author: JjLEON A. CANNIZZARO, JR., Judge. | TOBIAS, J.,

text:
    STATE of Louisiana v. Zade FELTON and Christopher Francois.
    No. 2003-KA-0548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendants/Appellants, Zade Felton and Christopher Francois.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

Defendants Zade Felton and Christopher Francois were charged by bill of information with armed robbery and armed robbery with a firearm, violations of La. R.S. 14:64 and 14:64.3. Both defendants pled not guilty. Each defendant later withdrew his guilty plea and pled guilty to one count of armed robbery pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s denial of his motion to suppress the identification made against him. Defendant Felton waived the delays in sentencing and the trial court sentenced him to ten years at hard labor in the Department of Corrections without the benefit of probation, parole or suspension of sentence. Defendant Francois also waived all delays in sentencing and the trial court sentenced him to ten years at hard labor in the Department of Corrections without the benefit of probation, parole and suspension of sentence. The trial court also recommended that both defendants participate in the About Face Program in the Orleans Parish Prison pursuant to La. R.S. 15:574.5. The trial court granted the defendants’ motions for appeal.

^STATEMENT OF FACTS

On the evening of April 10, 2002, Mia Owens was parking her black Pontiac Grand Am in front of her residence at 2714 South Johnson Street when her son Donovan Owens, a guest passenger, noticed two males wearing red t-shirts and dark pants walk past the vehicle. The two men stopped at a nearby tree, placed bandanas on their faces, and returned to the Grand Am brandishing handguns. They demanded that Ms. Owens and her son exit the vehicle and told Ms. Owens to leave behind her purse, cellular phone, and keys. Donovan exited the car and ran inside a nearby house. Ms. Owens threw her keys on the floorboard, exited the vehicle, and called the police to report the robbery immediately after the two men drove away in her vehicle.

Detective Ray Jones, of the New Orleans Police Department, testified that on April 10, 2002, he responded to a call about a carjacking. After receiving a description of the stolen vehicle, Detective Jones canvassed the area around the Calliope Housing Development and located a vehicle fitting its description parked in a driveway in the 1100 block of South Galvez Street. Detective Jones drove past the vehicle to verify the license plate number. Once the detective determined he had found the stolen vehicle he set up surveillance to see if someone would return to it. After about ten minutes two males, later identified as the defendants, entered the vehicle and drove away. As the defendants exited the driveway, a marked police unit attempted to stop the defendants who sped off in an attempt to elude the officers.

The officers in the marked vehicle radioed their superiors for permission to chase the defendants. As the officers sought permission to 1 ¡¡pursue the defendants, the defendants crashed the stolen vehicle into a parked car. The defendants were apprehended.

The police brought Ms. Owens and Donovan to the scene of the accident to possibly identify the defendants as the persons responsible for stealing her vehicle. Ms. Owens was unable to identify the defendants because they wore bandanas over their faces. Donovan, however, positively identified the defendants as the two men who stole his mother’s vehicle because he saw the men without bandanas when they walked past the vehicle while his mother was trying to park. Donovan also told the police that defendant Felton was not wearing the same t-shirt he wore during the robbery. Donovan was able to identify one of the weapons found in his mother’s vehicle as one used by the defendants. Ms. Owens’ cellular phone was found in defendant Felton’s pants pocket during a search of his residence.

ASSIGNMENT OF ERROR NUMBER 1

The defendants complain the trial court erred in denying the motion to suppress the identification. Specifically, the defendants argue the identification of the defendants on the scene by Donovan Owens was suggestive, violating their due process rights.

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misidenti-fieation as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984); State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559, writ denied, 01-118 (La.11/12/01), 802 So.2d 626. Fairness is the standard of review for identification procedures, and reliability, is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253,53 L.Ed.2d 140 (1977). Even if the identification could be suggestive, it is the likelihood of misidentifi-cation which violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 99-8224 (La.5/15/00), 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

State v. Alexander, 02-427, pp. 2-3 (La.App. 5 Cir. 9/30/02), 829 So.2d 526, 528.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the U.S. Supreme Court set forth five factors to consider in determining if an identification is reliable: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.

In evaluating the defendants’ argument, this court will consider all pertinent evidence adduced at the hearing on the motion to suppress the identification. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. State v. Clennon, 98-1370, p. 5 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 163-164. One-on-one identifications, also known as “show-up” identifications, are not favored; however, under certain circumstances, they are admissible at trial. Alexander, supra at p. 4, 829 So.2d at 528. Such identifications have been found to be admissible when the identification occurred in close proximity to the time of the offense and the suspect is presented for immediate identification. State v. Robinson, 404 So.2d 907 (La.1981).

