author: LSUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Grace ARMANT.
    No. 02-KA-907.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Anderson Council, New Orleans, LA, for Defendant-Appellant, Grace Armant.
    Harry J. Morel, District Attorney, J. William Starr, Assistant District Attorney, Hahnville, LA, for Plaintiff-Appellee, The State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   LSUSAN M. CHEHARDY, Judge.

Grace Armant appeals her convictions of disturbing the peace and resisting an officer. We find the evidence is sufficient, but there is a patent error affecting a substantial right of the defendant. We pretermit consideration of other assignments and remand for an evidentiary hearing.

On November 7, 2001 the St. Charles Parish District Attorney charged Grace Armant with two misdemeanors in two separate bills of information. In No. 66348, she was charged with disturbing the peace, a violation of La.R.S. 14:103. In No. 66349 she was charged with resisting an officer, a violation of La.R.S. 14:108. At arraignment she entered a plea of not guilty.

On April 8, 2002, the defendant was tried and found guilty as charged on both counts. Immediately after the trial the court sentenced the defendant.

With regard to the conviction of disturbing the peace, the court imposed a sentence of 90 days in the parish prison, suspended, placed the defendant on two years’ inactive probation, and imposed a fine of $100, with special conditions of probation. With regard to the conviction of resisting an officer, the trial judge imposed a sentence of six months in the parish prison, suspended, placed the defendant on two years’ inactive probation, and imposed a $500 fine, with special conditions of probation. Both fines were suspended, provided the defendant | ^complied with the special conditions of probation and paid the court costs, which were made concurrent.

Defense counsel requested that the court note his intention to take supervisory writs. The trial court gave the defendant ten days to apply for a writ. On April 17, 2002, nine days after sentencing, the defendant filed a motion for appeal.

JURISDICTION

Although this case involves misdemean- or convictions, the matter is appealable because it was triable by a jury (see below). However, this appeal is appears to be untimely because the motion for appeal was filed more than five days after the defendant’s sentence.

The defendant was sentenced on April 8, 2002. Through counsel, the defendant gave oral notice at the sentencing hearing of her intention to file a writ application, without mentioning an appeal. Her written motion for appeal was filed on April 17, 2002 nine days later and, thus, was untimely-

When a defendant fails to move for an appeal within the time allotted by La.C.Cr.P. art. 914, the conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal. State v. Counterman, 475 So.2d 336, 338 (La.1985). The appropriate procedural vehicle for the defendant to seek exercise of her right to appeal after the legal delay has expired is by application for post-conviction relief. La.C.Cr.P. arts. 924-930.7; |.t Counterman, 475 So.2d at 339; State v. Bowen, 00-175 (La.App. 5 Cir. 7/25/00), 767 So.2d 806, 807.

In State v. Egana, 99-1127 (La.App. 5 Cir. 2/29/00), 758 So.2d 881, 883, this Court found that the pro se defendant’s “Notice of Intention to Apply for Supervisory Writ of Certiorari,” filed more than five days after . sentencing, was not a motion for appeal and was untimely even if considered as a motion for appeal. The Louisiana Supreme Court, however, granted writs for this Court to reconsider its opinion in light of the principles applicable to pro se filings. State ex rel. Egana v. State, 00-2351 (La.9/22/00), 771 So.2d 638. The supreme court also instructed us to consider whether defendant’s motion for appeal, filed four months later, qualified as an application for post-conviction relief under Counterman.

We could distinguish the Supreme Court’s decision in Egana because Egana involved a pro se litigant and this case involves a defendant represented by counsel. However, we prefer to construe the defendant’s oral notice of intent to apply for supervisory relief as an oral notice of appeal.

The Louisiana Supreme Court has recognized that appeals are favored in the law and has disapproved of the dismissal of appeals on “hypertechnical” grounds. “Appeals are favored in law, and appeals should not be dismissed on hypertechnical interpretations of a statute which can be reasonably interpreted to preserve the appeal, particularly in the absence of any claim of prejudice by the opposing party.” State v. Bunnell, 508 So.2d 55 (La.1987); see also, State v. Gilbert, 99-2338 (La.4/20/00), 758 So.2d 779.

In this matter, the State neither objected nor claimed prejudice at any of the relevant times: when the defense indicated the intent to file a writ application, or when the defendant’s written motion for appeal was filed, or when the case came before this Court in this appeal.

| KRather than dismissing the appeal and remanding the case for defendant to seek reinstatement of her appeal rights by application for post-conviction relief, we construe defendant’s oral notice of intention to seek supervisory relief as an oral notice of appeal. Absent a claim of prejudice by the State, such a construction is in the interest of judicial economy and honors the premise that the law favors the right to appeal.

FACTS

At trial, the State’s sole witness was Deputy Olivier, who testified to the following facts:

On October 25, 2001, at approximately 12:00 a.m., Deputy C. Olivier responded to complaints of loud music and illegal parking near the G & G Restaurant and Lounge, at the intersection of Luling Avenue and Paul Mallard Road in St. Charles Parish. When he arrived at the scene, Deputy Olivier observed that cars were parked on Luling Avenue beneath “no parking” signs.

Olivier entered the restaurant to inform the manager or owner that the vehicles had to be moved. Olivier intended to have the vehicles moved voluntarily, rather than to issue citations or to have the vehicles towed. Olivier went inside the lounge and asked for the manager. Grace Armant came outside.

According to Olivier, he attempted to explain the situation about the illegal parking, but Armant told him she “didn’t care what the sign said” and that the “no parking” signs were illegally erected by the parish because the land was owned by the railroad company. Olivier said Armant “became more irate” and began to curse and yell, calling the deputy a “fucking tourist” and saying he didn’t know who he was talking to. Armant informed Olivier that she had worked for the | r,sheriff s department for several years and threatened to sue if the “ongoing harassment continued.”

Olivier told Armant that he was not there to argue, only to have the vehicles moved, and he asked Armant to calm down. According to Olivier, Armant was yelling “loud enough for the people on the other side of Luling Avenue to hear.” Olivier testified,

So at that point, I said, “Look, this isn’t going anywhere. I can’t let this go.” I told her you’re under arrest for disturbance. I asked her to put her hands behind her back. She said I’m not going to jail. She started to back up. She started to back up, I reached out to take a hold of her hand, at which she pushed off of me. That’s okay. I was able to gain control, put her arm behind her back. With the help of Deputy Oubre, we were able to handcuff Ms. Armant.

Olivier said that after being arrested Armant initially cooperated, but “started jumping up and down” while walking to the police unit. Olivier had to “physically put her against the unit in an attempt to restrain her.” Olivier acknowledged that he “may have used bad language at one point. It was a pretty heated debate.”

On cross-examination, Deputy Olivier acknowledged that Armant initially offered to let the security guards write down the license plate numbers and make an announcement that these vehicles needed to be moved. Olivier denied that he refused that offer, but admitted he told Armant that the cars would be towed if they were not moved by the owners. Olivier also admitted that Armant “was talking back to [him] until [he] had to tell her to shut up or she was going to jail.” Olivier decided to arrest Armant after “10 to 15 minutes of her yelling obscenities in the middle of Luling Avenue.” Olivier again acknowledged that he was “sure [he] used some bad language [himself].”

According to Oliver, Armant pushed him once and tried to “intimidate” him. Olivier denied that he had his hand around Ar-mant’s throat. He said he was nothaware of any bruises on her legs or her face that occurred when he pushed the “side of her head into the side of the car” after arresting her.

According to Olivier, when he pointed out the “no parking” signs Armant became uncooperative. He acknowledged that he did not know whether Armant told the security guards not to record the license plate numbers or whether they decided not to do so on their own.

Grace Armant testified on her own behalf. The defendant said that her daughter owns the G & G Restaurant and Lounge and Armant helps manage it. According to Armant, it was approximately 11:30 or 12:00 at night when one of the security guards told her that an officer was outside and wanted to speak to one of the managers or the owner. When Ar-mant went outside and asked what the problem was, the deputy informed her that the vehicles were parked illegally. Ar-mant said she acknowledged that the vehicles were illegally parked and told the deputy that she had opposed making it a “no parking” zone, but the council had overruled her opposition. Armant told the officer the lounge’s two security guards would take down the information from the license plates and would have the D.J. make an announcement inside the lounge.

