author: PLEUS, J.

text:
    Karen B. VANEK, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-2373.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Karen B. Vanek, Ocoee, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Vanek appeals a final order of the Unemployment Appeals Commission (“UAC”) reversing the decision of the appeals referee who granted her unemployment benefits. We reverse.

Vanek filed a claim for unemployment benefits, which was denied after it was determined that she quit her job without good cause. Vanek appealed that decision and a hearing was held before an appeals referee. At the hearing, Raymond Burton testified as a representative of The Pantry, Inc., Vanek’s former employer. Burton stated that Vanek was a sales associate who last worked on Thursday, February 14, 2002. He confirmed that Vanek was scheduled to work the week of February 15 to 21, 2002. Burton stated that on February 21, “we discharged her because we had not heard from her.”

Virginia Calhoun, the store manager, testified that Vanek came in around 10 p.m. on February 14, but left shortly after midnight saying she did not feel well. Calhoun scheduled Vanek to work the week of February 15 to 21 and “terminated her because she didn’t show up.” On cross-examination, Calhoun denied receiving a phone message on February 15 asking her to return Vanek’s phone call.

Vanek testified on her last night of work, she went home in the middle of her shift because she felt sick. She told Barbara, the assistant manager trainee, she had to leave. Barbara responded, “I cannot guarantee you will have a job if you leave.” Vanek went home sick, but called the store the next day and left a message for the manager to call her back. When she did not hear back from the manager, she believed she had been fired. On cross-examination, Vanek admitted she did not think an assistant manager trainee had the power to fire her, but stated that was why she called the next day to speak to the manager. The appeals referee found that Vanek was entitled to receive unemployment benefits on the grounds that she had been terminated from her employment for reasons other than misconduct. The UAC reversed the decision of the appeals referee holding that it was not reasonable for Vanek to believe that she was fired based on the statement of the assistant manager trainee. Instead, the UAC found that the evidence demonstrated that Vanek voluntarily quit without good cause.

On appeal, Vanek argues that she was fired and did not quit. Whether an employee has left voluntarily and without good cause is a question of fact within the province of the appeals referee. See Grossman v. Jewish Center of Greater Fort Lauderdale, Inc., 704 So.2d 714 (Fla. 4th DCA 1998); Verner v. Unemployment Appeals Com’n, 474 So.2d 909 (Fla. 2d DCA 1985). If there was competent, substantial evidence to support the referee’s finding, the UAC should have affirmed. See Volk v. Florida Unemployment Appeals Com’n, 673 So.2d 574 (Fla. 4th DCA 1996) (holding that “while an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact as long as those findings are supported by competent, substantial evidence in the record”); see also Anderson v. Unemployment Appeals Com’n, 822 So.2d 563 (Fla. 5th DCA 2002).

We find competent, substantial evidence to support the referee’s findings. Both Burton and Calhoun testified Vanek was fired. Vanek testified she did not quit, but instead thought she had been fired when her manager did not return her call. After hearing this testimony, the referee concluded that Vanek was fired and that her belief she had been fired was reasonable based on the fact that the manager did not return her call.

The UAC reweighed this evidence, concluding that Vanek’s belief that she had been fired was unreasonable because she knew the assistant manager trainee did not have the authority to fire her. That was not the basis for the referee’s decision. Instead, Vanek testified she did not rely on the statement of the assistant manager in training, but called the store the next day and left a message for the manager to call her. Only when the manager did not return her call did she believe she had been fired. That is the evidence on which the referee based his decision.

As for the referee’s conclusion that the termination was not due to misconduct, the UAC does not challenge this finding since they concluded that Vanek quit. The referee’s conclusion appears to be correct. He cited Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000), which held that the employer must prove a “serious and identifiable pattern of excessive absenteeism.” There was no such proof in this case. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SAWAYA and TORPY, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, C.J.

license: Public Domain

text:
    Larry SUBLETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2223.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Larry Sublett appeals an order denying his motion for specific performance of his plea bargain or extraordinary relief. We affirm.

After serving his sentence, Sublett was retained in custody pursuant to the Jimmy Ryce Act. He brought the motion at issue to force the state to comply with the agreement under which he pleaded guilty to a sexual battery and other crimes in exchange for a sentence of 25 years. Three days after he filed his initial brief, the supreme court issued Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d -, 2002 WL 31728885(Fla. Dec. 5, 2002), in which the court stated, “any bargain a defendant may strike in a plea agreement in a criminal case could have no bearing on a subsequent involuntary commitment under the Jimmy Ryce Act.” We affirm the order denying relief based on Murray. See also Satz v. Runion, 888 So.2d 689 (Fla. 4th DCA 2003).

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

      . §§ 394.910-.931, Florida Statutes (2000).


author: | .PER CURIAM.

text:
    STATE of Louisiana v. Issac J. FIELDS, Jr.
    No. 2002-K-0388.
    Supreme Court of Louisiana.
    March 18, 2003.
    Rehearing Denied June 6, 2003.
    Robert S. Glass, John W. Reed, New Orleans, for Applicant.
    Richard P. Ieyoub, Attorney General, Paul D. Connick, District Attorney, Alan D. Alario, II, Terry M. Boudreaux, William C. Credo, III, Gretna, Andrea F. Long, Churita H. Hansell, for Respondent.
   | .PER CURIAM.

With the question of defendant/relator’s guilt turning at trial on whether he was aware that his girlfriend purchased sound equipment for him with a forged check, the Fifth Circuit upheld the trial court’s verdict of attempted forgery on grounds that relator possessed the requisite guilty knowledge to support his conviction as a principal. State v. Fields, 01-0862 (La.App. 5th Cir.12/12/01), 801 So.2d 1278 (“[T]he judge found the circumstances excluded every reasonable hypothesis of innocence, including the defense theory of the case, that defendant did not know that his girlfriend was purchasing the equipment for him with a forged check.... [W]e cannot find error in the determination of the trial judge that the evidence shows that defendant and his girlfriend together planned to, and did, defraud Mobile One for the purpose of obtaining ster: eo equipment without paying for it.”).

The court of appeal reached that conclusion in the following context. Around 12:30 p.m., on July 11, 1998, relator selected amplifiers and a speaker for his Chevy Tahoe from Mobile One Auto Center and informed the salesman, [ ¿Thomas Henderson, that he would return later with his girlfriend, who would pay for the items with a check. Relator returned at 5:00 p.m. and his girlfriend arrived shortly after him. While relator waited at a nearby counter, the girlfriend gave Mr. Henderson a check in the amount of $1109.04 along with her driver’s license. After the salesman received approval for the check, relator and his girlfriend left the store with the equipment. Relator then returned to the store the next day and bought additional equipment which he also had installed in his car; however, relator came back the following week and exchanged the speaker he had previously purchased. Shortly thereafter, the loss prevention manager for Mobile One learned that the check was forged and written against the account of Ann Buck-waiter who was robbed of her checkbook at approximately 1:00 p.m. on July 11, 1998, the same day relator’s girlfriend purchased the audio equipment. However, relator was not arrested until nine months later, in April, 1999, at which time he tendered full payment to Mobile One through counsel. The state subsequently charged the defendant by bill of information with forgery. La.R.S. 14:72. Following a bench trial, the trial court found the defendant guilty of attempted forgery.

When a trier of fact has reasonably rejected the hypothesis of innocence proposed by the defense at trial, the defendant is guilty unless an alternative hypothesis is sufficiently reasonable that rational jurors must have a reasonable doubt as to guilt. State v. Captville, 448 So.2d 676, 680 (La.1984). However, we | ¡¡granted relator’s application for review because a rational trier of fact could not reasonably have inferred guilty knowledge merely because his girlfriend wrote and transferred the check and because relator would benefit from her actions. The due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) does not permit a trier of fact to speculate when the evidence “is such that reasonable jurors must have a reasonable doubt.” State v. Lubrano, 563 So.2d 847, 850 (La.1990)(internal quotation marks and citations omitted). We now reverse.

Forgery is defined in R.S. 14:72 as “the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy. Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.” Additionally, the state charged that the defendant was a principal to the crime. A principal is anyone “concerned in the commission of a crime, whether present or absent ... whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” R.S. 14:24; State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223, 1224 (“Acting in concert each man then became responsible not only for his own acts but for the acts of the other”).

At trial, the state conceded that relator neither forged the check nor transferred the check; instead, the prosecution maintained that relator was guilty as a principal because his girlfriend had gone to the store at his request and thereafter conducted a fraudulent transaction inuring to his benefit. The state further contended that relator’s failure to name his girlfriend and bring her into court constituted evidence of his guilty mind. However, the fact that relator’s girlfriend |4wrote the check, and that relator would benefit from her actions, did not automatically make him a principal to her crime. See State v. Long, 94-0092, p. 6 (La.9/16/94), 643 So.2d 132, 135 (“[A] trier of fact’s determination that a wife aided and abetted the commission of the charged offense by her husband must rest upon more than mere speculation based upon guilt by association arising from relational status ... motive cannot alone provide the basis for determining that one spouse has ‘concerned’ himself or herself in the fraudulent acts of the other spouse simply by reason of their common interests arising from their relational status.”); see also State v. Pierre, 93-0893, p. 4 (La.2/3/94), 631 So.2d 427, 428 (“Only those persons who knowingly participate in the planning or execution of a crime are principals .... [mjere presence at the scene is therefore not enough to ‘concern’ an individual in the crime.”); cf. State v. Harrison, 505 So.2d 783, 792-793 (La.App. 2d Cir.1987)(knowledge that co-defendant was not authorized to use the signature machine to issue the checks would make the defendants principals to the forgery committed by him).

