text:
    Harry T. HOWARD, III, Jarrell E. Godfrey, Jr., Delores Mason Smith, Elizabeth Mason Smith Purcell, Macy O. Teetor, II, Marguerite Pringle Teetor, and Twydor Castle, L.L.C. v. PARISH OF JEFFERSON and the Fourth Jefferson Drainage District.
    No. 03-CA-482.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      David R. Sherman, Alvin A. LeBlanc, Jr., Chehardy, Sherman, Ellis, Breslin, Murray & Recile, Metairie, LA, for plaintiffs-appellees.
    Thomas G. Wilkinson, Robert S. Hinyub, Jr., Scott C. Dusang, Harahan, LA, for defendants-appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether defendants’ acts on plaintiffs’ property exceed a 1958 servitude granted to defendants by plaintiffs’ predecessors in title. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On November 10, 1958, plaintiffs’ predecessors in title entered into a servitude with the Jefferson Parish Fourth Jefferson Drainage District as follows:

for and in consideration of the maintenance of storm drainage canals and for the benefits to accrue to the property owned by said appearers adjacent to the said servitude to be hereinafter granted does hereby grant, transfer and set over unto Fourth Jefferson Drainage District, a servitude over and under the property described hereafter to wit:
A CERTAIN PIECE OR PORTION OF ground adjacent to the north side of Canal No. 3 and adjacent to the western boundary of Section 3 of Bissonet Plaza Subdivision designated as Point “A” the point of beginning; thence extending in a northerly direction along the western boundary of Bissonet Plaza Subdivision Section No. 3 a distance of 4,259.98' to the Point marked “E”; thence along the south bank of Canal No. 2 in a westerly direction a distance of 196.66' to | .■¡point marked “D”; thence along a line parallel to the western boundary of Bissonet Plaza Subdivision Section No. 3 in a southerly direction, said point being 182.81' from the western boundary line of said subdivision, a distance of 4,258.74' to the point “B” on the north side of Canal No. 3; thence in a easterly direction along the north bank of Canal No. 3 a distance of 197.12' to Point “A” the point of beginning, all as shown in accordance with the plan of servitude of Elwood Canal from Canal No. 2 to Canal No. 3 prepared by the Fourth Jefferson Drainage District dated May 16, 1958
A CERTAIN PIECE OF GROUND commencing on the north side of Canal No. 2 at Point marked “A” and extending in a northerly direction a distance of 5,052.03' to point marked “B”; thence at right angles in an easterly direction a distance of 150' to point marked “C”; thence in a southerly direction a distance of 717.22 to point marked “D”; thence in an easterly direction along the south bank of Canal No. 1 a distance of 50' to a point; thence on an angle of 68 3' ‘44"’ in an southerly direction a distance of 4,275.63' to a point marked “F”; thence on an angle 111 38' ‘3"’ in an easterly direction a distance of 215.16' to the point marked “A” the point of beginning all as shown in the plan of servitude of Elwood Canal from Canal No.2 to Pumping Station No. 3 of the Fourth Jefferson Drainage District dated June 3,1958 ...
A CERTAIN PIECE OR PORTION OF GROUND, measuring 25' in width lying parallel and adjacent to the north bank of Canal No. 2 and commencing on the east side of Elmwood Canal and extending in an easterly direction along the north bank of Canal No. 2 a distance of 1065.89' all as per plan of J.J. Krebs, Civil Engineer, dated September 24, 1958 ...
The appearers herein retain the right to remove any mud deposited on the spoil bank at any time place thereon.

The Fourth Drainage District accepted the grant of servitude made by appearers and their successors or assigns over and under the property “for drainage purposes only.” In October 1958, the Jefferson Parish Council adopted a resolution accepting the servitude on behalf of the Fourth Drainage ‘ District for the creation of a spoil bank and for drainage purposes.

| ¿Plaintiffs filed an inverse condemnation suit against defendants in April 2002 contending that defendants expropriated their property by entering into a public works project to widen the Elmwood Canal without compensating them for the resultant taking of their property. Plaintiffs in this case are the present owners of the above described property burdened by the 1958 servitude: Harry T. Howard, III; Jarrel E. Godfrey, Jr.; Delores Mason Smith; Elizabeth Mason Smith Purcell; Mary O. Teeter, III; Marguerite Pringle Teetor; and Twydor Castle, L.L.C., (collectively referred to as “plaintiffs”). Defendants are Jefferson Parish and the Fourth Jefferson Drainage District, (hereinafter referred to as “defendants”). Defendants answered entering a general denial of the allegations.

Thereafter, plaintiffs filed a motion for partial summary judgment arguing that the servitude did not contemplate widening of the canal to include the taking of their property to become part of the canal or its banks without notice or compensation. Defendants filed a cross motion for summary judgment contending that it has the authority to cut and open any drains and canals, to deepen and enlarge natural drains within and without the district, to perform any work necessary to drain land in the districts and maintain established drainage. Moreover, the servitude did not restrict defendants’ use of the servitude.

After a hearing, the trial judge denied defendants’ motion but granted plaintiffs’ motion for partial summary judgment in open court, stating:

... I believe that looking at the wording of the 1958 servitude dedication, that it specifically states that it is meant for the maintenance of storm drainage canals. And of course, it says, for the benefits for accrue to the property owners. It does not indicate a taking.... And it says, a servitude over and under the property.... You can have drainage pipes over and under. It doesn’t say you’ve got the right to take the property that is next to the existing canals.

| .^Defendants appealed. The appeal was dismissed because the judgment at issue was not certified as final. The appeal was re-filed after a hearing during which the trial judge designated the judgment as final.

DISCUSSION

Defendants argue that the trial court erred when it granted plaintiffs’ partial motion for summary judgment and denied its motion for summary judgment. Defendants maintain that the 1958 servitude granted in favor of Jefferson Parish executed by plaintiffs’ ancestors in title allowed defendants to widen the canal within the physical confines of the property burdened by the servitude without monetary compensation to the land owners. Plaintiffs contend their property has been taken without the benefit of compensation or an expropriation proceeding.

The authority for the bringing of an action for compensation following a taking by a public entity is grounded in Article 1, Section 4 of the 1974 Louisiana Constitution. Section 4 provides in pertinent part that “[property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.” Estate of Patout v. City of New Iberia, 98-0961 (La.7/7/99), 738 So.2d 544.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B).

The parties do not dispute the existence of the servitude, the description of the property burdened by the servitude or the effect of the defendant’s actions on |fithe property. Thus, we must decide whether the trial court properly determined that the defendants’ actions exceeded the servitude such that plaintiffs are entitled to compensation for the taking of their property. Defendants direct this Court’s attention to the Fourth Circuit’s opinion in Tournillion v. Sewerage and Water Board of New Orleans, 96-1457 (La.App. 4 Cir. 2/12/97), 689 So.2d 655, as dispositive in this case. We find the facts of that case are distinguishable from the present case. The servitude at issue in Toumillon was granted for drainage purposes as well. However, the servitude referenced a Sewerage and Water Board resolution which allowed for the construction of tributary canals and necessary berms relative to the operation of the pumping station at issue in this case. The language of the resolution in this case is not so broad.

An examination of the instrument creating the servitude and the Jefferson Parish Council resolution demonstrate that the servitude was created for the maintenance of storm drainage canals and for the benefits to accrue to the property owners. Additionally, the purpose of the servitude was for the creation of a spoil bank and for drainage purposes only. Plaintiffs allege that the defendants have widened the canal to the extent that plaintiffs’ properties are no longer separate properties adjacent to the canal banks and are indistinguishable from the canal and/or its banks. Defendants do not dispute this occurrence. We find (as did the trial judge) that the defendants’ actions exceed the servitude where those activities exceeded ordinary maintenance of the storm drainage canals. Accordingly, we affirm the trial court’s judgment granting partial summary judgment in plaintiffs’ favor.

AFFIRMED.


source: Caselaw Access Project

author: 2CLARENCE E. McMANUS Judge.

license: Public Domain

text:
    Dexter L. AINSWORTH v. Delorse Smith Ainsworth, Wife of Dexter L. AINSWORTH.
    No. 03-CA-535.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Kyle M. Green, Marrero, LA, for Plaintiff-Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS Judge.