According to Armant, she began to tell Deputies Olivier and Oubre about the fact that the railroad owned the property where the “no parking” signs were placed. Armant pointed out the depot and asked Deputy Olivier, “Where are you from, Olivier?” Olivier told her he was from New Orleans. Armant explained to him that the parish had erected the signs on the railroad’s property, that she had opposed the parish’s actions at the council meeting, but that there was nothing she could do since the council had not agreed with her position. Armant said she remarked that Deputy Olivier did not know about this history because he was not from St. Charles Parish and that Deputy Oubre was too young to know about it.

IsArmant said she continued talking to Deputy Olivier, but “from one word to the other word” he wanted her to “shut up all of a sudden.” Armant responded that she was not shutting up: “You sent for me. I’m running my business. You disturbing me. This cannot be a one-sided conversation. You sent for me. We are going to talk. If you are finished, I’ll leave.”

According to Armant, Olivier said that if the cars weren’t moved, he was going to write tickets and have them towed. Ar-mant said that Olivier “changed all of a sudden” and told her that if she “didn’t shut up he was going to place [her] under arrest.” Armant initially believed he was joking about arresting her and pulled her hand back when the deputy reached for her. When she realized that Olivier “meant business,” she gave him her hand “peacefully.”

Armant testified that as they walked to the police unit, Deputy Olivier pushed her instead of allowing her to walk. She told him not to push her, that she was not drunk or injured and that she could walk. Then, according to Armant, the officer “slammed” or “threw” her on top of the police car, twisting her neck, scratching her back, and bruising her leg. Armant denied that she cursed at Deputy Olivier and said she could not recall whether Olivier used profanity that night.

After the testimony of Olivier and the defendant, the trial judge found the defendant guilty as charged.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in finding the petitioner guilty as charged based on evidence which is insufficient to support a finding of guilty beyond a reasonable doubt and which violates the petitioner’s due process rights and the dictates of Jackson v. Virginia.

The defendant contends that the evidence is insufficient to support her convictions for disturbing the peace and for resisting an officer. Specifically, defendant argues that the State failed to prove beyond a reasonable doubt that her 19conduct in refusing to obey Deputy Olivier’s command to “shut up” constituted disturbing the peace. Further, defendant contends that her arrest was unlawful and she had the right to resist an unlawful arrest.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See also, State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1292-1293; State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

Disturbing the Peace

In the present case, the State stipulated that it was relying on paragraph A(2) to prosecute the defendant for disturbing the peace. La.R.S. 14:103(A)(2) states:

A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty....

In State v. Bissett, 451 So.2d 181 (La.App. 1 Cir.1984), the court affirmed the defendant’s convictions for disturbing the peace and resisting an officer. The defendant sought emergency treatment at the emergency room at night. Frustrated at her inability to receive treatment, she began screaming and cursing “in a boisterous and provocative manner” at hospital personnel and a person entering the hospital. A police officer called to the scene observed this conduct. The defendant Imcontinued the behavior while in the parking lot of the hospital, directing abusive language and a threat of physical violence toward the officer himself.

The Bissett court found that the evidence was sufficient to support the defendant’s conviction for disturbing the peace. 451 So.2d at 184. In view of its findings on the sufficiency issue, the court concluded that the officer had probable cause to arrest the defendant and, therefore, she had no right to resist the arrest. 451 So.2d at 185.

In contrast, in State v. Woolverton, 474 So.2d 1003 (La.App. 5 Cir.1985), this Court found the evidence insufficient to support the defendant’s conviction for disturbing the peace. The criminal charges arose out of an eviction proceeding. The Woolver-ton court found that the arresting officers’ testimony concerning the defendant’s “argumentative statements” and complaints that the officers had no right to remove his furniture, his unspecified “cursing,” and his use of “a little profanity” did not show the police had probable cause to arrest the defendant for disturbing the peace. 474 So.2d at 1005-1006.

In Woolverton there also was testimony that the officers twice unsuccessfully attempted to quiet the defendant down before placing him under arrest. However, the officers did not specify the words used by the defendant. The court concluded that the defendant’s behavior did not “constitute sufficient cause for his arrest for disturbing the peace.” Because the State failed to prove the elements of the crime beyond a reasonable doubt, the court reversed the defendant’s conviction and sentence. Woolverton, 474 So.2d at 1006.

In reaching its conclusions, the Woolverton court discussed the types of speech that are protected by the United States Constitution:

In cases of this kind, the court must consider the fact that the First and Fourteenth Amendments to the U.S. Constitution require great care in the regulation of Inspeech. Only “fighting words — those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. [Citations omitted.]

Woolverton, 474 So.2d at 1005. [P]olice officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the fighting words exception to protected speech. Id.

Other courts also have addressed words that fall within the purview of protected speech. In State in the Interest of W.B., 461 So.2d 366 (La.App. 2 Cir.1984) the Court held the defendant addressing the officer as a “G — d—white m — f—” was constitutionally protected speech and did not provide probable cause for the defendant’s arrest for disturbing the peace. 461 So.2d at 368-369.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Hotoph, 99-243 (La.App. 5 Cir.11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. It is not the function of the appellate court to assess credibility or reweigh the evidence.

In this case, by finding the defendant guilty as charged, the trial court obviously credited the deputy’s testimony over Ar-mant’s. Deputy Olivier’s testimony established that Ms. Armant was yelling and cursing in the street at midnight while he was attempting to perform his lawful duty of moving illegally parked cars. Although the only profanity Deputy Olivier described was Armant’s calling him a “fucking tourist,” we conclude that Armant’s words and actions constituted disturbing the peace.

li?Had the only evidence against Armant been the use of the profane phrase described by Deputy Olivier, the evidence would have been insufficient to support this conviction because profane words are constitutionally protected speech unless they are “fighting words.” Woolverton, 474 So.2d at 1005. The instant case is distinguishable from Woolverton, however, in that the profanity was specified. It is further distinguishable in that Deputy Olivier testified that Armant was yelling loud enough to be heard across the street, whereas the principal focus in Woolverton was the defendant’s use of unspecified profanity to the officers. This case more resembles Bissett, in which the defendant created a disturbance in a public place at night.

Based on the foregoing, we conclude that the evidence is sufficient to support the conviction of disturbing the peace.

Resisting an Officer

The defendant next contends that the evidence is insufficient to support her conviction for resisting an officer because her arrest for disturbing the peace was unlawful. La.R.S. 14:108 defines resisting an officer as follows, in pertinent part:.

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.

Lain State v. Johnson, 534 So.2d 529, 531 (La.App. 5 Cir.1988), this Court emphasized, “Resisting an officer contains three elements: the intentional resistance, opposition, or obstruction of an officer authorized by law to make a lawful arrest, when the offender knows or should know the officer arresting is acting in his official capacity.” La.R.S. 14:108.

It is undisputed that the defendant, Grace Armant, knew Deputy Olivier was a police officer acting in his official capacity. The only question is whether Armant was lawfully arrested for disturbing the peace.

An arrest is lawful when it is based on probable cause. State v. Raheem, 464 So.2d 293, 296 (La.1985). Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, 1331, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Edüd 670 (1996).

Because we found sufficient evidence to support the arrest for disturbing the peace, the arrest for resisting an officer is based on probable cause. Deputy Olivier’s testimony, which the judge apparently credited, established that Armant resisted Olivier’s efforts to handcuff her after he told her she was under arrest and that Olivier required Deputy Oubre’s assistance to subdue Armant. Based on the foregoing, the evidence is sufficient to justify the conviction of resisting an officer in violation of La.R.S. 14:108.

luPATENT ERROR

We next must address a patent error that we find requires remand of this matter: specifically, the lack of a jury trial waiver. As noted above, our appellate jurisdiction extends only to cases that are triable by a jury. Robinson, supra at n. 1.

