text:
    STATE of Florida, Appellant, v. Chester Ralph KWITOWSKI, Jr., Appellee.
    Case No. 2D17-757
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    James Felman and Brandon K. Breslow of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
   SALARIO, Judge.

The State appeals from an order granting Chester Kwitowski's motion to dismiss three counts of perjury in violation of section 837.02(2), Florida Statutes (2016). That statute makes perjury in "an official proceeding related to the prosecution of a capital felony" a second-degree felony. Id. Mr. Kwitowski is alleged to have committed perjury in a prosecution for capital sexual battery. The legislature has by statute classified capital sexual battery as a "capital felony." § 794.011(2)(a), Fla. Stat. (2016). The trial court nonetheless dismissed the second-degree perjury charges because it believed that capital sexual battery cannot be a capital felony because the Eighth Amendment prohibits imposition of the death penalty for that offense. As we shall explain, the statutory term "capital felony" unambiguously refers to an offense that the legislature has by statute classified as a capital felony without regard to whether the death penalty may constitutionally be imposed for an offense so classified. The trial court's contrary interpretation was incorrect, and we reverse.

The Second-Degree Perjury Charges and the Trial Court's Order

The second-degree perjury offenses the State charged in this case arise from sworn testimony Mr. Kwitowski gave in the prosecution of Jason Daniels. The State Attorney in Polk County charged Mr. Daniels with nine counts of sexual battery on a child under twelve-capital sexual battery, see § 794.011(2)(a) -and certain other offenses.

Mr. Kwitowski was hired as a defense expert on computers. According to the State, Mr. Kwitowski told lies about his qualifications as a computer expert during a deposition, a pretrial hearing, and the trial in Mr. Daniels's case. He is alleged to have falsely stated that he had degrees, certifications, security clearances, and experience that he did not in fact have. The State charged Mr. Kwitowski with, among other things, three counts of second-degree perjury in violation of section 837.02(2).

Mr. Kwitowski responded with a motion to dismiss filed under Florida Rule of Criminal Procedure 3.190(c)(4) in which he argued that capital sexual battery is not a capital felony within the meaning of the second-degree perjury statute. After a hearing, the trial court granted the motion and dismissed the second-degree perjury charges. Relying on the supreme court's decision in Mills v. Moore, 786 So.2d 532, 538 (Fla. 2001), the trial court reasoned that a capital felony is one that is punishable by death. It explained that in Buford v. State, 403 So.2d 943, 951 (Fla. 1981), our supreme court held that the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of the death penalty for sexual battery offenses. See also Kennedy v. Louisiana, 554 U.S. 407, 413, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (holding that the Eighth Amendment forbids imposition of the death penalty for the rape of a child where the crime did not and was not intended to result in the death of the victim). Because the death penalty can no longer constitutionally be imposed for capital sexual battery, the trial court concluded that capital sexual battery is not a capital felony within the meaning of the second-degree perjury statute. The trial court further concluded that any ambiguity in the statute is required under the rule of lenity to be resolved in Mr. Kwitowski's favor.

The State timely appealed the trial court's order. It raises the single issue of whether capital sexual battery is a "capital felony" as that term is used in the second-degree perjury statute. This is evidently a question of first impression. Because it involves a matter of statutory interpretation, we review the trial court's decision de novo. See State v. Burris, 875 So.2d 408, 410 (Fla. 2004).

The Legislature's Classification of Felony Offenses

Getting to the bottom of the statutory issue this case presents requires a little background on how the legislature classifies felony crimes-including capital felonies-and what those classifications mean. In 1971, the legislature adopted section 775.081, titled "[c]lassifications of felonies and misdemeanors." § 775.081, Fla. Stat. (1971). The statute remains in materially identical form today. In it, the legislature has expressly "classified" felonies into five distinct categories "for the purpose of sentence and for any other purpose specifically provided by statute." § 775.081(1), Fla. Stat. (2016). Those categories are "capital felony," "life felony," and felonies of the first, second, and third degrees. Id."A capital felony and a life felony must be so designated by statute." Id. All other felonies bear the classification expressly given to them by an applicable statute and, if none is given, are deemed to be third-degree felonies. Id.

By its terms, then, the statutory scheme presumes that when the legislature defines a felony offense, it will also classify that offense as a capital felony, a life felony, or a felony of the first, second, or third degree. And that is in fact what the legislature does. Thus, for example, when the legislature criminalized the use of the internet to solicit a child, it simultaneously and in the same statute classified that offense as a third-degree felony or, if the defendant misrepresents his or her age in the process, a second-degree felony. § 847.0135(3), Fla. Stat. (2016). Similarly, the same statute that defines the offense of aggravated assault also classifies that offense as a third-degree felony. § 784.021, Fla. Stat. (2016). And the statute that defines first-degree murder also classifies that crime as a capital felony. § 782.04(1)(a), Fla. Stat. (2016). The Florida Criminal Code is chock-full of statutes that work in precisely this way-they create an offense and simultaneously categorize it using the classification system in section 775.081(1).

The most immediate consequence of the classification of a felony offense is to set the scope of any potential sentence. Life felonies, as the name implies, are punishable by a sentence of life in prison or a lengthy term of years, depending on the nature of the offense and when it was committed. § 775.082(3)(a). First-degree felonies are generally punishable by a term of imprisonment not to exceed thirty years. § 775.082(3)(b)(1). Second-degree felonies are generally punishable by a term not to exceed fifteen years. § 775.082(3)(d). And third-degree felonies are generally punishable by a term not to exceed five years. § 775.082(3)(e). The natural inference to draw from all this, of course, is that the classification of a felony reflects a legislative judgment about the severity of the punishment to be imposed for the offense.

A capital felony receives the most severe punishment. Subject to the outcome of a penalty phase proceeding in a prosecution for a capital felony, such an offense is punished either by death or by life in prison without the possibility of parole. § 775.082(1)(a). The legislature considered the possibility that the death penalty might be deemed unconstitutional by the Supreme Court of the United States or our own supreme court and provided that, in such circumstances, a person previously sentenced to death should be resentenced to life in prison without parole. See § 775.082(2).

The Text of the Second-Degree Perjury and Capital Sexual Battery Statutes Unambiguously Makes Capital Sexual Battery a Capital Felony

With an understanding of the classification of capital felonies behind us, we turn to the question this case presents-whether the term "capital felony" as used in the second-degree perjury statute covers capital sexual battery even though the death penalty cannot constitutionally be imposed for that offense.

Our starting point-and, in this case, our ending point-is the text of the operative statute. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013) (explaining that statutory interpretation "begins with the plain meaning of the actual language of the statute"). If the language of the statute is unambiguous, then our job is at an end; the plain meaning of the statute decides the case. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). If the statutory text is ambiguous, however, we turn to rules of statutory construction to determine its meaning. See English v. State, 191 So.3d 448, 450 (Fla. 2016). Statutory language is ambiguous when it could be reasonably understood as meaning two-or potentially more-different things. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) ("Ambiguity suggests that reasonable persons can find different meanings in the same language.").

