreme Court itself has not strictly adhered to Fowler 's holding. See, e.g., Tingle v. State , 536 So.2d 202, 204 (Fla. 1988) ("Therefore, because Tingle was entitled to a hearing on his competency to stand trial, we vacate the conviction and sentence and remand for retrial after it has been determined that he is competent to stand trial." (footnote omitted) ); Hill v. State , 473 So.2d 1253, 1254 (Fla. 1985) ("For the reasons expressed, we find that principles of law enunciated by the United States Supreme Court require us to vacate Hill's conviction and sentence and remand with directions for the trial court to conduct a hearing on the issue of Hill's competency to stand trial and, if Hill is found competent, to proceed with a new trial."); Scott v. State , 420 So.2d 595, 598 (Fla. 1982) ("[T]his Court believes that a new hearing is required to ascertain appellant's present competency to stand trial. Accordingly, the conviction and sentence are vacated. Upon his being found competent to stand trial, appellant may be retried."); Lane v. State , 388 So.2d 1022, 1029 (Fla. 1980) ("For the reasons expressed in this opinion, we vacate the judgment and sentence.").

And while we initially adhered to Fowler , our recent decisions have, at best, inconsistently done so.

In some cases, we remanded with instructions, as Fowler instructs us to do. See, e.g. , Ramsay v. State , 259 So.3d 132, 133 (Fla. 4th DCA 2018) ; Pollard v. State , 254 So.3d 984, 986 (Fla. 4th DCA 2018) ; Williams v. State , 219 So.3d 895, 896 (Fla. 4th DCA 2017) ; Parks v. State , 290 So.2d 562, 564 (Fla. 4th DCA 1974) ; see also Burney v. State , 247 So.3d 650, 652 (Fla. 5th DCA 2018).

But in other cases, we have followed the more recent decisions from the Florida Supreme Court and vacated and remanded the defendant's conviction and sentence. See, e.g. , D.B. v. State , 222 So.3d 627, 628-29 (Fla. 4th DCA 2017) ; Hawks v. State , 226 So.3d 892, 895 (Fla. 4th DCA 2017) ; Silver v. State , 193 So.3d 991, 992 (Fla. 4th DCA 2016) ; Johnson v. State , 756 So.2d 215, 215 (Fla. 4th DCA 2000).

In another group of cases, we "reversed and remanded" the defendant's conviction and sentence. See, e.g. , Charles v. State , 246 So.3d 436, 438 (Fla. 4th DCA 2018) ; Hernandez v. State , 246 So.3d 443, 445 (Fla. 4th DCA 2018) ; Pollock v. State , 246 So.3d 435, 436 (Fla. 4th DCA 2018) ; Dortch v. State , 242 So.3d 431, 433 (Fla. 4th DCA 2018) (en banc); Raithel v. State , 226 So.3d 1028, 1032 (Fla. 4th DCA 2017) ; Jackson v. State , 810 So.2d 545, 547 (Fla. 4th DCA 2002) ; see also Culbreath v. State , 903 So.2d 338, 340 (Fla. 2d DCA 2005).

Finally, the Second District has taken a fourth approach, but one similar to Fowler . See, e.g. , Moulton v. State , 230 So.3d 934, 938-39 (Fla. 2d DCA 2017). The Second District cited Fowler and relinquished jurisdiction to the circuit court to hold a competency hearing, id. at 939, which closely resembles the procedure in Fowler .

These varied approaches achieve a similar result. In each, the circuit court is required to determine whether it can make a nunc pro tunc competency determination. But that is exactly what was at issue in Fowler , 255 So.2d at 515-16, and the Florida Supreme Court does not reverse itself sub silentio, Puryear v. State , 810 So.2d 901, 905 (Fla. 2002) ("We take this opportunity to expressly state that this Court does not intentionally overrule itself sub silentio.").

