Datasets:

harvard-lil

/

cold-cases

like 14

"2006-02-09"

[ "920 So. 2d 1161" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nUpon consideration of the appellant’s response to the Court’s order of December 8, 2005, the Court has determined that the appellant has failed to demonstrate that the order on appeal is a final order or otherwise appealable nonfinal order. For this reason the appeal is hereby dismissed.\nDISMISSED.\nWEBSTER, POLSTON and HAWKES, JJ., concur.\n", "ocr": true, "opinion_id": 7779885 } ]

"2006-03-01"

[ "922 So. 2d 376" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. However, we remand the case to the trial court with directions for it to enter a corrected written judgment properly reflecting that appellant was found guilty of violating probation, rather than that he was tried and found guilty by the court of the underlying offenses.\nFARMER, TAYLOR and MAY, JJ., concur.\n", "ocr": true, "opinion_id": 7780091 } ]

"2005-12-21"

[ "922 So. 2d 574" ]

[ { "author_str": "Kirby", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMICHAEL E. KIRBY, Judge.\n|TThe State of Louisiana appeals the February 17, 2005 judgment of the Or*575leans Parish Juvenile Court, dismissing the charges against D.G.1\nThe State filed a petition on January 27, 2005 requesting that D.G. be adjudicated delinquent for violating La. R.S. 14:35 “relative to simple battery, to wit: The intentional use of force or violence upon Hysan Gaines, without the consent of the victim, on Tuesday, August 31, 2004, at approximately 2:30 p.m. at 8258 Lake Forest Rd., in the Parish of Orleans.” D.G. was arrested on September 7, 2004, but was subsequently released from custody.\nThis matter came for hearing on February 17, 2005. At the conclusion of the hearing, the trial court stated that it was dismissing the charges against D.G. on its own motion. On that same date, the trial court rendered its written judgment, which stated, in pertinent part, as follows:\nIt’s the judgment of the Court that, upon the Motion of the Court, pursuant to Children’s Code Article 876, that the Petition is dismissed for the following reasons:\n\\91. The Children’s Code Article, specifically through 877, declares its intent to bring children to trial and adjudication in a speedy manner, minimum of which is 30 days or less when incarcerated. The maximum of which is 90 days when not incarcerated. The Court is of the position that the Code is not silent as it relates to a prescriptive period for bringing petitions; in that, the D.A. has abused its discretion in deciding to handle matters as non-detentions, thereby circumventing the law in the application of 877 in time proceedings for bringing children to adjudication on alleged acts of delinquencies.\n2. Furthermore, the Assistant D.A. through its colloquy with the Court has indicated that it has no record in its file of conversations with the victim between August 31, 2004 and today, February 17, 2005.\n3. That the Assistant D.A. has never met with the victim in this ease, and therefore, is unable to explain to the Court any exigent circumstances that would otherwise allow the Court to proceed from initial hearing to adjudication.\nThe State appeals the trial court judgment, arguing that the trial court abused its discretion when it dismissed the petition under Louisiana Children’s Code article 876.2 Children’s Code Article 876 states, in pertinent part, that “[flor good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner.” In this case, the trial court dismissed the petition on its own motion. “Good cause” is determined on a case-by-case basis and must be fully supported in the record. State In Interest of M.B., 97-0524, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147. The Juvenile Court is vested with broad discretion in determining whether a case should be dismissed for good cause. State ex rel. T.N., 2000-1593 (La.App. 4 Cir. 5/23/01), 789 So.2d 73. The trial court’s reasons for judgment make clear that it found that the State’s inaction in |sthis case for five *576months after D.G.’s arrest constituted good cause for the dismissal of the petition.\nLa. Ch.C. article 843 provides that when a child is continued in custody prior to adjudication, “the delinquency petition shall be filed within forty-eight hours of the hearing to determine continued custody.” In this case, D.G. was not continued in custody. Contrary to the trial court’s statement in its reasons for judgment, the Children’s Code, as currently written, is silent as to when a delinquency petition has to be filed if the child is not continued in custody, as in this case. La. Ch.C. articles 104 and 803 state that where procedures are not provided in the Children’s Code, the Code of Criminal Procedure controls in a delinquency proceeding.\nD.G. was charged as delinquent for violating La. R.S. 14:35, relative to simple battery. A conviction under that statute carries a possible penalty of a fine of not more than five hundred dollars, or imprisonment for not more than six months, or both. According to La.C.Cr.P. article 572(A)(3), the State had two years to institute prosecution in this case.\nWe find that the trial court erred in finding that the State had a maximum time period of ninety days to file a delinquency petition in this case where the child was not continued in custody. The only reference in the Children’s Code to a ninety-day delay period is contained in La. Ch.C. article 877(B), which states that “[i]f the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.” The petition in this case was filed on January 27, 2005, and the record does not reflect any answer or appearance between that date and the February 17, 2005 hearing date. There is no provision in the Children’s Code requiring the State to file a delinquency petition | ¿within ninety days when the child is not continued in custody. La. Ch.C. article 877 only provides a time period for commencing an adjudication hearing after the petition has been filed; it does not include a time period for the filing of a petition when a child is not continued in custody.\nWe do not know if the Louisiana Legislature intentionally did not include a provision in the Children’s Code as to a time limitation for the filing of a delinquency petition when a child is not continued in custody, or if this omission was an oversight. Whether or not such a provision is added to the Children’s Code is entirely within the province of the Legislature. The State filed the delinquency petition within the delays allowed under the Code of Criminal Procedure, which controlled the time limitations in this case according to La.Ch.C. articles 104 and 803. The trial court did not have good cause to dismiss the delinquency petition, and abused its discretion in doing so.\nFor the reasons stated above, the trial court’s February 17, 2005 judgment dismissing the delinquency petition against D.G. is reversed. This matter is remanded to the Juvenile Court for further proceedings.\nREVERSED AND REMANDED.\nBELSOME, J., concurs with reasons.\n\n. Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juvenile involved in this matter will be used instead of his name.\n\n\n. The issue in this appeal is essentially the same as that presented in 2005-CA-0435. Although these cases involve different juveniles and different crimes, both involve petitions of delinquency dismissed under Louisiana Children's Code article 876 by the same Juvenile Court judge. Our decisions on both of these appeals are being rendered on the same date, and both conclude that the Juvenile Court judge erred in dismissing the petitions.\n\n", "ocr": true, "opinion_id": 7780225 }, { "author_str": "Belsome", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBELSOME, J.,\nConcurring with Reasons.\nI t Given the exclusion in the Children’s Code regarding a time limitation for the filing of a delinquency petition when a child is not continued in custody, I concur with the majority. However, permitting such a delay in cases where a child is not continued in custody could on occasion subject a juvenile offender to be tried at the age of majority creating an inequality of the timeliness of prosecutions between a *577child not continued in custody and a child continued in custody. That circumstance has not arisen in this instant case; therefore, I concur.\n", "ocr": true, "opinion_id": 7780226 } ]

"2005-11-10"

[ "922 So. 2d 994" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDENIED. See Munn v. Florida Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).\nBENTON, POLSTON and HAWKES, JJ., concur.\n", "ocr": true, "opinion_id": 7780258 } ]

"2006-03-10"

[ "925 So. 2d 502" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Brooks, Deron; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 1-01-42; to the Court of Appeal, First Circuit, No. 2004 KA 0012.\nDenied.\n", "ocr": true, "opinion_id": 7781022 } ]

"2006-03-17"

[ "925 So. 2d 521" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*522In re Spinosa, Joseph Thomas; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Family Court Parish of East Baton Rouge, No. 134,704; to the Court of Appeal, First Circuit, No(s). 2004 CW 0038, 2004 CW 0036, 2004 CA 0572.\nGranted. Consolidated with 2005-C-1935\n", "ocr": true, "opinion_id": 7781086 } ]

"2006-03-24"

[ "925 So. 2d 1225" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Flot, Andre; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 395-986; to the Court of Appeal, Fourth Circuit, No. 2005-K-0756.\nDenied.\n", "ocr": true, "opinion_id": 7781277 } ]

"2006-03-31"

[ "925 So. 2d 1249" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re White, Dorothy; White Charlie et al.; — Plaintiff(s); Applying for Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 601-577; to the Court of Appeal, Fifth Circuit, No. 04-CA-1434.\nNot considered. Not timely filed. See Supreme Court Rule X, section 5(d).\n", "ocr": true, "opinion_id": 7781360 } ]

"2006-03-31"

[ "925 So. 2d 1260" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Diamond Offshore Drilling, Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Iberia, 16th Judicial District Court Div. C, No. 98949; to the Court of Appeal, Third Circuit, No. 05-396.\nDenied.\nVICTORY, J., would grant.\n", "ocr": true, "opinion_id": 7781395 } ]

"2006-04-24"