The legislature created the offense of second-degree perjury in 1997. See § 837.02(2), Fla. Stat. (1997). The statutory definition of that offense remains the same today. Section 837.02(2) provides as follows:

Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree.

§ 837.02(2), Fla. Stat. (2016) (emphasis added). Any other perjury during an official proceeding is a third-degree felony. § 837.02(1). The second-degree perjury statute thus carves out for more severe treatment perjury in an official proceeding relating to the prosecution of a capital felony. Here, Mr. Kwitowski allegedly lied during a prosecution for capital sexual battery. So the question is whether capital sexual battery is a capital felony as used in the second-degree perjury statute.

The most logical place to start looking for the answer is the statute that defines the offense of capital sexual battery. Section 794.011(2)(a) provides as follows:

A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony.

(Emphasis added.) Taking the language of the second-degree perjury and capital sexual battery statutes at face value, then, the answer to our interpretative question seems obvious. Capital sexual battery is a "capital felony" within the meaning of the second-degree perjury statute because the legislature explicitly stated in the capital sexual battery statute that capital sexual battery is a "capital felony." Id. Q.E.D.

But the trial court held instead that the term "capital felony" in the second-degree perjury statute means only a felony for which the death penalty may constitutionally be imposed. That is not without intuitive appeal. After all, when people use the word "capital" to modify words like "crime" or "offense," it is ordinarily understood that they are talking about a crime that is punishable by death. See Capital case or crime , Black's Law Dictionary (6th ed. 1990) (defining "capital case or crime" as "[o]ne in or for which death penalty may, but need not necessarily, be imposed"). And from there, it is not too much of a stretch to argue that the term reasonably embraces an understanding that the death penalty is not merely statutorily available but also constitutionally permissible. This general common understanding of the word "capital" when used with reference to an offense does not, however, make it reasonable to read the specific statutory term "capital felony" in section 837.02(2) as referring only to a felony for which the death penalty may constitutionally be imposed, so as to give rise to an ambiguity that we must resolve. Two key principles we use to determine the plain meaning of statutory terms show that the trial court's reading of the term "capital felony" is not a reasonable one.

Defined terms ordinarily get their defined meanings. The trial court's interpretation of the term "capital felony" hinged on its sense that the ordinary meaning of that term refers to a felony constitutionally punishable by death. And it is doubtless true that when we determine the plain meaning of an undefined term in a statute, the ordinary, everyday meaning of that term is what usually controls. See Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1154 (Fla. 2000). But where the legislature has defined the term, it is the defined meaning, not the ordinary meaning, that controls-at least absent a clear indication that a different meaning from the defined one was what the legislature meant. See Nicholson v. State, 600 So.2d 1101, 1103 (Fla. 1992) ("When a definition of a word or phrase is provided in a statute, that meaning must be ascribed to the word or phrase whenever it is repeated in the statute unless a contrary intent clearly appears."). Here, section 775.081-the statute classifying felonies into different categories-defines the term "capital felony" as a felony that the legislature has classified by statute as a capital felony.

The classification statute is, to be sure, not a run-of-the-mill definitional statute of the type that begins "as used in this chapter, the following terms have the following meanings." But that is how the statute operates. It says both that a "capital felony" is one that the legislature has by statute classified as such and that this classification operates "for the purpose of sentence and for any other purpose specifically provided by statute." § 775.081(1) (emphasis added). In other words, where the legislature has classified an offense as a capital felony, that classification controls both for purposes of sentence and for any other purpose where a statute specifically provides that classification is relevant. Although it does not call itself a "definitions" provision, that is very much what the classification statute is. Like a definitional provision, the text of the classification statute tells the reader that when the legislature uses the term "capital felony" in a statute that specifically makes the classification of a felony relevant, it means any felony that it has by statute called a capital felony.

The second-degree perjury statute is one in which the legislature has specifically made the classification of a "capital felony" relevant. Section 837.02(2) takes one class of felonies-capital felonies-and sets them apart from all others for purposes of determining when to punish perjury as a second-degree felony instead of as a third-degree felony. The second-degree perjury statute is thus engaged in the business of classifying felonies. And section 775.081 says that when the legislature has made the classification of a felony relevant, that classification means what the legislature says it means. Nothing about the second-degree perjury statute provides any indication, let alone the clear one the law requires, that the term "capital felony" as used there means anything other than what the legislature said in section 775.081-namely, that a capital felony is one that it has by statute classified as such.

The legislature has classified capital sexual battery as a capital felony. The principle that defined terms carry their defined meanings thus required the trial court to hold that the term "capital felony" in the second-degree perjury statute encompassed the capital sexual battery offenses that were the subject of the criminal proceeding in which Mr. Kwitowski allegedly committed perjury. See, e.g., Burgess v. State, 198 So.3d 1151, 1156 (Fla. 2d DCA 2016) (holding that the statutory definition of "driver license" prevailed over broader understanding that the term embraced a "driving privilege"), review denied, No. SC16-1751, 2017 WL 5712153 (Fla. Nov. 28, 2017).

Specialized and legally significant terms get their specialized and legally significant meanings. If we did not consider the term "capital felony" in the second-degree perjury statute a defined term, we would nonetheless conclude that it carries a specialized meaning that unambiguously refers to a felony the legislature has by statute dubbed a "capital felony." When a statutory term has been used in a way that carries a specialized or technical meaning, that meaning prevails over the term's ordinary meaning. See City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla. 1984) ; OB/GYN Specialists of the Palm Beaches, P.A. v. Mejia, 134 So.3d 1084, 1088 (Fla. 4th DCA 2014) (stating that "in considering the meaning of particular words and phrases, courts must also distinguish between terms of art that may have specialized meanings and other words" that are given the meaning they have in ordinary usage). And similarly, when a statute "uses an undefined term with a fixed legal meaning fitting the context, that meaning governs" instead of the ordinary meaning of that term. Crews v. Fla. Pub. Emp'rs Council 79, AFSCME, 113 So.3d 1063, 1069 (Fla. 1st DCA 2013) ; see also Thatcher Glass, 445 So.2d at 579 n.2 ("Terms of special legal significance are presumed to have been used by the legislature according to their legal meanings."). The context in which the word is used is an important factor in determining whether the term has been used in a technical or ordinary sense. See Thatcher Glass, 445 So.2d at 579 ("[T]he context may be referred to in ascertaining the sense [technical or ordinary] in which [a term] was used." (quoting Southern Bell Tel. & Tel. Co. v. D'Alemberte, 39 Fla. 25, 21 So. 570, 572 (1897) ) ); State v. Brown, 412 So.2d 426, 428 (Fla. 4th DCA 1982) (explaining that determining whether a word has been used in a technical sense depends on "the manner or context in which the words are used").

Here, the context in which the term "capital felony" is used in the Florida Criminal Code is dispositive of the question. See Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla. 1995) ("[T]he plain meaning of 'civil action' must be derived from the context in which the language lies."); City of Treasure Island v. Tahitian Treasure Island, LLC, 42 Fla. L. Weekly D2296, --- So.3d ----, 2017 WL 4847650 (Fla. 2d DCA Oct. 27, 2017) (looking to the text of the statute under consideration and related statutes to determine whether a statutory term carried a specialized meaning). In the Florida Criminal Code, the term "capital felony" is both a specialized reference and a legally significant reference to a felony that the legislature has classified as such. Section 775.081(1) lists every classification the legislature might give to any felony it creates and then says that each felony has the classification the legislature gives it in a statute. One of those classifications is "[c]apital felony." Id. Whatever the ordinary meaning of the term "capital felony" might be in other contexts, section 775.081(1) quite clearly refers to a felony that the legislature has labeled a capital felony in a statute that classifies an offense.