In State v. Tomlinson, 457 So.2d 651, 654 (La.1984), this Court held that the “mere possession of a forged writing does not prove beyond a reasonable doubt that the possessor has knowledge of the forgery and intent to defraud.” Here, the state’s evidence failed even to show that relator had possession of the check; instead, the evidence pointed to relator’s lack of involvement in the obtaining, making, and transfer of the forged check. The evidence revealed that relator was never physically in a position to witness the fraudulent nature of his girlfriend’s transaction because he was leaning against a counter about five to 10 feet behind his girlfriend when she made the purchase. Furthermore, the salesman testified that relator did not check the invoice bearing Ann Burkhalter’s name; instead, the I ^defendant carried the equipment while his girlfriend took the invoice. Even more compelling is the fact that at the time relator informed the salesman that his girlfriend would be purchasing the equipment for him by check, Ms. Burkhalter had not yet been robbed. Thus, it is difficult to credit relator with knowledge of his girlfriend’s plan in light of the fact that the check used to purchase the audio equipment was still in the robbery victim’s possession when the defendant first visited the store.

In addition, that relator, a frequent customer at Mobile One, would participate in a crime at a store which had access to his name, address, and telephone number seems entirely at odds with the state’s theory of collusion. Moreover, relator’s behavior after the forged check was issued undercuts the state’s claim of guilty knowledge on his part. Certainly, relator showed no interest in avoiding detection by returning to the store on two separate occasions following his girlfriend’s purchase of the equipment. Assuming relator was aware of the fraudulent transaction, at least two working days had passed after the forged check was issued thereby leaving relator at risk for arrest by continuing to do business with Mobile One. As such, relator’s actions appear inconsistent with knowledge of the fraud committed by his girlfriend.

Nor was there any evidence confirming that the invoice involving the girlfriend was ever pulled up and brought to relator’s attention during his subsequent transactions. Although the installer from Mobile One indicated that it was standard practice to pull up the previous invoice, the salesman who helped relator on his final visit to the store indicated otherwise. In fact, the salesman testified that given relator’s frequent appearance at the store, there was no need to pull up an invoice because relator’s name would be stored in the computer. _[sFinally, after relator was advised of the forgery, he promptly tendered full payment to Mobile One, an act which, given all of the other circumstances in the present case, also tends to negate an intent to defraud the victim. See State v. Andrus, 250 La. 765, 199 So.2d 897 (1967)(“[T]hat the accused surrendered or restored the property to the owner or made payment for it may under appropriate circumstances negative felonious intent.”).

Relator’s apparent contrition did not extend to naming the woman who signed ánd transferred the forged check but the state presented no evidence at trial that relator learned of the forgery at any time before his arrest, some nine months after the commission of the crime. Following his arrest, the existence of relator’s Fifth Amendment privilege nullified any eviden-tiary weight that might otherwise attach to his silence as a reliable basis for inferring that he had acted in concert with this female to defraud Mobile One. In this respect, the trial court properly discounted relator’s post-arrest silence as substantive evidence of his guilt. Tomlinson, 457 So.2d at 653 (“Of course, the fact that the defendant did not testify [about the circumstances under which he obtained a forged unemployment check] cannot be used against him.”).

The' trial court viewed differently the failure of relator to produce his erstwhile female companion in court as a witness for the defense. However, defense counsel pointed out that some two years after the fact relator was not necessarily in a position to produce the woman in court. Cf. La.R.S. 15:432 (legal presumption that evidence in control of a party but not produced by him or her was not produced because it would not have aided him). Moreover, even assuming that relator could call her as a witness, only the overly sanguine assumption that she would then waive her own Fifth Amendment privilege and provide a judicial |7confession to the Mobile One forgery gave any weight to any inference arising from her absence that she and relator had worked in concert to defraud Mobile One. As defense counsel suggested, relator’s failure to identify the woman to the authorities after he learned of the forgery might implicate him in another crime, see, e.g., R.S. 14:25 (accessory after the fact) but it did not provide reliable evidence of his intent at the time the woman wrote and transferred the check.

Consequently, relator’s actions before and after the check was issued support the defendant’s claim of unawareness rather than the state’s conjecture of conspiracy. Cf. State v. Ford, 473 So.2d 931, 934 (La.App. 3d Cir.1985), writ denied, 477 So.2d 1123 (evidence that defendant lived with check writer, that he personally witnessed check writer sign her father’s name to check, that check was made out to defendant for wages, that defendant had never worked for check writer’s father nor for father’s restaurant from whom check was made out, and that funds from check were used to purchase groceries and liquor for defendant and his roommates was sufficient to prove defendant’s knowledge that check was forged, for purposes of sustaining conviction for attempted forgery); State v. Smith, 461 So.2d 417, 420 (La.App. 4th Cir.1984)(defendant’s intent to defraud and his conviction as principal to attempted forgery was supported by sufficient evidence, when defendant was with another man at check-cashing booth when other man signed check “Jose Gonzales,” defendant identified other man as Jose Gonzales, other man told officer that defendant gave him the check, defendant and other man knew each other, and defendant told other man, “Shut up. You only sinking us deeper” when the other began explaining defendant’s involvement). Thus, the trial court’s apparent compromise verdict of attempted forgery was not supported by the evidence. Cf. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982).

|sWhile there is abundant suspicion that defendant bears some criminal responsibility, suspicion alone is insufficient to support a conviction. A conviction must rest upon guilt proven beyond a reasonable doubt. The state’s evidence, while casting substantial suspicion on the defendant, fails to meet the constitutionally mandated burden of proof.

Accordingly, the decision of the court of appeal is reversed, relator’s conviction and sentence for attempted forgery are vacated, and he is ordered discharged from the present prosecution.

DECISION OF THE COURT OF APPEAL REVERSED; RELATOR’S CONVICTION AND SENTENCE VACATED: RELATOR DISCHARGED FROM PRESENT PROSECUTION.

      . The only evidence of when relator was formally arrested for the Mobile One offense appears on the face of the bail bond filed into the record. The date of arrest is listed as April 6, 1999. Defense counsel explained during closing argument that relator had been arrested on unrelated charges in Orleans Parish after the offense in the present case and his arrest for the Mobile One forgery apparently followed after the charges in Orleans Parish had been resolved.


text:
    Lawrence A. JACOBS, v. Burl CAIN, Warden, Louisiana State Penitentiary, and the State of Louisiana.
    No. 2002-KP-1717.
    Supreme Court of Louisiana.
    March 21, 2003.
   hORDER

Granted in part. The defendant’s case was transferred from juvenile court to the district court where he pled guilty to one count of aggravated battery. We construe defendant’s argument that the district court lacked jurisdiction to accept his guilty plea to aggravated battery as a challenge to the facial validity of La.Ch.C. art. 305(B)(2)(j), which purports to authorize the transfer of a juvenile charge of aggravated battery committed with a firearm from the juvenile court to the district court. The authority to transfer any juvenile matter to the district court stems from La. Const. art. V, § 19, which allows the legislature to except certain enumerated crimes from otherwise required “special juvenile procedures,” including “a second or subsequent aggravated battery.” (Emphasis added.) However, the defendant was not charged with a second or subsequent aggravated battery. The constitutionality of La.Ch.C. art. 305(B)(2)(j) is a matter in the first instance for the district court to consider, see State v. Brewster, 00-1266 (La.6/30/00), 764 So.2d 945, and the court may do so even when the jurisdictional challenge arises only in the context of postjconviction2 proceedings. See, e.g., State ex rel. Johnson v. Blackburn, 384 So.2d 402, 404 (La.1980); State ex rel. Moore v. Warden, 308 So.2d 749, 752 (La.1975).

Accordingly, this case is remanded to the district court for purposes of providing defendant with the opportunity to plead specifically the unconstitutionality of La. Ch.C. art. 305(B)(2)(j). Thereafter, the trial court shall reconsider relator’s challenge to the validity of his aggravated battery conviction as a jurisdictional matter under La. Const, art. V, § 19. We pretermit consideration of defendant’s additional claim that ineffective assistance of counsel rendered his guilty plea to aggravated battery involuntary pending resolution of the constitutional issue in the district court.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    CAPITOL CITY TOWING & RECOVERY, INC.; Blackjack Towing, Inc.; Tow Power, Inc.; and Yvonne Reed v. STATE of Louisiana, through the DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, Office of State Police-Towing & Recovery Unit; Office of State Police-Troop A; and Sgt. R. Wayne Ryland.
    No. 2003-CA-0075.
    Supreme Court of Louisiana.
    March 21, 2003.
   PER CURIAM.

This matter involves a direct appeal to this court under La.Const.art. V, § 5(D) from a judgment of the district court declaring certain statutes and administrative rules and regulations are unconstitutional. Our review of the record indicates the district court’s holding is clearly rooted in the premise that the statutes and administrative rules and regulations are preempted by federal law. The issue of federal preemption is a matter of statutory construction, i.e., a determination of whether the statutes and administrative rules and regulations conflict with a federal statute. No constitutional issues are involved in this determination. City of Baton Rouge v. Goings, 95-2542 (La.12/13/96), 684 So.2d 396. Accordingly, we have no jurisdiction over this direct appeal under La.Const.art. V, § 5(D).

The case is transferred to the court of appeal for consideration on the merits.


author: liPER CURIAM.

text:
    STATE of Louisiana v. Deidre Antoinette PIERRE.
    No. 2002-K-2665.
    Supreme Court of Louisiana.
    March 28, 2003.
   liPER CURIAM.

