author: BROWN, C.J.

text:
    Brittni OWENS, Plaintiff-Appellant, v. Joann W. BROWN, et al., Defendants-Appellees.
    No. 37,573-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Gregory L. Kelley, Shreveport, for Appellant.
    Zelda Tucker, Shreveport, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, C.J.

The automobile accident which is the subject of this appeal happened at a location where the width of Village Lane narrowed from what would be two lanes into one. Plaintiff, Brittni Owens, was in the inside lane behind defendant, Joann Brown, who was in the outside lane. The Owens vehicle struck Brown’s vehicle on the driver’s side door. Owens filed suit against Brown and Brown’s insurer, State Farm Mutual Automobile Insurance Company. The trial court ruled that Owens was 100% at fault. For the reasons set forth below, we reverse and render judgment based on principles of comparative fault.

Facts

The accident occurred on October 9, 2001, on Village Lane in Bossier City, Louisiana. Airline Drive is a heavily traveled thoroughfare running north and south. Brittni Owens turned off Airline Drive onto Village Lane heading west to the Outback Steak House where she was employed. At the Airline Drive intersection, Village Lane is divided by a grass median with its westbound and eastbound lanes wide enough to accommodate two vehicles; however, there are no center line markings. Within a short distance, approximately 50 yards, the median ends and the westbound roadway tapers into one lane. At this point there is one lane for eastbound traffic and one lane for westbound traffic.

This transition zone where the road tapers into one lane has no signs, markings, or warning devices. Because there is no center line marking two lanes, it is difficult to tell which lane drops off and which continues.

|3On the date of the accident, Joann Brown drove out of the parking lot of the Bossier Federal Credit Union at the north corner of Airline and Village Lane. Brown turned onto Village Lane heading west along the outside curb and proceeded at a slow speed. At the point where the street begins to merge into one lane are five drive-through lanes at the rear of the credit union building. Brown was looking at these lanes to insure that traffic did not flow out in front of her.

According to Owens, just before the accident Brown’s vehicle was stopped in the outside lane near the point where that lane ends. Owens stated that she could see the brake lights of Brown’s vehicle and that Brown was looking down as if doing paperwork. Owens stated that she concluded that Brown would not pull over, but kept looking at Brown’s face to see if Brown would look: “That way I would know whether to slow down or not. And she never did [look].” Owens continued to drive on and so did Brown. Owens testified that she slammed on her brakes, but her vehicle struck Brown’s vehicle on the driver’s side door. Owens speculated that Brown intended to make a U-turn at the end of the median.

Brown testified that just prior to the accident, she had left the parking lot of the credit union and was westbound along the curb closest to the credit union (farthest from the median). She stated that she was probably driving four or five miles an hour and was looking toward her right in the direction of the credit union drive-through exits to make sure that no cars were coming out of the drive-through onto Village Lane. Brown denied stopping her vehicle prior to the accident. Although she was moving |sslowly, she denied making any sudden movement to turn or merge into the left lane. She also denied intending to make any kind of U-turn. According to Brown’s testimony, she saw Owens’ vehicle in her side mirror “seconds before the impact,” and knew she was going to be hit. Brown stated that at the time of impact, she was “more in the middle of the road,” merging into the one-lane area. Brown admitted that she did not look in her rearview mirror at that point. Brown confirmed that Owens’ vehicle struck the driver’s door.

Discussion

The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Clement v. Frey, 95-1119, 95-1163 (La.01/16/96), 666 So.2d 607; De Los Reyes v. USAA Casualty Insurance Co., 28,491 (La.App.2d Cir.06/26/96), 677 So.2d 668. Like the assessment of damages, fault allocation is a factual determination and the trier of fact, unlike the appellate court, has the benefit of viewing firsthand the witnesses and evidence. Clement, supra. Only after making the finding that the record supports that the lower court abused its great discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Clement, supra; Hill v. Morehouse Parish Police Jury, 95-1100 (La.01/16/96), 666 So.2d 612; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

The trial court applied only the presumption that a motorist in a rear-end collision has breached the duty of not following too closely. In this case, |40wens was driving the following vehicle. Although seeing Brown’s vehicle and Brown’s inattention, she continued on, believing in her right to do so. The trial court was right in finding that Owens was at fault.

On the other hand, Brown admitted that her attention was not focused on the traffic on Village Lane immediately prior to the accident. She did not look to her left or in her rearview mirror, but continued on at the location where the roadway narrowed to a single lane. As she moved forward, she did not see Owens’ vehicle. Under these factual circumstances, we conclude that Brown cannot be free of fault. We conclude that Brown breached the statutory duty to be an attentive driver and that this was a cause of the accident.

Having found that Brown was negligent and that her negligence was a legal cause of the accident, we are required to attribute fault to her in accordance with the legal principles set forth above. Finding that 50% is the lowest point which is reasonably within the discretion afforded to the trial court, we allocate 50% fault to Brown and reduce Owens’ fault to 50%.

Owens’ special damages were stipulated to be $4,850.17, including medical costs and property damage. Owens had pain in her back, neck, and wrist primarily during the first month following the accident. She saw a chiropractor for two months. Her pain was better during the second month; she was having no problems at the time of trial. However, she testified that for about six weeks after the accident she could not lift anything at her job as a waitress.

Is As previously noted, Owens’ special damages were stipulated to $4,850.17. To those damages, we add general damages in the amount of $2,500; both damage awards, of course, are subject to a 50% reduction for the fault apportioned to Owens.

Conclusion

For the reasons set forth above, the judgment of the trial court is reversed, and judgment is hereby rendered awarding Owens $4,850.17 in special damages and. $2,500 in general damages, both awards subject to reduction by the 50% fault assessed to Owens. Costs are assessed to defendants-appellees.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Marcel & Tobie LEDET v. Richard G. MOE.
    No. 03-CA-745.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.
    Harold E. Dearie, II, Dearie & Killian Law Firm, Metairie, LA, for Plaintiffs-Appellees.
    Keith R. Credo, Pat M. Franz & Associates, Metairie, LA, for Defendant-Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court properly granted a default judgment in favor of plaintiffs. For the following reasons, we vacate that judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

In March 2001, plaintiffs, Marcel and Tobie Ledet, entered into a contract with defendant, Richard Moe, to perform certain construction, and renovations to their home located on Phosphor Avenue in Me-tairie. The contract price for these repairs and renovations was $15,200.00. Despite having serious complaints and problems with defendant’s workmanship, plaintiffs paid him $11,083.32 and asked that he correct certain defects created by his workmanship. When defendant failed to do so and failed to. complete his contractual obligations, plaintiffs sent him a demand letter requesting, he pay them to correct his work and complete the project. Plaintiffs received two estimates of $30,770.00 and $37,884.00 and-paid other contractors $4,315.48 to correct plumbing, electrical and flooring problems and code violations. The demand letter asked defendant to pay plaintiffs $38,607.48 representing an average of the two estimates plus the $4,315.48. When defendant 13did not respond, plaintiffs filed this suit seeking $38,607.48 and attorney fees pursuant to La. R.S. 9:4851 and 9:4855. Defendant was served but did not timely answer. Plaintiffs moved for a default judgment.

At the default hearing, plaintiffs presented the testimony of two witnesses, Mrs. Ledet and Michael Holiday, a contractor who gave them an estimate. Mrs. Ledet’s testimony confirmed the underlying facts set forth in the petition for damages. She presented photographs of the alleged defects in the property. However, she did not testify regarding the estimates obtained to properly complete the renovations at issue. Michael Holiday testified that he presented the plaintiffs with an estimate to repair them roof, walls and a slab. He did not recall the exact price and could only speculate how much it would cost to perform these repairs.

After the hearing, the trial judge entered a default judgment in favor of plaintiffs against defendant in the amount of $70,956.28 plus $2,025.00 in attorney fees. Thereafter, defendant filed a motion for new trial and/or to annul the judgment, stating that the judgment was contrary to the law and evidence. The trial judge denied defendant’s motion. This appeal followed.

DISCUSSION

Defendant argues that the lower court erred by granting the default judgment and in its calculation of damages. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La Code Civ. P. art. 1702(A). For a plaintiff to obtain a default judgment, he paust establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280, writ denied, 01-1035 (La.6/1/01), 793 So.2d 196. (Citations omitted).

14PIaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Id. The determination of whether there is sufficient proof is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Id. (Citations omitted).