The meanings that section 775.081(1) gives to each classification it creates-including the capital felony classification-are used throughout the Florida Criminal Code in statutes that define criminal offenses. When so used, the terms of classification uniformly carry the meaning that section 775.081(1) gives them. Thus, when the legislature said in section 794.011(2)(a) that capital sexual battery is a capital felony, it was unambiguously referring to the classification "capital felony" in section 775.081(1) and not to the potential ordinary meaning concept of an offense for which the death penalty is a constitutionally acceptable punishment.

And when the legislature adopted section 837.02(2) in 1997-more than a decade after Buford held that it is unconstitutional to apply the death penalty to sexual battery offenses-it defined second-degree perjury by reference to a prosecution for a "capital felony." It used a term that then (and now) was understood throughout the Code to have a specialized and legally-fixed meaning as a felony classified by the legislature as a capital felony. Capital sexual battery was then (and now) classified as a capital felony. Given that statutory context, it is not reasonable to understand the term "capital felony" in section 837.02(2) as having any meaning other than the specialized, legal meaning it had in the context of the Florida Criminal Code at the time section 837.02(2) was adopted. Cf. Boland v. State, 893 So.2d 683, 684 (Fla. 2d DCA 2005) (assuming that section 837.05(2), Florida Statutes (2002), which criminalizes reporting false information "concerning the alleged commission of a capital felony," applied to reports of sexual battery on children under twelve because "[i]f the reports had been correct, the doctor would have been guilty of capital felonies"). Nothing in section 837.02(2) suggests that any different meaning could have been intended.

We recognize, of course, that the consequence of the classification of an offense as a capital felony is that the legislature deems it potentially eligible for imposition of the death penalty under section 775.082(1)(a). But that consequence does not make it reasonable to understand the term "capital felony" in the second-degree perjury statute as meaning only a felony that may constitutionally be punished by death. Nothing in either section 775.081(1) or section 775.082 says that the constitutional availability of the death penalty determines or influences the classification of a crime as a capital felony-i.e., nothing in those statutes says that a capital felony for which the death penalty is no longer constitutionally available is no longer classified as a capital felony. See Huffman v. State, 611 So.2d 2, 4 (Fla. 2d DCA 1992) (holding that during the period that the death penalty was unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "the crime of rape remained a capital felony ..., albeit one for which the death penalty was no longer a permissible alternative"). And once it is understood that the term "capital felony" as used in the second-degree perjury statute carries the meaning it has elsewhere in the Code, that ends the discussion. Capital sexual battery is a capital felony for purposes of that statute.

The Trial Court's Reasoning

In holding that the term "capital felony" means a felony that may constitutionally be punished by death, the trial court relied primarily on the supreme court's decision in Mills, 786 So.2d at 538, and the rule of lenity. Neither affords a legitimate basis for its construction of section 837.02(2).

Mills is inapposite because it had nothing to do with section 837.02(2) or whether a felony classified as a capital felony retains that classification, and hence that meaning, when it is determined that it is unconstitutional to impose the death penalty for that particular felony. In Mills, a trial judge sentenced a defendant to death for murder, overriding an advisory jury's recommendation of life imprisonment. Id. at 534. In a habeas petition filed with the supreme court, the defendant argued that he was entitled to a jury determination on the applicability of the death penalty under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Mills, 786 So.2d at 536. He claimed that the statutory maximum sentence for a capital felony was life imprisonment and that the statutory aggravators under the then-existing capital sentencing scheme were facts that increased the penalty beyond the statutory maximum of life to death, implicating his right to a jury determination. Id. at 537-38. The question in Mills, then, was whether the statutory maximum sentence for a capital felony was life imprisonment or death. Id.

The supreme court held that the statutory maximum was death. Id. at 538. Citing section 775.082(1), the statute that makes the death penalty available for capital felonies, and section 921.141, Florida Statutes (1979), the statute establishing the procedure for determining whether to inflict it, the supreme court held that "there can be no doubt that a person convicted of a capital felony faces a maximum possible penalty of death." Id. The version of the statute then in effect provided that a person convicted of a capital felony "shall be punished by life imprisonment" or, depending on the outcome of a sentencing proceeding, "shall be punished by death." Id. (quoting § 775.082(1), Fla. Stat. (1979) ). Then it cited two dictionary definitions of the term "capital" and stated that "a 'capital felony' is by definition a felony that may be punishable by death. The maximum possible penalty described in the capital sentencing scheme is clearly death." Id. The trial court relied on this language in holding that a capital felony within the meaning of the second-degree perjury statute was one that is constitutionally punishable by imposition of the death penalty.

The trial court read this statement too broadly. The supreme court in Mills was not concerned with defining the statutory term "capital felony" as it is used throughout the Florida Criminal Code. It was concerned with the very different question of which of two punishments-death or life in prison-was the statutory maximum punishment for an offense. To accomplish that, the court looked to the statutes prescribing punishment for offenses classified as capital felonies and determined that those statutes prescribed a maximum punishment of death for offenses so classified. It buttressed that conclusion by considering the ordinary meaning of the term "capital" as connoting death-eligibility. Relying on the ordinary understanding of the word "capital" to support a conclusion that the legislature established a statutory maximum of death, however, is not the same as giving meaning to the term "capital felony" throughout the Code. The supreme court did not, for example, determine what meaning section 775.081(1) gives to the term "capital felony"; the question in Mills did not require it, but the question here does. Similarly, the supreme court did not assess what happens to a capital felony classification when death becomes constitutionally unavailable as a sentence; the question in Mills did not require it, but the question here does. In sum, Mills cannot legitimately be interpreted as holding that an offense is a capital felony for purposes of the Florida Criminal Code when, and only when, the Constitution permits the imposition of the death penalty for an offense so classified. Rather, unless and until the legislature changes that classification, the offense remains a "capital felony" as that term is used in the Criminal Code-just one for which a sentence of death cannot, consistent with the Constitution, be carried out. See Batie v. State, 534 So.2d 694, 694-95 (Fla. 1988) (holding that a defendant convicted of capital sexual battery after Buford was not entitled to postconviction bond under a rule permitting such bond in "noncapital cases" and stating that "[n]otwithstanding our determination that the sexual battery proscribed by subsection 794.011(2) is no longer a capital crime, in Rusaw [ v. State, 451 So.2d 469 (Fla. 1984) ] and [ State v. Hogan, 451 So.2d 844 (Fla. 1984),] we recognized the legislature's definition of it as 'capital' in determining legislative intent for the other consequences of this crime"); Hogan, 451 So.2d at 845-46 (holding that a twelve-member jury is not required in capital sexual battery cases under statute and rule providing for such juries in "capital cases" but explaining that capital sexual battery is "still defined as a 'capital' crime by the legislature"); Rusaw, 451 So.2d at 470 (rejecting argument that, in light of Buford , a defendant convicted of capital sexual battery should have been sentenced as though he committed a life felony because "the legislature has denominated certain conduct to be a 'capital' crime and has provided alternative penalties for that crime").