Defendant filed this pro se appeal from the trial court’s judgment awarding joint custody to her and plaintiff. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Dexter Ainsworth, and defendant, Delorse Ainsworth, were married July 30, 2000. Their only child, a daughter named Jenney, was born prior to their marriage on March 17, 1998. In June 2002, Mr. Ainsworth filed a petition for divorce and for joint custody. In July 2002, Domestic Commissioner, Craig Cimo, appointed William Janzen, Ph. D. to evaluate the parties. In November 2002, Mrs. Ainsworth filed a motion to restrict Mr. Ainsworth’s visitation schedule (alternating weekends and Wednesdays) alleging Mr. Ainsworth sexually abused Jenney. The motion asserted that Mr. Ainsworth allegedly “inserted one of his digits into the child’s rectum” while visiting with her on November 10, 2002. Attached to the motion was a copy of an emergency department discharge from | ¡¡Children’s Hospital. The discharge indicated that Jenney should see Dr. Scott Benton as soon as possible and not see her father until after that visit. On November 20, 2002, the trial court signed an ex-parte order terminating Mr. Ainsworth’s visitation. After the hearing, the trial judge vacated the ex-parte order finding the abuse allegations were not substantiated and reinstated Mr. Ainsworth’s visitation. Mrs. Ainsworth apparently did not appeal that judgment signed December 2, 2002.

The parties next appeared in court on January 22, 2003. A final judgment of divorce was entered at that time. The trial court also heard testimony regarding custody and visitation. After the hearing, the trial judge awarded joint custody to the parties with Mrs. Ainsworth designated as the domiciliary parent and ordered the parties to attend and complete the Voices for Children Program. The trial court adopted Mr. Ainsworth’s joint custody plan giving him alternating weekend visitation and setting forth a summer and holiday visitation schedule. The judgment was signed February 6, 2003.

Mrs. Ainsworth filed this pro se appeal.

DISCUSSION

As a procedural matter we point out that Mrs. Ainsworth’s notice of appeal states that she desires to devolutively appeal the February 6, 2003 judgment. Thus, we limit our review of Mrs. Ains-worth’s appeal to the issues addressed in that judgment. First, the record before us supports the trial court’s decision to award | Joint custody of Jenney to Mr. and Mrs. Ainsworth. Second, the proposed visitation schedule making Mrs. Ainsworth the domiciliary parent and awarding Mr. Ains-worth alternating weekend visitation is not unreasonable in light of the best interests of the child. Mrs. Ainsworth had several opportunities to present conclusive evidence that Mr. Ainsworth sexually abused Jenney. The trial court made a factual determination that there was no such evidence. In fact, our review of the record convinces us that the evidence presented was inconclusive at best.

Factual determinations of the trier of fact may not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust, 01-2217 (La.4/3/02), 816 So.2d 270. We do not find the trial court’s factual findings were manifestly erroneous in this case.

In every custody case, the primary concern is the best interest of the child. Each case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. Pizzolato v. Hihar, 02-53 (La.App. 5 Cir. 6/26/02), 822 So.2d 835. The determination of what is in the best interest of the child is within the exclusive province of the trial court, and will not be disturbed absent an abuse of discretion. Anderson v. Anderson, 01-53 (La.App. 5 Cir. 5/30/01), 788 So.2d 676. It is obvious from the record that Jenney is loved by both of her parents and 15that she enjoys being with both of them. In reaching its decision, the trial court considered the testimony of both parties in addition to Dr. Janzen’s report essentially recommending joint custody. The trial judge’s oral reasons indicate that he would have given custody of Jenney to both parents on an alternating weekly basis which would have given Mrs. Ainsworth less time with Jenney. Rather, the actual custody schedule is favorable to Mrs. Ainsworth. Thus, we cannot say the trial court abused its discretion in this case. We believe the ruling of the trial court was firmly supported by evidence offered at trial and we find no abuse of discretion which would warrant a reversal of the judgment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . Dr. Janzen submitted a report to the trial judge on January 17, 2003. The report indicated that Jenney did tell him her father abused her. However, he noted Jenney appeared comfortable and happy with both parents. He was unable to conclude she was sexually abused. He did not believe Mr. Ains-worth’s visitation should be restricted. He recommended Mr. Ainsworth have a minimal visitation schedule of overnight visits every other weekend.

      . The record indicates that Mrs. Ainsworth has made numerous statements to various agencies alleging Jenney was sexually abused by her father. Mr. Ainsworth has routinely denied these allegations. In August and September 2002, OCS investigated Mrs. Ains-worth’s allegations and closed its file because it found insufficient evidence of abuse or neglect. OCS records show that Jenney did not report any incidences of abuse to the case worker and that Mrs. Ainsworth did not appear to be credible. Jenney was seen by Dr. Ellie Westman on November 25, 2002 and Dr. Scott Benton on February 26, 2003 of the Children's Hospital Children at Risk Evaluation Center ("CARE”). Both reports indicate that Jenney made no clear disclosure of sexual abuse. Her physical examinations were normal.

      . Several days later a hearing took place. Mr. and Mrs. Ainsworth testified at the hearing. Mrs. Ainsworth recounted several instances of sexual abuse told to her by her daughter. She offered the child’s medical records from Children’s Hospital as support of these allegations. Mr. Ainsworth denied ever sexually abusing Jenney. He offered a copy of the OCS letter closing its investigation based on insufficient evidence of abuse or neglect.

      . In all proceedings below, Mrs. Ainsworth was represented by various counsel.


author: 3THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Thurman T. COOLEY III and Paul Franklin.
    No. 03-KA-418.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Churita Hansell, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

      Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for DefendanVAp-pellant Thurman T. Cooley, III.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Paul Franklin.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   3THOMAS F. DALEY, Judge.

Defendants, Thurman T. Cooley III (Cooley) and Paul Franklin (Franklin), entered guilty pleas, under State v. Crosby, 338 So.2d 584 (La.1976), to various counts of possession with intent to distribute heroin, conspiracy to possess heroin, felon in possession of a firearm, as outlined below. They also pleaded guilty to multiple offender bills and were both found to be second felony offenders, and having waived sentencing delays, were duly sentenced. On appeal, they assign the following Assignments of Error:

ASSIGNMENTS OF ERROR (THURMAN T. COOLEY III)

1. The Trial Court erred by failing to suppress evidence gathered as a result of an illegal seizure.
2. The Trial Court erred by not severing the defendants.
3. Error patent was committed in the sentencing.

ASSIGNMENTS OF ERROR (PAUL FRANKLIN)

1. The trial court erred by failing to suppress evidence gathered as the result of an illegal seizure.
2. The trial court erred by fading to specify which conviction was being enhanced pursuant to the habitual offender adjudication.

PROCEDURAL HISTORY

On April 26, 2002, the Jefferson Parish District Attorney filed a Bill of Information charging defendant, Cooley, with Count 1, being a convicted felon in possession of a firearm in violation of LSA-R.S. 14:95.1. In the same Bill of Information, defendant, Franklin, was charged with Count 2, being a convicted felon in possession of a firearm in violation of LSA-R.S. 14:95.1; Count 3, possession with intent to distribute 28 to 200 grams of heroin in violation of LSA-R.S. 40:966(A)(l)(D)(a); and Count 4, possession with intent to distribute heroin in violation of LSA-R.S. 40:966(A).

On July 8, 2002, the Bill of Information was amended to charge defendant, Cooley, with Count 4, possession with intent to distribute heroin in violation of LSA-R.S. 40:966(A); and Count 5, conspiracy to distribute heroin in violation of LSA-R.S. 40:979 and R.S. 40:966.

Defendant, Cooley, filed a Motion to Sever, which was denied on August 22, 2002. Both defendants filed Motions to Suppress Evidence and Statement, which were denied on September 20, 2002. On November 19, 2002, a jury was selected and sworn. Also on that date, defendant, Franklin, requested an opportunity to enter pleas of guilty to all counts under Crosby, reserving his right to appeal the ruling on the Motion to Suppress.