In support of their claim, plaintiffs offered the contract, the petition for damages, Mrs. Ledet’s testimony, photographs of the renovation deficiencies, a building permit, an inspection report, invoices for purchases and repairs, copies of checks written to defendant, and the testimony of Michael Holiday who estimated what he would charge to redo the plaintiffs’ renovations. The trial judge found this evidence sufficient. We agree that the plaintiffs suffered damages as a result of defendant’s poor workmanship. However, we do not feel plaintiffs properly supported their claim through competent evidence. They did not introduce copies of the estimates they relied on to arrive at the damage figure noted in their petition for damages nor was the estimated figure exact enough to measure what the true cost of the repairs would be. The record did not contain a complete itemized estimate suitable for determining damages. Plaintiffs’ contractor, Michael Holiday, did not have a copy of his own estimate nor could he recall the exact amount quoted. Additionally, his qualifications were not made part of the record. His testimony was speculative at best. Accordingly, we find this evidence insufficient to support the default judgment. Thus, we vacate the judgment and remand this matter to the trial court for a new trial.

JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS

      . The record indicates that no transcript of those proceedings was made.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Marvin JOHNSON.
    No. 03-KA-903.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, Counsel for Appellant, Marvin Johnson.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, Counsel for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

On January 29, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Marvin Johnson, with one count of distribution of cocaine, in violation of La. R.S. 40:967(A), and one count of distribution of cocaine within 1000 feet of a religious building property, in violation of La. R.S. 40:981.3. On January 30, 2002, defendant was arraigned and pled not guilty.

Trial commenced on the remaining distribution of cocaine within 1000 feet of a religious building property on May 8, 2002. After a two-day trial, the twelve-member jury returned a verdict of guilty as charged. After the jury was polled the trial judge declared the verdict legal.

On May 23, 2002, the defendant filed a Motion in Arrest of Judgment and Motion for New Trial, which were denied by the trial judge. Thereafter, the trial judge sentenced defendant to 15 years at hard labor, specifically denying defendant the benefit of parole, probation, or suspension of sentence for two years, as required by the sentencing statute. Defendant filed a written motion for |sreconsideration of sentence, which was denied by the trial judge. Further, defendant filed a motion for appeal, which was granted.

On March 23, 2002, the State also filed a bill of information pursuant to La. R.S. 15:529.1 alleging that the defendant was a fourth felony offender. That day, the defendant denied the allegations of the multiple offender bill of information. On July 25, 2002, defendant also filed a written objection.

On July 25, 2002, the trial judge held a hearing on the multiple offender bill of information. After hearing testimony, the trial judge found that State had presented sufficient evidence that the defendant was a fourth felony offender. The trial judge then sentenced defendant to imprisonment at hard labor for twenty years without probation or suspension of sentence.

On July 26, 2003, defendant filed a motion to reconsider sentence, which was denied by the trial court judge. That same day, the defendant filed a written appeal motion, which was granted by the trial judge.

Facts

In early October of 2001, the Jefferson Parish Sheriffs Office (“JPSO”) received several telephone calls from concerned citizens reporting illegal drug sales in Marre-ro, Louisiana. In response, the Jefferson Parish Sheriffs Office set up an undercover operation near the intersection of Fourth Street and Meyer Street in Marre-ro on October 8, 2001.

Jefferson Parish Sheriffs Office Narcotics Agent Kim Blanche asked Robin Jones, a JPSO undercover agent, to participate in the operation. Agent Blanche | informed Agent Jones of the target area and provided her with two traceable $20 bills.

At approximately 1:00 p.m. on October 8, 2001, Agent Jones proceeded in her vehicle, which is specially equipped with a hidden video camera and voice transmitter, to the corner of Fourth and Meyer Street. When she drove into the area, she saw a black male wearing sunglasses, a red sweater, and stone-washed blue jeans sitting under a tree.

Agent Jones drove up to the man and asked for two “20’s.” The suspect leaned into Agent Jones’s vehicle and spoke with her about buying “20’s,” which is street-slang for crack cocaine. After this discussion, he obtained an off-white “rock” from one of several men sitting on a nearby porch. The suspect walked back to the undercover agent’s car, broke off a small piece of the “rock,” took $20.00 from the undercover agent, and then gave her the “rock.” The entire transaction was captured on videotape, which was later played at the trial.

After completing the transaction, Agent Jones met Agent Blanche at a pre-ar-ranged location and turned the evidence, including the remaining $20 bill, the video tape and the “rock,” over to Agent Blanche. When Agent Blanche field-tested the “rock,” it was positive for cocaine. Subsequently, Charles Krone, an expert forensic scientist at the Jefferson Parish Crime Lab, analyzed the “rock” and confirmed that the substance was cocaine.

When Agent Blanche and her supervisor, Sergeant Joe Williams, reviewed the videotape of Agent Jones’s undercover purchase, Sergeant Williams recognized the seller as the defendant, Marvin Johnson. At Sergeant Williams’s instruction, Agent Blanche compiled a photographic lineup that contained Johnson’s photograph.

|ROn October 11, 2001, Agent Blanche showed the lineup to Agent Jones. Agent Jones identified the photograph of defendant, Marvin Johnson, as a photograph of the man who sold her the “rock” of crack cocaine on October 8, 2001. The defendant was later arrested in a “roundup.”

On April 23, 2002, Sergeant Williams went to the scene of the October 8, 2001 drug purchase, took photographs of the area, and measured the distance between the drug transaction and the church property. When Sergeant Williams measured the distance using a “rolodex,” he determined that the distance was 990 feet. After the State presented testimony and evidence at trial, the twelve-person jury found that defendant was guilty as charged.

In his first assignment of error, the defendant argues that the evidence was insufficient to support the verdict. He specifically contends that the State failed to prove an essential element of the charged offense, namely, that the offense occurred within 1000 feet of a religious property. He claims that the rolodex used to measure the distance has “unknown accuracy.” He further alleges that the “pedestrian method” used ’ by Sergeant Williams has previously been found to be unreliable by the courts. The State notes that the method of measurement was not challenged at trial and, thus, is not reviewable on appeal. The State further replies that, if this issue were reviewed, the use of the “pedestrian method” inured to the defendant’s benefit since the “pedestrian method” generally provides a longer measure of the distance between two points than a “straight line” method.

In reviewing the sufficiency of the evidence, due process requires the reviewing court to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 6Í L.Ed.2d 560 (1979). Under Jackson, review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.

A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787.

In applying this standard, the reviewing court will not access credibility nor reweigh the evidence. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact finder’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921.

The defendant was convicted of distribution of cocaine within 1000 feet of a religious building property, a violation of La. R.S. 40:981.3(A)(3). That section provides, in pertinent part:

(a) Any person who violates a felony provision of R.S. 40:966 through R.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any religious building property, public housing authority property,’ or within one thousand feet of any such property, if the area is posted as a drug-free zone, shall, upon conviction, be punished in accordance with Subsection E of this Section.
(b) In order for the provisions of this Section to apply to religious buildings or to public housing authority property, the building must be posted as a drug-free zone as provided herein. |7 The design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building or public housing authority property. In order to post the area as a drug-free zone, the signs shall be located in a visible manner on or near each religious building or public housing authority property indicating that such area is a drug-free zone, that such zone extends for a distance of one thousand feet, and that a felony viplation of the Uniform Controlled Dangerous Substances Law will subject the offender to severe penalties under law.

(Emphasis added).

Further, 40:981.3(0(4) provides:

(4) “Religious building property” means property on which is located any church, synagogue, mosque, or other building, structure, or place used for religious worship or other religious purpose.

La. R.S. 40:967 prohibits the manufacture and distribution of controlled dangerous substances as follows:

A. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II[.]

Finally, La. R.S. 40:964(A)(4) defines cocaine as a Schedule II drug.

On appeal, defendant argues that the State failed to prove that the alleged drug transaction occurred within 1000 feet of a religious building property because the “pedestrian method” used to measure the distance from the alleged drug transaction to the church building property was faulty. He argues that the only acceptable method for measuring the distance specified in the statute is a “straight line” method.

Although we note the defendant’s argument is novel, we do not find it persuasive. First, we note that defendant did not avail himself of the opportunity to establish the accuracy of the measuring device or to attack the method of measurement produced by the rolodex at trial. Thus, the record does not contain lsevidence to support his claims. Second, while the defendant cites several Louisiana cases for the proposition that the “pedestrian method” of measuring distance is improper, we do not find those cases applicable to this factual scenario.

At trial, Sergeant Williams testified that, on April 23, 2003, he used a calibrated rolodex to measure the distance from the church’s property line to the place where the drug transaction occurred. Before going to the scene, he reviewed the videotape of the drug transaction to accurately locate the site of the transaction. Next, he walked from the drug transaction site to the church property line while rolling the rolodex to measure the distance. When he reached the church property line, the rolo-dex registered 990 feet.