The trial court's reliance on the rule of lenity was also misplaced. The rule of lenity, which requires the resolution of ambiguities in criminal statutes in favor of the defendant, comes into play only when a statute is ambiguous and remains so after consulting traditional canons of statutory construction. See § 775.021(1), Fla. Stat. (2016) ; Paul v. State, 129 So.3d 1058, 1064 (Fla. 2013). Because the term "capital felony" in section 837.02(2) is not ambiguous, the rule of lenity has no role to play in this case.

Conclusion

Floating in the background of this case is a concern that because capital sexual battery ceased in constitutional terms to be punishable by death, a more severe sanction for testifying falsely in such cases is mistaken or unnecessary. Maybe. But maybe majorities in the legislature believe that notwithstanding the unavailability of the death penalty, capital sexual battery is sufficiently serious to justify a harsher punishment for perjury in those prosecutions. Or maybe some other considerations are at work. Choosing the best view and revising the statute books accordingly (or not) is, however, a classic example of a function that belongs to the legislature and not to the courts. See Burgess, 198 So.3d at 1159. As it stands, the legislature has stated that a capital felony is a felony that it has classified as such. Nothing in section 837.02(2) shows that the term has a different meaning there. The trial court's holding to the contrary was mistaken. We reverse its order granting Mr. Kwitowski's motion to dismiss and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      It is now clear that the jury in a capital case must unanimously and expressly find all the aggravating factors that were proved beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death. See Hurst v. State, 202 So.3d 40, 57 (Fla. 2016).

      Mr. Kwitowski relies heavily on Heuring v. State, 513 So.2d 122 (Fla. 1987), but that case dealt with the question of whether capital sexual battery must be charged by indictment rather than information and not what the term "capital felony" means when it is used in the Criminal Code. See art. I, § 15, Fla. Const. ("No person shall be tried for capital crime without presentment or indictment by a grand jury.").


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    SUCCESSION OF Charles George HARLAN
    No. 2017-C-1132
    Supreme Court of Louisiana.
    May 1, 2018
   HUGHES, J.

The issue in this case is whether a revocation clause, contained within a notarial testament that was found to be void for failure to include an attestation clause, could be valid as an authentic act and thereby revoke two prior testaments, resulting in an intestate succession. The district court found no valid revocation. The appellate court ruled that the invalid testament nevertheless met the requirements of La. C.C. art. 1833 so as to qualify as an authentic act, capable of revoking prior testaments pursuant to La. C.C. art. 1607(2). For the following reasons we reverse the appellate court, reinstate the district court rulings, and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The decedent, Charles G. Harlan, died on November 26, 2015, survived by his second wife, Xiaoping W. Harlan, and his four adult children from his first marriage, Veni S. Harlan, Hansel M. Harlan, Jeffrey D. Harlan, and Gretel G. Harlan Kelly.

On December 10, 2015 the Harlan children filed a petition in the district court, seeking to have the decedent's March 9, 2000 testament filed and executed and to have Hansel Harlan named as executor of the succession. The petitioners also asserted their agreement to an independent administration of the succession in accordance with La. C.C.P. art. 3396 et seq. On the same day, the district court granted the relief sought, ordering that, pursuant to La. C.C.P. art. 2891, the 2000 notarial testament be filed and executed, and directing that the order be given the effect of probate. In addition, an independent administration of the succession was ordered, Hansel Harlan was appointed as the independent executor of the succession, and he was invested with the rights, powers, authorities, privileges, and duties appropriate to that appointment.

On January 15, 2016 Xiaoping filed a petition to nullify the probated March 9, 2000 testament, to have Hansel removed as executor, and to have herself appointed as administratrix of the succession. Xiaoping further sought to file a purported notarial testament, executed on June 5, 2012 and containing a revocation of all prior testaments, along with a March 1, 2014 codicil.

Hansel filed an opposition to Xiaoping's petition, a rule to show cause why succession documents, assets, and property should not be turned over, and a rule to show cause why Xiaoping should not be denied a widow's portion.

Following a February 11, 2016 hearing on Xiaoping's petition and Hansel's opposition and rules to show cause, District Court Judge Edward J. Gaidry, Pro Tempore, ruled in Hansel's favor: declaring the 2012 testament and 2014 codicil null ab initio; denying Xiaoping's challenge to the probated 2000 testament; denying Xiaoping's request to be appointed administratrix; reconfirming Hansel as executor; ordering Xiaoping to vacate residential property owned by the succession within thirty days; requiring Xiaoping to turn over all property belonging to the estate to the executor; and denying a marital portion to Xiaoping. Judgment was signed on February 24, 2016.

Meanwhile, on February 23, 2016, Xiaoping filed a petition seeking probate of an olographic testament allegedly executed by the decedent on May 24, 2007, which she had recently discovered among the decedent's effects. A hearing on the validity of the 2007 testament was scheduled for April 7, 2016.

Hansel and his siblings opposed the petition, arguing that, although the purported 2012 notarial testament was invalid for failure to have the statutorily required attestation clause, the document was nevertheless an authentic act that served to revoke all prior testaments, including the 2007 olographic testament; thus, the succession was intestate.

On March 31, 2016 the parties filed a joint motion to limit the April 7, 2016 hearing to issues related to the validity of the 2007 olographic testament. At the conclusion of the April 7, 2016 hearing, newly-elected District Court Judge Elizabeth A. Engolio ruled: that the 2007 olographic testament was entirely written, dated, and signed in the decedent's handwriting and met the legal requirements to be admitted to probate and executed; and that the revocation language contained in the invalid 2012 testament could not be applied to revoke the 2007 testament. Judgment was signed on June 6, 2016.

On April 27, 2016 Hansel and his siblings filed a motion for devolutive appeal from the February 24, 2016 judgment, and on June 10, 2016 they filed an appeal of the June 6, 2016 judgment.

The two appeals were heard concurrently in the appellate court. Concluding that the 2012 testament, though invalid, was nonetheless an authentic act, which revoked the 2000 testament, the appellate court reversed that part of the February 24, 2016 district court judgment that had rejected the challenge to the probate of the March 9, 2000 testament. See Succession of Harlan , 16-1345, 2017 WL 2445186 (La. App. 1 Cir. 6/6/17) (unpublished). The appellate court further reversed that part of the June 6, 2016 district court judgment that found that the invalid 2012 testament was not effective as an authentic act that could revoke the May 24, 2007 olographic testament, and the appellate court rendered judgment holding that the May 24, 2007 olographic testament was revoked; the matter was remanded to the district court for further proceedings. See Succession of Harlan , 16-1346, 2017 WL 2445187 (La. App. 1 Cir. 6/6/17) (unpublished).

Xiaoping filed a writ application seeking review of the appellate court decisions, which we granted. See Succession of Harlan , 17-1132 (La. 12/5/17), 231 So.3d 624.