On the next day, November 20, 2002, defendant, Cooley, withdrew his pleas of not guilty and entered pleas of guilty under Crosby to the crimes with which he was charged. The trial court sentenced Cooley to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 14:95.1 conviction (Count 1), 15 years in connection with |Bthe R.S. 40:966(A) conviction (Count 4), and 15 years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 40:979/40:966 conspiracy conviction (Count 5), with all sentences to run concurrently.

On that same date, the State filed a multiple bill alleging Cooley to be a second felony offender. Cooley admitted the allegations of the multiple bill. The trial court vacated the sentence imposed in connection with the R.S. 40:966(A) conviction and sentenced Cooley to imprisonment at hard labor for 15 years to run concurrently with the other sentences imposed.

On November 20, 2002, defendant, Franklin, withdrew his pleas of not guilty and entered pleas of guilty under Crosby to the crimes with which he was charged. The trial court sentenced Franklin to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 14:95.1 conviction (Count 2), 20 years in connection with the R.S. 40:966(A)(l)(D)(a) conviction (Count 3), and 20 years in connection with the R.S. 40:966(A) conviction (Count 4), with all sentences to run concurrently.

On that same date, the State filed a multiple bill alleging Franklin to be a second felony offender. Defendant admitted the allegations of the multiple bill. The trial court vacated the sentence imposed in connection with the R.S. 40:966(A) conviction and sentenced defendant to imprisonment at hard labor for 20 years to run concurrently with the other sentences imposed.

Both defendants timely appealed.

FACTS

Given that both defendants pleaded guilty, the following facts are gleaned from the transcript of the hearing on the Motions to Suppress Evidence.

Detective Robert Gerdes testified that he was employed in the narcotics section of the Jefferson Parish Sheriffs Office. He testified that he received | ^information from a rehable confidential informant (Cl) that Cooley, who resided at 1629 Cooper Road, Apartment D, would be delivering a quantity of heroin to the convenience store located at 123 Terry Parkway on March 26, 2002, between 11:30 p.m. and 12:00 a.m. Detective Gerdes testified that he had obtained reliable information from the Cl in the past, and that that information had led to an arrest and a conviction.

The detectives established surveillance on Apartment D at approximately 11:25 p.m. Detective Gerdes explained that Detective Corey Wilson observed a red sport utility vehicle (SUV) pull up into the driveway. He stated that Detective Wilson also observed a young female, who was later identified as Tiara Gable, and Franklin exit the vehicle and enter Apartment D. Once Detective Wilson observed Cooley and Franklin exit the apartment and get into the vehicle, Detective Gerdes followed the vehicle from Cooper Road to 123 Terry Parkway during the specific time frame laid out by the Cl. Because the information from the Cl was corroborated, Detective Gerdes conducted an investigatory stop of the vehicle in the parking lot.

Detective Gerdes stated that he pulled his vehicle directly behind the red SUV and exited. As the detectives approached the driver’s side, Detective Richard Valley observed Franklin ingest a plastic bag eon-tabling a powder. The detectives were eventually able to arrest Franklin and retrieve the plastic bag he attempted to swallow, which was found to be seven grams of heroin. The detectives advised him of his constitutional rights. Detective Gerdes testified that Sergeant Harrison had contact with Cooley, who was an occupant inside the vehicle. Sergeant Harrison placed Cooley under arrest for an outstanding attachment of which they were already aware.

17Puring questioning, Franklin stated that he lived in Algiers, the address on his driver’s license. After being informed that detectives would corroborate that address, Franklin stated that he lived with his mother on Juliette Street in New Orleans. Franklin said he picked Cooley up at a graveyard in Gretna, and denied ever being at Cooley’s residence or knowing where Cooley lived. Detective Gerdes testified that it was obvious Franklin was not being truthful, so they terminated the conversation with him.

Detective Gerdes testified that the young female inside Cooley’s residence was Franklin’s stepdaughter, Tiara Gable, who told them that she lived at 500 Wall Boulevard, Apartment 145, with her mother, Angela Mayo, and Franklin. She told them that she had just left the residence to go to Cooley’s house. She denied making any other stops between her residence and Cooley’s residence.

Detective Gerdes testified that they eventually executed a search warrant for and searched Franklin’s apartment on Wall Boulevard. He testified that he seized a tin canister containing a Tenida scale, several clear plastic bags with the corners missing, miscellaneous paperwork in the name of Paul Franklin, one King Cobra .857 Magnum, serial number KAO860, two compressed objects of light brown powder contained within a plastic wrapping, one bottle of seven star superior lactose monohydrate powder, miscellaneous paperwork in the name of Angela T. Mayo, and one photograph. Detective Gerdes did not search Cooley’s residence, but he was there dining that search.

Detective Gerdes questioned Cooley after informing him of his rights. He testified that Cooley consented to a search of his apartment. When asked if he had any additional contraband inside the residence, Cooley stated that he did not have any more marijuana other than that which was located inside the vehicle at the scene. Detective Gerdes testified that Cooley admitted to having a gun inside his residence that he believed was stolen. He filled out the Waiver of Rights form and |8the Consent to Search form for Cooley. Cooley said he understood his constitutional rights, and he signed and initialed the rights of arrestee form. Detective Gerdes also signed the form.

Cooley then stated he did not waive his rights and wanted to speak to a lawyer, so the detectives stopped questioning him. Detective Gerdes testified that Cooley made the statement about the gun before the detectives advised him of his rights, but Cooley said he would still allow the detectives to search his residence. Cooley signed the Consent to Search form. Detective Gerdes completed the Consent to Search form and Sergeant Harrison signed as a witness. Detective Gerdes testified that Cooley’s name did not appear on the carbon copy of the Consent to Search form, but that it appeared on the original, which was submitted with the report.

On cross-examination, Detective Gerdes testified that his Cl identified Cooley from a photograph prior to the incident. Detective Gerdes did not recall whether the Cl gave him a physical description of Cooley before he was shown the photograph. Detective Gerdes testified that the Cl was present at the scene of arrest, and that the Cl pointed out Cooley while Cooley was sitting in the SUV. The Cl stated that he had known him “for awhile” and that he had made previous purchases of heroin from Cooley. •

Cooley did not have any heroin on him when he arrested him. Detective Gerdes did not find any heroin in the SUV where Cooley was sitting; the heroin was retrieved from Franklin’s mouth. Heroin was not found in Cooley’s apartment. Cooley stated that he lived in the apartment with his brother. When the detectives searched the residence, they limited the search to the common areas and to Cooley’s bedroom.

Sergeant Bruce Harrison of the Jefferson Parish Sheriffs Office narcotics section also participated in the surveillance and arrests. It was he who placed IflCooley under arrest and found a small bag containing 1.2 grams of marijuana where Cooley had been sitting. Sergeant Harrison advised Cooley he was under arrest for possession of marijuana and advised him of his constitutional rights, which Cooley indicated he understood. Cooley told Sergeant Harrison the marijuana belonged to him, but that he did not know anything about any other drugs.

Sergeant Harrison explained that he himself seized from Cooley’s residence a Jennings .380 semi-automatic hand gun, two magazines for that weapon, ammunition, two pagers, and a letter addressed to Cooley.

Sergeant Harrison was present during the search of Franklin’s apartment on Wall Boulevard. At that point, Franklin, who was present, indicated he wished to give a statement. Sergeant Harrison testified that Franklin had been advised of his rights several times during the night. Franklin said he understood his rights and waived them, and he signed the form verifying that. The statement was recorded.

After the hearing, the trial judge denied the Motions to Suppress.

ASSIGNMENT OF ERROR NUMBER ONE (THURMAN T. COOLEY III)

The Trial Court erred by failing to suppress evidence gathered as the result of an illegal seizure.

ASSIGNMENT OF ERROR NUMBER ONE (PAUL FRANKLIN)

The trial court erred by failing to suppress evidence gathered as the result of an illegal seizure.