At trial, Sergeant Williams also identified the locations using photographs that he had taken and an aerial photograph of the neighborhood in question. Sergeant Williams’s testimony was uncohtradicted. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 630, n. 6.

Moreover, whether the State had proven the distance from the crime scene to the church property beyond a reasonable doubt was a question for the jury. State v. Shillow, 602 So.2d 28, 31-32 (La.App. 3 Cir.1992). It was the jury’s duty to determine whether the distance had been proven beyond a reasonable doubt. Sergeant Williams’s testimony on the distance between the corner of Fourth and Meyer Street to the property line of the church was evidence that the jury was free to accept or reject.

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The jury heard Sergeant Williams’s testimony and apparently found it to be credible, believing the accuracy of his measurements. It is not the function of the appellate court to access the credibility of witnesses or reweigh the evidence. State v. Kinsel, 00-1610 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, 537, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641.

When the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements of the charged offense beyond a reasonable doubt, including that the drug violation occurred within 1000 feet of a religious building property. We find no merit in defendant’s first assignment of error.

In his second assignment of error, defendant argues that the trial court imposed an excessive sentence. Defendant specifically contends that his sentence of twenty years of imprisonment as a fourth felony offender, which is the statutory minimum, is excessive. He reasons that his predicate offenses were non-violent and claims that he was not dealing drugs but assisting a fellow drug abuser to obtain a small quantity of cocaine for personal use. He alleges under these circumstances the trial judge should have made a downward departure from the mandatory minimum sentence. The State replies that the sentence is the minimum sentence statutorily prescribed and is not excessive.

In this case, the trial judge sentenced defendant as a fourth felony offender to twenty years imprisonment at hard labor without benefit of probation or suspension of sentence. At defendant’s multiple offender sentencing, the trial judge noted that defendant’s predicate felonies were not crimes of violence and, thus, sentenced him to twenty years at hard labor, the mandatory minimum under La. R.S. 15:529.l(A)(l)(c)(i).

After he was sentenced, the defendant lodged an objection arguing that the sentence was excessive and amounted to cruel and unusual punishment because of |inthe quantity of narcotics involved (i.e., “.1 grams”). The defendant also filed a written motion for reconsideration of sentence, alleging that his sentence was excessive and the trial judge failed to consider mitigating circumstances.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A mandatory sentence may be excessive if the sentence “makes no measurable contribution to acceptable goals of punishment or amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Armstrong, 99-925 (La.App. 5 Cir. 2/16/00), 756 So.2d 533, 537, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182, cert. denied, 534 U.S. 1058, 122 S.Ct. 651, 151 L.Ed.2d 568 (2001), writ granted in part, on other grounds, 02-2464 (La.9/5/03), 855 So.2d 731.

The mandatory minimum sentences established in the Habitual Offender Statute are presumed to be constitutional. La. R.S. 15:529.1; State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675 (citing State v. Dorthey, 623 So.2d 1276, 1281 (La.1993)). In order to rebut the presumption that the mandatory minimum sentence is constitutional, defendant must clearly and convincingly show that he is exceptional, that is, that because of unusual circumstances he 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. State v. Johnson, supra; State v. Dorthey, supra.

Downward departures from the minimum sentence under the Habitual Offender Statute should occur only in rare situations. State v. Johnson, supra. A downward departure from the minimum sentence mandated by the Habitual Offender Statute is warranted if the trial court determines that the minimum sentence mandated makes no measurable contribution to acceptable goals of | n punishment or that the sentence amounts to nothing more than a purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the offense. State v. Robinson, 02-1253 (La.App. 5 Cir. 4/8/03), 846 So.2d 76, 86 (citing State v. Dorthey, 623 So.2d at 1280). If a downward departure is warranted, the trial judge shall sentence the defendant to the longest sentence, which is not constitutionally excessive. State v. Johnson, 709 So.2d at 677; State v. Robinson, 846 So.2d at 86-87.

In this case, defendant’s underlying felony offense was a conviction for distribution of cocaine within a thousand feet of a religious building property. La. R.S. 40:981.3. The penalty section of that statute, La. R.S. 40:981.3(E), mandates the “maximum fine” and imprisonment “for not more than one and one half times the longest term authorized by the applicable provisions” of La. R.S. 40:967.

The penalty provision for the applicable distribution of cocaine statute, La. R.S. 40:967(B)(4)(b), is a sentencing range of between two and thirty years at hard labor, with two years to be served without benefit of parole, probation, or suspension of sentence. Therefore, after being convicted of violating La. R.S. 40:981.3(E), defendant was subject to a sentence range from two to forty-five years at hard labor.

At the multiple offender hearing, the State presented evidence that defendant had three predicate felony convictions: (1) attempted simple burglary, a violation of La. R.S. 14:27; R.S. 14:62; (2) attempted possession of cocaine, a violation of La. R.S. 14:27; R.S. 40:967(0); and (3) possession of stolen property, a violation of La. R.S. 14:69. As noted above, under La. R.S. 15:529.1(A)(l)(c)(i), defendant’s sentencing exposure ranged from twenty years to life imprisonment. | VA Again, defendant received the mandatory minimum sentence of twenty years at hard labor without benefits of probation or suspension of sentence.

On appeal, defendant alleges that he should have been given a downward departure from the mandatory minimum sentence of twenty years of imprisonment. First, defendant argues that the underlying offense and his predicate offenses were non-violent. This argument was not presented to the trial court in either the defendant’s motion for reconsideration of sentence or during his argument at the multiple offender sentencing. Since this issue is raised for the first time on appeal, it is not subject to review. La.C.Cr.P. art. 881.1, State v. Mims, 619 So.2d 1059 (La.1993).

Next, defendant seeks a downward departure on the basis that the amount of narcotics (.01 grams) was small. In State v. Robinson, 02-530 (La.App. 5 Cir. 10/29/02), 831 So.2d 460, 469, the defendant, a fourth felony offender who was given a sentence of life, argued for a downward departure on the basis that his crime involved “the minimal amount of cocaine.” This Court observed in Robinson, supra, at 469, that defendant “has made no showing of exceptional circumstances sufficient to justify a downward departure from the mandatory sentence of life imprisonment.” We find that here, as in Robinson, the defendant has not made a showing of exceptional circumstances, which is required to justify a downward departure from the minimum sentence mandated by the statute.

Moreover, even though the record reflects the defendant had an extensive criminal history, including seven felony convictions and numerous misdemeanor convictions, the trial judge still imposed the minimum mandatory sentence. Arguably, the trial judge’s sentence reflected the non-violent nature of defendant’s felony convictions as well as the amount of illegal drugs involved in the underlying transaction. Finally, where the defendant continues to commit felony after felony, the imposition of the minimum mandatory sentence under La. R.S. 15:529.1 does not appear to be excessive. See State v. Johnson, 709 So.2d at 677. Based on the foregoing, we find that defendant’s second assignment of error lacks merit.

In his third assignment of error, defendant assigned as error all patent errors. Therefore, we have reviewed the record and note two errors. First, although the July 25, 2002 minute entry/commitment indicates the trial judge vacated the original sentence before imposing the multiple offender sentence, the transcript of that same date does not. The Louisiana Supreme Court found that an enhanced sentence in such circumstances was valid. State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309, 310, reh’g denied, 99-3124 (La.5/12/00), 761 So.2d 557. Further, this Court has followed Mayer in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 130, and State v. Cushinello, 01-109 (La.App. 5 Cir. 7/30/01), 792 So.2d 926, writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159. Therefore, no action is required.

Lastly, defendant’s multiple offender sentence is illegally lenient because the trial judge did not impose the two-year restriction on parole required by the reference statute, La. R.S. 40:967(B)(4)(b). State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519, 520. However, according to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799, this error does not require any action by this Court because La. R.S. 15:301.1(0, imposes the restrictions by operation of law. State v. Joseph, 02-717 (La.App. 5 Cir. 1/14/03), 839 So.2d 103, 106, writ granted, other grounds, 03-315 (La.5/16/03), 847 So.2d 1196.

AFFIRMED.

      . On May 6, 2002, the State dismissed count one of the bill of information, the distribution of cocaine charge.

      . The trial judge failed to impose the mandatory fine under La. R.S. 40:981.3. State v. McCraney, 01-439 (La.App. 5 Cir. 9/25/01), 798 So.2d 227, 232-233. However, this de-feet was moot once defendant’s original sentence was vacated before he was sentenced as a multiple offender. State v. Jerome, 03-126 (La.App. 5 Cir. 4/29/03), 845 So.2d 1194, 1199.