Writ Granted; Conviction and Sentence Reinstated; Case Remanded. Although it remains the preferred method for the district court to advise a defendant of her right to trial by jury in open court before obtaining a waiver, such a practice is not statutorily required. See La.C.Cr.P. art. 780; State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Muller, 351 So.2d 143, 146-47 (La.1977). Likewise, it is preferred but not necessary, for the defendant to waive her right to jury trial personally. State v. Wolfe, 98-0345, pp. 6-7 (La.App. 4th Cir.4/21/99), 738 So.2d 1093, 1097. Counsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently. Id.; Kahey, 436 So.2d at 486-87.

In the instant case, the record reflects that counsel waived a jury trial on the defendant’s behalf. On the second day of trial, the district court memorialized the defendant’s earlier waiver in her presence. At this time, defense counsel stated that he and his client had discussed the waiver at length and on several occasions, and | p.that both agreed to the waiver. In these circumstances, the court of appeal erred in its determination that the defendant did not waive her right to a jury trial knowingly and intelligently.

Accordingly, we reverse the court of appeal, reinstate the defendant’s conviction and sentence, and remand the case to the court of appeal to consider the defendant’s remaining claims.


author: LPER CURIAM. | jWEIMER, J.,

text:
    STATE of Louisiana, v. Milton Tess PATIN.
    No. 2002-K-1126.
    Supreme Court of Louisiana.
    April 9, 2003.

      Richard P. Ieyoub, Attorney General, Richard J. Ward, Jr., District Attorney, Alfred P. LeBlanc, Jr., Scott S. Stassi, for Applicant.
    Robert H. Hester, Baton Rouge, for Respondent.
   LPER CURIAM.

Charged by grand jury indictment with forcible rape in violation of La.R.S. 14:42.1, defendant-respondent entered a guilty plea to the lesser offense of carnal knowledge of a juvenile. La.R.S. 14:80(A)(1). At the time of the commission of the offense in October of 1998, La.R.S. 15:544(B) permitted a trial court to waive the otherwise mandatory registration and notification requirements for sex offenders in La.R.S. 15:542, upon a clear and convincing showing by a defendant that compliance with the statute would not serve the purposes of the law, ie. “the paramount governmental interest” of protecting “the public from sex offenders, sexually violent predators, and child predators.... ” La.R.S. 15:540(A).

However, by the time respondent entered his guilty plea on November 3, 2000, the legislature had repealed La.R.S. 15:544(B) and thereby made the registration and notification requirements of La. R.S. 15:542 mandatory for all sex offenders. See 1999 La. Acts 594. Respondent nevertheless petitioned the trial court to relieve him of the duty to register and provide notice as a sex offender, not | ^only as a matter of La.R.S. 15:542, but also as a matter of La.C.Cr.P. art. 895(H)(1) and (H)(2), which required at the time of respondent’s sentencing in May, 2001, that a court placing a defendant on probation for. a sex offense order the offender to comply with a detailed set of notification requirements. Respondent relied on the provisions of (former) La.C.Cr.P. art. 895(H)(5), which authorized a trial court to grant a petition by a defendant convicted of carnal knowledge of a juvenile in violation of La.R.S. 14:80(A)(1) and to waive compliance with various conditions of probation set forth in La.C.Cr.P. art. 895(H), including the sex offender notification requirements of subsections (H)(1) and (H)(2). Respondent’s motion referred to both La.R.S. 15:542 and La.C.Cr.P. art. 895(H), and asked broadly that the court relieve him “of his duty to register and notify.”

After conducting a contradictory hearing with the state, the trial court granted respondent’s petition and ruled that it was “not going to require him to publish according to the statute.” The state appealed that ruling to the extent that the trial court’s order appeared to reheve respondent of his duty to register and provide notice as a matter of La.R.S. 15:542 as well as La.C.Cr.P. art. 895(H). The court of appeal upheld the trial court’s order, observing in pertinent part that “pursuant to Article 895, the trial court had the discretion to relieve defendant of the specific probation condition that he comply with the sex offender registration and notification requirements. Accordingly, the State’s argument lacks merit.” State v. Patin, 01-1782, p. 5 (La.App. 1st Cir.3/28/02), 813 So.2d 652, 655. The court of appeal purported to apply the general rule of statutory construction that when “two statutes deal with the same subject matter, they should be harmonized if possible. But if there is a conflict, the statute specifically directed to the matter at 13issue must prevail as an exception to the statute more general in character.” Patin, 01-1782 at 4-5, 813 So.2d at 655 (citation omitted).

This case is complicated by legislative amendments to La.C.Cr.P. art. 895(H) which occurred shortly after respondent’s sentencing in May of 2001. By 2001 La. Acts 1206, the legislature rewrote La.C.Cr.P. art. 895(H) and redesignated the waiver provision of subsection (H)(5) as subsection (H)(4). In addition, the legislature rewrote subsections (H)(1) and (H)(2), eliminating the detailed list of notification requirements incorporated into the previous version of the statute and simplifying matters by cross-referencing the provisions of La.R.S. 15:540-49. La.C.Cr.P. art. 895(H)(1) now provides that when a court places a defendant on probation for a sex offense, it shall “order the offender to register as a sex offender and to provide notification in accordance with the provisions of R.S. 15:540 et seq.” To the extent that La.C.Cr.P. art. 895(H)(1) now requires a sex offender to register as well as to provide notice, the present statute is broader than former versions which required only notification as a condition of probation. However, the waiver provisions in (present) La.C.Cr.P. art. 895(H)(4) have remained unchanged since their enactment in 1995 as former La.C.Cr.P. art. 895(H)(5). See 1995 La. Acts 1291.

Because the analysis remains the same under the pre- as well as post-2001 amendments, we will refer to the law as presently written. We begin, “as we must, with the language of the statute.” Bailey v. United States, 516 U.S. 137, 144, 116 RS.Ct. 501, 506, 133 L.Ed.2d 472 (1995); see also State v. Barbier, 98-2923, p. 3 (La.9/8/99), 743 So.2d 1236, 1238 (“It is well established that the task of statutory construction begins with an examination of the language of the statute itself.... When the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.”). According to its plain terms, La.C.Cr.P. art. 895(H)(4) permits a trial judge to relieve a sex offender convicted of carnal knowledge of a juvenile under La.R.S. 14:80(A)(1) of the duty to register and notify under La.R.S. 15:542 as a condition of probation otherwise imposed by La.C.Cr.P. art. 895(H)(1). The history of La.C.Cr.P. art. 895(H)(4) underscores the nature of this waiver provision. Before the legislature rewrote the statute in 2001, La.C.Cr.P. art. 895(H) had contained its own separate, detailed set of notification requirements as conditions of probation. The appellate court therefore properly concluded that the trial judge had the authority to waive sex offender notification procedures required by La.C.Cr.P. art. 895(H)(1) as specific conditions of probation, although those provisions now cross-reference La.R.S. 15:540-49, as to which waiver is no longer possible for any sex offender.

However, we granted the state’s application to clarify that respondent must still comply with the registration and notification requirements of R.S. 15:540-49 because the failure to do so constitutes not simply a breach of a probation condition but an independent substantive criminal offense, either a one-year misdemeanor for the first conviction, or a three-year felony for a second or subsequent conviction. See La.R.S. 15:542(E)(1) and (E)(2). We find no indication from the language of La. C.Cr.P. art. 895(H)(4) or history of La. C.Cr.P. art. 895(H)(1) that the legislature has ever intended a broader scope for the waiver |Rprovisions of the former than the specific requirements of the latter. Repeal of the general waiver provision in La.R.S. 15:544(B) in 1999 suggests just the opposite. In fact, until 2001, La.C.Cr.P. art. 895(H)(1) never imposed a registration requirement and, to that extent, former La.C.Cr.P. art. 895(H)(5) never purported to waive that requirement.

Given the remedial purpose of Louisiana’s sex offender registration and notice law in La.R.S. 15:540-549, the law in effect at the time of sentencing, which eliminated any possibility of waiver for any sex offender, may apply to respondent without violating the Ex Post Facto Clauses of the federal and state constitutions, although it is more exacting than the law in effect when respondent committed his crime. See State ex rel. Olivieri v. State, 00-0172, pp. 19-20 (La.2/21/01), 779 So.2d 735, 749. A defendant in respondent’s position who has obtained a waiver under La.C.Cr.P. art. 895(H)(4) may not have his probation revoked for failure to abide by the requirement of La.C.Cr.P. art. 895(H)(1) that he register and give notice as a sex offender. For present purposes, given the cross-reference to La.R.S. 15:540-19 in La.C.Cr.P. art. 895(H)(1), we will assume also that he may not have his probation revoked on grounds that by failing to comply with Louisiana’s sex offender registration and notification requirements, he has failed to abide by the fundamental requirement of all probationary terms that he generally refrain from criminal conduct. La.C.Cr.P. art. 895(A)(1). However, respondent’s probationary status in the present case has no bearing on whether his failure to comply with the registration and notification provisions of La.R.S. 15:542 may expose him to additional penalties for violation of the law. The awkward asymmetry of present law in this regard is a matter for the legislature to address.

[^Accordingly, the judgment of the court of appeal is affirmed to the extent that it upholds the trial court’s decision to relieve respondent of the specific condition of probation imposed by La.C.Cr.P. art. 895(H)(1) that he comply with the sex offender requirements of La.R.S. 15:542. However, any implications arising from the court of appeal opinion that a waiver granted under La.C.Cr.P. art. 895(H)(4) may exempt a probationer from the duty to comply with the registration and notice requirements of La.R.S. 15:542, or risk incurring additional criminal sanctions, are expressly disavowed.

JUDGMENT OF COURT OF APPEAL AFFIRMED IN PART, MODIFIED IN PART.

WEIMER, J., concurs and assigns reasons.

| jWEIMER, J.,

concurring.