DISCUSSION

Defendants both argue that the trial court erred by failing to suppress evidence gathered as a result of an illegal search and seizure.

|inBoth defendants contend that the initial stop was illegal, because: (1) the police did not articulate a reasonable suspicion to justify the stop; (2) the confidential informant (Cl) provided no details other than where Cooley lived and that he would be leaving his apartment around midnight to go to the convenience store; (3) there could have been many innocent reasons for Cooley leaving at this time and going to the store; (4) the Cl did not provide a physical description of Cooley; he only identified him from a photograph; (5) there was no indication the Cl was reliable; in fact, there was a question as to whether any information he had provided resulted in a conviction; (6) the Cl did not mention Franklin; and (7) no heroin was found on Cooley. The State responds that the police had reasonable suspicion to conduct an investigatory stop, and that the resulting evidence was lawfully obtained.

Cooley also argues that he did not waive his rights and consent to the search of his apartment, that it was inconceivable that he would consent to the search when he knew the police would find a gun and some ammunition, that his signature did not appear on the copy of the Consent to Search form, that the officers gave him the Consent to Search form to sign before the Rights of Arrestee form, and that he may have thought he was signing something else. The State responds that Cooley voluntarily consented to the search and executed a written Consent to Search form attesting to same.

INVESTIGATORY STOP

Defendants argue that the officers did not articulate a reasonable suspicion to justify the investigatory stop and, therefore, all evidence discovered as a result of this unlawful stop was “fruit of the poisonous tree,” which should have been suppressed.

InThe State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 708(D). The trial court’s decision to deny a Motion to Suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as State and Federal jurisprudence. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal activity. “Reasonable suspicion” is determined under the facts and circumstances of each ease by looking at whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference.

The officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity” and must be able to articulate the specific facts upon which his suspicion is based. In order to determine whether reasonable suspicion exists, the totality of the circumstances, “the whole picture,” must be considered.

An informant’s tip can provide a police officer with reasonable cause to detain and question a suspect. However, an unverified tip alone might not be sufficient to establish reasonable cause for the stop of the defendant. The Supreme |1?,Court has held that such a tip, when corroborated by independent police work, may exhibit sufficient indicia of reliability to justify stopping the suspects.

In a similar case cited by the State, State v. Jackson, 02-146 (La.App. 5 Cir. 5/29/02), 820 So.2d 1147, the Cl provided the police with a specific address, as well as the make, color, model, and license plate number of defendant’s vehicle. The surveillance set up by police verified all of the specific information provided by the informant. Based on the corroboration of the specific information provided by the Cl, the court found that the officers had reasonable suspicion to justify an investigatory stop.

Likewise, in State v. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627, the detective testified that he received information from a Cl in reference to drug activity at the Bon Soir Motel, Room Number 59, in Westwego, which involved a subject named “Tony” and a white Pontiac Grand Am rental car. This Court stated that, because the information given to the officers by the Cl was sufficiently corroborated by the information gained by the officers in surveillance, the officers had reasonable suspicion to make the investigatory stop.

However, in State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 17, writ denied, 00-599 (La.4/7/00), 759 So.2d 765, this Court determined the information received from a confidential informant was insufficient to establish reasonable suspicion to stop the vehicle in which defendant was riding. A DEA agent learned that a large quantity of heroin was to be delivered by one of the residents of the address. The police set up surveillance and observed two individuals, including defendant, exit the apartment, enter a vehicle, and leave the premises. The police did not observe a delivery. The police learned the vehicle was registered to a person at the address. The police subsequently stopped the vehicle. |13The vehicle had not committed any traffic violations and did not exhibit any suspicious activity before it was stopped. Upon being stopped, the driver fled on foot and the passenger, defendant, threw a black plastic bag out of the window that later tested positive for heroin. Defendant was arrested and a search warrant was obtained for the apartment, where heroin was found.

This Court found the informant’s tip to be “painfully lacking in specificity” and “sparse at best.” This Court stated that the tip did not provide a range of specific details that could be corroborated by the officers and amounted to little more than an address. This Court noted that no information was provided to establish the veracity, reliability, or basis of knowledge of the informant and the officer did not know when the informant’s tip was received. Further, the informant’s tip “did not describe a particular person, by name or description, a particular vehicle, by make, color, or license number, or a particular place where the vehicle would go.” Id. at 18. The tip also did not specify whether the delivery of the heroin was to be delivered to or from the apartment. This Court concluded that the State did not meet its burden of proof because there was no showing made of the reliability of the informant and the limited specificity of the information in the tip was insufficient to provide reasonable suspicion to justify the initial stop of the vehicle.

The present case is more similar to Jackson and Nelson than to Rodriguez. The informant’s tip was more specific than the tip in Rodriguez and similar to the tips in Jackson and Nelson. Unlike the police in Rodriguez and Nelson, Detective Gerdes knew what time the predicted delivery was to take place (between 11:30 p.m. and 12:00 a.m. on March 26, 2002). Unlike the informant in Rodriguez, the informant in the present case gave the specific name of “Cooley” and identified Cooley from a photograph and at the scene prior to the arrest. Although the informant specified that Cooley would be delivering the drugs, the detectives did [unot testify that they had received any information regarding the type of vehicle that would be involved in the delivery. In both Jackson and Nelson, the informants described the vehicle involved. Additionally, unlike Rodriguez and like Jackson and Nelson, there was testimony regarding the past reliability of the informant. In Rodriguez, there was no testimony regarding the informant’s reliability. In Nelson, there was clear testimony that the informant had provided information in the past that led to arrests and convictions. In Jackson, there was testimony that the informant was credible and reliable.

In light of the foregoing, we find that the officers had reasonable suspicion to justify an investigatory stop of the defendants. The surveillance set up by Detective Gerdes verified all of the specific information provided by the informant, previously found to be reliable by Detective Gerdes, which contained predictive information from which the officers could reasonably determine that the informant had “inside information” or a “special familiarity” with defendant’s affairs. Based on the corroboration by the officers of the specific information provided by the informant, we find that the officers had reasonable suspicion to justify an investigatory stop, and that the trial court did not err in denying the Motions to Suppress.

Defendants point out that the Cl did not mention Franklin in the information he provided to police. Although that is true, it is irrelevant to the issue of whether there was reasonable suspicion to conduct an investigatory stop. It is well-settled in Federal and State jurisprudence that police officers may seize contraband detected during the lawful execution of an investigatory stop. Under the plain view doctrine, if police are lawfully in a position from which they view an object |1Hthat has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.

Having found that the investigatory stop was valid, Detectives Gerdes and Valley, therefore, had a right to be standing near the driver’s side of the vehicle, where Valley observed Franklin attempt to ingest a plastic bag containing a powder, which was later identified as 7 grams of heroin. Based on the foregoing, the drugs Franklin attempted to ingest were legally seized under the “plain view” exception to the warrant requirement. The valid investigatory stop led the detectives to find heroin on Franklin’s person. Additionally, a search warrant was issued for Franklin’s residence where heroin and a gun were found, which ultimately led to his being arrested and charged with drug and gun violations.

Defendants note that no heroin was found on Cooley. Whether heroin was found on Cooley’s person is irrelevant to the issue of whether there was reasonable suspicion to conduct an investigatory stop. There is no requirement that the police find drugs in order for the stop to be considered valid.

CONSENT TO SEARCH

Defendant, Cooley, argues that he did not waive his rights and consent to the search of his apartment.

In State v. Stone, 94-155 (La.App. 5 Cir. 7/26/94), 641 So.2d 652, 655, this Court set forth the law regarding searches conducted pursuant to consent:

... One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving the consent was given freely and voluntarily, (cite omitted) Voluntariness of defendant’s consent to search is a question of fact to be determined by the trial judge from a review of the totality of the | ifirircumstances. (cite omitted.) Furthermore, the factual determinations of the trial court on the issue of a consent to search are entitled to great weight on appellate review, (cite omitted.) The trial court’s determination as to the credibility of witnesses are to be accorded great weight on appeal, (cite omitted.)

In the instant case, Sergeant Harrison testified that he placed Cooley under arrest for an outstanding attachment. After the marijuana was found in the vehicle where Cooley was sitting, Sergeant Harrison arrested Cooley for possession of marijuana and advised him of his constitutional rights. Cooley indicated he understood his rights and told Sergeant Harrison that the marijuana was his.