      . Defendant's motion for appeal was premature when it was filed after conviction and sentence, but before the sentence as a multiple offender, the defect was cured by the defendant's subsequent re-sentencing. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.

      . Although the July 25, 2002 minute entry/commitment reflects that the original sentence was vacated, the transcript of that hearing does not reflect that the original sentence was vacated. See error patent discussion, infra.

      . Although the trial judge did restrict probation and suspension for the entire term of defendant's sentence in accord with La. R.S 15:529.1(G), the trial judge inadvertently failed to restrict parole for two years in accord with the sentencing provision of the reference statute. See error patent discussion, infra.

      . Agent Blanche testified that she photocopied the money before she gave it to Agent Jones to maintain a record of the serial numbers of the bills that were used in the investigation. The bill that Agent Jones gave to the suspect during the undercover drug purchase was, however, not recovered.

      . Agent Blanche and Sergeant Williams explained that suspected drug dealers are often arrested in a “roundup” after a transaction to protect the undercover agent's safety and ongoing undercover operations.

      . On the videotape, the defendant is seen standing in front of a "No Truck Route” sign located near the comer of Fourth and Meyer in Marrero.

      . See error patent discussion, infra.

      . Each of the underlying offenses occurred in the Twenty-Fourth Judicial District Court. The charge of attempted simple burglary, which occurred on August 5, 2000, resulted in a guilty plea for that offense in No. 00-557 on October 24, 2000. The charge for attempted possession of cocaine, which occurred on March 14, 1997, also resulted in a guilty plea for that offense in No. 97-2216 on May 30, 1997. The charge for possession of stolen property, which occurred on July 19, 1993, resulted in a guilty plea for that offense in No. 93-4951 on October 22, 1993.

      . See error patent discussion, infra.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Jean P. LEE.
    No. 03-KA-901.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      ' Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Martin Bellanger, Assistant District Attorneys, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

Defendant Jean P. Lee appeals his conviction of attempted possession of cocaine, a violation of La. R.S. 40:967(C). We affirm.

Lee was charged with possession of cocaine by a bill of information, along with Winston Bartholomew. The present appeal pertains solely to Lee.

At trial, Deputy Chad Peterson of the Kenner Police Department testified that on August 4, 2002, at approximately 5:00 a.m., he was on patrol alone in his marked police unit when he observed a vehicle traveling westbound on West Esplanade in Jefferson Parish. He noticed that the driver, later identified as Mr. Bartholomew, and the passenger, later identified as Lee, were not wearing their seatbelts. Deputy Peterson initiated a traffic stop utilizing his overhead emergency lights and his audible siren. He also used his take-down lights, which he explained were two spotlights that illuminated the back of the vehicle.

The vehicle proceeded westbound on West Esplanade for approximately four or five blocks, made a right turn onto California Street, and pulled into a driveway where it came to a complete stop. Deputy Peterson testified that he could 13see clearly into the vehicle. When the officer activated his lights, he observed both subjects acting in a nervous manner. He explained that it looked like Lee was bending over toward the floor. Deputy Peterson testified that he was “shocked,” because they were acting in a nervous manner and did not stop immediately, and thought that perhaps he was dealing with a stolen vehicle or persons who were wanted.

Once they pulled into the driveway, Deputy Peterson immediately exited his police unit and approached the driver’s side of the other vehicle. He never saw the driver reach over the center console into the passenger seat, or throw anything towards the passenger. The driver then exited the vehicle and ran toward Deputy Peterson. As the driver exited the vehicle, the deputy saw him discard one plastic baggie containing a white powdery substance, later identified as cocaine, onto the driver’s seat. Deputy Peterson explained that, as soon as the driver exited the vehicle, he just opened his hand and the baggie fell right onto the driver’s seat.

Deputy Peterson immediately handcuffed the driver and placed him in the back of the police unit. The officer subsequently retrieved the bag of cocaine from the driver’s seat, then proceeded to the passenger side. Lee acted in a nervous manner “and throwing something.” He placed his hands toward his waistband, “just making nervous movements.” At the deputy’s request, he exited the vehicle.

At that point, Deputy Peterson looked in the immediate area and saw another bag of cocaine, right underneath the bottom of the passenger seat, partially sticking out. Lee was handcuffed and the package was retrieved. Sergeant Miley arrived to assist Deputy Peterson. Peterson informed Sergeant Miley about what had occurred, and Miley chemically field-tested the white powdery substance in both baggies.

Deputy Peterson identified Lee in court as the individual who was in the passenger seat. He identified State’s Exhibit 2 as the baggie he retrieved from the 14driver’s seat. The officer further identified State’s Exhibit 3 as the smaller baggie that he found underneath the passenger seat. The defense stipulated that the lab report was prepared by the Jefferson Parish Crime Lab, that it pertained to the two samples recovered in this case, and that the samples, State’s Exhibits 2 and 3, were examined by the lab and found to be cocaine. Deputy Peterson described the center console in the vehicle as being high off the floorboard with a middle open box. The officer was convinced that he never saw the. driver throw anything into the passenger seat.

Lee testified that, at the time of this incident, he lived at 3500 California, and that Mr. Bartholomew lived across , the street at 3501 California. At approximately 4:20 a.m., Lee, who had just gotten home from a barbecue in Baton Rouge, went and talked to Mr. Bartholomew, who was sitting on his porch. Lee asked Mr. Bartholomew to bring him to the store so he could’ get a beer. Mr. Bartholomew told Lee that he would, but that he had to make a stop along the way to pick up some money. Lee surmised that when Mr. Bartholomew made the stop, he picked up the drugs.

Lee testified that Mr. Bartholomew stopped at his friend’s house, and then took him to the Sav-a-Center on David Drive. The store did not have the kind 'of beer he wanted, and Mr. Bartholomew was bringing him home when they got pulled over. Lee testified that Mr. Bartholomew moved away after they got out of jail, and that Mr. Bartholomew had told him he was “going to take his charge,” because everything in the car was his.

Lee explained that he had not seen Mr. Bartholomew since he had come to court in August and pled not guilty, and that he did not know where Mr. Bartholomew was at the time of trial. He testified that it took five or ten minutes for them to go to the friend’s house, to the store, and home, and that Mr. Bartholomew was inside his friend’s house for approximately three minutes. Lee |Bsaid that, when Mr. Bartholomew got out of the car after they were pulled over, Mr. Bartholomew threw a baggie into the car. Lee did not see a second baggie. Lee stated that he did not see anything under his seat, and that he did not bend over and look under the seat. He testified that he did not know that there was anything under his seat, and he did not have any knowledge that there were drugs of any kind in the vehicle at the time.

After hearing the testimony, the jury found Lee guilty of the responsive verdict of attempted possession of cocaine.

On appeal, Lee argues that the evidence was legally insufficient to support the verdict. He contends that the only evidence against him was his mere presence in the area where the drugs were found. He further argues that most of the factors used to determine whether a defendant exercised dominion and control sufficient to constitute constructive possession were not met in his case, and urges there was no showing that the drugs were in an area in [his] plain view. He avers that there was no proof to suggest that either he or Mr. Bartholomew were drug users, that there was no information concerning any police tip, and there was no evidence to suggest that he and Mr. Bartholomew had an illicit criminal partnership. Lee also argues that Deputy Peterson’s testimony at trial was not credible because he testified at the hearing on the motion to suppress, but then changed his testimony at trial in order to ensure that Lee was convicted.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

| (¡Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. When circumstantial evidence is used to prove a case, the trial judge must instruct the jury 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.” LSA-R.S. 15:438. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. , This is not a separate test from Jackson, but it is instead an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt.

In the present case,’ Lee was convicted of the responsive verdict of attempted possession of cocaine, violations of LSA-R.S. 40:967(C) and R.S. 14:27. According to LSA-R.S. 40:967(C), it is unlawful for any person knowingly or intentionally to possess cocaine. An attempt is defined in LSA-R.S. 14:27, which provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
_li • • •
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

To prove an attempt, the State must show that the defendant committed an act tending directly toward the accomplishment of his intent to possess cocaine. Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The factfinder may draw reasonable inferences to support these contentions based upon the evidence presented at trial.

The mere presence of the defendant in the area where a controlled dangerous substance is found is insufficient to constitute constructive possession. However, proximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence.

The element of possession includes both “actual” and “constructive” possession. A person who is not in physical possession of drugs may have constructive possession when the drugs are under that person’s dominion and control. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances.

This court has recognized that several factors may be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that illegal drugs |swere in the area, his relations with the person found to be in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use by the defendant, the existence of paraphernalia, and evidence that the area was frequented by drug users.