As a result, we are bound to apply Fowler . In cases where the circuit court finds reasonable grounds to question a defendant's competency and does not subsequently hold a hearing or make a written finding of competency, see Fla. R. Crim. P. 3.210(b), we will temporarily remand the case to the circuit court with specific instructions. We will direct that within sixty days, the circuit court shall hold a hearing and issue an order determining whether a nunc pro tunc competency evaluation is possible. There are multiple potential paths on remand:

1) If the circuit court determines a nunc pro tunc competency determination is not possible, the court must vacate the defendant's conviction and sentence. The appeal in this Court will be dismissed as moot. In this circumstance, the circuit court must hold a competency hearing, Fowler , 255 So.2d at 515-16, with two possible outcomes:
a. If the court finds the defendant is presently competent, a new trial or plea hearing must be held. Dougherty v. State , 149 So.3d 672, 679 (Fla. 2014) (quoting Mason v. State , 489 So.2d 734, 737 (Fla. 1986) ).
b. If the court finds the defendant is presently incompetent, the court must proceed in accordance with Florida Rules of Criminal Procedure 3.212 to 3.215 and other applicable law. See, e.g. , Dougherty , 149 So.3d at 677.
2) If the circuit court determines a nunc pro tunc competency determination is possible:
a. And if the court finds the defendant was competent at time of judgment, it must (1) enter an order finding the defendant competent at the time of judgment; and (2) return the record to this Court. Fowler , 255 So.2d at 515. The appeal in this Court will then proceed.
b. And if the court finds the defendant was incompetent at the time of judgment but is now competent, it must (1) vacate the defendant's conviction and sentence; and (2) hold a new trial or plea hearing. Fowler , 255 So.2d at 515-16. The appeal in this Court will be dismissed as moot.
c. And if the court finds that the defendant was incompetent at the time of judgment and remains incompetent, the court must vacate the defendant's conviction and sentence. Fowler , 255 So.2d at 516. The appeal in this Court will be dismissed as moot. The circuit court must then proceed in accordance with Florida Rules of Criminal Procedure 3.212 to 3.215 and other applicable law. See, e.g. , Dougherty , 149 So.3d at 677.

In this case, the portion of the panel decision vacating the conviction and sentence is withdrawn. The case is temporarily remanded to the circuit court. Within sixty days, the circuit court must hold a hearing and make a written determination as to whether it can make a nunc pro tunc determination of Machin's competency. Depending on the outcome, the circuit court shall proceed with one of the paths as outlined above. Any order rendered on remand relating to Machin's competency shall be filed with this Court.

Remanded for further proceedings.

Gerber, C.J., Warner, Damoorgian, Ciklin, Levine, Conner, Forst and Klingensmith, JJ., concur.

May, J., concurs in part and dissents in part with opinion, in which Gross and Taylor, JJ., concur.

May, J., concurring in part and dissenting in part.

The State's motion for rehearing and rehearing en banc has caused a great debate about the disposition language employed when a court determines the trial court erred in not complying with Florida Rule of Criminal Procedure 3.210(b). It has caused reflection on the meaning of the terms: reverse, remand, relinquish, and vacate. I completely agree with the majority that we have not been consistent in our use of the terms, and apparently without causing much trouble over the decades. I also agree that we should be consistent and that the issue should be addressed.

Where I part company with the majority is what we should do about it. In my view, if the trial court has erred, then we must reverse that decision. We then remand the case to the trial court to correct the error.

In this case, I would reverse and remand for the trial court to determine if it can decide the competency issue nunc pro tunc. If the court decides the defendant was competent, there is no need to vacate the judgment. If the court decides either that it cannot make the competency determination nunc pro tunc or that the defendant was incompetent, then the court must vacate the conviction and proceed accordingly. There simply is no reason for the trial court to vacate the conviction before the competency decision is made.

I disagree that we should simply remand the case for a specified period of time for the trial court to determine competency. This procedure keeps the case lingering in our court, puts pressure on the trial court to hurry the process, only for the outcome to potentially result in a dismissal of the appeal. We could just as easily relinquish jurisdiction for that purpose. In either event, we face the potential of motions to extend the time, the transferring of records between the courts, and a myriad of logistical problems that may arise.