Detective Gerdes testified that he asked Cooley if he would consent to a search of his apartment. Cooley stated, ‘Tes.” Detective Gerdes filled out the Rights of Ar-restee form and Consent to Search form for Cooley. Cooley signed the Rights of Arrestee form indicating he understood his rights, but he said he did not waive his rights and wanted to speak to a lawyer. Detective Gerdes testified that Cooley said he would still allow the detectives to search his residence. Detective Gerdes explained that he completed the Consent to Search form, that Cooley signed the form, and that Sergeant Harrison signed as a witness.

State’s Exhibit 2 is entitled “Jefferson Parish Sheriffs Office Consent Search Form.” The form provides in pertinent part:

I have been advised by De. R. Gerdes, an officer with the Jefferson Parish Sheriffs Office that the officer is investigating the crime of R.S. 40:966 relative to Poss. of Heroin & Marijuana. I have been advised of my constitutional rights not to have a search made without a search warrant and of my right to refuse to consent to such a search. I understand that whatever evidence is found can be used against me in a court of law, or used in connection with the investigation into the crime.
I hereby authorize members of the Jefferson Parish Sheriffs Office to conduct a complete search of 1629 Cooper Rd. Apt. D, Gretna. The officers are authorized by me to take from my premises/vehicle, herein specified, any letters, papers, material or other property which the officer may deem appropriate.
This written permission is being given by me to the above named officer voluntarily and without threats or promises of any kind.

| ^(Underlining denotes handwritten material in the original.)

The signature “T. Cooley” appears at the bottom of the form on the right-hand side, and Sergeant Bruce Harrison’s signature appears at the bottom of the form on the left-hand side. Cooley argues that his signature did not appear on the copy of the consent form. The record indicates that this is true. Detective Gerdes explained that he probably had the carbon paper upside down when he filled out the form. However, Detective Gerdes testified that Cooley’s signature appeared on the original consent form that was submitted with the report.

A review of the totality of the circumstances shows that Cooley freely and voluntarily consented to the search of his apartment. The evidence indicates that he told the officers they could still search his apartment and that he signed a Consent to Search form authorizing the officers to search his residence. Based on the foregoing, we find that defendant consented to a search of his apartment.

ASSIGNMENT OF ERROR NUMBER TWO (THURMAN T. COOLEY III)

Cooley argues that the trial court erred by denying his Motion to Sever the defendants. The State notes that Cooley’s claim was not reserved for appeal. An unqualified guilty plea waives all non-jurisdictional defects in the proceedings prior thereto and precludes review thereof either by appeal or post-conviction relief. Defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case.

| ^The transcript indicates that Cooley pled guilty under Crosby reserving his right to appeal the court’s ruling on the Motion to Suppress. The Waiver of Rights form indicates only that defendant was entering a plea under Crosby. We find that Cooley specifically limited his Crosby appeal to the ruling on the Motion to Suppress. As such, he is precluded from raising this issue on appeal. State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196.

ASSIGNMENT OF ERROR NUMBER THREE (THURMAN T. COOLEY III)

Cooley argues that error patent was committed in the sentencing.

The State concurs that remand is appropriate so that a proper evaluation may be made as to the legality of the sentence and compliance with the applicable statutory sentencing provisions.

As was set forth in the procedural history, Cooley withdrew his pleas of not guilty and entered pleas of guilty under Crosby. The trial court sentenced Cooley to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 14:95.1 conviction (Count 1), 15 years in connection with the R.S. 40:966(A) conviction (Count 4), and 15 years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 40:979/40:966 conspiracy conviction (Count 5), with all sentences to run concurrently. On that same date, the State filed a multiple bill alleging Cooley to be a second felony offender. Cooley admitted the allegations of the multiple bill.

Only one count of a multi-count indictment/information can be used to enhance the penalty pursuant to La. R.S. 15:529.1 when the convictions were |19entered on the same day. It is required that a defendant receive a determinate sentence for each offense upon which he is convicted. Id.

The transcript reflects that the trial judge, while speaking to both defendants and their counsel, vacated “the sentence imposed in connection with each count on 40:966(A).” Because Cooley was convicted of violations of R.S. 14:95.1 (Count 1), R.S. 40:966(A) (Count 4), and R.S. 40:979/40:966 (Count 5), it is unclear whether the trial judge was vacating the sentence on Count 4 or Count 5. We hereby vacate the sentence on the multiple bill pertaining to Cooley and remand for re-sentencing on the multiple bill.

Regarding errors patent, the following are noted. The commitments are not consistent with the transcript in several respects. The commitment pertaining to Cooley indicates that Cooley pled guilty to distribution with intent to distribute heroin. The commitment should read that defendant pled guilty to possession with intent to distribute heroin.

The commitment pertaining to Cooley notes that “the court ordered that the sentence as to count 3-40:979/966 is to be served without benefits of parole, probation or suspension of sentence.” However, the court, in fact, ordered Count 5 to be served without benefit of parole, probation or suspension of sentence.

When there exists a conflict between the transcript and the commitment, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983). Therefore, we remand to the trial court for the purpose of correcting the commitments to conform to the transcript, designating the proper offenses to which defendants pled guilty and the proper sentences. State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274.

| ^Finally, the transcript indicates that the trial judge advised defendants that they had a two-year time period in which to seek post-conviction relief. The Waiver of Rights forms indicate that defendants were advised that they had two years “from today’s date” to seek post-conviction relief.

Although the trial judge informed defendants of the two-year prescriptive period for seeking post-conviction relief, she did not tell them when this period began to run. This notice was, therefore, incomplete. Therefore, we remand to the District Court with instructions to inform the defendant of the provisions of LSA-C.Cr.P. art. 980.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that defendant received the notice in the record of the proceedings.

ASSIGNMENT OF ERROR NUMBER TWO (PAUL FRANKLIN)

The trial court erred by failing to specify which conviction was being enhanced pursuant to the habitual offender adjudication.

Franklin withdrew his pleas of not guilty and entered pleas of guilty under Crosby to the crimes with which he was charged. The trial court sentenced Franklin to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence in connection with the R.S. 14:95.1 conviction (Count 2), 20 years in connection with the R.S. 40:966(A)(l)(D)(a) conviction (Count 3), and 20 years in connection with the R.S. 40:966(A) conviction (Count 4), with all sentences to run concurrently. On that same date, the State filed a multiple bill alleging Franklin to be a second felony offender. Defendant admitted the allegations of the multiple bill.

hi With respect to Franklin, the transcript indicates that the trial judge vacated the sentence imposed “in connection with the 966(A).” Because Franklin was convicted of violating R.S. 40:966(A)(l)(D)(a) (Count 3) and R.S. 40:966(A) (Count 4), we find that the trial judge did not clearly specify which sentence was vacated and which count she sought to enhance. It is noted that the State refers to R.S. 40:966(A)(1)(D) and R.S. 40:966(A)(l)(D)(a) in the multiple bill as the basis for the enhancement. However, the trial judge did not specifically reference that statute during sentencing. Further, the commitment does not indicate which sentence the trial judge vacated. Based on the foregoing, we vacate the multiple offender sentence pertaining to Franklin and remand for resentencing.

The commitments are not consistent with the transcript in several respects. The commitment pertaining to Franklin indicates that Franklin pled guilty to distribution with intent to distribute heroin. The commitment should read that defendant pled guilty to possession with intent to distribute heroin.

The commitment pertaining to Franklin provides that, “the above sentence is to be served without benefits of parole, probation or suspension of sentence.” However, above that sentence is the statement, “The Court sentenced the Defendant to imprisonment at hard labor for a term of 20 years.” Above that statement is a list of Counts 2, 3, and 4 with the sentences 10 years, 20 years, and 20 years written next to those counts, respectively. It is unclear looking at the commitment which sentence the trial judge imposed without benefits. However, after reading the transcript, it is clear that the trial judge imposed the ten-year sentence on Count 2 without benefits.