In the instant ease, Donovan Owens viewed the defendants during the commission of the robbery and gave an accurate description of their | ^clothing. He testified that he saw the defendants without masks walk past his mother’s vehicle. He saw their faces and noticed the red t-shirts and dark pants they were wearing. Donovan observed the defendants stop by a nearby tree, place bandanas over their faces, and return to his mother’s vehicle holding guns. Donovan did not hesitate when, shortly after the robbery, he identified the defendants on the scene of the auto accident in which they were involved while using the stolen vehicle. The record reflects that the identification took place less than one hour after the defendants’ stole Ms. Owens’ vehicle. In addition to identifying one of the handguns used in the carjacking, Donovan was certain that one of the defendants was no longer wearing the same clothing worn during the robbery. Therefore, the out of court identification was not suggestive and thus did not deprive the defendants of their due process rights. This assignment of error is without merit.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER 2

Appellant Francois complains that the trial court failed to rule on his motion to reconsider the sentence.

The record reflects that Francois’ counsel made an oral motion to reconsider the sentence after Francois pled guilty and the trial court imposed the ten-year sentence. Two days later defense counsel also filed a written motion to reconsider the sentence. The record further reflects that the district court signed an order reducing Francois’ sentence on February 14, 2003. The record, however, contains no minute entry dated February 14, 2003 or anything else to indicate that the ten-year sentence originally imposed was reduced.

| r,The trial court’s failure to rule on the appellant’s motion to reconsider a sentence provides a basis for remanding the matter to the trial court. See State v. Dorsey, 2002-0692 (La.App. 4 Cir. 10/09/02), 830 So.2d 347. In Dorsey, this Court refused to consider the defendant’s claim of excessiveness of sentence because the trial court failed to rule on his motion to reconsider the sentence. In this case, defendant Francois did not raise an excessive sentence claim and the ten-year sentence imposed by the trial court is the minimum sentence allowed for a conviction under La. R.S. 14:64. Even if the defendant participates in and completes the About Face Program prior to serving his full sentence, he must still serve the remainder of the imposed sentence. Thus, for purposes of this appeal and in the interest of judicial economy, defendant Francois’ motion to reconsider his sentence is denied.

CONCLUSION

Accordingly, for the reasons stated herein, the defendants’ convictions and sentences are affirmed.

AFFIRMED.

TOBIAS, J., dissents in part and assigns reasons.

| TOBIAS, J.,

Dissents in Part and Assigns Reasons.

I respectfully dissent from this court’s ruling upon Christopher Francois’ motion to reconsider his sentence. A ruling on the motion should first be made by the trial court and thereafter, upon application by a party, by this court. La.C.Cr.P. art. 881.1 is written in language that mandates that the motion be considered and ruled upon first by the trial court.

Francois received the statutory minimum sentence for armed robbery. He entered the Orleans Parish intensive incarceration program authorized by La. R.S. 15:574.5, not the state’s intensive incarceration program authorized by La. R.S. 15:574.4. The Department of Corrections has no duty to recognize an intensive incarceration program of a qualifying political subdivision unless it so elects.

In his written motion to reconsider the sentence filed within a couple of days of his sentencing by the trial court, Francois alleges that “the sentence imposed is constitutionally excessive.” He does not specify further the reason(s) that the sentence is constitutionally excessive. However, his motion raises an issue under State v. Dorthey, 623 So.2d 1276 (La.1993) to which I find he is entitled to a ruling by the trial court in spite of the fact that he received a statutory minimum sentence.

In all other respects, I agree with the majority opinion.


source: Caselaw Access Project

author: | t STEWART, J.

license: Public Domain

text:
    Shannon FREEMAN, Plaintiff-Appellee, v. Allen P. PHILAN, Wray Ford, Inc. and Reliance Insurance Company, Defendants-Appellants.
    Nos. 37,685-CA, 37,684-CW, 37,687-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2003.
    Rehearing Denied Nov. 7, 2003.