In the instant case, the record reflects that Deputy Peterson saw Lee, who was seated in the passenger seat, bend over toward the floor as he activated his lights to make the stop. Lee and the driver were both acting nervously during the stop. Deputy Peterson observed Lee throw one plastic baggie containing a white powdery substance, later identified as cocaine, onto the driver’s seat after he exited the vehicle. He was able to plainly observe that Bartholomew did not reach over or throw anything onto the passenger seat. Deputy Peterson testified that he could see clearly into the vehicle.

As Lee exited the vehicle, Deputy Peterson observed “another bag of cocaine” underneath the bottom of the passenger seat partially sticking out. The center console in the vehicle separating the driver and the passenger was high, according to Deputy Peterson, which indicates that it would have been difficult for the driver to throw a baggie and have it reach the floor of the passenger side. Additionally, Lee confirmed during his testimony that the driver only threw one baggie into the vehicle. Obviously, there was more evidence against Lee other than his “mere presence” in the area where the drugs were found.

Lee argues that the evidence was insufficient to support the conviction, because most of the factors used to determine whether he exercised dominion and control to constitute constructive possession were not met. It is not necessary to prove that each and every factor was present, and further, our review shows that several of the factors were met: Lee knew the driver, as he lived across the street from him, and Lee had access to the area where the drugs were found. These facts, |flalong with the evidence discussed above, show that Lee exercised sufficient dominion and control so as to constitute constructive possession of the cocaine.

Lee also contends that Deputy Peterson’s testimony at trial was not credible, because he testified at the hearing on the motion to suppress, but then changed his testimony at trial in order to ensure that defendant was convicted.

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. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. The credibility of witnesses will not be reweighed on appeal. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings.

The record reflects that Deputy Peterson and Lee presented conflicting testimony at trial regarding the events surrounding the incident. Apparently, the jury found Deputy Peterson more credible than Lee and rejected Lee’s testimony that he did not know that there was anything underneath where he was seated, and that he did not have any knowledge that there was any kind of drugs in the vehicle at the time. Further, there was no internal contradiction within Deputy Peterson’s testimony, nor did it conflict with any physical evidence.

Lee points out that, at the suppression hearing, Deputy Peterson did not know if the driver threw one or two baggies into the vehicle, but that at trial, Deputy Peterson was certain that he only threw one baggie. Lee fails to note that in his own testimony, he stated that he only saw one baggie. Lee also points out that at trial Deputy Peterson testified that the driver and Lee were acting nervously, |inbut that at the suppression hearing, Deputy Peterson said nothing about such behavior. We find no inconsistency between the testimonies, but rather observe that Deputy Peterson added more facts and observations at trial.

Based on the foregoing, we find there was sufficient evidence to support a conviction. ' This assignment of error ■ has no merit. ■

The record was reviewed for errors patent according to LSA-C.Cr.P. art. 920. In so doing, we note that the trial court failed to advise Lee of the prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. We remand the case with an order to the trial judge to send.to Lee, within ten days of the rendering of this opinion,- written notice of the prescriptive period for post-conviction relief, and then to file written proof in the record that the Lee received the notice.

CONVICTION AFFIRMED. CASE REMANDED FOR NOTICE OF POST-CONVICTION PRESCRIPTIVE PERIOD.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

      . State v. Williams, supra.

      . State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Qutoum, 02-780, p. 4 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 326, writ denied, 03-595 (La.5/30/03), 845 So.2d 1059.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78.

      . State v. Wright, 445 So.2d 1198 (La.1984); State v. Addison, 94-2431 (La.App. 4 Cir. 11/30/95), 665 So.2d 1224.

      . State v. Chattman, 01-556 (La.App. 5 Cir. 10/30/01), 800 So.2d 1043, 1048, writ denied, 01-3320 (La.12/19/02), 833 So.2d 332.

      . State v. Council, 2001-0639 (La.App. 4 Cir. 11/28/01), 802 So.2d 970.

      . State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 69, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . Id.

        . State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1331.

      . State v. Williams, supra.

      . State v. Riley, 587 So.2d 130, 133 (La.App. 2 Cir.1991).

      . State v. Williams, supra.

      . 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 2000-150 (La.6/30/00), 765 So.2d 1066

        . State v. Rivers, 01-1251, pp. 6-7 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035.

      . Also see State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, State v. Pierre, 02-838 (La.App. 5 Cir. 12/30/02), 834 So.2d 1229, 1233.


text:
    STATE of Louisiana v. Albert MICKEL.
    No. 03-KA-795.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, Counsel for Appellee.
    Jane L. Beebe, Gretna, LA, Counsel for Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Defendant, Albert Mickel, appeals his conviction for being a felon in possession of a firearm. For the following reasons, we dismiss defendant’s appeal as untimely.

On May 26, 1998, defendant, Albert Mickel, was charged by bill of information with one count of being a felon in possession of a firearm, in violation of LSA-R.S. 14:95. h Trial began on March 30, 1999 and concluded on March 31, 1999, with the jury finding Mickel guilty as charged.

On April 14, 1999, the trial judge sentenced Mickel to fifteen years imprisonment at hard labor without benefit of parole, probation or suspension for the term of imprisonment and he suspended five years of the sentence and placed Mickel on active probation for the term of the suspension.

On November 27, 2000, Mickel filed a first pro se motion for re-sentencing, which was denied by the trial court on November 30, 2000. On March 19, 2001, Mickel filed a second pro se motion for re-sentencing which was denied by the trial court on April 2, 2001. On February 13, 2003, Mickel filed a pro se application for post-conviction relief wherein he sought an out-of-time appeal. The trial judge issued an order granting Mickel’s motion for out-of-time appeal.

J¡LAW AND ANALYSIS

Mickel was sentenced on April 14, 1999, and did not file a motion to reconsider sentence within the time prescribed by LSA-C.Cr.P. art. 881.1. Mickel further did not lodge a timely motion for appeal within five days of sentence, pursuant to LSA-C.Cr.P. art. 914. When a defendant fails to move for an appeal within the time allotted by LSA-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 in the trial court. Once the time delays provided in Article 914 have expired, the appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal is an application for post-conviction relief under LSA-C.Cr.P. art. 924 et seq.

In this case, Mickel filed an application for post-conviction relief on February 13, 2003, and was granted an out-of-time appeal. Based upon our review of the record, however, we find the appeal to be untimely.

At the time of this offense, the prescriptive period for filing applications for post-conviction relief was set forth in LSA-C.Cr.P. art. 930.8, which provided in pertinent part:

A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than three years after the judgment of conviction and sentence has become final under Article 914 or 922....

A grace period was provided in Subsection E until October 1, 1991, for applications that would already be barred by the provisions of this article.

Effective August 15, 1999, the article was amended to shorten the period to two years. The amendment also provided for a grace period for | ^filing, which was until October 1, 2001. This Court, in State v. Boles, noted that the amendment to LSA-C.Cr.P. art. 930.8 should be applied retroactively, and that the application of the amended prescriptive period in a defendant’s case would not violate ex post facto prohibitions, as the article itself does not relate to an offense or its punishment.

Mickel’s sentence was April 14, 1999 and his application for post-conviction relief which sought the out-of-time appeal was filed February 13, 2003. This is beyond the two-year amended prescriptive period and also beyond the statutory grace period, which was October 1, 2001. Accordingly, we dismiss Mickel’s appeal as untimely.

APPEAL DISMISSED.

      . The prior felony convictions occurring in the 24th Judicial District Court were as follows: Possession of Cocaine (LSA-R.S. 40:967(0) in Doc. No. 90-3236, Div. F and Illegal Use of Weapon (LSA-R.S. 14:94) in Doc. No. 90-2930, Div. E. (R., p. 14).

      . The sentence impose is illegally lenient because of the suspension of five years and because of the failure to impose the mandatory fine of not less than $1,000 nor more than $5,000. LSA-R.S. 14:95.1(B). This will be discussed as errors patent.

      . State v. Counterman, 475 So.2d 336, 338 (La.1985); State v. Taylor, 03-127, p. 3 (La.App. 5 Cir. 5/28/03), 848 So.2d 141, 142.

      . Also see, State v. Counterman, 475 So.2d at 339; State v. Taylor, 848 So.2d at 142, citing State v. Brooks, 01-1316 (La.App. 5 Cir. 4/10/02), 817 So.2d 222, 223

      . See, 1999 La. Acts 1262.

      . 99-662, p. 3 (La.App. 5 Cir. 11/10/99), 750 So.2d 1059, 1062.