[ "927 So. 2d 268" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nATTORNEY DISCIPLINARY PROCEEDINGS\nPER CURIAM.\nThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled *269client funds with his own funds and failed to render an accounting to his client. After the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.15 (safekeeping property of clients or third parties) of the Rules of Professional Conduct. Having reviewed the petition,\nIT IS ORDERED that the Petition for Consent Discipline be accepted .and that Boolus J. Boohaker, Louisiana Bar Roll number 3233, be suspended from the practice of law for a period of eighteen months, with all but six months deferred.\nIT IS FURTHER ORDERED' that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.\nJOHNSON, J., would reject consent discipline and assigns reasons.\nTRAYLOR, J., would reject consent discipline.\nJOHNSON, J. would reject consent discipline.\n| disbarment is the baseline sanction where an attorney has commingled and converted client funds. See, ABA’s Standards for Imposing Lawyer Sanctions, Standard 4.111; RE: Armant, 04-2232 (La.11/19/04), 888 So.2d 768; In re Joe L. Smith, 98-0619 (La.5/8/98), 710 So.2d 241; In Re: Leonard Parker, 96-2697 (La. 1/ 24/97), 687 So.2d 96; In Re: J. Gregory Caver, 97-0823 (La.5/1/97), 693 So.2d 150; In Re: Ronald Welcker, 97-0825 (La.6/3/97), 694 So.2d 918; In Re: Mitchell Ferrand, 97-0811 (La.6/20/97), 695 So.2d 1332. An attorney’s actions of commingling and converting client funds violate the Rules- of Professional Conduct 1.15 (safekeeping property of clients or third persons). In Re: Gros, 03-3076 (La.4/23/04), 871 So.2d 1091; In re Lewis, 03-1245 (La.10/3/03), 856 So.2d 1191; In Re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (La.1967). This Court has determined that the sanctioning of ah attorney “depends upon tbe seriousness of the offense, fashioned in the light of the purpose of the lawyer discipline, taking into account aggravating and mitigating circumstances.” Louisiana State Bar Association v. O’Halloran, 412 So.2d 523 (La.1982). This Court is mindful that the “disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct.” In Re: Bilbe, 02-1740 (La.2/7/03) 841 So.2d 729.\n|2Pisbarment is warranted, where: 1) an attorney acted in bad faith and contrary to the interest of his client, failed to inform his client of the status of litigation, settled a case without the knowledge of the client, negotiated settlements and converted his client’s funds for own use; 2) his conduct caused client actual harm, depriving client and/or third party of their funds; 3) the record shows no restitution; 4) the aggravating factors were present; and 5) the mitigating factors were not significant enough to warrant deviation from the baseline sanction of disbarment. See, Rules of Professional Conduct 1.15, In Re: Carter, 02-2066(La.10/14/02) 829 So.2d 1023. In the case sub judice, Attorney Boohaker collected funds on behalf of his client, Mr. Fourgaut, yet the attorney failed to refund those funds to his client, *270failed to maintain proper records to account for those funds, and failed to properly deposit those funds in a separate account, i.e. trust account. In essence, he commingled $300,000.00 collected on behalf of his client and converted his client’s funds for his personal use. His failure to properly handle his client’s funds caused those funds to be lost through Attorney Boohaker’s bankruptcy, which caused the client a substantial actual loss. This was not an isolated incident, as Attorney Boo-haker has a prior disciplinary history which include a 1988 reprimand for a similar misconduct. These incidents include: 1) an admonition in 2000 for failing to communicate with a client and neglecting a legal matter and 2) a formal private reprimand in 1988 for failing to render a timely accounting and failing to promptly refund the unearned portion of legal fee paid in advance. These aggravating factors, coupled with his substantial experience in the practice of law which began in 1976, outweigh the stipulated mitigating factors of his cooperating with the disciplinary proceeding. As this Court held in Louisiana State Bar Ass’n v. Selenberg, 270 So.2d 848 (La.1972), an attorney’s misuse of a client’s funds represents the “gravest form of professional ^misconduct” and disbarment is warranted. Therefore, I would reject the joint petition for consent discipline.\n\n. Standard 4.11 provides that \"Disbarment is generally, appropriate when a lawyer knowingly converts client’s property and causes injury or potential injury to a client.”\n\n", "ocr": true, "opinion_id": 7781767 } ]

"2006-04-28"

[ "927 So. 2d 285" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Perkins, Walter Lee Jr. et al.; Perkins, Betty;-Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. C, No. 211,415; to the Court of Appeal, Third Circuit, No. CW 05-01415.\nDenied.\n", "ocr": true, "opinion_id": 7781816 } ]

"2006-05-17"

[ "928 So. 2d 519" ]

[ { "author_str": "Fletcher", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFLETCHER, Judge.\nFrancisco ■ Arroliga was charged with one count of lewd and lascivious assault on J.C., a child under the age of sixteen. Prior to trial, the state filed a motion over defense objection to admit evidence of similar collateral crimes, and the trial judge allowed it. At trial, the victim testified that Arroliga fondled her when she was about six years old. Three witnesses followed with testimony of Arroliga’s similar offenses against them when they were children. Arroliga was convicted as charged and on corrected sentence received three and one half years in prison to be followed by five years of probation. Arroliga has appealed the trial court’s ruling on the collateral crimes evidence as well as the *520assessment of victim injury points for sexual contact.\nThe trial court did not err by allowing the collateral crimes evidence. Florida law provides that when a defendant is charged with a crime involving child molestation, evidence of other child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. § 90.404(2)(b)l., Fla. Stat. (2005). The evidence of the defendant’s molestation of the other children was probative because it corroborated the victim’s testimony, and did not distract the jury from the central issue of whether the defendant did indeed molest J.C.\nThe trial court’s assessment of victim injury points was correct. The sentencing guidelines effective October 1, 1983, for Category 2 sexual offenses as contained in chapter 800 provides that 20 victim injury points be assessed for “contact but no penetration.” See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 852 (Fla.1983). This was the rule from 1983 up until the decision in Karchesky v. State, 591 So.2d 930 (Fla.1992). The Florida Supreme Court in Karchesky held that sexual penetration which does not cause ascertainable physical injury cannot be assessed victim injury points for purposes of calculating the guidelines scoresheet. However, Karchesky was limited by its facts to those cases of sexual battery in which penetration occurred, and the holding did nothing to alter the assessment of victim injury points as it applied to crimes involving lewd and lascivious conduct, i.e., crimes involving sexual “contact but no penetration,” en compassed by chapter 800. See Seagrave v. State, 802 So.2d 281 (Fla.2001)(discussing Karchesky, found that “the issue of whether sexual contact point could be assessed for crimes other than sexual battery was not addressed”). To be sure, the dissent in Karchesky points out the illogic of proscribing assessment of victim injury points in a crime involving penetration but without ascertainable physical injury and assessing points for crimes involving contact but no penetration. Karchesky, 591 So.2d at 933. Not until Seagrave did the court resolve this problem by holding that victim injury points for “sexual contact” are not limited to criminal acts that constitute sexual battery.\nEven without applying the holding in Seagrave, the trial court would have been correct to assess victim injury points in sentencing Arroliga. Florida courts have long held that a defendant must be sentenced under the guidelines in effect at the time of the crime. See State v. Miller, 512 So.2d 198 (Fla.1987). The sentencing guidelines at the time Arroliga committed his lewd and lascivious acts upon the victim, at some unspecified time in 1991 or 1992, provided for the assessment of 20 points for “contact but no penetration.” See § 921.001(4)(b)l, Fla. Stat. (2005)(“The guidelines enacted effective October 1, 1983, apply to all felonies, except capital felonies, committed on or after October 1, 1983, and before January 1, 199U. ... ”)[e.s.], as reflected in applicable pre-Karchesky cases in Florida. Thus, the trial court correctly assessed victim injury points in preparation of Arroliga’s score-sheet.\nAffirmed.\n", "ocr": true, "opinion_id": 7782139 } ]

"2006-05-03"

[ "929 So. 2d 1095" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed without prejudice to appellant’s filing a timely motion for relief pursuant to Florida Rule of Criminal Procedure 3.850.\nSTONE, POLEN and FARMER, JJ., concur.\n", "ocr": true, "opinion_id": 7782349 } ]

"2006-06-02"

[ "929 So. 2d 1242" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Mars, Jennifer et al.; — Plaintiff; Applying for Supervisory and/or Remedial *1243Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 541-611; to the Court of Appeal, Fifth Circuit, No. 05-C-843.\nDenied.\nCALOGERO, C.J., would grant.\n", "ocr": true, "opinion_id": 7782424 }, { "author_str": "Johnson", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJOHNSON, J.,\nwould grant the writ application. The expert witness is qualified to testify under La.Code Evid. art. 702.\n", "ocr": true, "opinion_id": 7782425 } ]

"2006-06-16"

[ "929 So. 2d 1278" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Jackson, Lionel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 94-6931; to the Court of Appeal, Fifth Circuit, No. 97-KH-15.\nDenied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).\n", "ocr": true, "opinion_id": 7782542 } ]

"2006-06-16"

[ "929 So. 2d 1288" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re U.S. Agencies Casualty Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, Nos. 522.095, 518,777; to the Court of Appeal, First Circuit, No(s). 2005 CA 0728, 2005 CA 0729.\nDenied.\n", "ocr": true, "opinion_id": 7782580 } ]

"2006-05-24"

[ "930 So. 2d 2" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Ware, Travis Dwayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 02-161174; to the Court of Appeal, First Circuit, No. 2005 KW 0914.\nDenied.\n", "ocr": true, "opinion_id": 7782602 } ]

"2006-05-17"

[ "930 So. 2d 896" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nON APPLICATION FOR ADMISSION TO THE BAR\nPER CURIAM.\n1 ^The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Mark W. Rogers, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his 1995 arrest for a felony drug violation and his failure to complete the sentence imposed by the court. In addition, the Committee noted a lack of documentation regarding petitioner’s prior treatment for a history of substance abuse, and expressed concern about petitioner’s traffic record, which included at least one DWI offense. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.1\nPetitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.\nThe commissioner conducted a character and fitness hearing in August 2005, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received | ^documentary evidence and heard testimony given by petitioner and his witnesses. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law in Louisiana at this time. Petitioner objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).\nAfter reviewing the evidence and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should pe*897titioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.\nCONDITIONAL ADMISSION GRANTED.\nJOHNSON, J., concurs.\nVICTORY, J., dissents.\nWEIMER, J., dissents and assigns reasons.\nTRAYLOR, J., dissents for reasons assigned by WEIMER, J.\n\n. In re: Rogers, 04-1801 (La.7/20/04), 877 So.2d 993.\n\n", "ocr": true, "opinion_id": 7782815 }, { "author_str": "Weimer", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWEIMER, J.,\ndissenting.\n11While the applicant is to be commended for his recent sobriety, based on character and fitness concerns and the report of the commissioner who recommended denial of admission, I would deny admission at this time.\n", "ocr": true, "opinion_id": 7782816 } ]

"2006-06-23"

[ "930 So. 2d 973" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Hampton, Darrell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 15994; to the Court of Appeal, First Circuit, No. 2005 KA 0361.\nDenied.\n", "ocr": true, "opinion_id": 7782869 } ]

"2006-06-23"

[ "930 So. 2d 978" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nk ⅛ re Iberia Bank; — Plaintiff; Applying nr Writ of Certiorari and/or Review, Par-Uli of Jefferson, 24th Judicial District Court Div. B, No. 608-150; to the Court of Appeal, Fifth Circuit, No. 05-CA-641.\nDenied.\n", "ocr": true, "opinion_id": 7782886 } ]

"2006-03-17"

[ "932 So. 2d 359" ]

[ { "author_str": "Salcines", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSALCINES, Judge.\nLouis Louismeme appeals the summary denial of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Louismeme’s postconvietion motion is not properly sworn, we affirm. See Fla. R.Crim. P. 3.850(c). Our affirmance is without prejudice to any right Louismeme may have to file a verified motion for post-conviction relief pursuant to rule 3.850. Any such motion will not be deemed successive. We remind the postconvietion court that if it should again deny relief to any subsequent verified postconvietion motion Louismeme files, the court must attach portions of the record conclusively refuting the defendant’s allegations.1\nAffirmed.\nNORTHCUTT and CANADY, JJ., Concur.\n\n. Hearsay documentation contained in the trial court record, such as a police report, can*360not conclusively refute a defendant’s claim. See Carpenter v. State, 884 So.2d 385, 387 n. 3 (Fla. 2d DCA 2004); Wachter v. State, 868 So.2d 629, 630 (Fla. 2d DCA 2004).\n\n", "ocr": true, "opinion_id": 7783149 } ]

"2006-06-28"

[ "933 So. 2d 609" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).\nBARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.\n", "ocr": true, "opinion_id": 7783349 } ]