The waiver provisions of LSA-C.Cr.P. art 895(H)(4) explicitly apply only to conditions of probation. In limited circumstances, a trial court may waive the sex offender registration requirements as a condition of probation imposed by LSA-C.Cr.P. art. 895(H)(1) under the waiver provisions of LSA-C.Cr.P. art. 895(H)(4). However, the court has no authority to waive altogether the registration requirements of LSA-R.S. 15:542, violation of which is a criminal offense. In 1999, the legislature deleted a comparable waiver provision from LSA-R.S. 15:544. The result is an untidy state of affairs from a practical standpoint.

If a probationer granted a waiver under LSA-C.Cr.P. art. 895(H)(4) fails to register under LSA-R.S. 15:542, the trial court may not revoke probation on the grounds that a condition of probation has been violated. However, the probationer risks revocation under the provisions of LSA-C.Cr.P. art. 859(A) (requiring that the probationer refrain from criminal conduct) because the failure to register under LSA-R.S. 15:542 constitutes an independent criminal offense. The trial court cannot decriminalize behavior via a waiver. Consequently, as a practical matter, the waiver provisions of LSA-C.Cr.P. art. 895(H)(4) cannot be utilized.

      . In their inception, La.R.S. 15:542, see 1992 La. Acts 388, was purely a registration statute and La.C.Cr.P. art. 895(H), see 1992 La. Acts 962, was purely a notification statute. La.R.S. 15:542 then became a registration and notification statute in 1995, see 1995 La. Acts 928; La.C.Cr.P. art. 895(H) became a notification as well as registration statute in 2001 when the legislature rewrote subsection (H)(1) to cross reference La.R.S. 15:540-49.

      . Presumably, the legislature afforded the trial court discretion to waive the registration requirement for the offense of carnal knowledge, as it relates to probation, in a matter which involves a youthful offender.


author: JjPER CURIAM.

text:
    STATE of Louisiana v. Earl DABNEY.
    No. 2002-K-0934.
    Supreme Court of Louisiana.
    April 9, 2003.

      Richard P. Ieyoub, Attorney General, Earl B. Taylor, District Attorney, Alisa A. Gothreaux, Donald J. Richard, Opelousas, for Applicant.
    William T. Barstow, Opelousas, Edward K. Bauman, Lake Charles, for Respondent.
   JjPER CURIAM.

The court of appeal ease reversed defendant-respondent’s convictions and sentences for possession of a firearm by a convicted felon (La.R.S.14:95.1) and possession of a firearm while in possession of controlled substances (La.R.S.14:95(E)), on grounds that the state’s case failed to negate the exculpatory account offered by respondent that he did not intend to exercise any dominion or control over the firearm subsequently retrieved by the police from under the driver’s seat of a vehicle he had borrowed from his girlfriend, once he realized the gun was in the car. State v. Dabney, 01-1110 (La.App. 3rd Cir.2/27/02), 809 So.2d 1196. However, the court of appeal could reach that conclusion only by overriding the rational credibility choices made by the jurors in returning their verdicts. Cf. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983)(“It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 12781, 61 L.Ed.2d 560 (1979)] standard of review.”). We therefore granted the state’s application to reverse the decision below.

The undisputed evidence at trial established that on the evening of September 4, 1997, the police removed a .45 caliber automatic, a gun case, a clip, and nine extra cartridges from beneath the driver’s seat of a vehicle parked in the middle of the 700 block of Kim Drive in Opelousas, Louisiana. However, the circumstances under which the police found the weapon and accounted for its ownership were sharply disputed. According to Officers Harrison and Brown, they had been on routine patrol with the windows of their cruiser rolled down when the distinct and heavy odor of burning marijuana drew their attention to a group of men gathered between a housing project and a white Toyota parked in the middle of the 700 block of Kim Drive. The officers immediately pulled over in front of the group. As the officers were exiting their vehicle, Sgt. Harrison observed the defendant motion as if “he was putting something in his mouth, and I got down and went up to ask him what it was.” Respondent replied that it was a “blunt” and stuck out his blackened tongue to provide the officer with a view of the partially-smoked cigar. The officer explained to jurors that a blunt is an ordinary cigar opened to interlace the tobacco with marijuana.

While Sgt. Harrison questioned respondent about the blunt, Officer Brown noticed a bag of marijuana on the ground in between respondent’s feet. When Brown picked up the marijuana, the respondent admitted, “It’s mine.” Respondent also admitted that the white Toyota parked next to him belonged to his girlfriend, Tierra Jones, and later volunteered that he had driven the car to the location on Kim Drive. Respondent consented to a search of the vehicle but cautioned Sgt. Harrison she would find a .45 caliber automatic under the driver’s seat. The officer [3went into the vehicle and retrieved the weapon and its associated paraphernalia from the location described by respondent.

According to Opelousas Police Chief Larry Caillier, when Tierra Jones arrived at the stationhouse, after receiving notice of respondent’s arrest, she expressed surprise to learn that the gun had been retrieved from the vehicle. Jones informed him that “she had bought the gun for house protection and she didn’t know that the gun had left the house.” Chief Caillier recalled that Jones appeared “really heartbroken of [respondent] being arrested and being involved with drugs and a weapon.”

Respondent’s version of the facts differed greatly from the accounts given by the state’s witnesses. He testified that after borrowing Tierra Jones’s vehicle, he picked up a friend and drove him to his mother’s residence located on Kim Drive. While the friend went inside, respondent remained at the curb speaking with a group of friends gathered in front of Jones’s vehicle. In the course of that conversation, cut short when the police arrived approximately 15 minutes later, respondent went into the car to retrieve a cassette tape from under the driver’s seat. At that moment, respondent told jurors, he saw a gun case under the seat and immediately knew he would be in trouble if he got back in the car because the terms of his probation for a prior unrelated offense prohibited possession of firearms. Respondent maintained that he had no knowledge of what was under the driver’s seat in Jones’s car until he reached under the seat for the cassette tape. He had not even known that Jones had purchased the weapon, as she told him only that she had placed a gun on layaway. Respondent informed jurors that once he realized the gun was in the car, if he had “had any intentions of leaving, it was surely not in that car.” Jeremiah Johnson, one of the members of the group standing out on Kim Drive, corroborated the circumstances under which | ¿respondent claimed to have discovered the weapon. According to Johnson, respondent came out of the car holding the cassette tape and “talkin’ ’bout his parole.”

Moments later, Officers Harrison and Brown arrived on the scene. Respondent testified that Officer Harrison immediately challenged him to explain a burning smell in the air and to show her what he had in his mouth. However, Harrison did not order him to open his mouth and respondent did not inform the officer that he had been smoking a blunt. As for the plastic bag of marijuana, Officer Brown circled the patrol unit, walked over to him, held out his hand, and told him, “Take it.” Respondent refused but found himself cited for possession of marijuana. Respondent flatly denied in his testimony that he had been smoking marijuana or that the plastic bag of marijuana had belonged to him. Johnson also denied that respondent had been smoking marijuana before the officers arrived or that the smell of marijuana had been hanging in the air. He further testified that the plastic bag had not been visible anywhere on the ground before Officer Brown bent down and came up with it in his hand.

For her part, Tierra Jones denied informing Chief Caillier that she had purchased the weapon for home defense and therefore had been surprised that the officers had found the gun in her car. Jones testified that she had purchased the gun to protect herself when making large cash deposits at night as part of her job. Jones also stated that since her purchase of the weapon on August 25, 1997, she always kept it “underneath the seat in the car.” She had, however, forgotten about the weapon when she gave respondent her car on the day of his arrest to use while she was at work because his own vehicle was in the shop for repairs. “If I would’ve known,” Jones told jurors, “he would’ve never got the car.”

|Jn reversing respondent’s conviction on both counts, the court of appeal characterized as “uncontroverted” the circumstances under which respondent discovered the gun in Jones’s car. It took a similar view of respondent’s subsequent disavowal, as corroborated by the testimony of Jeremiah Johnson, of any intent to exercise dominion or control over the weapon by taking the wheel of the Toyota again at the risk of jeopardizing his probationary status. What remained of the state’s case was therefore only respondent’s “mere acknowledgment of the gun being inside the car,” an insufficient basis “to prove the intent or guilty knowledge necessary to demonstrate constructive possession [of the weapon][on either count].” Dabney, 01-1110 at 8-9, 809 So.2d at 1202.

The court of appeal erred by substituting its appreciation of the evidence at trial for that of the jurors when it concluded that the state had failed to prove respondent’s dominion and control over the gun sufficient to place it in his constructive possession. State v. Mose, 412 So.2d 584, 585 (La.1982); State v. Day, 410 So.2d 741, 743 (La.1982). In fact, critical portions of the defense offered at trial were controverted by the state. Respondent and Johnson both denied any marijuana use, and respondent denied possession of the bag of marijuana found on the scene by Officer Brown. On the other hand, Officers Harrison and Brown unequivocally testified that the heavy odor of burning marijuana had been what first caught their attention about the group of men gathered in the middle of the 700 block of Kim Drive. They subsequently caught respondent attempting to conceal a marijuana blunt in his mouth and Brown retrieved a cellophane bag filled with marijuana from between respondent’s feet. According to the officers, respondent then admitted that the marijuana belonged to him. If jurors accepted the testimony of Officers Harrison and Brown, they could discount entirely the contrary testimony of respondent and Johnson and question | fithe credibility of the rest of their testimony regarding respondent’s discovery of the weapon in Jones’s vehicle.