        . State v. Boles, 750 So.2d at 1062. See also, State v. Cazenave, 00-183, p. 13 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 864, writ dismissed, 00-3386 (La.2/16/01), 785 So.2d 835, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151.


text:
    STATE of Louisiana in the interest of C.C.
    No. 03-KA-762.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      John H. Musser, IV, Don Almerico, St. Rose, LA, Counsel for State.
    Maria M. Chaisson, Chaisson & Chais-son, Destrehan, LA, Counsel for appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and clarence E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial judge erred in ordering the return of a vehicle seized pursuant to a criminal investigation. For the following reasons, we vacate the judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

In March 2002, Corporal Patrick J. Beard of the St. Charles Parish Sheriffs Office was patrolling the Old Luling area. He crossed the railroad tracks in the 400 block of Gassen Street and headed southbound when he observed a four-wheeler headed the opposite direction driving in a reckless manner. Corporal Beard stopped his car, activated his emergency lighting and spotlight to the ground, exited the vehicle and stood behind the driver’s side door. He gave a verbal command for the vehicle to stop, and he also used a han-dheld flashlight to get the attention of the driver of the four-wheeler. The vehicle slowed down then sped up and veered toward his police car. He jumped back into his police car to avoid being hit. However, the four-wheeler struck the driver’s side door pinning his lower legs between the door and the door frame and the top upper part of his body between the door and the door jam. The door hit him in the head and knocked him back into the car. The four-wheeler fled. He got a good look at the Lfour-wheeler because he was standing approximately two feet from it. He noted that it was green, that it had a rack on the back and the front, and had one broken headlight. The four-wheeler was found after the driver ran a stop sign and traveled up the levee on Gassen Street and River Road. The four-wheeler was impounded at Louie’s Wrecker Service and storage costs of $13.00 a day were incurred. The sheriffs office allegedly completed its investigation and took photographs within a few days of seizing the four-wheeler and had had no further need for the four-wheeler within a few weeks of seizing it.

On May 20, 2002, the St. Charles Parish District Attorney filed a petition alleging that the juvenile, C.C., committed: Count 1, negligent injuring in violation of La. R.S. 14:39, which allegedly occurred on or about March 31, 2002; and Count 2, hit and run driving in violation of LSA-R.S. 14:100, which allegedly occurred on or about March 31, 2002. C.C. denied the allegations.

In response to a motion filed by the juvenile’s father, the trial judge ordered the sheriff to return the four-wheeler involved in the incident to the owner, the minor’s father on July 12, 2002. However, according to the title, the four-wheeler was owned by Troy Dutrieux. Mr. Dutrieux apparently sold the vehicle to C.C.’s father but had no bill of sale. A vehicle registration check noted that the title was transferred sometime in April of 2002.

Sometime between July 12 and 22, 2002, the trial judge vacated the order to return the four-wheeler. On July 17, 2002, an order was filed which stated that the sheriffs office was to complete any necessary investigation/inspection of the four-wheeler and return said four-wheeler to C.C.’s father. On the order, someone handwrote the statement that the sheriffs office was to “preserve any necessary evidence by any necessary means.” The above order was scratched through, and at the bottom of the order the following words were written: “Denied. Officers (in | ¿report) indicated intentional battery and injury.” It appears that the order was signed by the trial judge but not dated.

On July 22, 2002, the trial judge stated that the sheriffs office had a “big objection” to releasing the four-wheeler but continued the hearing on the motion to return the four-wheeler because the sheriffs office did not send a representative to the hearing. On July 25, 2002, the trial judge held an off-the-record bench conference regarding the motion to return the four-wheeler with the victim and another officer from the sheriffs office; however, C.C.’s counsel was not present. The prosecutor stated that it had no objection to releasing the four-wheeler as long as the sheriffs office had obtained all the evidence they needed with regard to the four-wheeler.

On November 22, 2002, the juvenile admitted the allegations of the petition. The juvenile was placed in the custody of the Department of Public Safety and Corrections for six months, suspended, with six months of active probation. The juvenile was also ordered to make restitution in the amount of $1,161.35 through the St. Charles Sheriffs Office (SCSO) and perform 25 hours of community service. The SCSO was ordered to turn over the four wheeler involved in the incident to the juvenile’s father with no charges for the storage fee. On January 3, 2003, the trial judge granted a new trial regarding the motion to return the four wheeler and storage costs.

On February 12, 2003, a hearing regarding storage costs for the four-wheeler was held. At the hearing, counsel for the St. Charles Parish Sheriffs Office reiterated the underlying facts of this case. C.C.’s counsel stated that the man who owned the storage facility had already transferred title to the four-wheeler to himself. She stated that the transfer was ordinary procedure, but that it had been caused by the actions of the sheriffs department. C.C.’s counsel argued that La.C.Cr.P. art. 887 was applicable to normal court costs but not to additional costs Issuch as storage for the four-wheeler. She contended that the sheriffs office was holding the four-wheeler because they were angry that the incident involved one of their officers. C.C.’s counsel argued that the sheriffs office should be responsible for the storage costs because the four-wheeler was being held against her client’s will, and that the sheriffs office did not need to hold the four-wheeler for the length of time at issue.

The sheriffs counsel responded that the sheriffs office left the vehicle in storage until the case was resolved, as it usually does with evidence in criminal investigations. He explained that in every hit and run case, the vehicle is held because photographs do not adequately preserve the evidence. The sheriffs counsel argued that it was his interpretation of the trial court’s order that the sheriffs office was to preserve the evidence because the case involved an intentional hit and run. He also contended that article 887 applied to every expense the sheriff incurred for a cost in prosecution.

After the hearing, the trial judge ordered the SCSO to return the four-wheeler to the owner within fifteen days. The trial judge also stated that the SCSO could file a motion to assess costs in connection with the four-wheeler storage fees. The judgment was signed on February 19, 2003. On March 6, 2003, the sheriff filed an appeal in accordance with LSA-Ch.C. art. 332.

DISCUSSION

On appeal, the sheriffs office argues that the court had no authority to order the return of the evidence in this case and that the trial court violated La. R.S. 15:41 by so ordering. It contends that any proceedings by the owner of seized | (¡evidence seeking a return of his property should be brought in a separate civil proceeding. It cites State v. Paster, 373 So.2d 170 (La.1979), in support of its position. In Past-er, officers obtained a search warrant to search a defendant’s residence and vehicle for marijuana. A deputy had defendant’s vehicle towed to a service station used as a storage facility by the sheriffs department. At the storage facility defendant’s vehicle was searched and released subject to a towing fee and storage charge. Defendant filed a motion seeking the return of his seized vehicle without cost. At the hearing on the .motion, the trial court noted that the real issue was the liability for the towing and storage charges, not whether defendant was entitled to his vehicle. - The court found that the dispute was a civil matter.

The Louisiana Supreme Court also found that the trial court correctly denied the motion, that the matter was not subject to resolution by the trial court during the criminal case against defendant, and that the matter was analogous to the procedure of collecting fines in criminal cases. Citing La.C.Cr.P. art. 886, the Supreme Court noted that the issue of whether defendant owed the fees, although arising in a criminal prosecution, should be decided by a civil action. Conversely, in Paster, defendant sought the return of the seized evidence. In this case, the juvenile’s father (a third party) seeks return of the seized evidence.

|7At the time Paster was decided in 1979, La.C.Cr. P. article 886 only permitted judgments regarding costs in criminal proceedings to be enforced in civil courts. However, in 1999, the article was amended to permit the enforcement of judgments in either civil or criminal court, or both. At the time the offense in the instant case was committed on March 31, 2002, LSA-C.Cr.P. art. 886 provided in pertinent part:

A. In the event of nonpayment of a fine, nonpayment of restitution to the victim, or nonpayment of a fine and costs, within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case. In addition, particular courts may provide by court rule for enforcement by the filing of an offset claim against the defendant, in accordance with R.S. 47:299.1 through 299.20. (Emphasis added).
B. The provisions of Paragraph A of this Article shall apply to all fines and costs due and owing, regardless of whether they become due and owing prior to September 6,1991.

Nevertheless, article 886 as amended is not applicable to the instant matter, because article 886 applies to defendants. In the instant case, the juvenile (not his father) is the defendant. However, his father is seeking return of the seized evidence.

Thus, we must decide whether the juvenile court in this case properly ordered the release of the four-wheeler seized as evidence in the juvenile delinquency proceeding to a third party, C.C.’s father. Additionally, we note that the trial court’s order releasing the vehicle to the juvenile’s father is suspect because the record indicates that the wrecker service now owns the vehicle.