La.C.Cr.P. art. 779(A) provides, “A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.”

When misdemeanor offenses are charged by separate bills of information and the aggregate penalty of the offenses exceeds six months imprisonment or a fine of $ 1,000.00, the defendant is entitled to a jury trial. State v. Hornung, 620 So.2d 816, 817 (La.1993).

An exception to this rule is found in La.C.Cr.P. article 493.1, which provides as follows:

Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one thousand dollars, or both.

In State v. Hornung, 613 So.2d 638 (La.App. 5 Cir.1992), affirmed, 620 So.2d 816, 817 (La.1993), the defendant was charged with three misdemeanor offenses in two separate bills of information. The offenses were consolidated for trial on the State’s motion. In a patent error review on the appeal, this Court determined that the defendant was entitled to a jury trial, but the record did not contain a waiver of that right. We reasoned that Article 493.1 did not apply | ^because at least two of the consolidated offenses had not been joined in the same bill of information. We concluded that the total potential punishment for the consolidated charges exceeded six months imprisonment and, thus, the defendant was entitled to a jury trial. Hornung, 613 So.2d at 640.

In affirming this Court’s decision, the Louisiana Supreme Court stated:

The decision of whether to charge an accused in one bill of information with multiple offenses, or in separate bills of information for each offense, is within the discretion of the district attorney alone. It is only when the district attorney exercises that discretion and joins the offenses in the same bill of information that the defendant is entitled to the reduced sentencing exposure of Article 498.1. Likewise, it is only when the district attorney joins the offenses in accordance with Article 493 in the same indictment or information that the state may avoid a jury trial. [Citations omitted.]

Hornung, 620 So.2d at 817.

In State v. Gardner, 458 So.2d 1016, 1017 (La.App. 3 Cir.1984), the court held that the defendant was entitled to a jury trial when charged with resisting an officer and disturbing peace in separate bills of information, where the charges were tried together without being formally consolidated. “Although there was no mention of consolidation, under such circumstances, the charges are considered as if they were joined....”

In the present case, the defendant was charged in separate bills of information with disturbing the peace and resisting an officer. Disturbing the peace is punishable by imprisonment of 90 days or a fine of $100.00 or both. La.R.S. 14:103(A). Resisting an officer is punishable by imprisonment of not more than six months or a fine of $500.00 or both. La. R.S. 14:108(C). Because the aggregate punishment for the two offenses exceeds six months, the defendant had a right to be tried by a jury.

| is Although the record does not reflect that either party moved to consolidate the two bills of information, as was the case in Hornung, the two cases were at all times treated as though they were consolidated. The defendant was arraigned on both cases at the same time, each minute entry contains the numbers of the two cases, the cases were tried together, a single verdict was rendered, and the defendant was sentenced on both cases at the same time. Thus, the charges should be considered consolidated for all practical purposes. Gardner, 458 So.2d at 1017.

The record is silent, however, regarding whether the defendant waived her right to a jury trial. La.C.Cr.P. art. 780 requires that the defendant be advised of the right to a jury trial and that a defendant, once so informed, may waive the right. Waiver of the right to a jury trial is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976); State v. Herrera, 98-677 (La.App. 5 Cir. 2/10/99), 729 So.2d 75, 80.

As a general rule, Louisiana courts have set aside the defendant’s conviction and remanded for a new trial in the absence of a valid jury trial waiver. See, State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5 Cir. 1987), writ denied, 523 So.2d 1335 (La.1988).

In State v. James, 94-720 (La.App. 5 Cir. 5/30/95), 656 So.2d 746, however, this Court took a different approach regarding the absence of a jury trial waiver. With one judge dissenting, we remanded the case for an evidentiary hearing to determine whether the defendant knowingly and intelligently waived his right to trial by jury. The majority reasoned that remand was a better approach than reversal, as follows:

Under the present circumstances, wherein James had competent counsel and was tried without objection by a judge, we believe that the interests of justice are better served by a remand instead of reversals.
| ^Accordingly, we remand for an evi-dentiary hearing to determine whether James knowingly and intelligently waived his right to a jury trial. If the evidence shows that James did not execute such a waiver, the district judge is instructed to set aside the convictions and grant a new trial. If the waiver was properly made, the appeal should be transferred back to this Court for re-' view of this determination and for review of several errors patent concerning the sentences.

James, 94-720 at p. 2, 656 So.2d at 747.

In State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 968, the Louisiana Supreme Court also chose to remand for a similar evidentiary hearing, citing this Court’s decision in James. Thus, the Louisiana Supreme Court has implicitly approved the procedure of remanding for an evidentiary hearing rather than the past procedure of setting aside the conviction and remanding for a new trial. We have followed the procedure established in Nanlal. ,

Therefore, we conclude this case must be remanded to the trial court for an evidentiary hearing to determine whether the defendant knowingly and intelligently waived her right to a jury trial.

In view of our ruling, we need not discuss the remaining assignments of error or any further patent errors.

DECREE

For the foregoing reasons, we find that there was sufficient evidence to support the convictions and we order this case remanded to the trial court for an eviden-tiary hearing to determine whether the defendant knowingly and intelligently waived her right to a jury trial. If the evidence shows that the defendant did not knowingly and intelligently waive her right to a jury trial, the |1strial court is instructed to set aside the defendant’s convictions and sentences and grant her a new trial. If, however, the trial judge determines that the waiver was properly made, the appeal should be transferred back to this Court for review of that determination and any remaining assignments of error not covered in this opinion. See State v. Vortisch, 00-67 (La.App. 5 Cir. 5/30/00), 763 So.2d 765, 770.

REMANDED.

      . Under La. Const. Art. 5, Section 10, the appellate jurisdiction of this Court extends to criminal cases that are triable by a jury. See also, La.C.Cr.P. art. 912.1; State v. Robinson, 94-864 (La.App. 5 Cir. 3/15/95), 653 So.2d 669.

      . La.C.Cr.P. art. 914(B) provides that a motion for appeal in a criminal case must be made no later than either five days after rendition of the judgment or ruling from which the appeal is taken, or five days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

      . We were required to consider the sufficiency of the evidence before discussing the jury trial waiver because a defendant who prevails on the issue of the sufficiency of the evidence may be entitled to retrial on a lesser-included offense if the State's evidence was insufficient. See State v. Morris, 615 So.2d 327 (La.1993).

      . See, State v. Pierre, 98-1123 (La.App. 5 Cir. 4/14/99), 733 So.2d 674, 679; State v. Brual, 98-657 (La.App. 5 Cir. 1/26/99), 726 So.2d 1112, 1114; State v. Westmoreland, 98-437 (La.App. 5 Cir. 10/14/98), 721 So.2d 951; State v. Stoltz, 98-235 (La.App. 5 Cir. 8/25/98), 717 So.2d 1243.


source: Caselaw Access Project

author: [■¡SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Nathaniel A. HERNANDEZ.
    No. 02-KA-892.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, William C. Credo, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Arcenious F. Armond, Jr., Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   [■¡SOL GOTHARD, Judge.

This is the State’s second appeal in this case. On October 12, 2000, defendant pled guilty to armed robbery, a violation of LSA-R.S. 14:64, and agreed to a five year sentence. However, at the time of the commission of defendant’s crime, La. R.S. 14:64 provided for a minimum term of imprisonment of ten years. On August 1, 2001, the trial court granted the defendant’s motion to enforce the original plea agreement. The trial court sentenced the defendant to five years, a deviation from the statutory minimum of ten years.

The State appealed, arguing that the sentence was illegally lenient. This court vacated the plea agreement and sentence. This court noted that, in order to deviate from a mandatory minimum sentence, the trial judge must find that sentencing this particular defendant to the minimum term of imprisonment would be constitutionally excessive in that it would make no “measurable contribution to acceptable goals of punishment” or that the minimum sentence amounted to nothing more that “the purposeful imposition of pain and suffering.” State v. Hernandez, 01-1147 (La App. 5 Cir. 3/13/02), 815 So.2d 126, citing State v. Dorthey, 623 So.2d 1276 (La.1993).

| oOn remand, the defendant again entered a plea of guilty as charged, and the trial court again sentenced defendant to five years at hard labor, without benefit of parole, probation, or suspension of sentence. The State objected to the sentence, arguing it was illegally lenient. This appeal followed.