As to respondent’s exculpatory disclaimer based on his sensitivity to his probationary status, jurors were not specifically informed at trial that respondent’s possession of marijuana was also a violation of his probation. See La.C.Cr.P. art. 895(A)(“When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct. ...”). However, as a matter of their common experience, jurors could find that respondent’s casual and open violation of Louisiana’s drug laws appeared completely inconsistent with his professed concern about his probationary status if he were again to take the wheel of Jones’s car with knowledge of the gun underneath the seat. Respondent had no answer to the prosecutor’s question of why he could not simply have asked one of the group’s members to remove the gun from the car and hold it until Jones reclaimed her property.

Finally, because the defense did not object on hearsay grounds to the testimony of Chief Caillier regarding his conversation with Tierra Jones, his account of her statements on the night of respondent’s arrest became substantive evidence for the jury to consider, as well as evidence of a prior inconsistent statement bearing on the credibility of her in-court testimony that she had purchased the gun for protection on the job and had simply forgotten about it when respondent borrowed her car. State v. Allien, 366 So.2d 1808, 1311 (“In the ordinary case hearsay evidence not objected to constitutes substantive evidence.”).

Under these circumstances, rational jurors could conclude that respondent had lied about his discovery of the weapon and drawn the logical inference from Chief Caillier’s testimony regarding Tierra Jones’s statements to him that without her knowledge respondent had removed the weapon from her home and then |7placed the gun under the seat when he borrowed her car. Rational jurors could also conclude that, even accepting respondent’s account as to his discovery of the gun, his behavior standing next to the vehicle did not constitute an act of divestiture of the weapon, which remained subject to his dominion and control by virtue of its proximity to him in a vehicle in his exclusive possession at the time. See State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074; see also State v. Blache, 480 So.2d 304, 308 (La.1985)(even if a convicted felon’s possession of a firearm is justified as a matter of self defense, he must divest himself of the weapon at the earliest practical opportunity); State v. Tatum, 27,301, p. 4 (La.App. 2nd Cir. 9/27/95), 661 So.2d 657, 661 (“If there is reasonable time for a felon to divest himself of possession of a weapon, no matter how it was obtained, he must do so.”). In either case, the evidence was sufficient on both counts that respondent had constructive possession of the gun. Cf. State v. Blanchard, 99-3439, p. 9 (La.1/18/01), 776 So.2d 1165, 1173 (requiring a nexus between the firearm and the drug offense for purposes of La.R.S. 14:95(E) when the firearm is not in the actual possession of the defendant and not within his or her immediate control).

The decision of the Third Circuit is therefore reversed and this case is remanded to the court of appeal for consideration of respondent’s remaining assignment of error pretermitted on original appeal.

DECISION OF THE COURT OF APPEAL REVERSED; CASE REMANDED FOR FURTHER CONSIDERATION.

JOHNSON, J., dissents.


author: 11 KNOLL, Justice.

text:
    STATE of Louisiana v. James THOMPSON.
    No. 2002-K-0333.
    Supreme Court of Louisiana.
    April 9, 2003.

      Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Scott D. Peebles, for Applicant.
    W. Keith Hurtt, J., for Respondent.
   11 KNOLL, Justice.

The defendant, James Thompson, was originally convicted of two counts of simple possession of heroin. On appeal, the Fourth Circuit affirmed defendant’s conviction and sentence as to count two, but reversed count one. The court of appeal found that the police had lacked reasonable suspicion to initially stop the defendant, and as a result, lacked probable cause for the subsequent arrest and search of the defendant’s vehicle. In response, the State sought writs to this Court. For reasons that follow, we now reverse the court of appeal. We hold that the police officers not only had reasonable suspicion to stop the defendant, but such suspicion ripened into probable cause when defendant furtively threw an object into his car as officers approached. Consequently, because exigent circumstances also existed, the search of defendant’s vehicle was permissible under the “automobile exception” to the warrant requirement.

I «FACTS AND PROCEDURAL HISTORY

On June 17, 1999, defendant was indicted by a grand jury with two counts of possession with intent to distribute heroin, violations of La. R.S. 40:966(A)(1). Each count of the indictment stemmed from separate arrests occurring within one month of each other. On July 14, 1999, a hearing was held in response to defendant’s motion to suppress evidence obtained and statements made to police relating to count one. At the suppression hearing, Sergeant Eddie Selby testified that an untested confidential informant had stated to police that a person he knew as “James,” residing at 2475 North Claiborne Avenue, was responsible for distributing large quantities of heroin. Furthermore, the informant described James’s vehicle as being a brown Delta 88 and also provided a license number. A subsequent check of the license plate revealed that it belonged to a “James Thompson” with an address in New Orleans East.

Based on this information, Selby and other members of the Fifth District Task Force established surveillance of the residence and the targeted vehicle which was parked out front. Selby testified that on the day in question, he observed the defendant exit the residence and remove a white object from his shirt pocket. The defendant then walked to the front passenger side door of the brown Delta 88 and placed the object towards the driver’s side floorboard of the vehicle. Defendant then reentered the residence but soon reappeared holding a small infant whom he placed in the rear seat of the Delta 88. As defendant was about to get into his car, a unknown black male approached and engaged him in a conversation. The conversation led the two men to the sidewalk where an exchange of money was observed. Defendant then walked back to the passenger side of the vehicle, removed something from the floor area, and handed it to the unknown male who walked away from the scene. Defendant got into his car and drove off.

IsSelby further testified that he contacted back-up members of the Fifth District Task Force and requested that the unknown male seen walking away be stopped. In the meantime, Selby and other surveillance officers continued to follow defendant to the 1400 block of Music Street, only two blocks away, where he met with another unknown black male. While observing the two men, Selby was informed by members of his task force that the male seen outside the North Claiborne residence had spotted the officers, placed something into his mouth, and escaped on foot. Selby testified that because of the close proximity between defendant and his residence on Claiborne, he feared the individual could return either to the house or to the location where the defendant was currently located, and therefore elected to stop the defendant.

As to the events that occurred next, Officer Selby testified:

As Officer Young and I approached Mr. Thompson, he was observed — appeared to had tossed something into the vehicle from the back passenger’s side door. We stopped; both officers alighted from the vehicle. Officer Young took Mr. Thompson and the other gentleman that he was speaking with into custody or detained them. I then looked into the passenger’s side door of the vehicle and discovered a white tissue paper that was laying on the floorboard of the vehicle. I recovered it and discovered that it contained 14 packets of tin foil. I examined one of the packets of tin foil and discovered that it was a white powder substance that I believed was heroin based on the color and based on the packaging. Heroin is consistently packaged in tin foil.

Defendant was advised of his constitutional rights and placed under arrest. Officers then informed defendant of their intention to go back to the residence on North Claiborne with a search warrant to determine if there was any other narcotics at the location. During this time, the defendant admitted that the residence was his mother-in-law’s house, and that the address in New Orleans East was where he resided with his mother and stepfather. After the officers drove the defendant back to the house, he indicated that there was more heroin located inside. The officers received a signed consent form to search the house from defendant’s mother-in-law, and with the defendant’s help, discovered the additional heroin along with other contraband, |4such as a scale for weighing and a tablespoon with residue. Defendant was subsequently taken to the Fifth District police station where he gave a full statement about selling drugs.

Based on the testimony of Sergeant Sel-by, the trial court found probable cause had existed to make the arrest and therefore denied both the motions to suppress. On July 26, 1999, following a one day bench trial, the court found defendant guilty of two counts of simple possession of heroin. Immediately after defendant was sentenced to ten years for each count to run consecutively without the benefit of probation, parole, or suspended sentence, the State filed a multiple bill of information charging him as a second offender. The defendant pleaded guilty to the multiple bill and the court vacated the previously imposed sentence as to count one only. Defendant was then resentenced to twenty years at hard labor to run consecutively with the original sentence imposed on count two.

In reversing defendant’s conviction and sentence as to count one, the court of appeal concluded that due to a lack of corroboration, the informant’s tip had been insufficient to form the basis for the stop of the defendant. Among other factors, the court highlighted that the tip stated that the defendant was selling large quantities from his residence, nevertheless, none of the testimony at the hearing or at trial indicated the officers saw any traffic in or out of the house; nothing in the tip indicated that the defendant routinely transported narcotics away from the residence to other locations; and, although defendant was observed in what Sergeant Selby considered a possible drug sale, the transaction was not done in a fashion consistent with any information provided by the untested informant. The court of appeal further rejected the state’s contention that the white napkin was legally seized because it was in “plain view.” The court noted that, according to State v. Hernandez, 410 So.2d 1381 (La.1982), one of the requirements for an object to be lawfully seized under the exception is that it | Kmust be “immediately apparent without close inspection that the items are evidence or contraband,” and nothing in Sergeant Sel-by’s testimony indicated that he immediately recognized “white tissue paper” as narcotics or as typical packaging of narcotics. In the end, the court concluded that “even if Sergeant Selby had reasonable suspicion to conduct a valid Terry stop, we cannot say that the tissue paper is so peculiarly associated with the drug trade that its plain view equates to an association with contraband. A fortiori, in a case where there is no reasonable suspicion for a valid Terry stop, there can be no association of the tissue paper with illegal drugs.”

We granted the State’s writ application to evaluate the correctness of the court of appeal’s findings relating to count one. State of Louisiana v. James Thompson, 02-K-0333 (La.11/18/02), 828 So.2d 1112.