"2006-05-24"

[ "934 So. 2d 543" ]

[ { "author_str": "Rothenberg", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nROTHENBERG, Judge.\nThe defendant, Shawn Smith, appeals the denial of his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). The defendant’s sentence was imposed on December 17, 2002, after he was found guilty of attempted robbery, a third degree felony; fleeing or attempting to elude a law enforcement officer at a high rate of speed, a second degree felony; and leaving the scene of an accident involving injuries, a third degree felony. We affirm.\nThe defendant claims that the imposition of equal concurrent sentences as a habitual violent offender and as a prison releasee reoffender, violates section 775.082, Florida Statutes (1999), the Prison Releasee Reoffender Act. While we agree with this proposition, unfortunately for Mr. Smith, this principle and the case law upon which he relies,1 do not assist him, as the record conclusively refutes his claim of equal concurrent sentencing.\n*544The defendant was sentenced pursuant to section 775.082(8) as a prison releasee reoffender to the maximum term provided by law, which was five years on each of the third degree felonies and fifteen years on the second degree felony. The defendant was sentenced pursuant to section 775.084(4), as a habitual violent offender to ten years with a five-year minimum mandatory on each third degree felony, and twenty years with a ten-year minimum mandatory as to the second degree felony. As the record clearly reflects, the punishments imposed are not equal under the sentencing schemes relied upon.\nAffirmed.\n\n. See Grant v. State, 770 So.2d 655 (Fla.2000); Martin v. State, 813 So.2d 1036 (Fla. 3d DCA *5442002) (wherein the State conceded that the imposition of equal concurrent sentences as habitual offender and as a prison releasee reoffender was error); Watts v. State, 789 So.2d 547 (Fla. 3d DCA 2001).\n\n", "ocr": true, "opinion_id": 7783468 } ]

"2006-06-28"

[ "935 So. 2d 28" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988); Marti v. State, 756 So.2d 224, 229 (Fla. 3d DCA 2000).\n", "ocr": true, "opinion_id": 7783548 } ]

"2006-08-18"

[ "935 So. 2d 134" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Wilson, David Lance; — Plaintiff; Applying for Reconsideration of this Court’s action dated March 24, 2006; Parish of East Baton Rouge, 19th Judicial District Court Div. G, No. 03-00-682; to the Court of Appeal, First Circuit, No. 2004-KW-2692.\nReconsideration denied.\n", "ocr": true, "opinion_id": 7783608 } ]

"2006-06-29"

[ "935 So. 2d 954" ]