In this appeal, the State argues that the trial court abused its discretion in imposing a sentence of five years incarceration at hard labor for the crime of armed robbery where the mandatory minimum sentence is ten years incarceration at hard labor. The State contends that the facts of the case do not support the imposition of a sentence below the ten-year minimum penalty provided in LSA-R.S. 14:64, and that the trial court failed to provide a sufficient basis for the downward departure.

In State v. Dorthey, 623 So.2d 1276 (La.1993) the Supreme Court held that the trial judge is empowered to deviate from a mandatory minimum sentence in a habitual offender proceeding. The court stated:

If ... the trial judge were to find that the punishment mandated by R.S. 15:5291. makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.
Dorthey, 623 So.2d at 1280-1281.

Although Dorthey involved a mandatory sentence under the habitual offender laws, the principles of sentence review espoused in Dorthey are applicable to mandatory sentences under substantive criminal statutes. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Temple, 01-655, p. 15 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 707, fn. 3.

A mandatory minimum sentence is presumed to be constitutional. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. He must show he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, I ¿the gravity of the offense, and the circumstances of the case. State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676; State v. Jefferson, 01-1139, p. 9 (La.App. 5 Cir. 3/13/02), 815 So.2d 120, 125. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the case before it that would rebut the presumption of constitutionality. State v. Johnson, supra; State v. Temple, supra. It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory minimum punishments for criminal offenses. Rather, “the sentencing court is only allowed to determine whether the particular offender before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.” State v. Johnson, supra.

The Louisiana Supreme Court has cautioned that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, 97-1906 at p. 9, 709 So.2d at 677. Furthermore,

... if a sentencing judge finds clear and convincing evidence which justifies a downward departure from the minimum sentence under the Habitual Offender Law, he is not free to sentence a defendant to whatever sentence he feels is appropriate under the circumstances. Instead, the judge must sentence the defendant to the longest sentence which is not constitutionally excessive. This requires a sentencing judge to articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution.
State v. Johnson, 97-1906 at p. 8, 709 So.2d at 677.

When the trial court originally imposed sentence, the judge noted that he was deviating from the mandatory minimum sentence of ten years because defendant was only 16 years of age at the time of the instant offense, had a great deal of support from his family, and was a first-time felony offender. On remand, after the defendant reentered his guilty plea, the trial judge again cited the defendant’s youth, his first offender status and his family support, and then stated that:

| ^And under the circumstances, given these factors, I find that the legislatively mandated sentence is, in fact, constitutionally excessive, and it is excessively harsh and it makes no measurable contribution to the acceptable goals of punishment, and it amounts, in this Court’s opinion, and as stated in “State versus Dorthy [sic]” to nothing more than a purposeful imposition of pain and suffering.

The trial court did not state why it found that five years was the longest sentence not excessive under the Louisiana Constitution.

The fact that this was the defendant’s first offense is not sufficient to justify a downward departure from the mandatory minimum sentence. “The absence of violent offenses in defendant’s record cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive.” State v. Knight, 01-881, p. 7 (La.App. 5 Cir. 2/18/02), 811 So.2d 947, 950-951.

Age is also an insufficient justification for a downward departure in a sentence. See, State v. Jefferson, 01-1139 at p. 11, 815 So.2d at 126, (insufficient justification for a downward departure in a sentence for possession with intent to distribute cocaine, where the only factors discussed were the defendant’s age, 62 years, and the fact that a kidney ailment might prevent him from doing hard time); State v. Brown, 01-160 (La.App. 5 Cir. 5/30/01), 788 So.2d 667, (defendant’s age, 16, and the fact that he did not physically harm any of the victims did not justify downward departure of life sentence for aggravated kidnapping and four 10 year terms for four counts of armed robbery, to be served consecutively); State v. Jackson, 99-1368 (La.App. 5 Cir. 5/17/00), 762 So.2d 253, (mandatory life sentence for distribute of heroin not unconstitutionally excessive despite victim’s age, 21, and the fact that distribution of heroin is a non-violent crime).

We find that the defendant did not prove, by clear and convincing evidence, that the imposition of the mandatory minimum sentence of ten years would be constitutionally excessive. Accordingly, the trial court erred in deviating from the statutory minimum in sentencing the defendant.

If the State is a party to a plea bargain, the bargain must be enforced. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Redfearn, 441 So.2d 200 (La.1983). It is evident from the record that the State was not a party to any agreement between the court and defendant regarding the term of defendant’s sentence. Accordingly, we reserve to defendant the right to withdraw his guilty plea. State ex rel. Miller v. Whitley, 615 So.2d 1335, 1336 (La.1993) (per curiam); State ex rel. LaFleur v. Donnelly, 416 So.2d 82, 84 (La.1982).

For the above-discussed reasons, the defendant’s sentence is vacated. The case is remanded to the trial court for further proceeding, reserving to defendant the right to withdraw his guilty plea.

SENTENCE VACATED; CASE REMANDED.


text:
    STATE of Louisiana v. Jerome GREEN.
    No. 02-KA-883.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, William C. Credo, III, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appel-lee.
    Ike Spears, Attorney, Spears and Spears, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   I ¡.EDWARD A. DUFRESNE, JR., Chief Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Jerome Green, with theft of goods in excess of $500.00, in violation of LSA-R.S. 14:67.1o. The matter proceeded to trial in September of 1999. However, the six person jury was unable to reach a verdict. The second trial took place in June of 2000, at the conclusion of which defendant was found guilty as charged. The trial judge sentenced defendant to ten years at hard labor, with credit for time served.

The state subsequently filed a bill of information pursuant to LSA-R.S. 15:529.1, alleging that defendant was a fourth felony offender. In accordance with an agreement with the state, defendant admitted his status as a second felony offender. The judge thereafter vacated defendant’s original sentence of ten years and resentenced him, as a second felony offender, to the agreed upon sentence of ten years imprisonment at hard labor. Defendant now appeals.

_|¿FACTS

On December 12, 1998, Jeff Magee went to pick up a prescription from the Rite-Aid on Metairie Road in Jefferson Parish. While there, he noticed two black men, subsequently identified as Jerome Green and Raymond Johnson, who were inside the store and “looking suspicious.” Fearing that they were planning to rob the store, Mr. Magee purchased his prescription and left. He walked to the parking lot, got inside his truck, and continued to observe the two men’s actions. Mr. Ma-gee saw defendant and the other man exit the store, one after the other, with baskets full of merchandise, particularly baby diapers and bottles of liquor. As each suspect left the store, he walked to a gold Cadillac which was parked several stores down from Rite-Aid, and placed the merchandise in the back of the car. The two suspects took turns, each carrying merchandise in hand baskets from the store, and placing it in the car. After a total of approximately four such trips, defendant exited the store for the last time and got into the driver’s seat of the vehicle.

Based on his observations, Mr. Magee called 911. When the police arrived, they secured defendant and then stopped the second perpetrator, Raymond Johnson, as he was coming out of the store with a basket full of liquor. Neither of the two individuals could produce a receipt for the merchandise. Also, during the course of their investigation, the officers ascertained that the Cadillac in which the merchandise was being placed, was owned by defendant.

After the suspects were secured, the police retrieved the merchandise consisting of numerous bottles of liquor and packages of diapers from the back of defendant’s vehicle. Ms. Melissa Howard, the store’s assistant manager, identified the merchandise, and then scanned the items for prices. Ms. Howard determined that the value of the items was $741.85. The two men were thereafter arrested for theft of goods over $500.00.

| ¿SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him. Specifically, he first alleges that the state failed to prove that he had the specific intent to commit the charged offense. He next argues that the state failed to prove the recovered goods were from the Rite-Aid store and also failed to prove the value of the goods taken by defendant.

In determining a challenge to the sufficiency of the evidence, the reviewing court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82.