DISCUSSION

Stop of Defendant

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of particular facts and circumstances to justify the infringement on individual’s right to be free from governmental interference. State v. Varnell, 410 So.2d 1108 (1982); State v. Bickham, 404 So.2d 929 (La.1981); State v. Blanton, 400 So.2d 661 (La.1981); State v. Ault, 394 So.2d 1192 (La.1981). We find the court of appeal improperly focused on inconsequential differences between the general information provided by the untested informant and events occurring on the day in question. Although the tip provided the impetus for establishing the surveillance, the officers clearly did not stop the defendant based on this information alone. Indeed, the officers directly observed a hand to hand transaction indicative of |fia narcotics sale: the defendant received money in exchange for an object he brought from his residence; the unknown male with whom he made the transaction had just arrived and then left immediately after the transaction; and lastly, the unknown male suspiciously put something into his mouth before fleeing from approaching officers. In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. State v. Belton, 441 So.2d 1195, 1198 (La.1988) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).) Accordingly, we hold that these activities, particularly when coupled with the tip that the defendant sold large amounts of heroin, gave police more than a sufficient basis to stop the defendant. See, e.g., State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, 1270-71 (“The officers could have set up more extensive surveillance of defendant until they observed suspicious or unusual behavior. Furthermore, if, after corroborating the readily observable facts, the officers had noticed unusual or suspicious conduct on defendant’s part, they would have had reasonable suspicion to detain him.”).

Warrantless Search and Seizure

The critical issue presented in this case is the warrantless search and subsequent seizure of the folded napkin from the defendant’s vehicle. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless seizure and search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Goins v. Walmart Stores, Inc., 01-1136 (La.2001), 800 So.2d 783, 789; State v. Tatum, 466 So.2d 29, 31 (La.1985); State v. Redfearn, 441 So.2d 200 (La.1983); State v. Guzman, 362 So.2d 744, 748 (La.1978). The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while | accommodating the necessity of warrantless searches under special circumstances. State v. Mayo, 450 So.2d 718 (La.App. 4 Cir.1984) (citing Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). The court of appeal concluded that the recovery of the heroin filled napkin from the defendant’s car was unreasonable because it did not satisfy one of the three requirements under the “plain view” exception, namely that its incriminating character was not immediately apparent. See State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Gibson, 391 So.2d 421 (La.1980); State v. Banks, 363 So.2d 491 (La.1978). However, we find the plain view doctrine is not dispositive of the difficult issue as to whether a napkin can be so peculiarly associated with drug trafficking that its plain view equates to an association with contraband. Compare Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (seizure of heroin-filled opaque green balloon upheld), with State v. James, 99-3304 (La.12/8/02), 795 So.2d 1146 (seizure of film canister held impermissible). In State v. Parker, 355 So.2d 900 (La.1978), this Court recognized “[p]lain view serves to provide a means of securing probable cause, and, absent the applicability of one of the true exceptions to the warrant requirement, nothing more.” Id. at 903. As will be discussed below, we find the officers had probable cause to search the vehicle, and therefore, this case is more appropriately analyzed under the “automobile exception.”

Automobile Exception

Two requirements must be satisfied before a warrantless seizure of evidence within a movable vehicle can be authorized under this exception: (1) there must be probable cause to believe the vehicle contains contraband or evidence of a crime; and (2) there must be exigent circumstances requiring an immediate war-rantless search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90; State v. Tatum, 466 So.2d 29 (La.1985); State v. Barre, 592 So.2d 440 (La.App. 5 Cir.1991). Probable cause means “a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). It must be judged by the probabilities and practical considerations of everyday life on which average people, and particularly average police officers, can be expected to act. State v. Fischer, 97-1133 (La.1998), 720 So.2d 1179, 1884; State v. Flagg, 760 So.2d 522, 528 (La.App. 5 Cir.2000).

In the instant case, we find that when defendant discarded the napkin as the officers approached, the officers’ reasonable suspicions ripened into probable cause. While the furtive reaction alone was certainly insufficient to provide legal justification for the search, when the act is considered together with other facts known to the officers, the officers had a particularized basis for associating the object with narcotics trafficking. See Brown v. State, 269 Ga. 830, 504 S.E.2d 443, 446 (1998) (“Observation of what reasonably appear to be furtive gestures is a factor which may properly be taken into account in determining whether probable cause exists .... Thus, if the police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal that object from police view, probable cause is then present.”); State v. Baylor, 2 Kan.App.2d 722, 587 P.2d 843 (1978) (probable cause for search of narcotics suspect existed where furtive behavior was coupled with information provided by confidential informant that suspect was returning from trip with heroin in his possession). See also Jeffrey F. Ghent, Annotation, “Furtive” Movement or Gesture as Justifying Police Search, 45 A.L.R.3d 581, 1972 WL 31996 (1972). Before defendant’s furtive reaction, the evidence shows that the police received a confidential tip that the defendant was selling large amounts of heroin. Indeed, all of the specific information provided to police, i.e., 19defendant’s first name, type of vehicle he owned, and license plate number, proved to be accurate. During the course of the surveillance, police witnessed the defendant exit his residence with a “white object,” place the object into his ear, and shortly thereafter, engage in a quick hand to hand transaction where money was exchanged for the object. Officer Selby testified that he was later informed by back-up members of the task force that the person with whom the defendant made the transaction “ingested something or placed something into his mouth” before running from police. Lastly, at trial, Selby recounted that before entering defendant’s vehicle, he looked inside and saw a “white” napkin lying on the floorboard, and that otherwise the vehicle was very clean and “free of any other debris or trash.” We find the totality of the evidence easily supports that the officers had probable cause.

Having established probable cause, we now find that exigent circumstances were also present because defendant’s vehicle was on the open road. As this Court recognized in State v. Lopez, supra:

hnWhile the vehicle was stationary at the time the search proceeded, and the trooper may have had time to find a magistrate for purposes of issuing a search warrant, the trial court erred in ruling that the absence of a search warrant rendered the search of respondent’s vehicle illegal. No constitutional distinction exists “between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.’ ” State v. Guzman, 362 So.2d 744, 749 (La.1978) (quoting Chambers v. Maroney, 399 U.S. 42-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970)). Because either course is reasonable under the Fourth Amendment, id., “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (citations omitted).

Id. at 93 (alteration in original). See also State v. Edsall, 385 So.2d 207, 211 (La.1980). Accordingly, because both probable cause and exigent circumstances existed, we hold the warrantless search of defendant’s vehicle was permissible under the automobile exception.

EXCESSIVE SENTENCE

Defendant argues that if this Court should reinstate his conviction and sentence as to count one, the trial court’s original sentence of twenty years, the maximum penalty allowed under the law for a second offender, should be vacated and the case remanded for imposition of a more equitable penalty. We disagree. The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). Our review of the trial court’s reasons in imposing defendant’s sentence reflects the sentencing court particularly took into consideration defendant’s previous twenty-three felony and six misdemeanor arrests, in addition to an earlier conviction for possession of cocaine. Accordingly, we do not find the sentencing court abused its discretion. Defendant’s assignment of U error is without merit.

DECREE

For the foregoing reasons, the ruling of the Fourth Circuit as to count one is reversed and set aside, and defendant’s original conviction and sentence imposed by the trial court is reinstated.

REVERSED

JOHNSON, J., dissents.

      . In State v. Williams, 117 N.J.Super. 372, 285 A.2d 23 (1971), the court found probable cause under facts almost identical to the instant case. In Williams, police conducted surveillance in response to complaints of narcotics activity in the neighborhood and observed defendant park his car and engage in conversation with a known narcotics offender. Afterwards, defendant drove away but returned a short time later. As soon as defendant parked his vehicle, a police car pulled up and parked behind him. A police officer and two detectives got out of the police car and approached defendant who was seated in his automobile. Before the officer could ask defendant for his registration, he observed defendant look toward him as he approached the car, and make a downward furtive motion, throwing a pink package to the floor of the car. One of the detectives reached down into the automobile and retrieved the pink package (which turned out to be tissue paper) and discovered it contained 114 decks of heroin. In finding warrantless search permissible, the court recognized the use or sale of illegal drugs is carried on "cautiously and furtively and in as many ways and by as many conceivable methods as human ingenuity can devise in order to escape detection and criminal consequences.' ” Id. at 376, 285 A.2d 23. Most importantly, the court added, "[a]l-though the police officer on cross-examination stated that he had seen pink tissue in supermarkets similar to that removed from defendant’s vehicle, this does not mean that it cannot be used to 'package' illegal drugs and, when appearing in this form together with all the other factors previously alluded to, give rise to probable cause.”


author: li KIMBALL, Justice.

text:
    Shirley Ann GINN v. WOMAN’S HOSPITAL FOUNDATION, INC. and Shirley Ann Ginn, v. Woman’s Hospital Foundation, Inc., Louisiana Patient’s Compensation Fund.
    No. 2002-C-1913.
    Supreme Court of Louisiana.
    April 9, 2003.

      William L. Wilson, Taylor, Porter, Brooks & Phillips, for Applicant.
    Pater T. Dazzio, Baton Rouge, Watson, Blanche, Wilson & Posner; Keith D. Jones, Baton Rouge, Jones, Aaron & Smith, Michael G. Durand, Lafayette, for Respondent.
   li KIMBALL, Justice.

We granted certiorari to consider the issue of whether the provisions of La. R.S. 40:1299.44(0) of the Medical Malpractice Act apply when the health care provider, and not its insurer, agrees to settle its liability with claimant and pays plaintiff $100,000.00, and plaintiff demands excess damages from the Patient’s Compensation Fund. After examining the plain language of La. R.S. 40:1299.44(0), we conclude its provisions are not applicable, and thus, court approval of the settlement in this case pursuant to that statutory provision was error. Accordingly, under these circumstances, we reverse the judgment of the court of appeal affirming the district court’s approval of a settlement pursuant to the provisions of La. R.S. 40:1299.44(C).