If we simply reverse and remand the case, the record can be returned to the trial court, which can take control of the case so that it may render its competency decision in an orderly fashion without arbitrary time frames dictated by us. This also avoids us from being immersed in a case that does not need our involvement. And, there is nothing further for us to do once we have remanded the case. This is also consistent with our direction in Dortch v. State , 242 So.3d 431, 433 (Fla. 4th DCA 2018) (en banc), review granted , No. SC18-681, 2018 WL 3635017 (Fla. July 11, 2018).

FINAL UPON RELEASE; NO MOTION FOR REHEARING WILL BE ENTERTAINED; MANDATE ISSUED SIMULTANEOUSLY WITH OPINION.

Gross and Taylor, JJ., concur.

      In another case, the Florida Supreme Court reversed the trial court's order and vacated the defendant's judgment and sentence. Jones v. State , 740 So.2d 520, 525 (Fla. 1999).

      We do not disturb the remainder of the panel opinion.


text:
    Donald E. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4963
    District Court of Appeal of Florida, First District.
    April 9, 2019
    Donald E. Thomas, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal, filed on November 14, 2018, is denied.

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


text:
    Detarsha C. BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5463
    District Court of Appeal of Florida, First District.
    April 16, 2019
    Andy Thomas, Public Defender; and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General; Kaitlin Weiss, Assistant Attorney General; and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant was convicted of aggravated assault and possession of a firearm by a convicted felon, resulting from one criminal episode involving one victim, in which three or four shots were fired. The trial court imposed consecutive minimum-mandatory sentences under section 775.087(2), Florida Statutes (10-20-Life); and Appellant challenged that aspect of his sentence on appeal. Pursuant to Walton v. State , 208 So.3d 60 (Fla. 2016), and Williams v. State , 186 So.3d 989 (Fla. 2016), we remanded for the trial court to exercise its discretion as to whether Appellant's minimum-mandatory sentences should be concurrent or consecutive. Bradley v. State , 223 So.3d 421 (Fla. 1st DCA 2017). The trial court re-entered consecutive sentences. After that hearing and while this appeal was pending, the Florida Supreme Court decided Miller v. State , 265 So.3d 457, 2018 WL 4784069 (Fla. Oct. 4, 2018). In that case, the supreme court clarified its post- Williams cases as holding that consecutive sentences are permissible for single-episode crimes only when there are either multiple victims or multiple injuries-neither of which was the case here. Miller, 265 So.3d at 459, 2018 WL 4784069 at *2. We followed that precedent in Fleming v. State , 260 So.3d 1199 (Fla. 1st DCA 2019), remanding for resentencing with concurrent minimum-mandatory sentences; and we do so again now.

REVERSED and REMANDED for resentencing.

Rowe, Osterhaus, and Kelsey, JJ., concur.


text:
    Keith Demond ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3522
    District Court of Appeal of Florida, First District.
    April 16, 2019
    Andy Thomas, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Because the jury found that the appellant committed multiple firearm offenses without discharging the firearm during a single criminal episode, the trial court erred in imposing consecutive mandatory minimum sentences. See Walton v. State , 208 So.3d 60, 64 (Fla. 2016) (quoting Williams v. State , 186 So.3d 989, 993 (Fla. 2016) ("[C]onsecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.") ). Accordingly, we reverse the appellant's sentence on count V and remand the case to the trial court for it to order the appellant's sentence on count V to run concurrently to the sentences for counts IV and VI. We reject the appellant's separate argument that he was entitled to a judgment of acquittal.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