When there exists a conflict between the transcript and the commitment, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983). we remand to the trial court for the purpose of correcting the commitments to conform to the transcript, designating the proper offenses to which defendants pled guilty and the Improper sentences. State v. Gassenberger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274.

Finally, the transcript indicates that the trial judge advised defendants that they had a two-year time period in which to seek post-conviction relief. The Waiver of Rights forms indicate that defendants were advised that they had two years “from today’s date” to seek post-conviction relief.

Although the trial judge informed defendants of the two-year prescriptive period for seeking post-conviction relief, she did not tell them when this period began to run. This notice was, therefore, incomplete. Therefore, we remand to the District Court with instructions to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that defendant received the notice in the record of the proceedings.

Accordingly, the defendants’ convictions are affirmed. Cooley’s sentence as a multiple offender is vacated and the matter remanded for resentencing in accordance with this opinion. Likewise, Franklin’s sentence as a multiple offender is vacated and the matter remanded for resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; MULTIPLE OFFENDER SENTENCES VA-

CATED; REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The deputy testified that Gable, Franklin's 15 year old stepdaughter, remained behind at Cooley's apartment.

      . State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 74, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, Belton v. Louisiana, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

      . State v. Miskel, 95-584 (La.App. 5 Cir. 1/30/96), 668 So.2d 1299, 1302.

      . State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

      . State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

      . State v. Kalie, 96-2650 at p. 2, 699 So.2d at 879.

      . Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Jernigan, 377 So.2d 1222, 1224 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). State v. Miskel, 95-584 (La.App. 5 Cir. 1/30/96), 668 So.2d 1299.

      . Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).

      . The probable cause affidavit in the record indicates that the detectives received information from an informant regarding a drug delivery to take place at a specific time and involving a specific vehicle, but did not mention the make, model, color, or license plate number of that vehicle. It is noted, however, that the probable cause affidavit was not introduced into evidence.

      . State v. Jackson, 02-146 (La.App. 5 Cir. 5/29/02), 820 So.2d 1147, 1151; State v. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 799, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627 (citing State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 73, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118).

      . See, Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

      . State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 72, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118 (citations omitted).

      . Defendants do not challenge the validity of the search warrant or the fact that heroin was discovered in Franklin's residence. They only challenge the fact that the Cl did not mention Franklin.

      . LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      .The carbon copy of the consent form was not introduced as an exhibit and, therefore, it is not contained in the evidence envelope. The only consent form contained in the evidence envelope is State’s Exhibit 2 that contains Cooley’s signature at the bottom.

      . State v. Raines, 00-1942, p. 3 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632; State v. Crosby, 338 So.2d 584, 588 (La.1976).

      . State v. Cox, 02-0333, p. 5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-524.

      . State v. Fish, 00-922 (La.App. 5 Cir. 1/30/01), 782 So.2d 1087, 1092, writ denied, 01-548 (La.2/1/02), 808 So.2d 337.

      . The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      .The commitments indicate that defendants were advised they had two years after judgment of conviction and sentence has become final in which to seek post-conviction relief. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975, writ denied, 01-1719 (La.4/12/02), 812 So.2d 666.

      . The commitments indicate that defendants were advised they had two years after judgment of conviction and sentence has become final in which to seek post-conviction relief. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975, writ denied, 01-1719 (La.4/12/02), 812 So.2d 666.


author: 2THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Mustafa MUHAMMAD.
    No. 03-KA-419.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   2THOMAS F. DALEY, Judge.

The defendant was convicted of 17 counts of access device fraud in violation of La. R.S. 14:70.4. This is defendant’s third appeal in this case. He was adjudicated a multiple offender and sentenced to life in prison. In an unpublished opinion, this court affirmed his conviction of violation of La. R.S. 14:70.4, but set aside the multiple offender adjudication because of an error patent. On remand, the trial court adjudicated the defendant a multiple offender based on evidence submitted in the first habitual offender hearing. This Court found that to be reversible error in State v. Muhammad, 02-338 (La.App. 5 Cir. 10/16/02), 831 So.2d 358. Upon remand, the trial court held another hearing on the multiple offender indictment and the defendant was adjudicated a multiple offender. He has appealed his adjudication as a multiple offender.

On appeal, defendant argues that the State was not entitled to file an Amended Habitual Offender Bill of Information after he had completed his term of incarceration, and that the court, therefore, erred in failing to quash the amended |3bill. The State responds that the delay in the multiple bill proceedings was not attributable to any dilatory tactics and was mostly attributable to defendant’s two appeals.

The trial court heard the Motion to Quash the multiple bill filed by counsel on April 27, 2001. The trial court denied the motion. On May 18, 2001, the trial court took up the matter of the habitual offender bill. The court first allowed defendant to put on additional evidence in support of his Motion to Quash. Defendant introduced the testimony of Collette Chapman of the State Department of Corrections. Ms. Chapman produced a department document entitled Release Date Computation Information, which detailed defendant’s incarceration and release dates. The document shows that defendant was remanded on August 26, 1998. His original and adjusted diminution of sentence date is listed as August 24, 2000. Ms. Chapman testified that August 24, 2000 was the date on which defendant was to be released from prison. However, defendant remained on parole, under State supervision, after his prison release. His full-term date is given in the document as August 23, 2002.

On December 17, 2002, the trial court heard another Motion to Quash the multiple bill filed by counsel. No testimony was taken. After hearing arguments of counsel, the trial court denied the motion, stating:

I believe that the State has been timely. The major reason for us being here so long afterwards is appellate action and waiting for the appellate court, and then the appellate court having made rulings to have us have additional hearings. So I think that the original or that the multiple bill was filed timely within the meaning of the jurisprudence, which gives no actual date. It just says, “in a reasonable time,” and I think it was reasonable.
So the [sic] for those reasons, the motion to quash the multiple bill are [sic] denied.

The Court then held a hearing on the multiple bill, found the defendant to be a multiple offender and sentenced the defendant to life in prison.

1 ¿While LSA-R.S. 15:529.1 does not establish a time limitation, a habitual offender bill must be filed within a reasonable time after the State learns the defendant has prior felony convictions. State v. Conrad, 94-232, p. 2 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1063, writ denied, 94-3076 (La.4/7/95), 652 So.2d 1345. The rationale for this requirement is the protection of the defendant’s constitutional right to a speedy trial and to know the full consequences of the verdict within a reasonable time. State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561.

In State v. Grimes, 01-0576 (La.App. 4 Cir. 5/2/01), 786 So.2d 876, the defendant argued that the trial court erred in denying his Motion to Quash the habitual offender hearing and in subsequently finding him to be a habitual offender. The defendant argued that, at the time of the habitual offender hearing, he had already served 23 months of a three-year sentence and was on parole. The defendant further complained that, although the State filed the habitual offender bill on the day he was sentenced, the hearing was reset 18 times over a 16-month period. The defendant claimed that, during that time, he never requested a continuance.

The Fourth Circuit held that the defendant was not prejudiced by the 16-month delay in hearing the habitual offender bill, despite the fact that he had been paroled by the time the hearing was held. The court reasoned that the defendant received timely notice that the State would seek sentencing enhancement when the State filed its habitual offender bill at the time of sentencing. The court further noted that the defendant did not show who requested the continuances he complained of, or that they were unjustified. State v. Grimes, 01-0576 at pp. 13-15, 786 So.2d at 884-885.

In State v. Jenkins, 595 So.2d 780 (La.App. 5 Cir.1992), this Court found that a two-year lapse between the filing of the habitual offender bill and the | shearing was not unreasonable so as to violate the defendant’s due process rights, where the defendant was notified of the intended filing of the bill immediately upon his conviction for the underlying offense, and was still incarcerated when the habitual offender hearing took place.

We find that the filing of the multiple offender bill was timely. The State filed the original habitual offender bill on the day defendant was sentenced. This immediately put defendant on notice that one of his sentences would be enhanced. The delay in re-hearing the habitual offender bill did not violate defendant’s right to a speedy trial. The delay was principally caused by the movement of defendant’s case through the appellate process, and not by any action by the State.