[ { "author_str": "Carlson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCARLSON, Justice,\nfor the Court.\n¶ 1. Today’s appeal involves a request by a minor child’s mother that we refuse to give full faith and credit to two ex parte orders entered by a South Carolina trial court concerning child custody issues litigated by her and the child’s father in both the South Carolina and Mississippi courts. The Warren County Chancery Court entered an order on a petition for writ of habeas corpus affording full faith and credit to the South Carolina court orders. The mother asserts that she was denied due *955process, and that the execution of the Mississippi chancery court order should have been stayed pending appeal, pursuant to our rules of appellate procedure. We find that the mother’s request for a stay of execution of the chancery court order is without merit. Additionally, because the County Court of Warren County has awarded custody of the minor child to the father in separate proceedings, and that judgment is final, the issue of child custody is moot. Thus, as to the issues raised, we affirm in part, and dismiss in part.\nFACTS AND PROCEEDINGS IN THE TRIAL COURT\n¶ 2. T.G.S. (Tom) and J.E.W. (Jan) are the natural parents of B.A.S. (Bob), born out of wedlock on June 5, 2003, in Vicksburg, where Tom and Jan were then living.1 On January 31, 2004, Tom, Jan, and Bob moved to Atlanta, Georgia. Within weeks, because of continuing difficulties in their relationship, Jan and Tom parted ways, and Jan, who was essentially a lifelong resident of Warren County, returned to Vicksburg with Bob. However, Jan and Tom, without court intervention, quickly agreed to an alternating schedule of shared custody whereby each parent had separate custody of Bob every other month. When Tom took custody of Bob in August, 2004, he returned with Bob, not to Atlanta, but instead, to his home state of South Carolina. Likewise, instead of returning Bob to Jan’s custody pursuant to this informal agreement, Tom, in November, 2004, filed a petition for child custody and support and restraining order in the Family Court of the Fourth Judicial Circuit of Darlington County, South Carolina. The South Carolina family court promptly entered an ex parte temporary injunction, enjoining both Tom and Jan from removing Bob from the state of South Carolina, pending a temporary hearing on the issues of child custody and child support and other related issues.\n¶ 3. Within days of the entry of this ex parte restraining order, Jan and her sister, without knowledge of the South Carolina court action, traveled to South Carolina to retrieve Bob pursuant to a pre-arranged agreement between Jan and Tom. Although the method of notice is disputed, it is undisputed that by the time Jan and her sister left South Carolina with Bob, Jan was aware of the South Carolina family court temporary restraining order prohibiting Bob from being removed from the state of South Carolina. After returning to Mississippi, Jan, on November 16, 2004, filed a petition for child custody in the County Court of Warren County. Upon learning that Jan had removed Bob from the state of South Carolina, in violation of its previously entered order, the South Carolina family court, by way of a second ex parte order entered on November 22, 2004, awarded Tom custody of Bob pending a hearing, and directed “all law enforcement officers” to assist Tom in retrieving Bob.\n¶ 4. On November 29, 2004, Tom filed a petition for a writ of habeas corpus in the Chancery Court of Warren County requesting, inter alia, that full faith and credit be given to the previously entered South Carolina temporary injunction and custody order. On November 30, 2004, a hearing was conducted before Chancellor Vicki R. Barnes, and both Tom and Jan were personally present, and each was represented by Mississippi counsel. The chancellor received testimony from Tom and Jan as well as S.C. (Sally), Jan’s sister, *956and B.W. (Betty), Jan’s mother. Exhibits were also received into evidence, including certified copies of the relevant South Carolina state court documents, and the petition for child custody which Jan had filed in the County Court of Warren County. After hearing closing arguments from the attorneys in this two-day hearing, the chancellor immediately thereafter rendered her bench ruling, which stated in pertinent part:\nThe Court notes that ... a copy of a Temporary Injunction, which was certified by South Carolina was filed as Exhibit B. That the Temporary Injunction was entered on November 12th, 2004, by the Family Court of the Fourth Judicial Circuit County of Darlington, South Carolina. That this was an ex parte order without notice to the Respondent, [J.E.WJ. That also as part of this file is a certified copy of an ex parte custody order entered on November the 22nd of 2004, by the same Court, granting ex parte custody to the Petitioner, [T.G.SJ. The Court also notes that a hearing has been scheduled in South Carolina for January 21st of 2005, at 9:45 a.m., where that is set to determine the custody matter and other issues.\nThe Court has also been advised as part of the testimony that the Respondent has a hearing scheduled for January 14th of 2005, on the Respondent’s Motion to Dismiss or the Alternate Relief Contesting the Jurisdiction of the South Carolina Court.\nThe Court has also been advised through testimony that the Respondent has filed a custody action in the Warren County Court.\nThis Court realizes that this dispute involves the issues of custody and proper service of process.\nThe Court finds that today the only issue before this Court is that of whether or not the South Carolina Order should be afforded full faith and credit, that this is not a custody hearing to be determined by this Court at this time. The Court finds that the issue regarding the service of process has to be brought before the Darlington County, South Carolina Family Court and that Court would have to make a determination. That both parties are represented by attorneys in South Carolina.\nThe Court finds after considering all of these facts and the evidence presented as well as the applicable law, that the Petition for Habeas Corpus should be granted and the Court has no choice but to return the minor child to the father until there is a hearing by the Family Court of Darlington, South Carolina. Therefore, the Court must, at this time, give full faith and credit to the Darling-ton, South Carolina Court Order.\n¶ 5. After the bench ruling from the chancery court, but prior to entry of the written judgment consistent with the bench ruling, Jan, through counsel, filed a motion for a stay of execution of the chancery court judgment pending appeal at 2:38 p.m., on December 1, 2004, the same day as the bench ruling. It was not until 3:23 p.m., on December 1, 2004, that the chancery court judgment was entered. This judgment stated, inter alia, that the South Carolina temporary injunction and custody order would be afforded full faith and credit and that Tom would receive immediate custody of Bob. At 3:25 p.m., on December 1, 2004, Jan filed her notice of appeal with the trial court. On December 2, 2004, the chancellor entered an order denying Jan’s motion for stay of execution of the judgment and directing Jan to deliver Bob “immediately to the Petitioner, T.G. S., in accordance with the Judgment entered in this cause on December 1, 2004.” Likewise on December 2, 2004, *957Jan, through counsel, filed with this Court an Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal, and by a single-justice order entered on December 3, 2004, Tom and the Warren County Chancery Court were given the opportunity to respond to Jan’s emergency petition. See M.R.A.P. 21. After receiving a response from Chancellor Barnes and Jan’s reply to that response, a three-justice panel of this Court, by order dated December 31, 2004, and entered on January 5, 2005, denied Jan’s Emergency Petition for Extraordinary Relief or in the Alternative Emergency Petition for Stay Pending Appeal.\n¶ 6. After the filing of the notice of appeal, but prior to this Court’s receipt of the trial court record in the chancery court proceedings, the County Court of Warren County conducted a two-day hearing on Jan’s petition for child custody, and on March 16, 2005, the county court granted “the permanent care, custody and control” of Bob to Tom, and all remaining issues, “including but not limited to, visitation and child support [were] deferred until a future hearing” to be scheduled by the County Court of Warren County. Thereafter, Jan appealed the county court’s order directly to this Court. On July 26, 2005, a three-justice panel of this Court granted Tom’s motion to dismiss Jan’s appeal of the county court order. The panel order of July 26, 2005, stated, inter alia, that Jan should have appealed the county court order to the Chancery Court of Warren County, and that this Court thus lacked jurisdiction to consider Jan’s appeal of the custody order entered by the County Court of Warren County. Accordingly, Jan’s appeal of the county court custody order was dismissed, without prejudice, and the mandate issued from this Court on August 16, 2005. Jan then filed a motion with the county court for an out-of-time appeal of the county court custody order to the chancery court. The county court denied the motion for an out-of-time appeal. Finally, Jan filed a motion with the county court requesting the court to reconsider the denial of an out-of-time appeal, or in the alternative to grant relief under Miss. R. Civ. P. 60(b). The record is silent as to the disposition of this motion to reconsider by the County Court of Warren County.\n¶ 7. In today’s appeal, Jan asserts that the chancery court erred in granting full faith and credit to the South Carolina ex parte orders, and in denying the automatic stay of execution of the chancery court judgment pursuant to the provisions of M.R.A.P. 8. However, Jan filed her notice of appeal on December 1, 2004, before the automatic stay became an issue on the following day at the hearing on her motion to stay the execution of the judgment. Jan’s notice of appeal makes no mention of the automatic stay, as it had not yet arisen as an issue, and instead only makes reference to the order of December 1, 2004. Finding that Jan is entitled to no relief on appeal, we affirm the Warren County Chancery Court’s denial of Jan’s request for an automatic stay of execution of the chancery court judgment pending appeal, pursuant to M.R.A.P. 8(b)(5), and we dismiss as moot Jan’s appeal from the chancery court order affording full faith and credit to the South Carolina family court orders.\nDISCUSSION\n¶ 8. Jan raises two issues on appeal: (1) whether the Warren County chancellor erred in granting full faith and credit to the ex parte orders from South Carolina; and, (2) whether the chancellor erred in denying the automatic stay under M.R.A.P. 8. We will restate and reorder these issues for clarity in discussion.\n*958I. WHETHER THE CHANCERY COURT ERRED BY DENYING JAN AN AUTOMATIC STAY UNDER M.R.A.P. 8(b)(5)\n¶ 9. Jan asks this Court to determine whether the trial court erroneously failed to grant an automatic 10-day stay of enforcement of the judgment pending appeal under Rule 8 of the Mississippi Rules of Appellate Procedure. Jan filed her notice of appeal in this case on December 1, 2004, and the chancery court denial of the automatic stay did not occur until the next day, December 2, 2004. Rule 3(c) requires that the notice of appeal “shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.” M.R.A.P. 3(c) (emphasis added). Jan is attempting to do the impossible— pursue on appeal an issue arising from events that had not yet taken place at the time she filed her notice of appeal. M.R.A.P. 3(c) also states that an appeal “shall not be dismissed for informality of form or title of the notice of appeal.” However, Jan fails to comply with the Rule 3 requirements no matter how flexible the text regarding form. The event leading to her appeal had not yet occurred at the time she filed her notice of appeal, and thus this issue is not properly before this Court. Notwithstanding this finding, we will address this issue on its merits.\n¶ 10. Jan argues she was due an automatic ten-day stay under M.R.A.P. 8(b)(5), which states:\nIf a hearing is necessary for issues arising under subpart (b), the judgment shall be stayed during such hearing and for ten days following the trial court’s ruling. The ruling of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme Court or the Court of Appeals.\nTherefore, in order for this rule to apply, a hearing must be “necessary for issues arising under subpart (b),” such as “Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested su-persedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal.” M.R.A.P. 8(b)(1). Assuming, ar-guendo, that M.R.A.P. 8 is applicable in this case, Jan is entitled to no relief under this rule. Immediately after the trial court denied a stay of judgment, she petitioned this Court for relief. A three-justice panel of this Court ultimately denied Jan’s request for a stay pending appeal. From the record before us, we again find the trial court committed no error in denying Jan’s request for an automatic stay of execution of the chancery court order. This issue is without merit.\nII. WHETHER THE FULL FAITH AND CREDIT ISSUE CONCERNING THE SOUTH CAROLINA EX PARTE ORDERS IS NOW MOOT\n¶ 11. When presented with issues of law, we employ a de novo standard of review; and, when confronted with the issue of whether a sister state’s judgment should be given full faith and credit by our courts, we are indeed considering an issue of law. Tel-Com Management, Inc. v. Waveland Resort Inns, Inc., 782 So.2d 149, 151 (Miss.2001) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)).\n¶ 12. The authority for a court to give full faith and credit to a foreign court’s judgment is found in Article IV of the United States Constitution. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records *959and Proceedings shall be proved, and the Effect thereof.” U.S. Const, art. IV, § 1. This Court has made it clear that we will first look to the requirements of that clause when determining when a judicial proceeding from another state is due full faith and credit. “Our decision must comport with Article IV., § 1 of the United States Constitution requiring us to give full faith and credit to the judicial proceedings of a sister state.” Owens ex rel. Mosley v. Huffman, 481 So.2d 231, 238 (Miss.1985).\n¶ 13. Jan makes various arguments, stating first that the enforcement of a foreign judgment is subject to various limitations, including proper jurisdiction of the rendering state court, due process provided to the defendant, and finality of the judgment on its merits. See Tennessee Properties, Inc. v. Southern Pilot Ins. Co., 766 So.2d 44 (Miss.App.2000). Jan argues in part that because Bob had not met the residency requirements, South Carolina did not have jurisdiction. Jan also argues that, in entering the order giving full faith and credit to the foreign ex parte orders, the Warren County Chancery Court erroneously failed to find (1) that the South Carolina trial court had no subject matter or personal jurisdiction; (2) that Jan was not afforded the opportunity to defend herself under her due process rights because of lack of proper service and the ex parte nature of the orders; and, (3) that the orders were not final judgments on the merits deserving of full faith and credit. Jan contends that because these requirements were not met, the ex parte orders were in no way deserving of full faith and credit in Mississippi; and, that, therefore, the chancery court erred in entering its judgment. Tom, on the other hand, argues that the issue is now moot because the County Court of Warren County has already awarded him custody in the separate action initiated by Jan’s filing of her petition for custody and child support.\n¶ 14. This Court has stated: “[cjases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot. We have held that the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions.” Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466-67 (Miss.1980) (internal citations omitted). In Monaghan, this Court was called on to decide the validity of a trial court’s order enjoining a party for one year from working for his former employer’s competitor. However, by the time the case was submitted to this Court on briefs and oral argument, the one-year period of injunction had expired, thus, the issue was moot. We will not adjudicate moot questions. Id.; City of Madison v. Bryan, 763 So.2d 162, 166 (Miss.2000).\n¶ 15. This principle of mootness applies in child custody cases as well. In an earlier child custody appeal which this Court dismissed as moot, the trial court had initially entered an order giving custody of the child in a divorce proceeding to the father, but then later entered a decree modifying that order, awarding a two-month period of custody to the mother, who was to redeliver the child to the father at the end of that time. Campbell v. Lovgren, 171 Miss. 385, 157 So. 901 (1934). This Court was presented with the issue of whether the later decree modifying the first order should stand, but never directly addressed that issue because the two-month period had ended. “The period of time during which the custody of the child was changed by the decree appealed from having expired, the questions presented by the record have become purely academic, and therefore no actual controversy is pre*960sented for the decision of this court, from which it follows that the appeal should be dismissed.” Id. at 901 (citations omitted). In Savell v. Savell, 206 Miss. 55, 56-57, 39 So.2d 532, 533 (1949), the trial court had directed that the children, who were in custody of their mother following a divorce, be placed in certain boarding schools during that scholastic year, and that the father pay five times per month the amount the mother was to pay. The children were to then be returned to the mother for six weeks, and then transferred to the custody of the father for six weeks. Id. The husband appealed, and this Court relied on Campbell to dismiss the appeal as moot, as the appeal took place after both the school year and the two six-week periods of custody had ended. Id.\n¶ 16. Tom argues that he sought a writ of habeas corpus based on the applicable statute, Miss.Code Ann. § 11-43-1, which reads, “[t]he writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in cases expressly excepted.” Tom cites several Mississippi cases where habeas corpus proceedings have ultimately been rendered moot. See Bradley v. State, 355 So.2d 675 (Miss.1978); McGarrh v. State, 243 Miss. 234, 138 So.2d 284 (1962); Serton v. Sollie, 829 So.2d 730 (Miss.Ct.App.2002). Jan, on the other hand, asserts that the original orders from the South Carolina trial court were not due full faith and credit. See, e.g., Morrison v. Mississippi Dep’t of Human Services, 863 So.2d 948 (Miss.2004) (a judgment in a child support proceeding was found void because of lack of jurisdiction and due process violations when one party and his counsel were not present at the hearing as a result of flawed service of process). However, in considering the arguments of both Tom and Jan, we find that Jan’s argument cannot overcome the fact that both proceedings concerning the custody of Bob have come to an end, and neither proceeding resulted in Jan’s obtaining custody of Bob. Jan simply cannot legitimately argue that she was not afforded the opportunity to answer and defend herself in South Carolina when she did in fact do exactly that. She hired an attorney and, only one week after Tom filed his complaint in South Carolina, Jan filed both a motion to dismiss based on lack of jurisdiction and the notice of a hearing on the motion in the South Carolina trial court. Tom points out that the South Carolina trial court ultimately granted the motion in Jan’s favor the following month. The South Carolina custody orders were only temporary, pending a hearing. It appears now that the hearing has taken place, and the case has been dismissed because of lack of jurisdiction. More damaging to Jan’s case is the March 16, 2005, order by the County Court of Warren County, awarding Tom the permanent care, custody, and control of Bob in a proceeding Jan herself initiated. Therefore, a court which Jan admits did have proper jurisdiction has now also heard the matter and entered its final judgment awarding “the permanent care, custody and control” of Bob to Tom. Based on the actions of the South Carolina and Mississippi courts, we find that this controversy has now expired at the time of review, making this appeal moot. See Monaghan, 393 So.2d at 466. As noted, we have made it clear that we will not adjudicate moot questions. City of Madison, 763 So.2d at 166.\n¶ 17. However, relying on Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994), Jan attempts to argue, just as the Allred appellant did, that this case should not be dismissed as moot because it is a matter of public interest and therefore an exception to the rule applies. Jan raises the “capa*961ble of repetition but evading review” doctrine employed by the United States Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). This Court in Strong v. Bostick, 420 So.2d 1356, 1359 (Miss.1982), adopted the two-part Weinstein rule that the question of mootness is not applied to matters of public interest, determined by a two-part test, reiterated in Allred. “To utilize the ‘capable of repetition but evading review’ doctrine, these two elements must be combined: (1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again.” Allred, 641 So.2d at 1220. In Strong, this Court found that the Weinstein factors were present and that the question was not moot. 420 So.2d at 1359. In today’s case, we cannot find that both prongs are met as there is no reasonable expectation that Jan will be subject to the same action again; thus, the exception does not apply.\n¶ 18. Jan next cites the pre-Weinstein case of Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372, 376 (1944), relied on by Strong, which applied the public interest exception because that case dealt with election proceedings, no doubt a matter of public interest. Another case relied on by Jan, Board of Trustees of Pascagoula Mun. Separate School Dist. v. Doe, 508 So.2d 1081, 1084 (Miss.1987), is also inapplicable here because the Court in that case dealt with a matter of public concern, Mississippi’s compliance with the Education for all Handicapped Children Act. Jan likewise cites Allred because in that case, the two elements were not both met but the Court nonetheless proceeded to publish an opinion concerning the district attorney, relying on Sartin. However, the Court in Allred distinguished that particular case by holding, “[t]his situation is clearly not a mere private dispute between two parties since future district attorneys inevitably will find themselves in the same quandary as Allred found himself in 1991.” Allred, 641 So.2d at 1220. The same is not true here, however. This case is a private dispute between two parties and does not involve matters of such public interest present in Allred, Doe, and Sartin such that we are compelled to do anything except dismiss the case as moot. To do otherwise would be to issue an advisory opinion impermissibly, or to attempt to settle abstract or academic questions. See Monaghan, 393 So.2d at 466-67.\n¶ 19. This Court in Allred also reiterated the Monaghan rule that we are normally not to delve into what are essentially advisory opinions. 641 So.2d at 1220. The Monaghan warning against advisory opinions is not a new rule, but reaches as far back as 1934. “Though earnestly requested by counsel to depart from this rule and to say whether or not the decree of the court below should have been rendered, in order that the court may be guided thereby should another petition be filed for the modification of the decree rendered in the divorce proceeding, we do not feel at liberty to do so. Such an opinion would be merely advisory, and the rendering of opinions of that character are not within the province of this Court. Moreover, whether or not that decree should be modified will depend on facts and circumstances that may exist when a petition for that purpose is heard by the court.” Campbell, 157 So. at 901.\n¶ 20. We thus find in today’s case that the facts and circumstances involving child custody are too case-specific and sensitive for the Court to lay down a blanket rule when the controversy before us has terminated. The question Jan presents to this Court is now moot. We therefore dismiss the appeal as to this issue.\n*962CONCLUSION\n¶ 21. The chancery court did not err in refusing to grant Jan an automatic ten-day stay under M.R.A.P. 8(b)(5). As to the chancery court affording full faith and credit to the South Carolina orders, there is simply no remaining issue that is anything other than academic in this case. The South Carolina proceedings have been dismissed, and the County Court of Warren County has entered a final judgment awarding the custody of Bob to his natural father in a proceeding that the natural mother herself began. The natural mother’s question now presented to this Court on appeal is thus moot.\n¶ 22. For these reasons, the judgment of the Chancery Court of Warren County is affirmed in part and dismissed as moot in part.\n¶ 23. AFFIRMED IN PART AND DISMISSED IN PART.\nSMITH, C.J., WALLER, P.J., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.\n\n. Since a minor child is involved, fictitious names are used for the parties to maintain confidentiality.\n\n", "ocr": true, "opinion_id": 7783784 } ]