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


text:
    STATE of Louisiana OBO T.J. and T.J., Minor Children of Tomika Clofer v. Dexter JOHNSON
    NO. 2019-CC-343
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE FORTIETH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. JOHN
    Writ denied.
    Hughes, J., additionally concurs and assigns reasons.
   If applicant is correct in his assertion that he was never served with process, any resulting judgment is an absolute nullity under La. Code Civ. P. art. 2002. As the court explained in Nunez v. Superior Hosp. Sys., Inc. , 14-668 (La. App. 5 Cir. 12/23/14), 166 So.3d 1004, 1008, such a nullity can be asserted at any time.


author: PER CURIAM:

text:
    Demario LITTLE v. Darrel VANNOY, Warden
    No. 2018-KH-0853
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant 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. Tara HUNTER
    No. 2018-KH-0566
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

Denied. Applicant shows no lower court error.

Applicant 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. Applicant'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, applicant 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 of Louisiana v. Willard HALL
    No. 2018-KH-0796
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant 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. Dale BROWN
    No. 2018-KH-0855
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Applicant 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 claim, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Guidry, Justice, recused


text:
    STATE of Louisiana v. Quincy YOUNG
    No. 2018-KH-0926
    Supreme Court of Louisiana.
    April 22, 2019
   PER CURIAM:

Denied. Applicant 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 claim, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. Treyson THEDY
    No. 2018-KH-1007
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES
   PER CURIAM:

Denied. Applicant 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). As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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 the writ in part.


text:
    STATE of Louisiana v. Johnny THOMPSON, Jr.
    No. 2018-KH-1044
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF MOREHOUSE
   PER CURIAM:

Denied. Applicant 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 claim, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. Donnie R. BAKER, Jr.
    No. 2018-KH-1169
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant fails to show 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 the remaining claim, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. Kenneth Joseph SMITH
    No. 2018-KP-1647
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Applicant's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. Applicant also 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). Finally, applicant fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Applicant 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. Applicant'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, applicant 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. Treyson THEDY
    No. 2018-KH-1996
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD
   PER CURIAM:

Denied. Applicant 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). As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. Elbert BARNES
    No. 2019-KH-0097
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application is repetitive. La.C.Cr.P. art. 930.4. In addition, applicant fails to show he received ineffective 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). Applicant also fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Applicant 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. Applicant'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, applicant 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. David Billy PARKER, Jr.
    No. 2018-K-2000
    Supreme Court of Louisiana.
    April 22, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
    Writ denied.
    CRICHTON, J., would grant and assigns reasons:
   In my view, the trial court did not abuse its discretion in dismissing a juror pursuant to La. C.Cr.P. art. 796 and under unique circumstances presented. Accordingly, I would grant the State's writ application, reverse the court of appeal, reinstating the jury verdict sentence imposed by the trial court.


text:
    Rick SUTTON v. Jack ADAMS, Charles Adams, and Polly Point Imports Corp.
    No. 2019-C-0346
    Supreme Court of Louisiana.
    April 22, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
    GENOVESE, J. would grant and assigns reasons.
   In this matter, the trial court granted defendants' exceptions of no cause of action and no right of action following its denial of plaintiff's motion to amend his petition. Plaintiff has applied for writs with this Court following the appellate court's affirmance of the trial court's decision. I would reverse the lower courts and allow plaintiff an opportunity to amend his petition to state a cause of action.

Pertinent to this case is La. C.C.P. art. 934, which states:

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. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

Though La. C.C.P. art. 934 contains mandatory language ("shall"), which requires the court to allow an amendment of the petition, such an allowance is only required when the grounds of the objection pleaded by the peremptory exception "may be removed." However, the relevant jurisprudence makes it clear that the right to amend is not so absolute as to permit an amendment when such an amendment would constitute a vain and useless act. Alexander and Alexander Inc. v. State, Div. of Admin., 486 So.2d 95 (La. 1986).

In this case, the plaintiff has already amended his petition once in response to defendants' exceptions of no cause of action and no right of action. The trial court has now denied plaintiff's request to once again amend his pleadings and has dismissed the case with prejudice. It is noteworthy that the trial court failed to articulate its reasons for refusing to permit a second amendment of plaintiff's petition. Specifically, the trial court did not state that plaintiff could not cure the alleged defect in his pleadings or that such an amendment (whatever it may be) would be a vain and useless act. Additionally, La. C.C.P. art. 934 does not limit a litigant to one amendment of his petition.