However, proceedings against a convicted defendant to enhance his sentence under the Habitual Offender Law must be completed before he has satisfied his sentence for the underlying felony and been discharged from custody for that offense. State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986) (per curiam); State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). Although a defendant might be released on parole, he is not yet discharged from custody because “[T]he expiration of a sentence is the date that the defendant is discharged from supervision; that is the discharge date under the sentence imposed.” State v. Scamardo, 97-197, p. 8 (La.App. 5 Cir. 2/11/98), 708 So.2d 1126, 1130 (quoting State v. Dominick, 94-1368 (La.App. 4 Cir. 4/26/95), 658 So.2d 1, writ denied, 95-2291 (La.2/2/96), 666 So.2d 1091).

Based the record before us, the date the defendant was to be discharged from supervision was August 23, 2002. This is based on the document prepared by DOC employee, Chapman, that states defendant’s full-term date as August 23, 2002. According to the law as set forth by the Supreme Court in State ex rel. Glynn v. Blackburn, supra, all multiple bill proceedings had to be completed by defendant’s discharge date. Therefore, the trial court erred in denying defendant’s |fiMotion to Quash on December 17, 2002. We note, however, as did the trial court, that the reason why the multiple offender proceeding was not completed earlier was because of errors in the previous habitual offender proceeding, which we recognized during the appellate process. We find no dilatory tactics or bad faith on the part of the State, but are bound by Louisiana Supreme Court jurisprudence to grant the defendant’s Motion to Quash. Unless or until the Legislature clarifies the applicable time period for completing habitual offender proceedings existing, Supreme Court precedent controls and the imposition of a habitual offender enhanced sentence must occur before the defendant’s full term discharge date on the underlying offense.

CONCLUSION:

For the foregoing reasons, the trial court’s denial of defendant’s Motion to Quash the multiple bill is set aside and defendant’s life sentence as a multiple offender is vacated.

REVERSED.


author: |.CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Rhonda K. OLIVER.
    No. 03-KA-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Paul D. Conniek, Jr. District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for State.

      Bruce G. Whittaker, New Orleans, LA, for appellant.
    Rhonda K. Oliver, Saint Gabriel, LA, pro se Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |.CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On February 22, 2001, the defendant, Rhonda Oliver, was charged by bill of information with the February 8, 2001 theft of goods valued at between $100 and $500 from Sears in violation of LSA-R.S. 14:67.10. She was arraigned on March 26, 2001 and entered a plea of not guilty. On March 27, 2001, defendant filed pre-trial motions, including a motion to suppress the evidence, confession and identification. The hearing on the motions was set for April 16, 2001, but the defendant failed to appear for the hearing and an attachment issued. There is no indication in the record that the motions were ever heard.

Trial was held on July 31, 2001 and a six-person jury found defendant guilty as charged. The jury was polled and the verdict was declared legal. On August 6, 2001, defendant filed a motion for new trial, which was denied by the trial judge on August 22, 2001. Also on that date, defendant stated that she was ready for sentencing, and the trial judge sentenced the defendant to two years of imprisonment at hard labor with credit for time served. Thereafter, the State advised the court that it was filing a multiple bill, alleging the defendant to be a | .fourth felony offender under LSA-R.S. 15:529.1(A)(2)(c)(i). The defendant denied the allegations of the multiple bill.

On October 3, 2001, the court held a hearing on the multiple bill. The court found defendant to be a fourth felony offender.

At the sentencing on the multiple bill adjudication held October 10, 2001, the trial judge vacated the previous sentence and re-sentenced the defendant as a fourth felony offender to imprisonment at hard labor for 20 years, without benefit of probation or suspension of sentence but with credit for time , served. LSA-R.S. 15:529.1(A)(2)(c). On that date, defendant noted an objection to the multiple offender sentence, and she notified the court of an intent to file a written motion for reconsideration of sentence and to seek an appeal. On the same date, October 10, 2001, defendant filed a written motion to reconsider sentence alleging the sentence was “excessive.” The motion for reconsideration of sentence was denied by the trial court. On the same day, the defendant filed a written appeal motion, which was granted by the trial court.

FACTS

Rubystein Goins is a sales associate at Sears Oakwood in Jefferson Parish. On February 8, 2001, at approximately 5:30 p.m., Ms. Goins was working in the bedding department located on the second floor of the store adjacent to the house ware department. She was approached by a customer, later identified as Rhonda Oliver, and the customer wanted to return a Foreman Grill and a mixer. According to Ms. Oliver, she had purchased these two items at Sears Clearview, but she did not have a receipt. According to store policy, Ms. Goins issued a credit for the returned items in the form of a Sears Gift Card, which required that any purchases made with the card were to be made at a Sears store. The card was issued for the sum of approximately $400, according to Ms. Goins.

|4Ms. Goins later testified that she was suspicious of Ms. Oliver because of the return of two major appliances that were unaccompanied by a receipt. Because of her suspicions, Ms. Goins notified Joseph Bernard, the store’s safety asset coordinator. Ms. Goins relayed to Mr. Bernard an account of the return and a description of the customer. At the time of the advisory, Mr. Bernard was located in the store’s surveillance camera room where he was able to observe various locations in and outside the store. Mr. Bernard alerted the security manager, Walter Dominique. The two men watched Ms. Oliver on the surveillance cameras. Ms. Oliver was observed leaving the house ware department, going to the first floor by escalator, and exiting the store. At this time, she was carrying two bags, each containing a juicer.

Once outside the store, Ms. Oliver walked to a white vehicle parked in the adjacent lot. She placed one bag of merchandise on the ground and the second bag of merchandise in the white car. She removed the juicer from the bag that was located in the vehicle and left the juicer in the vehicle. She tore the bag and then crumpled it and placed this empty bag inside the bag containing the juicer that was located on the ground. Thereafter, Ms. Oliver returned to the store with the bagged juicer which also contained the empty bag. Ms. Oliver again returned to the house ware department.

As Mr. Bernard and Mr. Dominique watched on surveillance cameras, Ms. Oliver walked to the corner of the house ware department, removed a sign from the merchandise, and retrieved another boxed juicer. Ms. Oliver now had two juicers in bags and one of the bags was torn. She asked Ms. Goins for a new bag in order to replace the torn one. Ms. Oliver presented the sales associate with a receipt, which indicated that two juicers had been purchased that day for $179.99 each, using a gift card.

| RUsing the previously taken path, Ms. Oliver left the department, stepped onto the escalator to reach the first floor, and walked in the direction of the exit to the parking lot. Mr. Dominique confronted Ms. Oliver before she exited the store. Ms. Oliver asked Mr. Dominique whether she had done something -wrong, and Mr. Dominique asked her to accompany him to the security office. Ms. Oliver did so and she was questioned about the newly acquired juicer. Ms. Oliver told Mr. Dominique she had purchased the juicer; however, she was not able to produce a receipt. Jefferson Parish Sheriffs Office was called and an officer arrived at the scene. Ms. Oliver agreed to a search of her vehicle. Two juicers were seized from the vehicle. The third juicer was returned to the store. That item was photographed and returned to the sales shelf. Thereafter, Ms. Oliver was arrested and charged with theft.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges that the sentence imposed is excessive. The State replies that defendant was given the minimum sentence under the applicable multiple offender provision and there has been no showing that such a sentence constitutes an abuse of discretion.

Defendant was sentenced as a fourth felony offender to 20 years of imprisonment at hard labor without benefit of probation or suspension of sentence. She lodged an objection to the sentence and filed a written motion for reconsideration of sentence. In the motion for reconsideration, she alleged, as she does on appeal, that the sentence is “excessive.”

On appeal, defendant argues that she was essentially given a 20-year sentence for shoplifting an item worth $179 from a “special interest” victim (i.e., Sears) and had the same crime been committed against a person, it would have merely-been a misdemeanor theft, not a felony, with multiple bill consequences.

|fiThis argument was not presented to the trial court at the time of defendant’s objection, nor was it urged in the written motion for reconsideration of sentence. It is presented for the first time on appeal.

LSA-C.Cr.P. art. 881.1 governs motions to reconsider sentence and provides, in pertinent part, as follows:

Art. 881.1. Motion to reconsider sentence

D. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion, on appeal or review.