Facts and Procedural History

Plaintiff, Shirley Ann Ginn, was hospitalized at Woman’s Hospital of Baton | ?Rouge from February 23, 1976 through March 1, 1976. During that hospitalization, she received a blood transfusion. On March 26, 1997, plaintiff was diagnosed with hepatitis C. Thereafter, on March 18, 1998, plaintiff filed suit against Woman’s Hospital Foundation, operating as Woman’s Hospital of Baton Rouge (hereinafter “the Hospital”), seeking strict tort products liability recovery for damages sustained from the contaminated blood.

In response to plaintiffs petition, the Hospital filed a dilatory exception of prematurity. In this exception, the Hospital argued plaintiffs suit should be dismissed because La. R.S. 40:1299.41 et seq., the Medical Malpractice Act (“MMA”), requires a claimant to convene a medical review panel prior to instituting suit in district court. The district court denied the Hospital’s exception of prematurity based on this court’s previous decision in Branch v. Willis-Knighton Med. Ctr., 92-3086 (La.4/28/94), 636 So.2d 211. On appeal, the court of appeal affirmed the judgment of the district court, finding plaintiffs claims were not governed by the MMA. Ginn v. Woman’s Hosp. Found., Inc., 99-1691 (La.App. 1 Cir. 9/22/00), 770 So.2d 428. This court denied the Hospital’s application for certiorari. Ginn v. Woman’s Hosp. Found., Inc., 00-3397 (La.2/2/01), 784 So.2d 647.

On November 28, 2000, plaintiff amended her petition to allege that she was again hospitalized at Woman’s Hospital on January 5, 1983, and received another blood transfusion during that hospitalization. Additionally, plaintiff added paragraph 5A to her petition to include allegations of negligence and lack of informed consent arising from both transfusions as follows:

5A.

| aPrior to the transfusions received by your petitioner from defendant in 1976 and 1983, defendant failed to meet the applicable standard of care in its processing and administration of the blood in the following respects:

a. Defendant failed to advise your petitioner of the dangers associated with the administration by transfusion of whole blood, and particularly failed to advise your petitioner that the blood could be contaminated with the virus known at that time as hepatitis, non-A and non-B;
b. Defendant failed to secure your petitioner’s informed consent for the transfusion procedures;
c. Despite the fact that it knew that units of blood which showed elevated liver enzyme levels of SGOT and SGPT were more likely to be infected with hepatitis, non-A, non-B than were units of blood not tested for those liver enzyme levels, defendant nevertheless faded to test the units of blood administered to your petitioner for elevated liver enzymes.

Subsequently, plaintiff and the Hospital agreed to settle the suit, and petitioned the district court for judicial approval of the settlement pursuant to the provisions of the MMA. According to plaintiffs Petition for Court Approval of Settlement of a Medical Malpractice Claim with Reservation of Rights Against the Louisiana Patient’s Compensation Fund to Determine Excess Damages Pursuant to LSA-R.S. 40:1299.44(0, the Hospital agreed to pay plaintiff $100,000, thereby fully releasing it from any further liability to plaintiff pursuant to the MMA. Additionally, plaintiff demanded the payment of additional damages from the Louisiana Patient’s Compensation Fund under the provisions of La. R.S. 40:1299.44(0 of the MMA.

After receiving notice of the proposed settlement, the Louisiana Patient’s Compensation Fund Oversight Board and the Louisiana Patient’s Compensation Fund (collectively “the Fund”) filed a petition of intervention opposing the settlement. In |4its petition of intervention, the Fund argued the benefits afforded by the MMA do not apply to plaintiffs claim because the Hospital did not pay the Fund the required surcharge, and the Hospital is therefore not a qualified health care provider. Additionally, the fund contended the court of appeal had already ruled that plaintiffs claim was not covered by the MMA.

A hearing on plaintiffs petition for court approval of the settlement was held on January 30, 2001. After considering the testimony and evidence presented, the district court orally granted plaintiff the authority to settle with the Hospital pursuant to the provisions of the MMA. A written judgment was signed by the district court, which stated:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment approving the settlement by and between the plaintiff, Shirley Ann Ginn and defendant, Woman’s Hospital Foundation, Inc., pursuant to the provisions of La. R.S. 40:1299.44(0(4) authorizing and requiring the payment of ONE HUNDRED THOUSAND AND NO/lOO ($100,000.00) DOLLARS by Woman’s Hospital Foundation, Inc. to plaintiff, and also requiring plaintiff to execute release and dismissal documents consistent with the settlement agreement;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability for damages as alleged in the original and First Supplemental and Amending Petitions filed by plaintiff of Woman’s Hospital Foundation, Inc., and the Patient’s Compensation be, and it is hereby deemed established and admitted pursuant to La[.] R.S. 40:1299.44(0(5) for the damages suffered by plaintiff herein as alleged in the original and first supplemental] and amending petitions subject to a credit in favor of the Patient’s Compensation Fund in the amount of $100,000.00 dollars representing the amount paid by Woman’s Hospital Foundation, Inc.;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff is hereby granted the right to seek additional damages from the Patient’s Compensation Fund for those damages in excess of $100,000.00 dollars which she has suffered as a result of the injuries alleged in her original and First Supplemental and Amending Petitions.

[f;On appeal, the court of appeal affirmed the judgment of the district court approving the proposed settlement between plaintiff and the Hospital pursuant to the provisions of La. R.S. 40:1299.44(C). Ginn v. Woman’s Hosp. Found., Inc., 01-1194 (La.App. 1 Cir. 5/10/02), 818 So.2d 983. In reaching its decision, the court of appeal first determined the statutory procedures required by La. R.S. 40:1299.44(0) were satisfied by the parties. The court of appeal then determined that the Hospital was a qualified health care provider and therefore concluded there was no error in the district court’s approval of the settlement.

We granted certiorari to review the decision of the court of appeal and specifically to consider whether the requirements of La. R.S. 40:1299.44(0) were satisfied in this case. Ginn v. Woman’s Hosp. Found., Inc., 02-1913 (La.11/1/02), 828 So.2d 580.

Discussion

The Fund argues that the lower courts erred in approving the proposed settlement in this case under the provisions of La. R.S. 40:1299.44(0 because those provisions contemplate participation and payment of the settlement only by the insurer of the health care provider or a self-insured health care provider. After careful consideration of the arguments made by the plaintiff, the Hospital, and the Fund and the language of La. R.S. 40:1299.44(0 itself, we agree that the lower courts erred in ^approving the settlement pursuant to the provisions of La. R.S. 40:1299.44(0, in considering the liability for damages as alleged in both of plaintiffs petitions of the health care provider as admitted and established pursuant to the provisions in La. R.S. 40:1299.44(0(5), and in granting plaintiff the right to seek excess damages arising out of the allegations in plaintiffs original and supplemental petitions from the Fund.

As an initial matter, we note the judgment of the district court, which was affirmed by the court of appeal, makes the Fund liable to plaintiff for excess damages arising from claims alleged in both her original and supplemental petitions. However, there has previously been a judicial determination that the strict liability claims asserted in plaintiffs original petition for damages arose prior to the time the MMA encompassed blood-related defects, and, therefore, those claims are not governed by the MMA. See Ginn v. Woman’s Hosp. Found., Inc., 99-1691 (La.App. 1 Cir. 9/22/00), 770 So.2d 428, writ denied, 00-3397 (La.2/2/01), 784 So.2d 647. The MMA itself provides that the Fund is not liable for any sums “except for those arising from medical malpractice.” La. R.S. 40:1299.41(1). Because it has previously been judicially determined that the claims asserted in plaintiffs original petition are not medical malpractice claims, the Fund may not be held liable for any damages arising out of the claims alleged in plaintiffs original petition. Thus, although the plaintiff and the Hospital are free to settle the claims asserted in the original petition as they wish, the district court erred in including these claims in any ruling adverse to the Fund.

Plaintiffs supplemental and amending petition alleges the Hospital breached the appropriate standard of care in administering the 1983 transfusion. The parties |7do not appear to dispute that the claims regarding the 1983 transfusion are covered under the provisions of the MMA. In her petition for court approval of the settlement, plaintiff requested that the settlement be approved under the provisions of La. R.S. 40:1299.44(0) such that the Hospital would pay her $100,000.00 in return for a full release. Plaintiff demanded excess damages in the amount of $400,000.00 plus interest and medical expenses from the Fund pursuant to La. R.S. 40:1299.44(0). Additionally, plaintiff alleged she properly served the Patient’s Compensation Fund Oversight Board and the Hospital in accordance with the provisions of La. R.S. 40:1299.44(0(2).

The provisions of La. R.S. 40:1299.44(0) set forth the procedure that must be followed when the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an additional amount of damages from the Fund for a complete and final release. La. R.S. 40:1299.44(0). This court has previously held that a claimant who desires excess recovery from the Fund must closely follow the procedures of La. R.S. 40:1299.44(0) when requesting court approval of a settlement. Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697. The procedure to be followed begins with the claimant filing a petition (a) seeking approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the Fund. La. R.S. 40:1299.44(0(1). A copy of the petition must be served on the board, the health care provider and his insurer at least ten days before filing and must contain sufficient information to inform the other parties about the nature of the claim and the |sadditional amount demanded. La. R.S. 40:1299.44(0(2). The board and the insurer of the health care provider or the self-insured health care provider, as the case may be, may agree to a settlement with the claimant from the Fund or may file written objections to the payment of the amount demanded. La. R.S. 40:1299.44(0(3). The agreement or the objections to the payment demanded must be filed within twenty days after the petition is filed. Id. The matter is then fixed for hearing by the court, and the court must notify the claimant, the board and the insurer of the health care provider or the self-insured health care provider, as the case may be. La. R.S. 40:1299.44(0(4).