An action for return of property, even if governed in part by criminal statutes, is by nature a civil action, especially where, as here, the criminal proceedings have been concluded. State v. Baynes, 96-0292 (La.App. 4 Cir. 7/31/96), 678 So.2d 959, 962, fn. 2. In Baynes, the trial court denied defendant’s motion to return seized property. Id. at 961. The appellate court found that defendant had established his right to the return of his weapons, but that he had not complied with the procedural requirements for their return. Id. at. 962. The appellate court stated that R.S. 15:41(C) specified that a motion for return of property seized in connection with a criminal proceeding should be heard contradictorily with the clerk of court, that the record did not indicate that the clerk of court was made a party to the hearing, and that the sheriffs office should also have been made a party to this proceeding because the state asserted the sheriffs office had retained custody of the seized property. Id. The appellate court in Baynes vacated the trial court judgment and remanded the matter to the trial court to set the case for a hearing at which the clerk of court and the sheriffs office were ordered to show cause why the weapons should not be returned to defendant. Id. However, the instant case is distinguishable from Baynes, because as in Paster defendant sought the return of his own property in that case.

Our review of the applicable statutory law, jurisprudence and the record convinces us that the trial court lacked authority to order release the vehicle to the juvenile’s father (a third party) who was hot the defendant in the juvenile proceeding. Thus, C.C.’s father’s remedy is to pursue a civil action in which all parties are before the court based on the fact that there is a dispute regarding ownership of the four-wheeler. Moreover, appellee failed to comply with the procedural requirements set forth in La. R.S. 15:41(C), in that he failed to make the clerk of court, sheriff’s office, and the wrecker service parties to the proceeding. Thus, we vacate the lower court’s judgment and remand this matter for further proceedings. Accordingly, we decline to address the remaining assignments of error.

JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS.

      . La. R.S. 15:41 provides in pertinent part:
      A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
      B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
      (1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest; otherwise, Paragraph (2) of this Section shall apply.
      (2) If the seized property is contraband, and the court determines that it should not be destroyed, or if the owner of noncontraband property does not claim it within six months after its seizure, the court shall order:
      (a) A sale of the property at a nonjudicial public sale or auction, if the court concludes that such a sale will probably result in a bid greater than the costs of the sale. The proceeds of the sale shall be administered by the court and used exclusively for the maintenance, renovation, preservation, or improvement of the court building, facilities, or records system.
      (b) If the court concludes that the cost of a public sale would probably exceed the highest bid, the court may order the property transferred to a public or a nonprofit institution or destroyed or may make such other court ordered disposition as it deems appropriate.
      C.Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court máy either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.


text:
    STATE of Louisiana v. Katherine E. BEHRE.
    No. 03-KA-896.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for State.
    Bruce G. Whittaker, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

On October 18, 2002, the Jefferson Parish District Attorney filed a bill of information charging defendant, Katherine Behre, with theft of goods valued at between one hundred and five hundred dollars. La. R.S. 14:67.10. Defendant was arraigned on October 21, 2002, and pled not guilty. She was tried by a six-person jury and found guilty of a lesser included offense attempted theft of goods valued between one hundred and five hundred dollars. She was sentenced to one year in prison. For the following reasons, we affirm her conviction and sentence but remand for further proceedings.

FACTS

Latoya Scott testified that, on September 17, 2002, she was employed in the electronics department at a Wal-Mart store on Veterans Boulevard in Metairie. She saw defendant, Katherine Behre, enter the department with an unknown male companion. The pair picked up several DVDs, and defendant took them out of the department. Ms. Scott watched defendant wander from one department to another in the store. Ms. Scott testified that defendant and her male companion eventually separated, and that she lost sight of the man.

|sMs. Scott followed defendant into a ladies’ restroom at the back of the store. She hid in a toilet stall and watched through a gap in the door as defendant used a box cutter or knife to remove plastic wrappings and security sensors from the DVDs. Defendant placed the DVDs in the large tote bag she was carrying, and threw the wrappings and sensors into a trash can. She then exited the restroom. Ms. Scott retrieved the DVD wrappings and sensors from the ladies’ room trash can.

Detective Eric Hunt of the Jefferson Parish Sheriffs Office was working a private duty detail at the store. When Ms. Scott became aware of defendant’s activities, she alerted the officer. He intercepted defendant outside of the restroom. He asked defendant where the DVDs were, and defendant denied having the merchandise. Detective Hunt testified that defendant’s tote bag was open and the DVDs were visible. The officer recovered the merchandise and took defendant into custody. Defendant had a box cutter in her possession, and it was placed with her property when she was transferred to the police lockup.

Ms. Scott testified that defendant never attempted to pay for the DVDs. After defendant was apprehended, the items were scanned using a store cash register, and their value totaled $205.02 without sales tax. The printed receipt documenting prices of the scanned items and a photograph of the recovered DVDs were admitted at trial.

Defendant was tried by a six-person jury on December 10, 2002. The jury found her guilty of a lesser included offense: attempted theft of goods valued at one hundred dollars or more, but less than five hundred dollars. La. R.S. 14:27:67.10. Defendant waived statutory delays, and the trial court sentenced her that day to one year in Jefferson Parish Prison. Defendant filed a timely motion for appeal on December 16, 2002, and the trial court granted it on December 17, 2002. Defendant filed this appeal.

\ ¿DISCUSSION

By this assignment, defendant complains that her one-year sentence, the maximum statutory penalty, is excessive, considering she was a seventeen-year-old first time offender. Defendant did not file a timely motion to reconsider sentence, nor did she make an oral motion. Generally, the failure to comply with the provisions of La.C.Cr.P. art. 881.1 precludes review of a sentence on appeal. See, State v. Ewens, 98-1096, p. 10 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, this Court has routinely reviewed sentences for constitutional excessiveness, even absent a proper motion to reconsider sentence. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961, writ denied, 02-0569 (La.1/24/03), 836 So.2d 42.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit imposition of excessive punishment. A sentence is constitutionally excessive, even if it is within statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Sims, 02-1244, p. 8 (La.App. 5 Cir. 4/29/03), 845 So.2d 1116, 1121. Trial judges are granted great discretion in imposing sentence, and if the record supports the sentence imposed, the court of appeal will not set it aside on grounds of excessiveness. La.C.Cr.P. art. 881.4(D); State v. Richmond, 98-1015, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

Factors an appellate court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Harris, 02-1048, pp. 3-4 (La.App. 5 Cir. 2/25/03), 841 So.2d 1005, 1007. A sentencing judge may consider a defendant’s prior convictions, as Lwell as past criminal behavior that did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254.

Defendant argues on appeal that she is not the worst type of offender, for whom maximum sentences are reserved. She further complains that the trial judge improperly based her sentence on a criminal charge that was pending against her.

In imposing sentence, the trial judge stated:

Probably had a 17-year-old sat before me as a first offender without having been indicted by the Jefferson Parish Grand Jury with the charge of second-degree murder. In all likelihood, anybody else who would have been a first offense for stealing because of shoplifting would have gotten probation.... But I do have the right to take into account your background, all of your background. I’m not saying you are guilty. I don’t know what happened with the murder. I don’t know. You may be guilty of second-degree murder; you may be guilty of manslaughter; you may be not guilty; you may have acted in self-defense.
But, I’m going to tell you this: What I know, uncontroverted about the murder that I have the right to take into account, is, I know you, Katherine Behre, went to that levee. I know you went there to engage in a fight with another girl and I know you went to that levee with a knife on you. I know that.
Now, whether you got involved in a fight and had to use that knife to defend yourself, which may well have been justified and may well exonerate you from the second-degree murder charge, I don’t know. That’s going to be decided by twelve citizens down the road. But right now I have a 17-year-old that carried a knife on her and went on the levee to engage in a fight. That to me is wrong. That 17-year-old, as long as I sit here, would not get probation, any 17-year-old.
So, please understand: You are not being treated any differently from any other 17-year-old who would be involved in the same sort of activity.

Defendant concedes that the jurisprudence allows the trial court to consider various sources of information regarding a defendant’s criminal background in arriving at a sentence. She argues, however, that because the scope of information | fiavailable to the court for sentencing purposes is so broad, she has a due process right to rebut prejudicially false or misleading information which may affect the sentencing determination. Defendant cites State v. Parish, 429 So.2d 442 (La.1983), in which the trial court sentenced the defendant based on the contents of a pre-sentence investigation report, as well as on information about the defendant’s alleged criminal activity that came to light during a bond reduction hearing. In appealing his sentence, the defendant complained that the trial court improperly refused to allow him an evidentiary hearing to rebut the trial judge’s inference that defendant had committed another offense after the offense at issue.