In cases involving circumstantial evidence, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” In State v. Mitchell, 772 So.2d at 83, the Louisiana Supreme Court discussed appellate review of such cases:

On appeal, the reviewing court ‘does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.’ Rather the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. (Citations omitted; emphasis as found in the original).

The defendant in this case was charged with theft of goods valued over $500. That offense is defined in LSA-R.S. 14:67.10, which provides, in pertinent part, as follows:

A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the merchant ^permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred....
B. (1) Whoever commits the crime of theft of goods when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned with or without hard labor, for not more than ten years or may be fined not more than three thousand dollars, or both.

Therefore, in order to establish defendant’s guilt for this crime, the state was required to prove beyond a reasonable doubt: (1) that defendant misappropriated or took; (2) a thing of value; (3) which is held for sale by a merchant; (4) either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations; and (5) that defendant had the intent to deprive the merchant permanently of that which is the subject of the misappropriation or taking. State v. Hampton, 00-1002 (La.App. 5 Cir. 1/23/01), 782 So.2d 1045, 1051-51; State v. Coleman, 02-345 (La.App. 5 Cir. 9/18/02), 829 So.2d 468, 471.

Theft is a crime of specific intent. State v. Hampton, 782 So.2d at 1052. Specific intent is “that state of mind which exists when the circumstances indicated that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1); State v. Mitchell, 772 So.2d at 82. Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact finder. State v. Graham, 420 So.2d 1126 (La.1982).

A principal is defined in LSA-R.S. 14:24 as follows:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals.

Persons who aid or abet in the commission of a crime are guilty as principals, although they do not directly commit the act constituting the offense. State v. Lynch, 512 So.2d 1214, 1216 (La.App. 5 Cir.1987). Mere presence at the |ficrime, without the requisite mental state to commit the offense is insufficient to “concern” an individual in the crime. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428.

On appeal, defendant argues that the state failed to prove that he had specific intent to commit the offense. He claims there was no evidence disproving the hypothesis that he was “an unsuspecting accomplice in the shoplifting” perpetrated by Raymond Johnson. The record does not support this argument.

The eyewitness to the incident, Mr. Ma-gee, who did not see the actual taking but did see the actions of the two men immediately before and after the taking, testified at the trial. Mr. Magee described the suspicious activities of Green and Johnson inside the store. In this regard, Mr. Ma-gee observed one of the suspects standing on his toes, holding a bottle of liquor, and peering over the counter at the cashier. During this time, the other suspect was stationed on the last aisle of the store, also with his attention affixed on the cashier. The last thing Mr. Magee saw before exiting the store was the two men, crouched down in the last aisle of the store, intently watching the cashier. As Mr. Magee sat in his truck, with an unobstructed view of the front of the store, he saw the men, taking turns, exit the store with baskets filled with merchandise. Each would then walk to the Cadillac and place the items in the back of the vehicle. After a total of approximately four such trips, which were observed by the eyewitness, Green exited the store for the last time and sat in the driver’s seat of his Cadillac, apparently awaiting the arrival of Johnson. Magee identified Green and Johnson at the scene.

Following the arrest of Green and Johnson, the items, which the eyewitness had recognized during the theft as being diapers and liquor taken from the store, were found in the back of the Cadillac. Neither Green nor Johnson had receipts for the items. The items were returned to the store for identification by the store’s | assistant manager. A check of the computer records indicated the items had not been sold. A check of the store shelves indicated that similar items were missing.

Mr. Magee, who had identified Green and Johnson on the day of the theft, also positively identified Green at trial as one of the men he saw leaving the store with items from the store and placing them in his car.

The jury apparently found the eyewitness’s testimony and that of the store’s assistant manager credible. It is not the function of the appellate court to assess credibility or to reweigh evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Under these circumstances, the state proved beyond a reasonable doubt that Green had the specific intent to commit theft from Rite-Aid and that he was more than just an “unsuspecting accomplice” to this shoplifting.

The defendant also alleges that the state failed to prove the goods allegedly taken were from the Rite-Aid store.

The record reflects that Mr. Magee observed defendant as he exited the store with what he described to be “Pampers and liquor” and these items were deposited into the back of defendant’s vehicle. After Green’s arrest, officers found Pampers and liquor in the back of Green’s Cadillac. These items were returned to the store and identified as being compatible with items the store would sell. Neither defendant had receipts for the items. Ms. Howard, the store’s assistant manager, testified that the store computer records indicated the items had not been sold. She also testified that a check of the shelf where such items were housed indicated that similar items were missing. Under these circumstances, a jury could have reasonably concluded that the items seen by Mr. Magee being taken from the store by defendant and later found in the back of defendant’s vehicle were the same items that had previously been the store’s merchandise.

Finally, defendant argues that the state failed to prove the value of the goods allegedly taken. In this regard, he argues that the “lion’s share of the value” Uconsisted of the goods taken by Johnson, and as such, these goods should not be considered in the value of goods with which defendant is charged.

The value of the goods taken was established at trial. Ms. Howard identified the recovered items, scanned each one for its retail value, and totaled the items taken for a total sum of $ 741.85. Under these circumstances, the state established, beyond a reasonable doubt, the value of the goods taken.

Additionally, defendant’s argument that he should not be charged with the total value of goods taken is meritless. This court, in State v. Coleman, 829 So.2d at 472, rejected the same argument stating: “A principal to the crime of theft is held culpable for the entire value of the merchandise.” As a principal to this crime of theft with Johnson, Green is culpable for the entire value of the merchandise taken, namely $741.85.

Based on the foregoing discussion, we find that the evidence presented was sufficient to convict defendant of the charged offense. Specifically, we find that the state proved beyond a reasonable doubt that Jerome Green took merchandise belonging to Rite-Aid, valued in excess of $500, with the intent to permanently deprive Rite-Aid of the items taken. In this regard, the state negated every reasonable hypothesis of innocence. Accordingly, the arguments raised by defendant in this assigned error are without merit.

I c,ERROR PATENT DISCUSSION

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). Our review reveals no errors which require corrective action.

For the reasons set forth herein, we hereby affirm defendant’s conviction and sentence.

AFFIRMED.

      . The bill of information also charged Raymond Johnson with theft of goods. However, Johnson pled guilty. This appeal relates only to defendant Green.

      . In his appellate brief, defendant lists as Assignment of Error Number Two that “[t]rial counsel demonstrated ineffectiveness for failing to object to the state’s interjection of irrelevant and highly prejudicial facts and argument during its rebuttal argument, directly implicating and referring to Mr. Green’s criminal history.” Defendant recognizes that since there was no objection at trial to the state's rebuttal argument, he is precluded from raising that issue on appeal. Defense counsel merely included the error in brief "so as to provide reliable notification for possible post-conviction relief.” Accordingly, this listed assignment will not be addressed in this appeal.


author: LDALEY, Judge.

text:
    STATE of Louisiana v. Torey R. HARRIS.
    No. 02-KA-873.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.
   LDALEY, Judge.

The defendant was convicted of distribution of cocaine and was sentenced to 30 years. He was then adjudicated a third felony offender and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He has appealed his sentence. For the reasons that follow, we affirm.

LAW AND DISCUSSION:

In his first Assignment of Error, the defendant argues that his sentence is excessive. He contends that the trial judge should have sentenced him under the 2001 amendment to LSA-R.S. 15:529.1 because the enhanced sentence was imposed after the effective date of the amendment. Alternatively, the defendant contends that his life sentence as a third felony offender is excessive because the trial judge should have at least considered the amendment when imposing sentence. The State responds that the trial judge properly applied the pre-2001 provisions of 15:529.1 because the defendant committed the underlying offense | obefore 2001. Further, the State responds that the sentence was the mandatory minimum and, therefore, was not excessive.