LAW AND ANALYSIS

Xiaoping contends herein that the appellate court erred in ruling that a revocation clause in an absolutely null notarial testament can revoke prior testaments and in ruling that the decedent's invalid 2012 testament was nevertheless in authentic form such that the revocation clause was effective and revoked all of the decedent's prior testaments.

As applicable to the issues before this court, the salient facts are not in dispute. The decedent herein executed three wills: the first on March 9, 2000, the second on May 24, 2007; and the third on June 5, 2012. The 2000 will was a statutory testament under former La. R.S. 9:2442, the 2007 will was an olographic testament pursuant to La. C.C. art. 1575 ; and the 2012 will was a putative notarial testament under La. C.C. art. 1576 et seq. As a prefatory remark in each will, the decedent stated that he revoked any and all prior wills. The parties agreed that the 2012 will was invalid as a testament, since it did not have the attestation clause required by La. C.C. art. 1577.

Thus, the only issues before this court involve the proper application of succession law to the undisputed facts. Questions of law are reviewed under a de novo standard of review. This court is the ultimate arbiter of the meaning of the laws of this state.

Soileau v. Smith True Value & Rental , 12-1711, p. 7 (La. 6/28/13), 144 So.3d 771, 777 ; Red Stick Studio Development, L.L.C. v. State ex rel. Department of Economic Development , 10-0193, p. 9 (La. 1/19/11), 56 So.3d 181, 187.

The starting point in the interpretation of any law is the language of the law itself. M.J. Farms, Ltd. v. Exxon Mobil Corporation , 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27. See also Kelly v. State Farm Fire & Casualty Company , 14-1921, p. 10 (La. 5/5/15), 169 So.3d 328, 335 ("[W]e begin as we must with the words of the statute itself.").

The text of a law is the best evidence of legislative intent. La. R.S. 24:177(B)(1). When the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code ( La. C.C. arts. 9 - 13 ) and Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950 ( La. R.S. 1:1 - 1:17 ), the court shall consider the intent of the legislature. La. R.S. 24:177(A).

As stated in La. C.C. art. 9, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. See also La. R.S. 1:4 ("When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit."). When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13.

Pertinent to the resolution of the issues in this case is La. C.C. art. 1573, which provides: "The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null." There is no dispute in this case that the 2012 testament of the decedent failed to include the attestation clause required by La. C.C. 1577 ; therefore, La. C.C. art. 1573 is applicable. As this court recognized in Successions of Toney , 16-1534, p. 5 (La. 5/3/17), 226 So.3d 397, 401, Civil Code Article 1573"provides in no uncertain terms that '[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null .' " (Emphasis original.)

Notwithstanding, the appellate court in this case determined that the 2012 putative testament, though invalid as a testament, constituted an authentic act pursuant to La. C.C. art. 1833, and the revocation clause contained therein was sufficient to revoke all prior testaments of the decedent, pursuant to La. C.C. art. 1607. Article 1607 provides:

Revocation of an entire testament occurs when the testator does any of the following:
(1) Physically destroys the testament, or has it destroyed at his direction.
(2) So declares in one of the forms prescribed for testaments or in an authentic act.
(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

(Emphasis added.)

Prior jurisprudence of this court has held that a revoking will, invalid in form, does not revoke prior wills. See Succession of Ryan , 228 La. 447, 452, 82 So.2d 759, 761 (1955) ; Succession of Feitel , 187 La. 596, 618, 175 So. 72, 80 (1937), overruled on other grounds by Succession of Jenkins , 481 So.2d 607 (La. 1986) ; Succession of Hill , 47 La. Ann. 329, 332, 16 So. 819, 820-21 (1895) ; Hollingshead v. Sturgis , 21 La. Ann. 450, 451-52, 1869 WL 4652, pp. 1-2 (1869). It was further held that if a will, containing a clause revoking a previous will or revoking all previous wills of the testator, were annulled, the revoking clause loses its effect and the last preceding will stands unrevoked. Id.

However, under consideration in the cited cases was a precursor to current Civil Code Article 1607, former Article 1692, which provided for express revocation as follows: "The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities." Former Article 1692 was replaced with current Article 1607 by 1997 La. Acts, No. 1421 (effective July 1, 1999). In addition to allowing express revocation by a subsequent testament, Paragraph (2) of Article 1607"expands the ability to revoke by adding the use of an authentic act to do so." La. C.C. art. 1607, 1997 Revision Comments.

Despite the addition by Act 1421 of the authorization to use an authentic act to revoke a testament in Article 1607(2), the phrasing of that provision is significant. Article 1607(2) provides that revocation of a testament occurs when the testator "[s]o declares in one of the forms prescribed for testaments or in an authentic act." (Emphasis added.)

Unless it is otherwise clearly indicated by the context, whenever the term "or" is used by the Legislature, it is used in the disjunctive and does not mean "and/or." Whitley v. State ex rel. Board of Supervisors of Louisiana State University Agricultural Mechanical College , 11-0040, p. 11 (La. 7/1/11), 66 So.3d 470, 475. See also La. R.S. 1:9 ; Kelly v. State Farm Fire & Casualty Company , 14-1921, pp. 24-25 (La. 5/5/15), 169 So.3d 328, 343-44. The disjunctive "or" generally sets apart two mutually exclusive alternatives. See Blackburn v. National Union Fire Insurance Co. of Pittsburgh , 00-2668, p. 8 (La. 4/3/01), 784 So.2d 637, 642 ; Kelly v. Weil , 563 So.2d 221, 224 n.5 (La. 1990).

When the "or" in Article 1607(2) is given its disjunctive meaning, the provision is read as authorizing a testamentary revocation in either "one of the forms prescribed for testaments" or "in an authentic act." See Kathryn Venturatos Lorio, 10 La. Civ. L. Treatise , Successions and Donations, § 14:3, "Revocation of Entire Testament" (2d ed.) ("A testament may also be revoked by a formal declaration, either in a form prescribed for testaments or in an authentic act.") (emphasis added). Such a disjunctive reading would continue in effect the past jurisprudential rule (as stated in Succession of Ryan , Succession of Feitel , Succession of Hill , and Hollingshead v. Sturgis , supra ) that a revoking will, invalid in form, does not revoke prior wills, as the revoking clause becomes ineffective, and the preceding will stands unrevoked.

When Article 1607 is viewed in light of Article 1573 ("The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null."), as required by La. C.C. art. 13 ("Laws on the same subject matter must be interpreted in reference to each other."), it becomes clear that a disjunctive reading of "or" in Paragraph (2) of Article 1607 is appropriate. An "absolutely null" will "is deemed never to have existed," and the parties "must be restored to the situation that existed before the [will] was made." La. C.C. 2033.