"2006-08-30"

[ "936 So. 2d 186" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Hughes, Stacey Lynette; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 279790; to the Court of Appeal, Third Circuit, No. KW 06-00865.\nDenied.\n", "ocr": true, "opinion_id": 7783861 }, { "author_str": "Johnson", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJOHNSON, J.,\nwould grant the writ application. I would reverse the rulings of the court of appeal and the trial court and grant the defendant’s motion to suppress. While the police officer had probable cause for this investigatory stop, when it became clear that the driver of the vehicle and the passenger had no outstanding warrants, there was no probable cause for the search of the vehicle.\n", "ocr": true, "opinion_id": 7783862 } ]

"2006-08-25"

[ "936 So. 2d 817" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Flynn, Dale Sr.; — -Plaintiff; Applying for Appeal of Decision of Disciplinary Board No. 06-PDB-015 Office of Disciplinary Board, No. 06-PDB-015.\nLeave to appeal denied.\n", "ocr": true, "opinion_id": 7784076 } ]

"2006-09-15"

[ "936 So. 2d 1272" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Employers Self Insurers Fund; Management Services U.S.A.; — Other(s); Applying for Writ of Certiorari and/or Review Office of Worker’s Comp. Dist. 1W, *1273Nos. 03-02830, 03-02834,; to the Court of Appeal, Second Circuit, No. 40,845-WCA.\nDenied.\n", "ocr": true, "opinion_id": 7784210 } ]

"2006-09-22"

[ "937 So. 2d 379" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Clarke, Tony F. Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. D, No. 300686; to the Court of Appeal, First Circuit, No. 2005-KW-1611.\nDenied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).\n", "ocr": true, "opinion_id": 7784307 } ]

"2006-07-19"

[ "937 So. 2d 1119" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nOn first-tier certiorari review from an administrative decision, “the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). The Petitioner is, in effect, entitled to consideration of whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So.2d 14 (Fla. 3d DCA 2001). Thus, at first tier level, the circuit court may correct any errors made below: jurisdictional, procedural or substantive; and judgments may be modified, reversed, remanded with directions, or affirmed. See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. of Adjustment, 317 So.2d 828, 830-831 (Fla. 4th DCA 1975).\nBecause the circuit court’s order, in different places, contains verbiage from two different standards of review, in the instant case, it is unclear which standard the court employed in reaching its conclusion. Accordingly, we grant certiorari for the sole purpose of allowing the circuit court to indicate which standard of review it used.\nPetition for Writ of Certiorari granted.\n", "ocr": true, "opinion_id": 7784527 } ]

"2006-10-06"

[ "938 So. 2d 632" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nClifford Jon Rainey [“Rainey”] appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We affirm.\nRainey was charged with second-degree murder. The jury found him guilty of the lesser included offense of manslaughter with a weapon, and he was sentenced to thirty years incarceration.1 Rainey appealed, but his appeal was dismissed by counsel. The direct appeal was later reinstated, and this court affirmed the judgment and sentence. Rainey v. State, 875 So.2d 684 (Fla. 5th DCA 2004).\n*634On September 6, 2001, Rainey filed his first 3.850 motion alleging ineffective assistance of counsel. That motion was denied on October 23, 2001, and the order denying relief was affirmed on appeal. Rainey v. State, 802 So.2d 1185 (Fla. 5th DCA 2002). On July 3, 2003, he filed a 3.800(a) motion to correct sentence, which was denied on September 15, 2003.\nRainey filed this second 3.850 motion for post-conviction relief based on a claim of newly discovered evidence. Dr. Shashi Gore was the State’s forensic medical expert at his trial. Dr. Gore was placed on probation by the Medical Examiner’s Commission in 2004 for negligence and violations of professional standards in his role as an expert in the case of State v. Yurko, Case No. CR98-1730 (Fla. 9th Jud. Cir.). Rainey claims that this disciplinary action constitutes material impeachment evidence that would warrant a new trial or sentencing hearing in his case. He contends that this new evidence could impeach Dr. Gore’s testimony at trial regarding whether the victim had “defense wounds” and whether cuts to the top of the victim’s head were consistent with him being attacked. Rainey argues that since Dr. Gore’s testimony was directed at the issue whether Rainey’s conduct was criminal homicide or a justifiable act of self-defense, this impeachment evidence would “probably” produce an acquittal on retrial or a lesser sentence.\nThe undisputed evidence at trial showed that Rainey killed Alfred Pritchard [“Pritchard”]. Rainey had gone to his ex-girlfriend’s house near midnight on the date of the homicide. The ex-girlfriend was sleeping with Alfred Pritchard, who awakened, became upset at Rainey’s presence and ran outside in a confrontational manner, carrying both a machete and a firearm. During the altercation that ensued, Rainey took control of the machete. He ultimately hit Pritchard with the machete, killing him. Rainey testified that he acted in self-defense, but the State disputed Rainey’s version that Pritchard was about to shoot him. The State presented evidence from an eyewitness who testified that she did not see Pritchard point his gun at Rainey. The State’s evidence showed that Rainey unexpectedly struck Pritchard with the machete after the confrontation had subsided and the two men were walking back towards the house. The State had argued that the lack of “defensive wounds” on Pritchard’s hands confirmed that he was attacked by surprise. The jury acquitted Rainey of second-degree murder, but also rejected Rai-ney’s claim of self-defense. He was found guilty of the lesser included offense of voluntary manslaughter with a special verdict that he carried a weapon, the machete.\nTo prevail on a newly discovered evidence claim, Rainey must demonstrate first, that the newly discovered evidence was unknown to him, counsel, or the court at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a nature that it would probably produce an acquittal upon retrial. See Jones v. State, 709 So.2d 512 (Fla.1998); State v. Gunsby, 670 So.2d 920 (Fla.1996). In determining whether the newly discovered evidence would probably produce an acquittal on retrial, the trial court should initially consider its admissibility and then evaluate the weight of the newly discovered evidence and the evidence which was introduced at the trial, taking into consideration whether the newly discovered evidence goes to the substance of the case or whether it constitutes impeachment evidence. See Robinson v. State, 770 So.2d 1167 (Fla.2000).\nDr. Gore was placed on probation in 2004, and Rainey’s trial concluded in 2000. The final order in the disciplinary *635action against Dr. Gore found only that he exhibited negligence in his work in the case involving the death of the infant in the Yurko case. The findings were limited to the one case, involved specific acts of negligence in that case and would have been of doubtful evidentiary value, even if available in Rainey’s trial. The trial court prepared a thorough and well-reasoned order denying relief, noting that specific acts of misconduct cannot be introduced to impeach the credibility of a witness. See Farinas v. State, 569 So.2d 425 (Fla.1990); Jackson v. State, 545 So.2d 260 (Fla.1989); DeSantis v. Acevedo, 528 So.2d 461 (Fla. 3d DCA 1988). The trial court also concluded that, based on other corroborating evidence, including autopsy photographs of the victim, even Rainey’s own testimony, this new impeachment evidence, would probably not produce a different outcome. Based on our review of the record, we agree with the trial court.\nThere has been no suggestion in this case of any evidence after trial that Dr. Gore lied when testifying at Rainey’s trial, or that he negligently performed the autopsy of the victim in Rainey’s case.\nAFFIRMED.\nGRIFFIN, PALMER and EVANDER, JJ., concur.\n\n. Manslaughter is a second degree felony, but in defendant's case the felony was reclassified to a first-degree felony because the jury made a special finding that he carried a weapon. See § 775.087(1), Fla. Stat. (2005).\n\n", "ocr": true, "opinion_id": 7784761 } ]

"2006-10-13"

[ "939 So. 2d 354" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*355In re Swaggerty, Angela;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 346878-1; to the Court of Appeal, First Circuit, No. 2005 KA 0467.\nDenied.\n", "ocr": true, "opinion_id": 7784901 } ]

"2006-10-13"

[ "939 So. 2d 373" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Houston, Walter;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 227,009; to the Court of Appeal, Second Circuit, No. 40,642-KA.\nDenied.\n", "ocr": true, "opinion_id": 7784964 } ]

"2006-09-27"

[ "939 So. 2d 738" ]

[ { "author_str": "Sullivan", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSULLIVAN, Judge.\nFor the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay-restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.\nSENTENCE VACATED IN PART; REMANDED.\n", "ocr": true, "opinion_id": 7784994 } ]

"2006-10-04"