The Louisiana Legislature enacted Act 403, which became effective on June 15, 2001. 2001 La. Acts 403, § 7. It amended the penalty provisions of numerous statutes, including the underlying offense in this case and the penalty provisions under the habitual offender statute for third and fourth felony offenders. Where there has been an ameliorative change in the penalty provision of a statute that takes effect after the date of the offense, but before trial or final judgment, it is the rule in this State that the penalty provision in effect at the time of the offense is the applicable provision. State v. Dreaux, 205 La. 387, 17 So.2d 559 (1944). See also State v. Wright, 384 So.2d 399 (La.1980); State v. Paciera, 290 So.2d 681 (La.1974).

Since the effective date of Act 403, this Court has held that the pre-amendment version of LSA-R.S. 15:529 applies when the underlying offense is committed before the effective date of Act 403, even when the sentence is imposed after Act 403’s effective date. See, State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 380-383; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 209-212, with this author dissenting with reasons. This author believes for the reasons set forth in the dissent in Flagg that the habitual offender statute should be applied as amended, but reluctantly defers to the majority position of this court. By failing to apply the current amendments to the habitual offender statute, unnecessary constitutional excessiveness claims will have to be reviewed.

The Supreme Court has addressed penalty provisions that were amended by Act 403. In State v. Sugasti, 01-770 (La.App. 5 Cir. 11/27/01), 802 So.2d 943, this Court considered the applicability of Act 403 to a defendant who was charged with possession of heroin in violation of LSA-R.S. 40:966(C). In Sugasti, the trial kludge imposed the newer, more lenient sentencing provisions, despite the fact that they became effective after the commission of the underlying offense. This Court vacated the sentence, holding that the law in effect at the time of the commission of the offense determines the penalty. The Louisiana Supreme Court affirmed that decision, stating:

While we are aware of the general tenor of the legislation enacted during the 2001 Regular Session with regard to sentencing provisions, we are also cognizant of the fact that sentencing is the province of the legislature. Had it been the intention of the legislature to have the statute apply to all sentences imposed following the effective date of the statute, it could have written the statute to so state.
Policy reasons mitigate against holding that the amendment to LSA-R.S. 40:966(C) applies to anyone sentenced after June 15, 2001, regardless of when the offense was committed. To do so would encourage defendants to continually delay prosecution in hope that the legislature would enact more lenient sentences. Additionally, it would be grossly unfair to two defendants who commit the same crime on the same day to be sentenced under different penalties should one defendant successfully delay punishment until after the benefits of a reduced penalty go into effect.
Everyone is presumed to know the law, including the penalty provisions that apply. As such, those who engage in criminal activity must face the consequences of their actions, including the penalty provisions that apply as of the date of the offense.

State v. Sugasti, 01-3407(La.6/21/02), 820 So.2d 518, 521-522 (footnotes omitted).

When the defendant in the instant case committed the underlying offense on April 6, 2000, distribution of cocaine was punishable by imprisonment at hard labor for not less than five nor more than thirty years, with the first five years of the sentence to be served without benefit of parole, probation, or suspension of sentence and a possible fine of not more than $50,000.00. LSA-R.S. 40:967 lKB(4)(b). At that time, LSA-R.S. 15:529.1(A)(l)(b)(ii) provided for the imposition of a life sentence without benefit of parole, probation, or suspension of sentence:

If the third or either of the two prior felonies is a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years....

At the habitual offender hearing, the State proved that the defendant had previously been convicted of possession of cocaine in 1994 and possession with intent to distribute cocaine in 1996. In this case, the defendant’s underlying offense and the 1996 predicate are violations of the Uniform Controlled Dangerous Substances Law punishable by more than five years. LSA-R.S. 40:967 B(4)(b). Therefore, under the habitual offender statute as it existed at the time of the commission of this offense (April 6, 2000), the defendant was subject to an enhanced mandatory minimum sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

In light of this Court’s jurisprudence and the Louisiana Supreme Court’s holding in Sugasti, we find that the trial judge properly applied the version of 15:529.1 in effect at the time of the commission of the underlying offense when imposing the enhanced life sentence upon defendant.

In support of his excessiveness argument, the defendant contends that the trial judge should have considered the ameliorative changes to the habitual offender statute. The record does not reflect that the defendant made or filed a Motion to Reconsider his Sentence pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a Motion to Reconsider Sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. See, State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied by State v. Patterson, 99-3217, (La. 4/20/00), 760 So.2d 342. Accordingly, we will review the defendant’s sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). The Dorthey court specifically held that when a trial court determines the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. Dorthey, at 1280. However, the Johnson court cautioned that a trial judge’s determination that a mandatory minimum sentence is excessive requires more than merely uttering the above-quoted phrases. Id. at 676.

Moreover, “a sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this ^presumption of constitutionality.” State v. Johnson, 709 So.2d at 676. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” Johnson, 709 So.2d at 676.

When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

In the present case, no argument was made and no evidence was presented at the time of sentencing regarding a downward departure from the mandatory minimum life sentence. Therefore, we find that the defendant failed to carry his burden under Johnson, and conclude that the defendant’s life sentence is not excessive.

In his second Assignment of Error, the defendant contends that the trial judge, Judge Bodenheimer, should have recused himself from the defendant’s narcotics distribution case. Specifically, the defendant asserts that, after defendant was sentenced, “it has been revealed that the judge for a time worked as a narcotics informant for the very law enforcement agency that built the case” resulting in ^defendant’s conviction. Defendant further asserts that it has been alleged that Judge Bodenheimer “conspired to plant narcotics in the vehicle of a critic.” These circumstances, according to defendant, warranted the trial judge’s recusal. The State responds that, although it is “aware of the judge’s situation,” the record does not contain any evidence supporting the defendant’s claims in this Assignment of Error.

In the present ease, the record reflects that the defendant did not move to recuse the trial judge. Code of Criminal Procedure article 672 provides that a judge may recuse himself, however, we find nothing in the record to indicate that the trial judge should have recused himself.

Both the Louisiana Supreme Court and this Court have recognized that courts of appeal have no authority to receive or review evidence not contained in the district court record. State v. Oubichon, 422 So.2d 1140, 1141 (La.1982); State v. Bibb, 626 So.2d 913, 924 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188. The district court record does not contain one scintilla of evidence supporting the defendant’s claims in this Assignment of Error. Accordingly, this assignment presents nothing for this Court to review on appeal. The defendant is not without a remedy, however. The defendant’s claim would be more properly raised in an Application for Post-Conviction Relief. See LSA-C.Cr.P. art. 924 et seq.

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 review reveals no patent errors in this case.

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

AFFIRMED.

      . Act 403 also reduced the penalty for distribution of cocaine and possession with intent to distribute cocaine. Under the amended version of 40:967 B(4)(b), the sentencing range for these offenses is imprisonment at hard labor for not less than two and not more than thirty years, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence with a possible fine of $50,000.00.


author: JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Larry D. HOGAN.
    No. 02-KA-924.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Philip E. O’Neill, Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   JAMES L. CANNELLA, Judge.

The Defendant, Larry D. Hogan, appeals from his drug convictions based on his guilty pleas to possession with the intent to distribute oxycodone and possession of 28-199 grams of cocaine with intent to distribute. We affirm the convictions and sentences and remand.

In July of 2000, the Defendant was charged with the oxycodone offense, a violation of La. R.S. 40:967(A), and the cocaine offense, a violation of La. R.S. 40:967(F). He was arraigned and pled not guilty. On July 11, 2000, the Defendant filed a Motion for Production of Search Warrant. On July 26, 2002, he filed various motions including a motion to suppress the evidence, confession and identification. On October 12, 2000, a hearing was held. The trial judge stated that the hearing was on a motion to suppress the search warrant. The matter was submitted on briefs by the Defendant and the face of the search warrant. Nothing was offered into evidence. The trial judge denied the motion. On February 25, 2002, the charge of possession of cocaine was amended to possession of cocaine with intent to distribute. On that day, the Defendant withdrew his prior not guilty pleas and pled guilty to both charges, reserving his right to appeal the denial of his | ^motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On March 19, 2002, the trial judge sentenced the Defendant to serve five years on each count, with the sentences to run currently. The trial judge also recommended that the Defendant be allowed to participate in the Impact Program.