In the instant matter, because the grant of the defendants' exceptions dismissing plaintiff's claims with prejudice is fatal and permanent, plaintiff is thrown out of court without any rhyme or reason. It's "game over." In my view, the trial court's ruling was manifestly erroneous and an abuse of discretion. Plaintiff should have been allowed to amend his petition absent a finding by the trial court that allowing same would be a vain and useless act. Thus, I would reverse the lower courts and allow plaintiff a second opportunity to amend his petition.


text:
    Terresz Latron ROBINSON v. Darrel VANNOY, Warden
    No. 2018-KH-0538
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Applicant 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 the remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Applicant 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. Applicant'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, applicant 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. Christopher D. MARTIN
    NO. 2019-KH-0238
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. G'Quan BAKER
    NO. 2019-KH-0303
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: GENOVESE, J., recused.

text:
    STATE of Louisiana v. Donald K. RUNNELS
    NO. 2019-KH-0307
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   GENOVESE, J., recused.


text:
    Zachary MOSLEY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0934
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-574115
    NO. 2019-BA-0519
    Supreme Court of Louisiana.
    April 15, 2019
    Petition to transfer bar exam fees granted.


text:
    STATE of Louisiana v. Kevin WOOD
    NO. 2019-CI-0330
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b)


text:
    Drew ARNOLD v. Warden Darrell VANNOY, Louisiana State Penitentiary
    NO. 2019-KH-0366
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Kenneth D. REED, Sr.
    NO. 2019-KH-0115
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Ezekiel D. TOUSSAINT
    NO. 2019-KH-0118
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Joseph LAWSON v. Warden Darrell VANNOY, Louisiana State Penitentiary
    NO. 2019-KH-0374
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: HUGHES, J., would grant.

text:
    STATE EX REL. Jose ALFARO v. STATE of Louisiana
    NO. 2017-KP-2150
    Supreme Court of Louisiana.
    April 15, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant.


text:
    Dennis NELSON v. TANGIPAHOA PARISH JAIL
    NO. 2019-CI-0183
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Dwight BACON
    NO. 2019-KH-0319
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review, La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Derrick SCOTT
    NO. 2019-KH-0321
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b)


text:
    STATE of Louisiana v. Edwin SMITH
    NO. 2019-KH-0237
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Joseph LEDAY
    NO. 2019-KH-0239
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Derrick SCOTT
    NO. 2019-KH-0320
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Barry L. JONES
    NO. 2019-KH-0250
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Cory HANDY
    NO. 2019-KH-0277
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b)


text:
    STATE of Louisiana v. Jason SPIKES
    NO. 2019-KH-0302
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Terrance Randall WASHINGTON
    NO. 2019-KH-0365
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Frank MCCALL
    NO. 2019-KH-0318
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Donald G. BROOKS
    NO. 2018-KO-2031
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Sareel POINDEXTER
    NO. 2019-KH-0272
    Supreme Court of Louisiana.
    April 15, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.
   WEIMER, J., recused.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Jordan T. HICKS
    NO. 2018-KO-1918
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Ernest L. PAYNE, Jr.
    NO. 2018-KO-1932
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.
   GUIDRY, J., recused.


text:
    JOHN RIVER CARTAGE, INC. v. LOUISIANA GENERATING, LLC, et al.
    NO. 2019-C-0122
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Nikko WEBBER
    NO. 2019-KH-0253
    Supreme Court of Louisiana.
    April 15, 2019
    Denied. Premature.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Kevin HICKS
    NO. 2018-KO-1938
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Phillip SMITH
    NO. 2018-KO-1959
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Harry PRYER
    NO. 2019-KK-0316
    Supreme Court of Louisiana.
    April 15, 2019
    Not considered. Not timely filed. See Supreme Court Rule X, § 5(a).