The supreme court affirmed the sentence imposed, reasoning, in part:

While the fundamental precepts of due process require that a criminal defendant be afforded an opportunity to rebut or explain prejudicial or erroneous information in a pre-sentence report, a full scale evidentiary hearing is not required in a sentencing hearing where the defendant is given an opportunity to traverse or explain the allegedly false information. ... In our opinion, the defendant was afforded ample opportunity to make the trial judge aware of his view of the incident such that a full-scale evidentia-ry hearing was not required.

Id. at 444-445 (citations omitted).

In the instant case, the judge did not state for the record the source of his information regarding defendant’s pending murder charge. Based on the judge’s comments, it appears he was referencing a grand jury indictment charging defendant with murder, as well as documentation of some of the alleged facts surrounding the alleged murder. As in Parish, defendant had an opportunity to object to the court’s assertions regarding the pending charges against her, or to request an evidentiary hearing to determine the validity of the court’s pronouncements. Defendant did neither. Moreover, as noted above, she failed to make her objections known in a motion to reconsider sentence. In her appeal to |7this Court, defendant does not specifically point to any inaccuracies in the trial judge’s statements at sentencing.

It does not appear that the trial court exceeded its broad discretion in basing defendant’s sentence on a criminal charge that was apparently pending against her. Therefore, we affirm defendant’s conviction and sentence.

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.Í975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence become final” within which to file a post-conviction relief application. While the commitment shows that the trial court advised defendant of the prescriptive date, the record does not show that the court gave such an instruction. Where the transcript conflicts with the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

When the trial judge fails to inform a defendant of the prescriptive period for filing a post-conviction relief application, this Court typically remands the matter, ordering the district court to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of the Court’s opinion, and to file written proof of such notice in the record. Therefore, we remand this matter to the trial court and the district court judge is ordered to send written notice of the proper prescriptive period for post-conviction relief as set forth in LSA-C.Cr.P. art. 930.8, specifically including an advisal of when the period begins to run, within ten days of the rendering of the opinion, and file written proof in the record that defendant received notice.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS

      . See, LSA-R.S. 14:27 and LSA-R.S. 14:67.10(B)(2).


text:
    Suzanne TURK as Curatrix for Katherine Agnes Graffagnino v. James S. CONNER, Sr. and Vanessa LaBeaud.
    No. 03-CA-791.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      James S. Conner, Sr., In Proper Person, New Orleans, LA, for Defendant-Appellant.
    Eric J. Derbes, Julia C. Spear, Metairie, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Defendant James S. Conner, Sr., appeals a summary judgment finding that he was no longer empowered to act as attorney-in-fact for Mrs. Katherine Agnes Graf-fagnino, and ordering an accounting. We affirm.

On December 4, 2000, Mrs. Graffagnino appointed defendant Conner as mandatary on her account with Fidelity Homestead Association. On December 19, 2000, she executed a procuration to defendants Conner and his daughter, Vannessa LaBeaud, appointing them as “true and lawful attorneys-in-fact.”

On May 11, 2001, Mrs. Graffagnino issued an affidavit revoking the Power of Attorney to Conner and/or LaBeaud. On January 22, 2002, Mrs. Graffagnino was placed under full interdiction by judgment of the district court, with plaintiff Suzanne Turk named as her curatrix.

Pursuant to La.Civ.Code Art. 3032, an accounting was requested from Conner. Conner failed to comply with the request, and Turk filed a Petition To Compel Filing Of Account By Mandatary, requesting the court to order such | ¡¡account. The petition was subsequently amended and consolidated with the Succession of Frederick P. Engel. In brief, it is averred that Engel was Mrs. Graffagnino’s son and heir, and that Conner had been executor of that estate.

Turk filed a Motion for Summary Judgment. According to the transcript of the hearing, in addition to the Motion for Summary Judgment there was a hearing scheduled to remove Conner as executor, apparently of the Engel estate. The second motion was not heard because Connors’ attorney was not served with process. At the summary judgment hearing, as on this appeal, Conner appeared in proper person. Following the hearing, the trial court granted judgment in favor of Turk, declaring that Conner was no longer authorized to act on behalf of Mrs. Graf-fagnino in any way, and ordering Conner and LaBeaud file a full accounting for their terms as mandatories.

Attached to the Motion for Summary Judgment and to the several objections filed by Conner were a copy of the original Power of Attorney relative to Fidelity Homestead, in favor of Conner, dated December 4, 2000. The document was signed with an “X” or mark, witnessed by La-Beaud, and notarized.

The procuration in favor of Conner and LaBeaud, dated December 19, 2000, was similarly signed, witnessed by two persons, and notarized. The Power of Attorney declared that it “shall not be terminated by appearer’s incapacity, disability or any other condition making express revocation impossible or impracticable.” A copy of the affidavit dated May 11, 2001 and signed by Mrs. Graffagnino, declaring that she revoked the December 19, 2000 Power of Attorney, was attached, as were medical records introduced by Conner showing that on May 11, 2001, Mrs. Graffagnino was transferred to St. Charles General Hospital due to illness. The notary who executed the revocation, Gerard P. Archer, rendered an affidavit stating that he had met with Mrs. Graffagnino for several minutes prior to executing the document at St. Anthony’s Nursing Home, that she pheld a coherent conversation and was able to understand what she was signing, and that in his opinion she appeared to have the necessary mental and physical capacity to execute the document.

Conner introduced an affidavit by Mrs. Graffagnino dated December 15, 2001 declaring that she was dismissing Eric Derbes as her attorney because “Mr. james S. Conner has been handleing [sic] my affairs legal and other wise [sic] for the past four and one half years and I am satisfied with his progress.” This affidavit was also marked with an “X” and notarized.

Turk attached the judgment signed on January 22, 2002, placing Mrs. Graffagnino under full interdiction and-appointing Turk as euratrix.

At the hearing, Conner argued that on the day the notarial act dismissing him as attorney was executed, he was with Mrs. Graffagnino at St. Charles General Hospital, at which time she could neither walk nor write, due to an earlier stroke. Conner alleged that someone forged the document. He also argued that the original procuration was irrevocable, and that he had already filed an accounting. Counsel for Turk pointed out to the court that Mrs. Graffagnino was not admitted to St. Charles until 1545 (3:45 p.m.) on May 11, and that her activities prior to that time had not been shown. It was further urged that the accounting by Conner was part of the Succession of Engel, not a response to the request in the present case.

The court found there that the interdiction precluded Conner from acting any further on behalf of Mrs. Graffagnino. Conner was granted 30 days in which to file his accounting. Ms. LaBeaud, Connors’ daughter, was present in the courtroom, and was given 30 days in which to file a written document stating that she had not handled any of the funds involved. She has not appealed 'the judgment.

Appellate courts review summary judgments de novo, using the same criteria applied by the trial court to determine whether a summary judgment is | ¡^appropriate. A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. Summary judgments are now favored in the law and the rules should be liberally applied. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions.

The mover bears the burden of proof. Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. When a summary judgment movant makes a prima facie showing that its motion should be granted, the burden shifts to the nonmov-ant to present evidence demonstrating that material factual issues remain and that he will be able to satisfy his evidentiary burden of proof at trial.

According to La. C.C. art. 3024, both the mandate and the authority of the manda-tary terminate upon the interdiction of the mandatary. La. C.C. art. 3032 states that upon termination of the mandate, unless this obligation has been expressly dispensed with, the mandatary is bound to account for his performance to the principal.

Notwithstanding allegations of fraud and deceit made by Conner, the record shows a valid judgment of full interdiction, which under the law terminated any previous power of attorney. A full interdict lacks the capacity to make a juridical act, except as otherwise provided by law. La.C.C. art. 395. Conner failed to come forth with proof that an accounting had been expressly dispensed with at any time Rby the principal, Mrs. Graffagnino. Ms. Turk was named curatrix in the interdiction and as such, had the right to demand an accounting on Mrs. Graffagnino’s behalf.

Turk carried her burden of proof that there was no question of material fact and that she was entitled to judgment as a matter of law. Accordingly, we affirm the summary judgment finding that Conner was no longer authorized to act on behalf of Mrs. Graffagnino and ordering an accounting for his term as mandatary.

AFFIRMED.

      . Magic Moments Pizza, Inc. v. Louisiana Restaurant Ass’n., 02-160 (La.App. 5 Cir. 5/29/02), 819 So.2d 1146, 1149; Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636.

      . Susananbadi v. Johnson, 97-91 (La.App. 5 Cir. 9/17/97), 700 So.2d 886.

      . LSA-C.C.P. art. 966; Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

      . Perricone v. East Jefferson General Hosp., supra.

      . LSA-C.C.P. art. 966; Black v. Avondale Industries, Inc., 00-1511 (La.App. 5 Cir. 3/28/01), 783 So.2d 505, 508.