The facts related to the arrest are from the Jefferson Parish Sheriffs Office Arrest Report and Probable Cause Affidavit, which states:

On Friday, 06-30-2000, narcotic investigators were granted a lawful order of search for the residence of 802 Fifth St., Westwego. Pursuant to the search, the investigators seized approximately 125 grams of cocaine, paraphernalia associated with the distribution of cocaine, nine (9) tablets of oxycontin, and $1,912.00 of U.S. currency. Subsequently, the investigators arrested Hogan, the resident of 802 Fifth St.

On appeal, the Defendant asserts that the trial judge erred in failing to suppress the search warrant. He contends that the search warrant was defective because (1) the time between the tip of the confidential informant (Cl) and the filing of the affidavit in support of the search and seizure warrant was too long, (2) there was no statement qualifying the Cl as either credible or reliable, (3) there was no source or basis of knowledge stated by the Cl that indicated how he gained the information stated, and (4) no part of the Cl’s tip was corroborated. The Defendant alleges that the affidavit failed to establish probable cause for the search of the residence and must be quashed.

The application for search warrant states in pertinent part:

In early June 2000, Agent Steven Rayes, assigned to the Narcotics Section of the Jefferson Parish Sheriffs Office, was contacted by a confidential informant regarding the retail sale of cocaine from the residence of 802 Fifth Street, Westwego. The confidential informant, hereafter referred to in the plural forms they and them, stated they were in a position to effect a controlled purchase of cocaine from the resident, described as a white male, approximately 40-45 years of age, with salt and pepper hair named “Larry”.
In order to test the veracity of information provided by the Cl, Agent Rayes elected to conduct a controlled purchase of cocaine from the residence described above. Within the last forty-eight (48) 14hours, Agent Rayes met with the CI. Agent Rayes took all the necessary precautions to ensure the Cl was free of all contraband.
Agent Rayes, along with assisting investigators, followed the Cl to the aforementioned residence. Agent Rayes observed the Cl enter the residence and remain inside for a short period of time. Shortly thereafter, Agent Rayes observed the Cl emerge from the residence. The assisting investigators maintained constant surveillance on the Cl and followed them to a pre arranged [sic] meeting location.
Once at the pre-arranged meeting location, the Cl relinquished custody of a suspected quantity of cocaine. Agent Rayes conducted a presumptive field test on a small portion of the suspected cocaine. This test yielded a positive response for the presence of cocaine. Once again, Agent Rayes took all the necessary precautions to ensure the Cl was free of all contraband. Agent Rayes secured the purchased quantity of cocaine in the Narcotics Evidence Locker.

Defendant argues that the affidavit failed to establish probable cause for the search of the residence. He claims that there was no statement qualifying the Cl as either credible or reliable in order to satisfy the first prong of the Aguilar-Spinelli test (veracity). Defendant contends that there was no source or basis of knowledge stated by the Cl that indicated how he gained the information in order to satisfy the second prong of the Aguilar-Spinelli test (basis of knowledge). Additionally, he contends that the 20-day interval between the Cl’s tip in early June of 2000, and the filing of the affidavit in support of the search warrant on June 30, 2000, was too long, and, therefore, that by June 30, 2000, probable cause supporting the warrant no longer existed.

Defendant alleges the following omissions from the affidavit:

1. The affidavit omitted stating how the Cl learned the information that “they were in a position to effect a controlled purchase of cocaine from the resident described as a white male, approximately 40-45 years of age, with salt and pepper hair, named ‘Larry.’ ” (See 1st paragraph of affidavit). There was no statement in the affidavit explaining whether the Cl observed this personally, whether he participated in the sale, whether he was personally in the residence or whether he knew or observed the resident or saw cocaine.
1,-2. In the remaining portion of the affidavit, the Cl did not mention “Larry” again, nor did he state that he purchased cocaine or that he saw cocaine in the residence at the time of the visit to the residence.
3. In the 3rd and 4th paragraphs of the affidavit, the Cl gives no tips and states no information.
4. In the 4th paragraph, the affidavit does not indicate whether the Cl said anything when he arrived at the prearranged meeting, saw the resident, purchased cocaine, whether anyone was in the residence, whether he saw cocaine in the residence, or whether Larry or anyone else told him that cocaine was in the residence or would be in the residence. The affidavit does not indicate whether the Cl mentioned the amount of cocaine or the price of the cocaine.
5. The affidavit does not reflect whether the Cl’s vehicle was searched before he went into the residence.
6. The affidavit provides no corroboration of the Cl’s tip.

The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of that discretion. State v. Spotville, 99-719, p. 9 (La.App. 5th Cir.12/21/99), 752 So.2d 244, 248.

The constitution protects a person against unreasonable search and seizure of his house, papers and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. U.S. Const, amend. IV; La. Const, art. I, § 5 (1974).

The general rule is that probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” La. C.Cr. P. art. 162, State v. Casey, 99-0023, p. 3 — 4 (La.1/26/00), 775 So.2d 1022, 1027-1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

In Casey, the Louisiana Supreme Court stated:

|fiThe issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exists that the evidence of a crime will be found in a particular place. Additionally, a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. Further, an affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. [Citations omitted]

Casey, 99-0023, p. 4, 775 So.2d at 1028.

The two-prong test, proof of veracity and the basis of the Cl’s knowledge that had been adopted in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was abandoned by the U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, the Court adopted the “totality of the circumstances” test to evaluate a Cl’s credibility. Gates, 462 U.S. at 231, 103 S.Ct. at 2328. See also: State v. Horton, 01-2529, p. 4 (La.6/21/02), 820 So.2d 556, 559. However, the Cl’s veracity, reliability or basis of knowledge continues to be highly relevant in evaluating probable cause. Gates, 462 U.S. at 230, 103 S.Ct. at 2328; Horton, 01-2529, p. 4, 820 So.2d at 559.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984), the Court created an exception to the rule where a law enforcement officer relies in good faith on a magistrate’s probable cause determination and the technical sufficiency of the warrant. In those cases, exclusion is not proper. The reasoning is that the exclusion is designed as a deterrent to bad faith police searches. Furthermore, an affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations in the affidavit are false. State v. Brown, 93-2089, p. 6, (La.App. 4th Cir.12/15/94), 647 So.2d 1250, 1253, writ denied, 95-0497 (La.12/6/96), 684 So.2d 921.

Our careful review of the affidavit shows that the affiant, Agent Rayes, learned from a Cl’s tip in early June of 2000 that cocaine was being sold from a |7residence at 802 Fifth Street by someone named “Larry.” Agent Rayes corroborated this tip by meeting with the Cl within 48 hours of the application for the search warrant (June 30, 2000), supervising the Cl in a controlled purchase of cocaine from the residence at issue, ensuring the Cl was free of all contraband, following the Cl to the residence, observing the Cl enter the residence and remain inside for a short period of time, observing the Cl emerge from the residence, maintaining constant surveillance on the Cl and following the Cl to a pre-arranged meeting location. The affiant further corroborated the Cl’s tip by taking custody of the cocaine from the Cl, conducting a presumptive field test of the substance, determining that the substance was cocaine, and securing the purchased quantity of cocaine in the narcotics evidence locker.

Although the affiant does not state that the Cl told him he purchased cocaine from someone in the residence, the last line of the fourth paragraph of the affidavit states that the affiant secured the “purchased quantity of cocaine” in the narcotics evidence locker. We can reasonably infer from this statement that the Cl had purchased this cocaine from the residence pri- or to turning it over to the affiant. Under the totality of the circumstances, we find that the affidavit supported a finding of probable cause for the issuance of the search warrant. In addition, although the affiant did not provide specific information regarding the Cl’s reliability or success rate, the search warrant was primarily based on the controlled drug buy set up and observed by the affiant. This successful buy is sufficient. See: State v. Johnson, 27,522 (La.App. 2nd Cir.12/6/95), 665 So.2d 1237. Thus, we find that there was probable cause for the warrant.