[ "939 So. 2d 1128" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nPaul Sibbley has petitioned for a writ of mandamus to compel the trial court to rule on his motion for post-conviction relief, filed on or about March 24, 2005. The State indicates that neither the trial court nor the State Attorney’s office has a copy of the petitioner’s motion, although the trial court seemed poised to rule on it pending receipt of additional records.\nWe deny the petitioner’s petition for mandamus at this time, and instead direct him to submit an additional copy of his March 24, 2005 motion to the trial court and to the State Attorney’s office citing this appellate case number. We are confident that the trial court will rule on the petitioner’s motion within thirty days of receiving it, as it appears to now have the necessary companion records to be able to do so. See Cook v. State, 817 So.2d 946 (Fla. 3d DCA 2002).\nMandamus denied.\n", "ocr": true, "opinion_id": 7785027 } ]

"2006-10-27"

[ "939 So. 2d 1278" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Whitten Foundation;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 520,177; to the Court of Appeal, First Circuit, No. 2005 CA 1287.\nDenied.\nCALOGERO, C.J., would grant.\nVICTORY, J., would grant.\n", "ocr": true, "opinion_id": 7785122 } ]

"2006-10-27"

[ "939 So. 2d 1288" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Entergy Corporation, et al.; Entergy Services, Inc.; Entergy Louisiana, Inc. f/k/a; Louisiana Power & Light Co.; Entergy Gulf States, Inc. f/k/a; Gulf States Utilities Co.;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 456-981; to the Court of Appeal, Fifth Circuit, No. 06-C-391.\nDenied.\nVICTORY, J., would grant.\n", "ocr": true, "opinion_id": 7785159 } ]

"2006-11-09"

[ "941 So. 2d 42" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Allstate Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 591-389; to the Court of Appeal, Fifth Circuit, No. 06-CA-58.\nDenied.\nVICTORY, J., would grant.\nTRAYLOR, J., would grant.\n", "ocr": true, "opinion_id": 7785389 } ]

"2006-11-15"

[ "941 So. 2d 566" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nJose Sierra appeals his conviction and sentence for aggravated battery and argues that the trial court committed fundamental error in instructing the jury on his self-defense claim. The State properly concedes error. See Swanson v. State, 921 So.2d 852 (Fla. 2d DCA 2006); Velazquez *567v. State, 884 So.2d 377 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004); Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004). Accordingly, we reverse and remand for a new trial.\nReversed and remanded.\nSILBERMAN and CANADY, JJ, and FARNELL, DEE ANNA, Associate Judge, concur.\n", "ocr": true, "opinion_id": 7785469 } ]

"2006-11-22"

[ "942 So. 2d 561" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Clark, Jeffrey;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 566-788; to the Court of Appeal, Fifth Circuit, No. 06-C-595.\nDenied.\n", "ocr": true, "opinion_id": 7785706 } ]

"2006-08-11"

[ "944 So. 2d 1043" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe petition alleging ineffective assistance of appellate counsel is denied on the merits.\nBENTON, PADOVANO, and LEWIS, JJ., concur.\n", "ocr": true, "opinion_id": 7786027 } ]

"2006-12-13"

[ "945 So. 2d 884" ]

[ { "author_str": "Amy", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAMY, Judge.\nhThe defendant was charged by bill of information with aggravated incest in violation of La.R.S. 14:78.1, contributing to the delinquency of a juvenile in violation of La.R.S. 14:92, and simple battery in violation of La.R.S. 14:35. He pled not guilty. Following a bench trial, the defendant was found guilty on all counts and sentenced to twelve years at hard labor for aggravated incest, two years at hard labor for contributing to the delinquency of a juvenile, and six months for simple battery. The sentences were ordered to run concurrently. The trial court denied the defendant’s motion for reconsideration of sentence. The defendant appeals the sufficiency of the evidence. For the following reasons, we *886affirm as amended and remand with instructions.\nFactual and Procedural Background\nThe record indicates that the defendant, J.L.,1 married B.L. in February 2004. The couple lived with their two minor children as well as B.L.’s two children from a previous relationship. Several months later, B.L.’s fourteen year-old daughter, A.E., alleged that the defendant sexually molested her on three occasions in December 2004.\nAccording to A.E., the first incident happened one Friday morning after B.L. had left for work. A.E. testified that the defendant came into her room around five a.m. and “said to go in his room and to listen for the alarm.” A.E. stated that she went to the bedroom the defendant shared with her mother and climbed into their bed. A.E. testified that she was sleeping on her stomach but awoke when she felt the defendant feeling on her “butt.” She explained that the defendant’s hands were initially on the outside of her clothes, but then he moved them inside her panties. According to A.E., |2the defendant subsequently moved her leg to the side and inserted a finger into her vagina. She testified that he rolled her onto her back, got on top of her, and rubbed his penis against her vagina. A.E. further testified that she “kind of pulled away and he told me to [sic] don’t worry, that he wouldn’t stick it in.”\nA.E. stated that after the defendant ejaculated, he did not say anything to her. When the alarm sounded, she went to shower in her bathroom. A.E. testified that she then went into her bedroom, locked the door, and began to dress. She further testified that the defendant “came knocking [on] the door and [she] had opened it and he told [her] not to think of him as a monster and [that she] shouldn’t tell anybody.” A.E. explained that she did not tell anyone because she was afraid.\nAccording to A.E., the second incident happened approximately a week later. She was sleeping in her bed when she felt the defendant’s hand going down her pajama pants. A.E. stated that the defendant was lying next to her in the bed and that he had reached inside her pants and touched her butt. She testified that “[w]hen [she] had kind of pushed him off of [her], he asked [her] did [she] want him to leave and [she] said, Tes.’ And then he got up and left.”\nA.E. stated that the third and final incident occurred approximately three weeks after the first incident. A.E. remembered that B.L. had left for work, and she was in the living room watching television. A.E. testified that the defendant asked her if she knew how to perform oral sex “and if [she] could take care of him. And he had told [her] that [her] mama wasn’t showing him enough attention in things like that.” A.E. stated that she told the defendant “no.” She then went into her room and locked the door. She stated that she was afraid.\nIsThe record indicates that in January 2005, A.E. returned to school from the holiday break. According to a witness, AJE.’s friend, she walked into the school bathroom one day and saw A.E. crying. When she asked A.E. what was wrong, A.E. told her that “her step-dad was touching her [in] places where she didn’t want to be touched.” The witness testified that A.E. told her that “she didn’t want to tell her mom because she didn’t want to ruin her mom and [the defendant’s] mar*887riage.” She stated that she reported the information to the school counselor. The authorities were contacted, and after an investigation, the defendant was arrested.\nThe defendant was charged with and found guilty of aggravated incest, contributing to the delinquency of a juvenile, and simple battery. He was sentenced to twelve years at hard labor for aggravated incest, two years at hard labor for contributing to the delinquency of a juvenile, and six months for simple battery. The sentences were ordered to run concurrently. The defendant filed a motion for reconsideration of sentence, which the trial court denied. The defendant has perfected this appeal, arguing that the “State failed to present sufficient evidence to support the verdicts[.]”\nDiscussion\n\nErrors Patent\n\nIn accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent in need of correction.\nLouisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to a person who is convicted of or pleads guilty to a sex offense, including aggravated incest. Here, the trial court did not deny the defendant diminution |4eligibility; thus, the defendant’s sentence for aggravated incest is illegally lenient. State v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244. “Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.” Id. at 1247. Accordingly, we amend the defendant’s sentence for aggravated incest to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537(A). The trial court is instructed to make a notation in the minutes reflecting the amendment.\n\nSufficiency of the Evidence\n\nIn his sole assignment of error, the defendant contends that “the evidence presented was insufficient to support the verdicts[.]” The defendant characterizes A.E.’s testimony as “inconsistent and equivocal” and argues that “the essential elements of the crimes ... were not proven beyond a reasonable doubt.”\nIn State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, this court set forth the standard for insufficiency claims:\nWhen the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.\n\nAggravated Incest\n\nLouisiana Revised Statutes 14:78.1 provides in pertinent part:\n*888|SA. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.\nB. The following are prohibited acts under this Section:\n(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile....\n(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.\nLouisiana Revised Statutes 14:43.1 states in part:\nA. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:\n(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[J\nAfter reviewing the record, we conclude that there is sufficient evidence to support the defendant’s conviction for aggravated incest. We note that A.E. was fourteen years old when these incidents occurred. At that time, the defendant was married to B.L. as evidenced by the couple’s marriage certificate, which was entered into evidence. Therefore, these elements of the offense are satisfied.\nIn addition to the testimony of A.E. and the witness who testified, the State also presented the testimony of Bernie McFarland, a child protection investigator with the Office of Community Services (OCS). McFarland stated that the authorities turned the investigation over to OCS. After speaking with A.E. and the school counselor, McFarland scheduled A.E. for a forensic interview. McFarland stated that she | ¿watched in another room as A.E. was being interviewed. McFarland testified that the “agency did validate sexual abuse of [A.E.], which means sexual contact or interaction with [A.E.] by her step-father[.] And it included touching her vaginal area and buttocks and digital penetration of her vaginal opening and stimulated [sic] intercourse by rubbing his penis against her vaginal area.”\nThe defendant’s actions constitute sexual battery pursuant to La.R.S. 14:43.1(A)(1) and La.R.S. 14:78.1(B)(1) in that he used parts of his body to touch A.E.’s genitals. Additionally, the evidence demonstrates that this act was done with the intent to arouse or satisfy the defendant, which is prohibited under La.R.S. 14:78.1(B)(2).\nFurthermore, there is nothing in the record that supports the defendant’s assertion that A.E.’s testimony was inconsistent and, therefore, not credible. Despite the lack of medical or physical evidence, we find that A.E.’s testimony alone is sufficient to establish the elements of the sexual offense. See State v. Schexnaider, OS-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450. Therefore, we find that in viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of aggravated incest proven beyond a reasonable doubt.\nThis assignment is without merit.\n\n*889\nContributing to the Delinquency of a Juvenile\n\nLouisiana Revised Statutes 14:92 provides in pertinent part:\nA. Contributing to the delinquency of juveniles is the intentional enticing, aiding, soliciting, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen, and no exception shall be made for a child who may be emancipated by marriage or otherwise, to:\n17(7) Perform any sexually immoral act.\nAfter a review of the record, we conclude that there is sufficient evidence to support the defendant’s conviction. As stated above, A.E. was fourteen years old when the incidents occurred, and the defendant was over the age of seventeen. Moreover, by asking his minor step-daughter to perform oral sex on him, the defendant was soliciting A.E. to perform a sexually immoral act. Accordingly, we find that a rational trier of fact could have found the defendant guilty of contributing to the delinquency of a juvenile. See, e.g., State v. Roger, 616 So.2d 830 (La.App. 3 Cir.), writ denied, 623 So.2d 1303 (La.1993) (where the defendant was convicted of contributing to the delinquency of a juvenile for enticing his daughter to expose her breasts and vagina to him.); State v. Reed, 512 So.2d 588 (La.App. 3 Cir.1987) (testimony that the defendant enticed, coerced and/or intimidated three girls into rubbing lotion on his penis was sufficient to support his conviction for contributing to the delinquency of juveniles).\nThis assignment has no merit.\n\nSimple Battery\n\nLouisiana Revised Statutes 14:35 defines simple battery as “a battery committed without the consent of the victim.” Battery, as defined in La.R.S. 14:33, “is the intentional use of force or violence upon the person of another.... ”\nIn State v. Tauriac, 01-1565 (La.App. 3 Cir. 4/3/02), 813 So.2d 1187, this court reviewed the defendant’s simple battery conviction. In affirming the conviction, the court explained:\nThe defendant’s actions may be construed as an infliction of force upon N.F. in that his actions were not accidental or incidental, but constituted the requisite force to commit the simple battery. Physical contact is present in that the defendant touched N.F. through her clothing. The offense was committed without the consent of the victim, evidenced by lathe fact the victim pushed the defendant during the first incident and swung at him during the second incident.\nId. at 1189.\nHere, A.E. testified that she awoke one morning to the defendant lying beside her in her bed and rubbing her buttocks underneath the shorts she was wearing. A.E. further testified that when she pushed him away, the defendant asked her if she wanted him to leave. A.E. answered affirmatively, and the defendant then left the room. Because the defendant intentionally touched A.E. without her consent, we find that rational trier of fact could have found the essential elements of simple battery proven beyond a reasonable doubt.\nThis assignment lacks merit.\nDECREE\nFor the foregoing reasons, the defendant’s convictions are affirmed. The defendant’s sentence for aggravated incest is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). This matter is remanded to the trial court *890with instructions to make a notation in the minutes reflecting the amendment.\nAFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.\nGENOVESE, J., concurs in part, dissents in part, and assigns written reasons.\n\n. Pursuant to La.R.S. 46:1844, the initials of the parties involved have been used throughout.\n\n", "ocr": true, "opinion_id": 7786232 }, { "author_str": "Genovese", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGENOVESE, J.,\nconcurring in part, and dissenting in part.\nhi concur with the majority in affirming the Defendant’s convictions on the charges of aggravated incest and contributing to the delinquency of a juvenile. I likewise concur with the majority in amending the sentence to reflect that diminution eligibility is denied and remanding the matter to the trial court to note said amendment in the minutes of court.\nHowever, I dissent from the majority decision affirming Defendant’s conviction on the charge of simple battery. In Defendant’s appeal, he claims “insufficiency of the evidence.” On the charge of simple battery alone, I agree that there was insufficient evidence to support a conviction for simple battery.\nLouisiana Revised Statutes 14:35 defines simple battery as “a battery committed without the consent of the victim.” Battery is defined in La.R.S. 14:33 as “the intentional use of force or violence upon the person of another....” The facts in this case fail to prove, beyond a reasonable doubt, the intentional use of force or violence upon the person of another to support a conviction for simple battery. The majority fails to make the distinction between a sexual battery, which does not require the use of force or violence, and a simple battery which does. I would reverse Defendant’s conviction on the charge of simple battery.\n", "ocr": true, "opinion_id": 7786233 } ]