Hence, failure to raise the issue in the trial court precludes defendant from raising the issue for the first time on appeal. LSA-C.Cr.P. arts. 881.1, 841; State v. Brooks, 00-953 c/w 00-954, p. 8 (La.App. 5 Cir. 2/11/03), 841 So.2d 854, 858, citing State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855, writ denied, (La.11/24/99), 750 So.2d 980 and State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 967-968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

As such, this argument by defendant presented for the first time on appeal is not subject to review by this Court.

Since the sole issue raised in the district court was that the sentence imposed was “excessive”, the sentence will be reviewed for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is excessive if it is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, or if it imposes needless and purposeless pain and suffering. State v. Weaver, 01-467, p. 21 (La.1/15/02), 805 So.2d 166, 174, citing State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Harbor, 01-1261, p. 6 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226.

The legislature has the unique responsibility to define criminal conduct and to provide for the penalties to be imposed against persons engaged in such conduct. State v. Weaver, supra; State v. Williams, 97-970, p. 6 (La.App. 5 Cir. 1/27/98), 708 So.2d 1086, 1088. The penalties provided by the legislature reflect the degree to which the criminal conduct offends society and the courts must apply these penalties unless they are found to be unconstitutional. State v. Weaver, supra; State v. Williams, supra.

The Louisiana Supreme Court has found the shoplifting statute LSA-R.S. 14:67.10, which provides different grades of penalties than the general theft statute, to be constitutionally valid. State v. Fleury, 01-871 (La.10/16/01), 799 So.2d 468.

The Habitual Offender Law in its entirety has been found constitutional and, accordingly, the minimum sentences it imposes are likewise presumed to be constitutional. LSA-R.S. 15:529.1; State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, citing State v. Dorthey, 623 So.2d 1276 (La.1993).

In this case, the defendant was found to be a fourth felony offender under the Habitual Offender Statute. LSA-R.S. 15:529.1(A)(l)(c)(i). The punishment for conviction as a fourth felony offender is defined, in pertinent part, as follows:

If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less that his natural life then:
The person shall be sentenced ... for a determinate term not less than the longest prescribed for a first conviction, but in no event less than twenty years and not more than his natural life[.]

In the case of theft of goods, when the misappropriation or taking amounts to a value of $100 or more, but less than a value of $500, the offender shall be [ ^imprisoned with or without hard labor for not more than two years or may be fined not more than $2000, or both. LSA-R.S. 14:67.10.

The sentencing range for a fourth felony offender in such an instance as this is between two and 20 years of imprisonment. LSA-R.S. 15:529.1(A)(l)(c)(i). This defendant received a sentence of 20 years imprisonment for this, her fourth felony offense. This sentence is within the statutory sentencing range.

The present sentence is not grossly disproportionate to the offense under the facts presented. The record in the present case appears to indicate the defendant was engaged in a scheme, wherein she stole large house ware items from local retailers. The defendant’s conduct in the instant case suggests that, but for the vigilant surveillance of the store personnel, defendant would have stolen more house ware items from this retañer. Besides the economic impact on the merchant, these instances of shoplifting also exact an economic toll on the public at large. See, State v. Fleury, 799 So.2d at 475.

Additionally, the record indicates that at least two of defendant’s underlying felony offenses, used for enhancement in this case, were also felony theft convictions (i.e., one for merchant theft between $100 and $500 and one for general theft over $500). Although convicted twice before for theft, she continued to engage in this illegal activity. The right of states to enact more onerous penalties for those who cannot bring their conduct within social norms has been sanctioned by the Supreme Court. See, Solem v. Helm, 103 S.Ct. at 3013; Rummel v. Estelle, 100 S.Ct. at 1136. Defendant also had a third conviction for cruelty to a juvenüe, wherein she was convicted of beating her three-year-old chüd with an electrical cord. Defendant appears to be the type of recidivist offender the legislature contemplated in enacting harsher penalties for multiple felony offenses.

Under these circumstances, the 20-year sentence imposed upon defendant as a fourth felony offender does not appear to be excessive. Therefore, we affirm |9the defendant’s sentence to 20 years imprisonment at hard labor as a fourth felony offender.

ASSIGNMENT OF ERROR NUMBER TWO

As her second assignment of error, the defendant requests an error patent review. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

In accordance with the above, we affirm the defendant’s sentence to 20 years imprisonment at hard labor as a fourth felony offender.

AFFIRMED.


author: |,SUSAN M. CHEHARDY, Judge.

text:
    Michael PETRANICK and Karen Loup Petranick v. WHITE CONSOLIDATED INDUSTRIES, Karl Steimle, Reliance National Indemnity Company.
    No. 03-CA-483.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.
    Jerald N. Andry, Jr., New Orleans, LA, for Michael and Karen Petranick, Plaintiffs-Appellants.
    George J. Nalley, Jr., Christopher J. Stahulak, George J. Nalley, Jr., APLC, Metairie, LA, for University Healthcare Systems, L.L.C., Intervenor-Appellant.
    Charles S. Green, Jr., New Orleans, LA, for White Consolidated Industries, Karl S. Steimle, and Rebanee National Indemnity Co., Defendants-Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   |,SUSAN M. CHEHARDY, Judge.

After trial, the judge granted plaintiffs’ Motion for Judgment Notwithstanding the Verdict regarding liability and Motion for Additur. At the same time, the trial judge denied defendants’ Motion for Judgment Notwithstanding the Verdict. Subsequently, all parties appealed. For the reasons which follow, the appeal is dismissed as premature for want of appebate jurisdiction and the case is remanded.

Plaintiffs, Mike and Karen Petranick, filed suit against defendants, Karl Steimle, his employer, White Consolidated Industries, and their insurer, Reliance National Indemnity Co., alleging that Mr. Petranick suffered injuries as a result of a motor vehicle accident with Mr. Steimle while both were in the course and scope of their employment on August 6, 1998. Mr. Pe-tranick’s employer, University Health System, intervened seeking recovery of ab amounts paid to its employee, Mr. Petran-ick, as well as a credit for future benefits.

Following a five-day trial that ended on September 20, 2003, the jury returned a verdict that defendant was 65% at fault and plaintiff was 35% at fault for the accident. The jury awarded Mr. Petranick damages totaling $1,158,900.00. |3 The jury did not award Mrs. Petranick damages for loss of consortium. The trial court entered a judgment pursuant to the jury verdict.

On September 24, 1998, plaintiffs filed a Motion for Judgment Notwithstanding the Verdict, and Additur or, in the alternative, Motion for New Trial. On September 27, 2002, defendants filed a Motion for Judgment Notwithstanding the Verdict, and Remittitur or, in the alternative, Motion for New Trial.

On November 12, 2002, the trial court granted the JNOV in favor of plaintiffs and denied the JNOV in favor of defendants, but failed to rule on either party’s motion for new trial. It is from this judgment that all parties now appeal. Upon reviewing the record, we note a jurisdictional defect in the appeal which requires that it be dismissed and remanded.

La. C.C.P. art. 1811, which governs procedure on motions for judgment notwithstanding the verdict, provides in pertinent part:

(A). (2) A motion for a new trial may be joined with this motion [JNOV], or a new trial may be prayed for in the alternative.
(C). (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
(2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
(3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

Article 1811 expressly addresses the procedure for handling a motion for a JNOV and a motion for new trial and mandates that the trial court, after granting the JNOV, rule on the motion for new trial. In this case, the trial court failed to | ¿rule on either party’s motion for new trial, which accompanied its motion for JNOV. Furthermore, because the motion for new trial is still pending, the trial court has not been divested of its original jurisdiction. This court, therefore, has no appellate jurisdiction over the case. See, Eubanks v. Salmon, 98-941 (La.App. 5 Cir. 1/5/99), 726 So.2d 430 and State Through DOTD v. Scramuzza, 594 So.2d 521 (La.App. 5th Cir.1992).

Accordingly, defendants’ appeal is dismissed and the case remanded to the district court for compliance with La. C.C.P. art. 1811(C). Each party is to bear its own cost of appeal.

APPEAL DISMISSED; CASE REMANDED.