It should further be noted that the express provisions of Article 1573 ("The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.") admit no exceptions. Compare La. C.C. art. 96 ("An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith ...."); La. C.C. art. 1503 ("A donation, inter vivos or mortis causa, that impinges upon the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement."); La. C.C. art. 1541 ("A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law."); La. C.C. art. 1834 ("An act that fails to be authentic because of the lack of competence or capacity of the notary public, or because of a defect of form, may still be valid as an act under private signature."); La. C.C. art. 1845 ("A donation inter vivos that is null for lack of proper form may be confirmed by the donor but the confirmation must be made in the form required for a donation. The universal successor of the donor may, after his death, expressly or tacitly confirm such a donation."). Unlike Articles 96, 1503, 1541, 1834, and 1845, which provide for some method of continued viability of the described acts despite a defect in the circumstances described therein, Article 1573 provides only for the absolute nullity of a donation mortis causa, when there has been no substantial compliance with the formalities prescribed therefor.

Thus, we can conclude that, if the Legislature had intended to create an exception to the absolute nullity provided for in Article 1573, by authorizing the authentic act form of a revocation to be derived from an absolutely null testament (when the requirements for an authentic act have otherwise been met within the purported testament), then express language (comparable to the language appearing in La. C.C. arts. 1541 or 1834, supra) to that effect could have been enacted within Article 1573 and/or 1607. No such qualification exists within either Article 1573 or 1607. Therefore, we must conclude that a juridical act, formulated as a last will and testament, which does not substantially comply with the formalities set forth in La. C.C. arts. 1574 - 1580.1, prescribing the requisite formalities for olographic and notarial testaments, is absolutely null and void ab initio, and can have no effect of any sort. Civil Code Article 1607 must be read in light of Article 1573 and cannot be read to give any effect to an absolutely null testament. Our holding on this point renders erroneous the holding of the appellate court, i.e., that a revocation clause in an absolutely null testament, which otherwise meets the requirements for an authentic act, can constitute a valid and effective revocation of prior wills.

Accordingly, we conclude that the appellate court erred in reversing those parts of the February 24, 2016 and the June 6, 2016 district court judgments, which found that the invalid 2012 testament did not contain a valid authentic act that revoked the March 9, 2000 and the May 24, 2007 testaments, and the appellate court erred in rendering judgments holding that the March 9, 2000 and the May 24, 2007 testaments were revoked by the absolutely null 2012 testament.

DECREE

For the reasons stated herein, we reverse the appellate court decisions, as stated hereinabove, and we reinstate the February 24, 2016 and the June 6, 2016 district court judgments. The matter is remanded to the district court for further proceedings.

REVERSED; REMANDED .

GENOVESE, JUSTICE, dissents.

I dissent and would affirm the appellate court's decision. In this case, the decedent, Charles George Harlan ("Mr. Harlan"), executed a document titled "Last Will and Testament of Charles Harlan Sr." on June 5, 2012 ("2012 document"). Within the 2012 document, Mr. Harlan included a provision revoking his prior testaments. The parties do not dispute that the 2012 document was invalid as a notarial testament. I agree with the appellate court that the 2012 document remains a valid authentic act under the plain language of the applicable Louisiana Civil Code articles and, thus, effectively revoked Mr. Harlan's prior testaments. In my view, the law does not afford discretion for this Court to find otherwise.

Under Louisiana law, prior testaments can be revoked by authentic act. La.Civ.Code art. 1607(2). In this case, the 2012 document includes all of the required elements for a valid authentic act: (1) it was executed before a notary public; (2) in the presence of two witnesses; and, (3) signed by Mr. Harlan, the notary public, and the two witnesses to the act. La.Civ.Code art. 1833. As enunciated by the appellate court, there is no requirement that an authentic act "must include a statement that the document was executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before it was executed." Succession of Harlan , 16-1346, p. 5 (La.App. 1 Cir. 6/6/17), 2017 WL 2445187 (unpublished). Nor does the law require that the person executing an authentic act sign every page of the document. Id. Thus, there is no legal basis for the majority's finding that the 2012 document does not constitute a valid authentic act.

The second sentence of the 2012 document states, "Any prior wills are hereby revoked." With this provision, the 2012 document validly revokes Mr. Harlan's prior testaments. Prior to 1999, the law required that revocations of testaments be in the same form as prescribed for testaments. See, Succession of Ryan, 228 La. 447, 452, 82 So.2d 759, 761 (La.1955). However, the law was changed with the revision of Article 1607, which provides that an entire testament can be revoked when the testator so declares in an authentic act. La.Civ.Code art. 1607(2).

In this case, the appellate court did not rule that an absolutely null notarial testament can revoke prior testaments. Instead, the appellate court ruled that a valid authentic act can revoke prior testaments. See also, In re Hendricks , 08-1914 (La.App. 1 Cir. 9/23/09), 28 So.3d 1057, 1058-59, writ not considered , 10-480 (La. 3/26/10), 29 So.3d 1256. A testament and an authentic act are distinct instruments under Louisiana law. The validity of one does not depend upon the validity of the other. An invalid testament is absolutely null; thus, it has no power to render an authentic act invalid. La.Civ.Code art. 1573.

Additionally, though it is true that the testator's intent controls the interpretation of a testament, it is appropriate to look to the testator's intent only when the testament is valid and in proper form . See, e.g., In re Succession of Duskin , 14-236, p. 12 (La.App. 4 Cir. 11/19/14), 153 So.3d 567, 575, writ not considered, 15-0137 (La. 4/10/15), 163 So.3d 800. Here, the 2012 purported testament is not a valid testament; however, the 2012 document serves as a valid authentic act revoking Mr. Harlan's prior testaments, since the revocation provision remains intact, and all elements of a valid authentic act are met.

The majority's assertion that an authentic act revoking a testament must be found in a separate document is flawed. I agree with the majority's assessment that La.Civ.Code art. 1607 must be read together with La.Civ.Code art. 1833 to determine the requirements for a valid authentic act for the purposes of revoking an entire testament. I also agree that the word "or" as found in La.Civ.Code art. 1607(2) must be given a disjunctive meaning-that is, the provision authorizes a testamentary revocation in either "one of the forms prescribed for testaments or in an authentic act." (Emphasis added.) However, the 2012 document clearly fell into only one of these categories , namely that of an authentic act, as the form prescribed for testaments was not satisfied in this case. The plain language of La.Civ.Code art. 1607(2) does not prohibit a revocation clause within a valid authentic act from serving as an effective revocation of prior testaments. Moreover, if the Legislature intended for a revocation to occur only via a valid testament or a separate authentic act, it could have specified as such. The Legislature has not done so; therefore, this Court has a duty to apply La.Civ.Code arts. 1607 and 1833 as written. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La.Civ.Code art. 9. The plain language of these articles as applied to this case results in the revocation of the decedent's prior testament via a valid authentic act, regardless of the fact that the act is contained within an otherwise invalid testament rather than in a separate document.

For the foregoing reasons, I would affirm the appellate court's judgment upholding the 2012 document as a valid authentic act revoking Mr. Harlan's prior testaments.

      At this juncture in the district court proceedings, the parties had, in essence, swapped legal positions on the issue of the validity of the revocation clause, with Hansel and his siblings adopting the argument previously urged by Xiaoping (i.e., that the invalid 2012 testament was valid as an authentic act so that the revocation was effective) and with Xiaoping then arguing that the revocation clause could not be resurrected from the invalid 2012 testament.