"2007-01-26"

[ "946 So. 2d 1250" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThis matter has been remanded to this court by the Supreme Court of Florida1 as a result of the quashing of the decision2 rendered previously in this case. Subsequent to the rendition of the decision by this court, the Supreme Court handed down Wilson v. Salamon, 923 So.2d 363 (Fla.2005), and receded from Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), a decision expressly relied upon by this court in reaching its determination to affirm the trial court.\nUpon reconsideration of this case at the direction of the Supreme Court, and in light of Wilson, we have concluded that the dismissal of this cause by the trial court for failure to prosecute was erroneous. We, therefore, reverse the final judgment, and remand for further proceedings.\nREVERSED and REMANDED.\nPLEUS, C.J., GRIFFIN and MONACO, JJ., concur.\n\n. See Am. Wall Sys., Inc. v. Madison Int'l Group, Inc., 944 So.2d 172 (Fla.2006).\n\n\n. See Am. Wall Sys., Inc. v. Madison Int’l Group, Inc., 898 So.2d 111 (Fla. 5th DCA 2005).\n\n", "ocr": true, "opinion_id": 7786396 } ]

"2007-02-02"

[ "947 So. 2d 732" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nhln these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.\nUNDERLYING FACTS AND PROCEDURAL HISTORY\nPlaintiffs, Mr. and Mrs. Charles Ray Taylor, Jr., individually and on behalf of their minor child, Charles Ray Taylor III, filed the instant medical malpractice suit against numerous defendants, including Dr. Richard Clement. Thereafter, plaintiffs filed a supplemental petition seeking a declaratory judgment on the ground that the statutory cap on damages set forth in La. R.S. 40:1299.42(B)1 of the Medical | ^Malpractice Act is unconstitutional.\nFollowing a trial on the merits, a jury rendered judgment in favor of plaintiffs and awarded damages in excess of the statutory limits of liability contained in La. R.S. 40:1299.42(B). Subsequently, plaintiffs and the Louisiana Patient’s Compensation Fund (“PCF”) entered into a partial discharge in satisfaction of the judgment with plaintiffs reserving their right to chal*734lenge the constitutionality of the medical malpractice cap. The PCF then intervened in the action.\nThereafter, plaintiffs filed a supplemental and amending petition in order to more specifically set forth the grounds on which La. R.S. 40:1299.42(B) was unconstitutional. Among other grounds, this supplemental and amending petition asserted that the statute was “violative of Article I, section 22, open courts provision, and right to an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.”\nDefendants, Dr. Clement and PCF, filed a motion for summary judgment, seeking a declaration that La. R.S. 40:1299.42(B) was constitutional. Plaintiffs also filed a motion for summary judgment, arguing that La. R.S. 40:1299.42(B) was unconstitutional pursuant to La. Const. Art. V, § 15 pertaining to the original jurisdiction of the district court; La. Const. Art. Ill, § 1 pertaining to separation of powers; La. Const. Art. I, § 2 pertaining to due process guarantees; and La. Const. Art. Ill, § 12(3) and (7) pertaining to the enactment of local and special laws. Plaintiffs’ motion did not allege the statute violated La. Const. Art. I, § 22.\nAfter a hearing, the district court denied plaintiffs’ motion for summary judgment, but granted defendants’ motion for summary judgment, thereby finding pthat La. R.S. 40:1299.42(B) was constitutional. Nothing in the trial court’s ruling discussed La. Const. Art. I, § 22.\nPlaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”\nFrom that judgment, Dr. Clement and the PCF applied to this court, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.\nDISCUSSION\nIt is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:\nThe requirement of specially pleading the unconstitutionality of a statute in pleadings implies that Rthis notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to *735construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).\nIn the instant case, plaintiffs plead La. Const. Art. I, § 22 as a ground for unconstitutionality, but did not rely on this ground in their motion for summary judgment. The question of whether La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.\nUnder these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not made an issue in the district court. In the absence of initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.\nAccordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.2\nDECREE\n| sFor the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.\n\n. La. R.S. 40:1299.42(B)(1) and (2) provides: B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.\n(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.\n\n\n. Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.\n\n", "ocr": true, "opinion_id": 7786507 } ]

"2006-11-15"

[ "948 So. 2d 20" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. Rogers v. State, 932 So.2d 620, 622 (Fla. 5th DCA 2006).\n", "ocr": true, "opinion_id": 7786584 } ]

"2007-01-26"

[ "948 So. 2d 175" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Ochsner Health Plan Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 592-722; to the Court of Appeal, Fifth Circuit, No. 06-CA-359.\nDenied.\n", "ocr": true, "opinion_id": 7786775 } ]

"2007-02-02"

[ "948 So. 2d 187" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Weingartner, Robert; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District # 4, Nos. 01-06629, 03-01966,; to the Court of Appeal, Third Circuit, No. 05-1211.\nNot considered. Not timely filed.\n", "ocr": true, "opinion_id": 7786806 } ]

"2007-03-16"

[ "951 So. 2d 1091" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Atlanta Casualty Ins. Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2004-12685; to the Court of Appeal, Fourth Circuit, No. 2006-C-1372.\nDenied.\n", "ocr": true, "opinion_id": 7787614 } ]

"2006-07-07"

[ "952 So. 2d 525" ]