At the hearing, the board, the claimant, and the insurer of the health care provider or the self-insured health care provider, as the case may be, may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. La. R.S. 40:1299.40(0(5). If the board, the insurer of the health care provider or the self-insured health care provider, as the case may be, and the claimant cannot agree on the amount, if any, to be paid from the Fund, then the court shall determine the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider. Id. The court shall determine the amount for which the Fund is liable and render a finding and judgment accordingly. Id. In approving a settlement or determining the amount, if any, to be paid from the Fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars. Id.

Finally, for the benefit of both the insured and the Fund, the insurer of the health care provider has a duty to exercise good faith and reasonable care both in | flevaluating the plaintiffs claim and in considering and acting upon the settlement. La. R.S. 40:1299.44(C)(7). For the benefit of the Fund, a self-insured health care provider has a duty to exercise good faith and reasonable care both in evaluating plaintiffs claim and in considering and acting upon the settlement. Id.

When a law is clear and unambiguous and the application of the law does not lead to absurd consequences, the law must be applied as written without any further interpretation of the intent of the legislature. La. C.C. art. 9. Accordingly, the starting point for the interpretation of any statutory provision is the language of the provision itself. Dumas v. State, 02-0563 (La.10/15/02), 828 So.2d 530.

The language of La. R.S. 40:1299.44(0 clearly states that the procedures outlined in its provisions apply when the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability with the claimant and the claimant is demanding an amount in excess of the settlement from the Fund for a complete and final release. Moreover, subsection 1299.44(C) consistently and solely indicates the participants in the court approval of the settlement provided for under its provisions are to be the insurer of the health care provider or the self-insured health care provider, the claimant, and the board. La. R.S. 40:1299.44(0(5) clearly contemplates the involvement of the insurer, rather than the health care provider, in the hearing for court approval of the settlement as it provides only that the board, the claimant, and the insurer of the health care provider (or the self-insured health care provider) may introduce relevant evidence before the court. Finally, section 1299.44(C)(5) explicitly provides that the liability of the health care provider shall be considered as admitted and established where the insurer has paid its policy limits of $100,000.00 or the self-insured health care provider has paid $100,000.00. After considering these provisions, we find the plain language of La. R.S. 40:1299.44(0 |inis clear, unambiguous, and does not lead to absurd consequences. Consequently, we conclude La. R.S. 40:1299.44(0 applies only when the insurer of the health care provider or the self-insured health care provider agrees to settle its liability on the claim against its insured and claimant demands excess damages from the Fund.

We recognize that because the MMA is special legislation in derogation of the rights of tort victims, it must be strictly construed against limiting the victim’s rights against the tortfeasor. Spradlin v. Acadia-St. Landry Med. Found., 98 1977 (La.2/29/00), 758 So.2d 116; Branch v. Willis-Knighton Med. Ctr., 92-3086 (La.4/28/94), 636 So.2d 211; Sewell v. Doctors Hosp., 600 So.2d 577 (La.1992). However, we cannot ignore the clear statutory mandate imposed by the legislature under the guise of following such a principle. There is simply no other way to reasonably construe the plain language of the statute. Therefore, as we have done in previous medical malpractice cases, see e.g., Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879; Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990), we have closely examined the language of the provision at issue to resolve this case.

Our conclusion that the plain language of the statute, which requires that the insurer of the health care provider, or the self-insured health care provider, participate in the settlement, should be applied as written is further bolstered by the provisions of La. R.S. 40:1299.42(D)(5). This section, which is part of the MMA dealing with limitation of recovery, provides that in the event a partial settlement is executed “between the defendant and/or his insurer with a plaintiff’ for $100,000.00 or less, written notice of the settlement shall be sent to the board. Additionally, it provides that such a settlement shall not bar the continuation of the action against the Fund for excess sums “in which event the court shall reduce any judgment to the plaintiff in |nthe amount of malpractice liability insurance in force as provided for in R.S. 40:1299.42(B)(2).” La. R.S. 40:1299.42(D)(5) clearly contemplates a partial settlement between the health care provider and/or his insurer with the plaintiff. Obviously, then, the legislature made a distinction between a settlement involving only the insurer of a health care provider or a self-insured health care provider and the plaintiff under La. R.S. 40:1299.44(0 and one involving a health care provider and/or his insurer and the plaintiff under La. R.S. 40:1299.42(D)(5). We, in turn, must interpret the language of the statute at issue as clearly written.

In the instant case, plaintiffs petition for court approval of the settlement indicates the Hospital itself, and not its insurer, agreed to pay plaintiff $100,000.00 in exchange for a full release. Additionally, the district court’s judgment indicates the Hospital is required to pay $100,000.00 under the terms of the settlement. The parties do not dispute that the Hospital is the entity making the payment. Similarly, it is undisputed that the Hospital is not a self-insured health care provider. In light of the plain language of La. R.S. 40:1299.44(0, we are forced to conclude that because the insurer of the Hospital did not agree to settle the claim and did not pay its policy limits of $100,000.00, the provisions of La. R.S. 40:1299.44(0 are inapplicable in this situation.

Construing the statute as limiting the applicability of La. R.S. 40:1299.44(0 to situations in which the insurer of the health care provider or the self-insured health care provider agrees to the settlement and actually pays the sum of $100,000.00 does not lead to absurd consequences. La. R.S. 40:1299.44(0(5), which provides that payment by the insurer or the self-insured health care provider of $100,000.00 in settlement of plaintiffs claim constitutes an admission of the liability of the health care provider, contains perhaps the only benefit that medical malpractice victims | ^derive from the MMA. Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365. This benefit is offset by the requirement in La. R.S. 40:1299.44(0(7) that the insurer is burdened with a duty for the benefit of both the insured and the Fund to exercise good faith and reasonable care both in evaluating plaintiffs claim and in considering and acting upon the settlement. By making the medical malpractice victim’s benefit contingent upon participation in the settlement by the insurer, who is bound to act reasonably and in good faith for the benefit of others, the possibility of collusion between the health care provider and the claimant to unfairly involve the Fund in situations in which it may not be liable is eliminated.

The Fund seems to argue that in the absence of plaintiffs strict compliance with the provisions of La. R.S. 40:1299.44(0, there are no other provisions in the Act under which it can be made to pay excess damages when the plaintiff settles with the health care provider. According to the Fund, La. R.S. 40:1299.42(D)(5) is inapplicable because of this court’s holding in Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697. In Horil, we held that where the claimant expects to ultimately recover from the Fund despite his settlement of the provider’s liability, the provisions of La. R.S. 40:1299.44(0, rather than those of La. R.S. 40:1299.42(D)(5), must be closely followed. Horil, however, is distinguishable from the instant case because the applicability of La. R.S. 40:1299.44(0 was never questioned in that case. When the provisions of La. R.S. 40:1299.44(0) are inapplicable as they are in this case, it remains to be seen whether the provisions of La. R.S. 40:1299.42(D)(5) come into play. We need not address this issue at this time, however, because the parties have not raised it and the district court’s judgment in this case is specifically limited to the provisions of La. R.S. 40:1299.44(0).

Finally, we must note that in discussing the settlement provisions of La. R.S. 1^40:1299.44(0), this court has sometimes referred to the health care provider as being the settling party. See, e.g., Graham, supra; Horil, supra. We find this language is not controlling as it was used in cases in which the applicability of the provisions of La. R.S. 40:1299.44(0) was not at issue. Accordingly, we do not view these decisions as requiring a contrary result.

Having resolved the issue presented in the manner explained above, we find it unnecessary to address the Fund’s remaining assignments of error.

Decree

For the above reasons, we conclude the provisions of La. R.S. 40:1299.44(0) are inapplicable to the instant case. Accordingly, we find the court of appeal erred in affirming the district court’s judgment approving the settlement pursuant to the provisions of La. R.S. 40:1299.44(0), finding the liability of the health care provider admitted and established pursuant to La. R.S. 40:1299.44(0(5), and granting plaintiff the right to seek excess damages from the Fund pursuant to La. R.S. 40:1299.44(0). The judgments of the lower courts approving the settlement are reversed, and this case is remanded to the district court for proceedings not inconsistent with the opinion expressed herein.

REVERSED and REMANDED.

      . The Hospital also filed an exception of prescription, which was denied by the district court. The judgment relating to the Hospital’s exception of prescription is not before us in this case.

      . Following the district court’s judgment, the Fund filed both an application for supervisory writs and a devolutive appeal in the court of appeal. The Hospital filed a motion to dismiss the Fund’s devolutive appeal, citing La. R.S. 40:1299.44(C)(6), which provides that "[a]ny settlement approved by the court shall not be appealed.” The court of appeal referred the motion to dismiss and the writ application to the merits. Subsequently, the court of appeal denied the Hospital's motion to dismiss the appeal, denied the Fund's application for supervisory writs, and treated the case as a devolutive appeal. Ginn v. Woman's Hosp. Found., Inc., 01-1194 (La.App. 1 Cir. 5/10/02), 818 So.2d 983. Because neither the Hospital nor the plaintiff sought a writ of certiorari from this court on this issue, we express no opinion regarding the propriety of the appeal.

      . The supplemental and amending petition also alleges the Hospital breached the applicable standard of care in the processing and administration of the blood during her 1976 transfusion. The issue of whether these claims are covered by the provisions of the MMA has not been explicitly addressed by the lower courts. Because we conclude herein that the district court erred in approving the settlement under the provisions of La. R.S. 40:1299.44(C) and therefore reverse its judgment on these grounds, we need not consider whether the additional claims arising out of the 1976 transfusion alleged in plaintiff's supplemental and amending petition are covered under the provisions of the MMA.