      Article 1577 provides:
      The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
      (1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
      (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ____."
      See also Successions of Toney , 16-1534 at p. 6, 226 So.3d at 402 ; In re Succession of Richardson , 05-0552, p. 4 (La. App. 1 Cir. 3/24/06), 934 So.2d 749, 751, writ denied, 06-0896 (La. 6/2/06), 929 So.2d 1265 ; Succession of English , 508 So.2d 631, 633 (La. App. 2 Cir. 1987) (holding that the complete absence of an attestation clause is fatal to the validity of a notarial will).

      Article 1833 provides, in pertinent part: "An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act."

      It is well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view. It is equally well settled under our rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. M.J. Farms, Ltd. v. Exxon Mobil Corporation , 07-2371 at pp. 13-14, 998 So.2d at 27.

      See La. C.C. art. 1917 ("The rules of this title [Title IV, "Conventional Obligations or Contracts"] are applicable also to obligations that arise from sources other than contract to the extent that those rules are compatible with the nature of those obligations."); La. C.C. art. 1917, 1984 Revision Comment (b) ("Under this Article, the general rules of contracts are applicable to declarations of will contained in unilateral acts ...."). See also Ronald J. Scalise Jr., Rethinking the Doctrine of Nullity, 74 La.L.Rev. 663, 673-74 (2014) (footnotes omitted) ("[A]cts that purport to be testaments but fail to follow the prescribed form requirements are also examples of absolutely null acts outside the context of contracts. A testament, as the Civil Code clearly states, is not a contract but an 'act' that has effect upon the death of the testator. In fact, a testament is a unilateral juridical act because it has only one party to the act, namely the testator, and is a 'licit act intended to have legal consequences.' Execution of a will in a form other than that prescribed by law results in an absolute nullity. Countless other acts are treated similarly, but the point is obvious; despite their placement in the Civil Code, the articles on nullity are not limited in their application to contracts. They apply to all juridical acts, including those that are unilateral.").

      La. C.C. art. 2033 provides, in pertinent part:
      An absolutely null contract, or a relatively null contract that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made. If it is impossible or impracticable to make restoration in kind, it may be made through an award of damages.

      Courts need not strictly adhere to the formal requirements of the statutory will, to the extent of elevating form over function. In re Succession of Holbrook , 13-1181, p. 8 (La. 1/28/14), 144 So.3d 845, 851 ; Succession of Guezuraga , 512 So.2d 366, 368 (La. 1987). Courts liberally construe and apply the laws governing notarial wills, La. C.C. art. 1576 et seq. (and former La. R.S. 9:2442, relative to statutory wills), maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. Id.See also Successions of Toney , 16-1534 at p. 6, 226 So.3d at 402.

      "Civil Code Article 1573 unequivocally states that '[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null' and no other provision of the Civil Code casts doubt upon this classification." Ronald J. Scalise Jr., Rethinking the Doctrine of Nullity, 74 La.L.Rev. 663, 714 (2014). "In short, a donation mortis causa not in proper form is an absolute nullity. This means, of course, that it can be raised by anyone, cannot be confirmed, and most importantly is imprescriptible." Id. at 715 (footnote omitted).

      We note the dissent in In re Hendricks , 08-1914 (La. App. 1 Cir. 9/23/09), 28 So.3d 1057, writ not considered, 10-0480 (La. 3/26/10), 29 So.3d 1256 : "[T]he majority ... holds that while the will is invalid as a testament, it is nevertheless a valid revocation of the previous will. In my opinion, this is contrary to the testator's intent. Mr. Hendricks clearly did not desire to die intestate, but rather attempted to substitute his new testament for the old one, as opposed to executing a separate authentic act of revocation. To find the 2006 will null 'ab initio', which means 'from the beginning,' yet to enforce its revocation clause, defies common sense .... [T]he majority's interpretation of LSA-C.C. art. 1573 essentially adds language, which is not part of ... [A]rticle [1573], i.e., that the testament is absolutely null 'as a testament.' " (Footnote omitted.)

      Having decided the merits of this case on this basis, we find it unnecessary to address the relator's claim that, in order to be valid, an authentic act must state that the act was signed "in the presence of" the two witnesses, the notary public, and each other.

      Louisiana Civil Code article 1607 states (emphasis added):
      Revocation of an entire testament occurs when the testator does any of the following:
      (1) Physically destroys the testament, or has it destroyed at his direction.
      (2) So declares in one of the forms prescribed for testaments or in an authentic act.
      (3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

      Louisiana Civil Code article 1833 provides, in pertinent part:
      A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.
      B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act.


author: PER CURIAM

text:
    STATE of Louisiana v. Jubbard PRICE
    No. 2017-K-0520
    Supreme Court of Louisiana.
    June 27, 2018
   PER CURIAM

We granted this application to determine whether guilty of simple kidnapping is a responsive verdict to a charge of second degree kidnapping. Finding that it is not enumerated among the legislatively authorized responsive verdicts in La. C.Cr.P. art. 814, and further that it is not a lesser and included offense in accordance with La. C.Cr.P. art. 815, we set aside defendant's convictions for simple kidnapping, and we remand to the trial court to enter a post-verdict judgment of acquittal on these charges.

Defendant was indicted with five counts of second degree kidnapping and three counts of second degree murder. The evidence established that defendant, Donald Johnson, and Andrea Price arrived at Troy Leslie's residence on Devine Street in New Orleans on January 12, 2012. Their plan was to lure those persons present into the garage with the promise of marijuana, hold them there at gunpoint, and then find and steal a safe. Some of the victims were successfully lured to the garage, while others were violently forced there by Johnson. Ultimately, defendant held five persons in the garage at gunpoint while Johnson searched for the safe. In the course of the robbery, Johnson shot several of the victims, killing three and maiming a fourth. Defendant and Johnson loaded the safe into a stolen vehicle and fled with Price. They crashed the vehicle while fleeing from police, and Johnson was killed in the ensuing shootout. The safe was recovered from the vehicle, and Price testified against defendant at trial.

Defendant was found guilty of five counts of simple kidnapping and two counts of negligent homicide. The court of appeal en banc and on rehearing affirmed the convictions for simple kidnapping because it found that guilty of simple kidnapping is a valid responsive verdict to a charge of second degree kidnapping. The court of appeal first noted that it previously reached the same conclusion in State v. Vargas-Alcerreca , 12-1070 (La. App. 4 Cir. 10/2/13), 126 So.3d 569, writ denied , 13-2588 (La. 4/17/14), 138 So.3d 625. The court of appeal also found that this court had "implicitly" reached the same conclusion, and the court of appeal stated that its determination is "consistent with the long-standing rule" established by this court in State ex rel. Elaire v. Blackburn , 424 So.2d 246, 252 (La. 1982), in which a plurality of this court stated, "when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged." Finally, the court of appeal distinguished State v. Graham , 14-1801 (La. 10/14/15), 180 So.3d 271, on the basis that it is a distinctive case, involving a unique set of circumstances, that presented an unusual procedural posture, and involved fundamental unfairness.

Code of Criminal Procedure art. 815 provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.

Code of Criminal Procedure art. 814 provides no legislatively authorized responsive verdicts for a charge of second degree kidnapping, and therefore Article 815 necessarily applies by its plain language.

Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. See State v. Porter , 93-1106 (La. 7/5/94), 639 So.2d 1137 ; State v. Dufore , 424 So.2d 256 (La.1982) ; State ex rel. Elaire v. Blackburn , 424 So.2d 246 (La.1982). This court has further clarified:

Stated another way, "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." State v. Simmons , 422 So.2d 138, 142 (La.1982) (quoting State v. Poe , 214 La. 606, 38 So.2d 359, 363 (1948) (on rehearing) ). Consequently, evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. Dufore at 258 ; Elaire , at 248-49.

State v. Simmons , 01-0293, p. 4 (La. 5/14/02), 817 So.2d 16, 19.

Second degree kidnapping is defined as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5) ; or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

La. R.S. 14:44.1(A), (B). In contrast, simple kidnapping is defined as:

(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent.
(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody.
(3) The intentional taking, enticing or decoying away, without the consent of the proper authority, of any person who has been lawfully committed to any institution for orphans, persons with mental illness, persons with intellectual disabilities, or other similar institution.
(4) The intentional taking, enticing or decoying away and removing from the state, by any parent of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.
(5) The taking, enticing or decoying away and removing from the state, by any person, other than the parent, of a child temporarily placed in his custody by any court of competent jurisdiction in the state, with intent to defeat the jurisdiction of said court over the custody of the child.

La. R.S. 14:45(A).

Thus, it is possible to commit second degree kidnapping without committing simple kidnapping. Indeed, there are ten ways, given the manner in which these statutes define the offenses. Applying Simmons , because reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive as required by La. C.Cr.P. art. 815.

The court of appeal erred in finding that this court had "implicitly" found otherwise in State v. McGhee , 15-2140 (La. 6/29/17), 223 So.3d 1136, and State v. Porter , 93-1106 (La. 7/5/94), 639 So.2d 1137. In McGhee , this court considered whether the evidence was sufficient to show defendant was anything other than an unwitting bystander to the crime, and the question of responsive verdicts was not presented. Likewise, in Porter , this court granted certiorari to determine whether the trial court erred in granting, over defense objection, the prosecutor's motion under La. C.Cr.P. art. 814 to exclude from the list of responsive verdicts the statutorily authorized responsive verdicts of guilty of simple rape and attempted simple rape to the charge of aggravated rape. The question of whether simple kidnapping is a lesser and included grade of second degree kidnapping was not presented.

While the court of appeal is correct that a plurality of this court in State ex rel. Elaire v. Blackburn required a defendant to make a contemporaneous objection to the instruction on responsive verdicts in order to complain on appeal of the insufficiency of the evidence supporting the responsive verdict, that decision carefully distinguished between those responsive verdicts that are necessarily a lesser and included grade of the charged offense and those that are not lesser and included offenses but are nevertheless legislatively authorized as responsive verdicts in La. C.Cr.P. art. 814 :

It is important to distinguish between those responsive verdicts which are lesser and included grades of the charged offense and those responsive verdicts which are not lesser and included offenses but are nevertheless included in La. C.Cr.P. Art. 814. Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley , 260 La. 768, 257 So.2d 400 (1972).
Thus, the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. However, in cases of the legislatively provided responsive verdicts which are not truly lesser and included grades of the charged offense, evidence which would support a conviction of the greater offense would not necessarily support a conviction of the legislatively responsive offense. In such cases, the evidence may be insufficient to establish an essential element of the lesser crime which is not an essential element of the greater crime.

State ex rel. Elaire , 424 So.2d at 248-249 (footnotes omitted).

Thus, to effectuate the legislature's choice to create responsive verdicts by legislative fiat that are not necessarily lesser and included grades of the offense charged, the plurality determined that "at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged." State ex rel. Elaire , 424 So.2d at 252. That rule was grounded in the text of La. C.Cr.P. art. 814(C), which authorizes a trial court to exclude a legislatively authorized responsive verdict "[u]pon motion of the state or the defendant, or on its own motion, ... if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense." See State ex rel. Elaire , 424 So.2d at 251 ("The 1982 amendment adding Section C to Article 814 now gives the trial judge discretion, on motion of either side, to exclude a responsive verdict which is not supported by the evidence. Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict."). The plurality in Elaire did not purport to address lesser and included offenses, and engrafting a similar requirement onto La. C.Cr.P. art. 815 would frustrate rather than effectuate the legislature's plain statement in that article that in all cases not provided for in La.C.Cr.P. art. 814 , guilty of a lesser and included grade of the offense is a responsive verdict.

The court of appeal was also too quick to distinguish State v. Graham . In that decision, this court engaged in a relatively straightforward application of the rule of Simmons (albeit against an unusual confluence of procedural irregularities) to find that molestation of a juvenile is not a lesser and included grade of aggravated incest:

Because aggravated incest can be committed in numerous ways, only one of which is molestation of a juvenile, the evidence sufficient to support conviction of aggravated incest may not necessarily support conviction for molestation of a juvenile. It might instead, depending on the circumstances of the case, support a conviction for sexual battery, carnal knowledge, indecent behavior, and so on. Stated another way, many reasonable scenarios can be imagined wherein the greater offense is committed without perpetration of the lesser offense. Accordingly, molestation of a juvenile is not a lesser and included grade of aggravated incest and the trial court erred in including "guilty of molestation of a juvenile" among the responsive verdicts.

Graham , 14-1801, p. 6, 180 So.3d at 275. This court also applied longstanding principles to find that the Double Jeopardy clause barred Graham from being retried following his implicit acquittal on the crime charged:

Given the state's failure to prove familial affinity between the defendant and the alleged victim at the time of the incident-an essential element of aggravated incest-the jury implicitly acquitted defendant of that charge by returning a verdict of guilty of molestation of a juvenile. The jury's implicit acquittal is a bar to any subsequent prosecution for aggravated incest. See Price v. Georgia, supra [398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ] ; see also Green v. United States , 355 U.S. 184, 188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957) (verdict of acquittal is final, "ending a defendant's jeopardy, and even when 'not followed by any judgment, is a bar to a subsequent prosecution for the same offence' ") (quoting United States v. Ball , 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896) ).

Graham , 14-1801, p. 10, 180 So.3d at 278. The jury implicitly acquitted defendant of five counts of second degree kidnapping, and he is likewise entitled to the same relief.

In sum, the legislature has provided no statutorily authorized responsive verdicts to the crime of second degree kidnapping in La. C.Cr.P. art. 814, and therefore La. C.Cr.P. art. 815, and its requirement that simple kidnapping be a lesser and included grade of second degree kidnapping before a verdict of guilty of the former can be responsive to a charge of the latter, applies by its plain language. Under Simmons , because reasonable state of facts can be imagined wherein the greater offense second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping, a verdict of guilty of simple kidnapping is not responsive to a charge of second degree kidnapping. Because the jury's return of the non-responsive verdicts is an implicit acquittal of the crimes charged, we reverse the court of appeal and remand to the trial court to enter a post-verdict judgment of acquittal on the five counts of second degree kidnapping.

REVERSED AND REMANDED