[ { "author_str": "Kelly", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKELLY, Judge.\nR. Thomas, John D., and Gene E. Stanley appeal from a judgment in favor of Greystone Medical Group, Inc. The judgment transfers to Greystone the ownership of patent and intellectual property rights to pharmaceutical compounds developed by the Stanleys, and it vacates a 1996 final judgment that had awarded those rights to the Stanleys, The trial court’s asserted basis for vacating the 1996 judgment was that the Stanleys obtained it by “procedural fraud on the court,” a conclusion Greystone has not specifically attempted to defend on appeal. Instead, Greystone defends the trial court’s decision by arguing on appeal that the 1996 judgment was void because it was entered without notice to one of the two defendants in that litigation. We conclude the trial court’s decision cannot be affirmed on that basis or any other and that the 1996 judgment should be reinstated along with the ownership rights it awarded to the Stanleys.\n\nThe 1996 Judgment\n\nThe 1996 judgment arose out of litigation over the ownership of patent and in*526tellectual property rights to pharmaceutical compounds the Stanleys had developed. The Stanleys owned the rights to the compounds, and in 1985 they formed H.E. Stanley Pharmaceuticals, Inc.(HES) to market them. Tom Stanley was HES’s CEO and chairman of the board. Sometime in 1993, he became acquainted with Gregory Pilant, a potential investor who indicated he had expertise in developing and marketing pharmaceutical products. By December 1993, Tom Stanley had resigned from HES, Pilant had become the new president and CEO, and the Stanleys had agreed to sell the rights to the compounds to HES. When HES failed to pay as promised, the Stanleys sued Pilant and HES for breach of the various agreements they had entered into, fraud, and breach of fiduciary duty.\nA recitation of the entire history of the litigation that ensued is unnecessary for the purposes of this decision. The important facts are that after the litigation had been pending for approximately a year, Pilant’s counsel withdrew and Pilant never obtained replacement counsel or appeared in the litigation again. Eventually, the Stanleys moved for a default against HES for discovery violations and other misconduct and for summary judgment against HES and Pilant. The trial court granted the motions and as a result, entered a judgment against HES that awarded the Stanleys damages as well as ownership of the intellectual property. The Stanleys did not seek or obtain a judgment against Pilant, apparently because they had concerns regarding whether he had been properly served with the motions and the notice of hearing.\n\nThe Current Litigation\n\nThe ownership of the intellectual property is at the heart of this case as well. Greystone, a corporation that, as luck would have it, was founded by Pilant, claims to have acquired ownership of the intellectual property in December 1997, and it also claims that at that time it was unaware of the 1996 judgment. When it “discovered” the 1996 judgment, it filed this declaratory judgment action against the Stanleys asking the court to determine the “rights, duties, and obligations of the parties” regarding the intellectual property. The Stanleys moved to dismiss the action on a number of grounds, and Grey-stone moved for summary judgment arguing, among other things, that the 1996 judgment was void because the Stanleys had not properly served Pilant with the motion for summary judgment and the notice of hearing on that motion, and therefore their actions operated as a “fraud upon the court.” Greystone also sought a determination that it was the “rightful owner” of the intellectual property with rights superior to those of the Stanleys.1\nAt the hearing on the motion for summary judgment, Greystone confined its argument to the contention that the 1996 judgment was the product of “procedural fraud” on the court because “a judgment entered without notice to a party is void.” Greystone argued, and the trial court found that “the failure to give a named party ... Greg Pilant, notice of the Motion for Summary Judgment, the Motion for Default Judgment or the Notices of Hear*527ing thereon ... is tantamount to procedural fraud upon the Court.” It appears to us that the only fraud on the court in this case was the one that convinced the trial court to accept this argument.2\nThe argument that a judgment entered without notice to party is void is correct;3 it is inapplicable to this case, however, because no judgment was entered against the party who ostensibly had no notice. The trial court focused on the fact that counsel for the Stanleys “possessed no case law to counter the case law cited by the Plaintiff in its Memorandum of Law ... which case law clearly stated that a judgment entered without notice to a party is void,” while overlooking the response of the Stanleys’ counsel that “yes, if a judgment was entered against a party. But the party that the judgment was entered [against] had notice, and that is the corporation ... There is no judgment against Mr. Pilant. If the judgment included Mr. Pilant then, yes, I would totally agree.”\nFaced with this seemingly insurmountable factual distinction between the cases on which it had relied and the situation at hand, counsel for Greystone invoked the specter of “shenanigans” if the court were to follow the Stanleys’ argument to “its logical extreme.” The fact remains, however, that although Pilant may not have received notice of the Stanleys’ motions or the notice of hearing, no judgment was entered against him. We conclude that this factual distinction is determinative, and the trial court erred when it concluded otherwise. See Parrimon v. First Nat’l Bank, 923 So.2d 524 (Fla. 2d DCA 2005) (affirming a judgment against a husband but reversing it as to the wife where the plaintiff acknowledged it had not served her properly and had not sought a judgment against her but the trial court nevertheless erroneously entered judgment against her); M.L. Builders, Inc., v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000) (ordering that the judgment against one defendant be vacated for failure to serve him with process but affirming the judgment against the corporation that was properly served); Ram Coating Tech. v. Courtaulds, 625 So.2d 97, 98 (Fla. 1st DCA 1993) (finding “no basis to reverse” a judgment against the president of a corporation where he was properly served even though the corporation was not); Kennedy v. Richmond, 512 So.2d 1129 (Fla. 4th DCA 1987) (reversing a judgment against a partner who had not been served while affirming the judgment as to the other partner).\nAccordingly, we reverse the judgment in favor of Greystone and remand this case for further proceedings consistent with this opinion. On remand, the trial court shall, without delay, reinstate nunc pro tunc to August 8, 1996, the judgment in R. Thomas Stanley, John.D. Stanley, and Gene E. Stanley v. Gregory P. Pilant and H.E. Stanley Pharmaceuticals, Inc., Polk County case number GC-G-94-1766.\nCOOK, MARTHA J., Associate Judge, Concurs.\nVILLANTI, J., Concurs in result only.\n\n. We are cognizant of the fact that both parties’ motions assert multiple grounds upon which their respective motions should be granted. We have not formally considered the merits of the Stanleys' motion to dismiss because they have not argued on appeal that the trial court should have granted that motion. We have, however, considered all issues Greystone raises in its amended motion for summary judgment to determine whether we can affirm the trial court on some alternate ground.\n\n\n. We are bothered by the fact that Greystone's trial counsel clearly led the court down the primrose path. In his memorandum at the hearing, counsel quoted cases that factually are materially different from this case. While they stand for the general proposition that a judgment entered against a party without notice is void, the defendants in those cases, unlike Pilant, were the parties against whom a judgment had been entered. Appellate counsel did not represent Greystone in the trial court.\n\n\n. See, e.g., Monsour v. Balk, 705 So.2d 968 (Fla. 2d DCA 1998).\n\n", "ocr": true, "opinion_id": 7787691 } ]

"2007-03-16"

[ "952 So. 2d 694" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Bradley, Wilbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 4-89-980; to the Court of Appeal, First Circuit, No(s). 2006 KW 0471, 2005 KW 2419.\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.\n", "ocr": true, "opinion_id": 7787740 } ]

"2007-03-16"

[ "952 So. 2d 697" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Green, Maureen Vallot; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. H, No. 05-69911; to the Court of Appeal, Third Circuit, No. 06-1060.\nDenied.\n", "ocr": true, "opinion_id": 7787751 } ]

"2006-09-29"

[ "953 So. 2d 431" ]

[ { "author_str": "Cobb", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCOBB, Judge.\nLarry James Lawrence appeals the Jefferson Circuit Court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his February 24, 2005, conviction for second-degree theft of property and his resulting sentence of 15 years’ imprisonment.\nLawrence was indicted as follows:\n“James Lawrence ... after having been previously convicted of Theft in the 2nd degree, did knowingly obtain or exert unauthorized control over one pocket knife of the value of $29.99; two multi-tools of the aggregate value of $119.98; one pocket knife of the value of $44.99; two archery/bow site of the aggregate value of $65.98; and four archery/bow site of the aggregate value of $184.00, the property of ACADEMY SPORTS AND OUTDOORS, INC., A CORPORATION with the intent to deprive the owner of said property, in violation of Section 13A-8-4 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”\n(C. 26) (capitalization in original).\nLawrence entered a guilty plea to the above charge and did not appeal his conviction or sentence. On August 8, 2005, he filed the instant petition. In his petition, Lawrence presented the following claims:\n“(1) Petitioner’s conviction and sentence was unauthorized by law because the element of the prior felony, i.e., the element providing the enhancement on his conviction from theft in the third degree to theft in the second degree, was not certified and proven to the finder of fact as required by Apprendi v. New Jersey, 530 U.S. 466 (2000).[1] Thus, petitioner *433should have been convicted and sentenced for the misdemeanor of theft of property in the third degree as defined in § 13A-8-5, Ala.Code 1975, instead of the Class C felony of theft in the second degree as defined in § 13A-8-4(g), Ala. Code 1975.\n“(2) Petitioner’s trial counsel was ineffective for failing to object to the illegal enhancement of his conviction and sentence as set forth in issue (1).\n“(3) Petitioner claims that the trial court was without jurisdiction to render judgment and impose sentence because it used the same prior conviction to enhance the charge from a misdemeanor to a Class C felony and then to enhance his sentence under the Habitual Felony Offender Act. This is ‘double dipping’ because its effect was to enhance his sentence two times.\n“(4) Petitioner claims that trial counsel was ineffective for failing to prevent the State from using the prior conviction to enhance the charge and enhance the sentence as set forth in claim (3).”\nAfter the State responded with a motion to dismiss, the circuit court, citing Rule 32.7, Ala. R.Crim. P., summarily dismissed the petition. Lawrence then filed this appeal essentially reasserting the claims from his petition.\nAt the time the offense was committed, the Code of Alabama defined second-degree theft as follows:\n“(a) The theft of property which exceeds five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.\n[[Image here]]\n“(g) Notwithstanding subsection (a), the theft of property which exceeds two hundred fifty dollars ($250) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, where the defendant has previously been convicted of a theft of property in the first or second degree or receiving stolen property in the first or second degree, constitutes theft of property in the second degree.”\nSection 13A-8-4, Ala.Code 1975. Because Lawrence stole property valued at $444.94, he was properly charged under subsection (g)-\nLawrence’s first claim — that he should have been convicted and sentenced of a misdemeanor because evidence of his prior felony was not certified and proven— lacks credence. The United States Supreme Court stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Thus the prior conviction did not have to be proved beyond a reasonable doubt. Furthermore, by pleading guilty, Lawrence admitted that he had a prior conviction, an element of the offense of second-degree theft of property under § 13A-8-4(g), Ala.Code 1975. “A guilty plea serves as an admission to all elements of the offense charged.” Mitchell v. State, 495 So.2d 738,'739 (Ala.Crim.App.1986). Thus, we find that the prior conviction was proven.\n*434Lawrence’s second claim regarding ineffective assistance of counsel based on the aforementioned substantive claim also lacks credence. Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App.1996); Hope v. State, 521 So.2d 1883, 1386 (Ala.Crim.App.1988).\nAs to Lawrence’s third claim that it was improper for the trial court to use the prior conviction that enhanced the misdemeanor charge to a felony charge to enhance his sentence under the Habitual Felony Offender Act, we agree. Regarding this issue, this Court has previously stated:\n“ ‘In instances where there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offender Act. To hold otherwise, would nullify the punishment provision of the currently charged offense ... because the prior conviction would always activate the Habitual Felony Offender Act; we do not believe that the legislature intended that result.’ ”\nRinger v. State, 501 So.2d 493, 493-94 (Ala.Crim.App.1986) (quoting Wigley v. State, 456 So.2d 339, 341 (Ala.Crim.App.1982)).\nThe same rationale applies for a conviction under § 13A-8-4(g), Ala.Code 1975. The legislature made the prior felony a necessary element for a conviction of second-degree theft of property. The legislature also clearly directed that second-degree theft of property be punished as a Class C felony. Thus, to allow the prior felony to be used in accordance with the Habitual Felony Offender Act to enhance Lawrence’s sentence would result in the elevation of second-degree theft to a Class B felony in every case. Such an outcome could not have been the intent of the legislature. Therefore, this cause is due to be remanded so the trial court may impose the proper sentence.\nBecause Lawrence is receiving relief concerning his substantive claim that his prior conviction should not have been used to enhance his second-degree-theft-of-property conviction under the Habitual Felony Offender Act, we need not address his remaining ineffective-assistance-of-counsel claim relating to the aforementioned issue.\nWe therefore reverse the Jefferson Circuit Court’s dismissal of Lawrence’s petition for postconviction relief and remand this cause for further proceedings consistent with this opinion.\nREVERSED AND REMANDED.\nMcMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.\n\n. In Apprendi, the United States Supreme Court held that ‘‘[o]ther than the fact of a *433prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct 2348.\n\n", "ocr": true, "opinion_id": 7787894 } ]

"2006-08-25"