Even if the affidavit was deficient in some details, under Leon, the evidence does not require suppression. There, the U.S. Supreme Court held that evidence seized pursuant to a search warrant issued without sufficient probable cause need not be suppressed if the officers who executed it believed it had been validlyj^issued. The Leon court enumerated four instances in which suppression remains an appropriate remedy, (1) where the magistrate or judge was misled by information the affi-ant knew was false or would have known was false except for a reckless disregard for the truth, (2) where the issuing magistrate wholly abandoned his detached and neutral judicial role, (3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, and (4) where the warrant is so facially deficient, i.e., fails to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. None of these factors exist in this case and there is no evidence that the police officer obtained the warrant in bad faith. Thus, there is no basis to exclude the evidence even if we were to find any deficiencies in the warrant.

Defendant also argues that the 20-day interval between the Cl’s tip in early June of 2000, and the filing of the affidavit in support of the search warrant on June 30, 2000, was too long. He contends that by June 30, 2000, probable cause supporting the warrant no longer existed.

In Casey, the Louisiana Supreme Court stated that “A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists.” Casey, 99-0023, p. 5, 775 So.2d at 1028. The Court cited State v. Tate, 407 So.2d 1133, 1137 (La.1981), which held that “staleness is only an issue when the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed.” Id.

In this case, Agent Rayes met with the Cl and conducted the controlled cocaine purchase within 48 hours of the day that the affidavit was signed and executed. Although the tip came in early June, the drugs were at the place where the Cl said they would be. Thus, the facts and circumstances at the time of the ^execution of the warrant show that probable cause still existed for the warrant. Consequently, the warrant was not stale when it was executed.

PATENT ERROR

The record was reviewed for patent errors patent, in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

The transcript reveals that the trial judge failed to advise the Defendant of the prescriptive period for post-conviction relief in accordance with La.C.Cr.P. art. 930.8. Although the commitment reflects otherwise, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we will remand the case with an order for the trial judge to send written notice within 10 days of the rendering of this opinion informing the Defendant that he has two years from the date the conviction and sentence become final to file his an application for post-conviction relief, then to file written proof in the record that the Defendant received the notice.

Accordingly, we hereby affirm the Defendant’s convictions and sentences. We remand the case with an order to the trial judge to send to the Defendant within 10 days from the rendering of this opinion, written notice informing the Defendant that he has two years from the date the conviction and sentence become final to file his an application for post-conviction relief, then to file written proof in the record that the Defendant received the notice.

CONVICTIONS AND SENTENCES AFFIRMED. CASE REMANDED.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . The trial judge also failed to include the denial of parole, probation, or suspension of sentence in the sentence, as required by La. R.S. 40:967(B)(4)(b). However, La.R.S. 15:301.1(A) deems that the required statutory restriction is contained in the sentence, and that no correction is needed. See also, State v. Calvert, 01-826 (La.App. 5th Cir.2/26/02), 811 So.2d 1081, 1085.


author: .MARION F. EDWARDS, Judge.

text:
    Albert CONTRANCHIS v. TRAVELERS INSURANCE CO. & Hercules Sheet Metal, Inc.
    No. 02-CA-840.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Christopher R. Schwartz, Metairie, LA, for Appellant.
    Michael R. Zsembik, Stephen M. Du-valle, Metairie, LA, for Appellees.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   .MARION F. EDWARDS, Judge.

Plaintiff/Appellant, Albert Contranchis, appeals from the trial court’s ruling which granted summary judgment in favor of defendants, Hercules Sheet Metal, Inc, and Travelers Property Casualty Insurance Company. For the following reasons, the judgment of the trial court is affirmed.

On October 13, 1999, PlaintiffAppellant, Albert Contranchis, (“Contranchis”), was employed by A-l Steel Erectors to work on the construction of a metal building for the Cospolich Company in Norco, Louisiana. Contranchis alleges that in the process of construction, he fell through a pre-cut hole in sheet metal that was being used on the building, and, as a result, sustained various injuries to his head and spine.

On October 5, 2000, Contranchis filed a petition in the 29th JDC, for the Parish of St. Charles. In his petition, Contranchis asserted that Hercules Sheet Metal, Inc. (“Hercules”), who provided the sheet metal for the project, was strictly liable to him because it failed to warn him about a “slippery substance” on the metal that he claims caused the accident. Contranchis | .¡further named Travelers Property Casualty Insurance Company (“Travelers”), as Hercules’ insurer. On January 28, 2002, Contranchis filed a Supplemental and Amending Petition, asserting that because Hercules had knowledge pertaining to the 18 foot height requirement in the building specifications, it had a duty to advise the erectors of the building of the hazards of walking on the building at “high heights” and a duty to advise the erectors about the hazard of construction at heights, safety procedures on construction at heights, as well as safety instructions on the installation of skylights.

On March 25, 2002, Hercules and Travelers filed a Motion for Summary Judgment asserting that an open skylight hole in a construction project was an “obvious danger” for which Hercules did not have a duty to warn. Hercules asserted that it did not alter the metal in any way from the time it came from the manufacturer. Hercules further argued that Contranchis and his employer were sophisticated users of sheet metal because they were engaged in a specialized business of erecting metal buildings, and, therefore, no duty to warn was necessary on those grounds as well. Following a hearing on May 13, 2002, the trial court granted Hercules’ Motion for Summary Judgment. This timely appeal followed.

LAW AND ARGUMENT

In his lone assignment of error, Con-tranehis asserts that by granting summary judgment, the trial court abused his democratic right to trial by jury.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary | ¿judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

In this case, Contranchis first asserts that several genuine issues of fact remain: whether Hercules applied an oily substance on the metal sheet, whether Hercules failed to protect workers from slipping on the metal sheet, and whether Hercules failed to advise those using the sheet metal of the hazards of working with the sheet metal at extreme heights. At the hearing on the summary judgment, Contranchis appeared to abandon his claim against Hercules on product liability grounds. In support of his opposition to the Motion for Summary Judgment, Contranchis only offered his affidavit, which essentially reiterated the claims of his petition, specifically I ¿that the sheet metal was slippery and that Hercules failed to provide instructions for working with the metal at extreme heights.

In regard to Contranchis’ claim that Hercules was responsible for the alleged oily substance on the sheet metal, we note the record does not contain evidence, even in Contranchis’ own affidavit, that Hercules applied the “slippery substance” that he claims caused the accident. Accordingly, we find no error in the trial court’s determination that there was no genuine issue of material fact regarding this particular theory of recovery.

Contranchis further claims that Hercules breached a duty to protect workers from slipping on the metal sheet, failed to advise those using the sheet metal of the hazards of working with the sheet metal at extreme heights, failed to address safety procedures on construction at heights, and failed to provide safety instructions on the installation of skylights. In this case, Con-tranchis was employed by A-l Steel Erectors, a company engaged in the practice of erecting metal buildings. As Hercules points out, Louisiana courts have previously noted that such construction work is specialized per se. Courts have also held that there is no duty to warn “sophisticated users” of the dangers, which they may be presumed to know about because of their familiarity with the product. Apparently, the trial court concluded that, as an entity engaged in the specialty business constructing metal buildings, A-l was a sophisticated user of sheet metal and had prior knowledge of applicable safety procedures. We find no error in this conclusion of the trial court. We further find no error on the part of | fithe trial court in its determination that there was no issue of material fact that Hercules had no duty to warn A-l and its employee, Contranchis, regarding the dangers of working with metal at heights of 18 feet or of the installation of skylights.

Based on the foregoing, we find that the trial court did not err in granting summary judgment and did not thereby abuse Contranchis’ democratic right to trial by jury-

AFFIRMED.

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . Chauvin v. Gulf Coast Minerals, Inc., 509 So.2d 622 (La.App. 3 Cir. 1987); writ denied, 512 So.2d 1175, (La.1987).

      . Home Ins. Co. v. National Tea Co., 577 So.2d 65, 74 (La.App. 1st Cir. 1990), affirmed in part, reversed in part (on other grounds), 588 So.2d 361 (1991); Ducote v. Liberty Mut. Ins. Co., 451 So.2d 1211, 1213 (La.App. 4th Cir.), writ denied, 457 So.2d 15 (La.1984).