text:
    STATE of Louisiana v. Charles STEWART
    NO. 2019-KH-0211
    Supreme Court of Louisiana.
    April 15, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Trevor EDDEN
    NO. 2018-KO-1961
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


author: CLARK, J., would grant.

text:
    STATE of Louisiana v. William SERIGNE, Sr. and Lionel Serigne, Jr.
    NO. 2018-KK-1983
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.
   CLARK, J., would grant.


text:
    STATE of Louisiana v. Jace CREHAN
    NO. 2018-KO-2024
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Tavis LEONARD
    NO. 2019-KO-0209
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    Donna M. SMITH v. Monique E. BARIAL, et al.
    NO. 2019-C-0202
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Kenneth Ray DUNCAN
    NO. 2019-KH-0240
    Supreme Court of Louisiana.
    Supreme Court of Louisiana April 15, 2019
    Denied. Premature.


text:
    STATE of Louisiana v. Gerald STEWART
    NO. 2019-KH-0309
    Supreme Court of Louisiana.
    April 15, 2019
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Kenneth KLEIN
    NO. 2018-K-1569
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Samuel DESILVA
    NO. 2019-KH-0198
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Vernell DAY
    NO. 2018-KO-1228
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    Francesca M. LAPUYADE v. RAWBAR, INC. d/b/a Acme Oyster House
    NO. 2019-C-0315
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Kevin SHEPPARD
    NO. 2018-KO-1635
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Trevor EDDEN
    NO. 2018-K-2063
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    IN RE: The PEROXISOME TRUST
    NO. 2019-CC-0327
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Dylan MAGLUILO
    NO. 2018-KO-1684
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Dino YONKO
    NO. 2019-KK-0332
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Anthony LACASSIN
    NO. 2019-KH-0143
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-053
    No. 2018-OB-1900
    Supreme Court of Louisiana.
    April 15, 2019
    Reconsideration denied.


text:
    STATE of Louisiana v. James MILLS Jr.
    NO. 2018-KO-1686
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Dwayne WILLIAMS
    NO. 2018-KP-1720
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    JOHN RIVER CARTAGE, INC. v. LOUISIANA GENERATING, LLC, et al.
    NO. 2019-C-0111
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    Amanda BERTRAND v. PROGRESSIVE SECURITY INSURANCE COMPANY
    No. 2018-C-2011
    Supreme Court of Louisiana.
    April 15, 2019
    Reconsideration denied.


text:
    STATE of Louisiana v. Robert LYNN
    NO. 2018-K-1529
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    Sheila CHAMPAGNE, et al. v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., et al.
    NO. 2019-CC-0339
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Tyderius K. REED
    NO. 2019-KH-0255
    Supreme Court of Louisiana.
    April 15, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Devon Terrell LIVOUS
    NO. 2018-KO-1788
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Kevin James ALEXANDER -aka- Kevin J. Alexander -aka- James K. Alexander -aka- Kevin Alexander, Jr.
    NO. 2018-KO-1794
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Terrance Damon MOORE
    NO. 2018-KO-1813
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.
   WEIMER, J., recused.


author: PER CURIAM

text:
    Henry Norris WILLIAMS, et al v. The DOW CHEMICAL COMPANY, et al
    NO. 2019-CC-0563
    Supreme Court of Louisiana.
    April 16, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF IBERVILLE
   PER CURIAM

Granted. Considering the unusual circumstances of this case, we find the district court's ruling was consistent with the authority granted by La. R.S. 13:3044(C) and was equitable to all parties. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. The case is remanded to the district court for further proceedings.


text:
    STATE of Louisiana v. McKinley EFFERSON
    NO. 2018-KO-2052
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.


text:
    STATE of Louisiana v. Kedrick K. ANDERSON
    NO. 2018-KO-1848
    Supreme Court of Louisiana.
    April 15, 2019
    Denied.