      Pettiette, Armand, Dunkelman Woodley, Byrd & Cromwell, by Donald J. Armand, Jr., Taylor, Porter, Brooks & Phillips, by W. Shelby McKenzie, Counsel for Defendant-Appellant RLI Ins. Co.
    Sam N. Gregorio, Amy-Elizabeth Brai-nard, Counsel for Plaintiff-Appellee Shannon Freeman.
    Zelda W. Tucker, for Defendant-Appel-lee Allstate Ins. Co.
    Abrams & Lafargue, by Reginald W. Abrams, Karmel Mister Willis, for Defendant-Appellee Allen P. Philan.
    Lunn, Irion, Salley, Carlisle & Gardner, by Jack E. Carlisle, Jr., for Defendants-Appellees Reliance Ins. Co., La. Ins. Guaranty Association, Wray Ford Inc. and Allen P. Philan.
    Before BROWN, STEWART, and GASKINS, JJ.
   | t STEWART, J.

In this consolidated matter, RLI Insurance Company (“RLI”) is appealing the grant of plaintiff, Shannon Freeman’s (“Freeman”), motion for partial summary judgment finding that RLI’s excess insurance coverage for defendant Wray Ford drops down to provide dollar one coverage due to the insolvency of the underlying insurer Reliance Insurance Company (“Reliance”). Allstate Insurance (“Allstate”) is appealing the trial court’s denial of its motion for summary judgment on the issue of whether a personal insurance policy issued to Allen Philan (“Philan”) properly excludes coverage for the accident at issue. For the reasons expressed hereafter, we affirm in part, reverse in part, and render.

FACTS

This suit arises out of a rear-end collision that occurred on May 24,1999, when a Wray Ford, Inc., shuttle bus driven by Allen Philan ran into the rear of a 1996 Honda Accord driven by Shannon Freeman. The accident occurred on Bert Kouns Industrial Loop where it intersects with 1-49. The intersection is controlled by a series of traffic lights. At around 7:40 a.m., Ms. Freeman was stopped in traffic in the eastbound left-hand lane. The traffic was stopped at the traffic light just west of where the N49 overpass travels over the roadway. The traffic signal was red.

Contemporaneously, Philan was also traveling eastbound on Bert Kouns Industrial Loop in the left-hand lane. Philan did not bring the Wray Ford, Inc. shuttle bus to a stop and struck the rear of Freeman’s vehicle. The force of the impact caused Freeman’s vehicle to travel forward and 12strike the vehicle stopped in front of her, a 1997 BMW driven by Kristina Dominique Owen.

On May 2, 2000, Freeman filed suit against Philan, Wray Ford, and Reliance Insurance Company. Reliance had issued a policy to Wray Ford which covered liability arising out of the operation of the shuttle bus with policy limits of $1,000,000.00. However, after Freeman’s suit was filed, Reliance was placed in liquidation by the Commonwealth Court for Pennsylvania. Accordingly, Freeman filed a supplemental and amending petition on January 14, 2002, in which she added the Louisiana Insurance Guaranty Association (“LIGA”) and RLI Insurance Company (“RLI”) as defendants. Freeman alleged that LIGA was obligated to Wray Ford as a resident of Louisiana to cover the claim against the now insolvent insurer. RLI was named as a defendant as Wray Ford’s excess insurance carrier with policy limits of $5,000,000.00.

In a second supplemental and amending petition filed on July 5, 2002, Freeman added Philan’s personal automobile liability insurer, Allstate, as a defendant. She also filed a motion for partial summary judgment on the legal question of whether the excess insurance provided by RLI drops down to become the primary insurer due to Reliance’s insolvency, thus making LIGA a secondary insurer. On October 4, 2002, Freeman filed an amending motion for partial summary judgment requesting a finding that Allstate’s liability coverage ranks second after RLI’s, thus bumping LIGA to third. RLI filed a cross motion for summary judgment on the identical issue requesting a finding that its coverage does not kick in unless the judgment 1¡¡ultimately rendered exceeds the $1,000,000.00 underlying limits. On November 22, 2002, Allstate filed a motion for summary judgment denying coverage on the basis that its coverage did not extend under the circumstances of the present case because of the policy’s business use exclusion for non-owned automobiles. The motions came for hearing on December 2, 2002, and the matters were submitted on briefs. On January 24, 2003, the court issued an oral bench ruling granting the plaintiffs motion and supplemental motion for summary judgment on the issue of coverage ranking and denying RLI’s and Allstate’s motions for summary judgment. A judgment to that effect was submitted and signed on February 11, 2003. The instant appeal and writ applications by RLI and Allstate followed.

DISCUSSION

Construction of Insurance Policies

An insurance policy is a contract which constitutes the law between the parties. If the wording of the policy is clear and expresses the parties’ intent, the policy must be enforced as written. Pareti v. Sentry Indem. Co., 536 So.2d 417, 420 421 (La.1988). Absent a conflict with statutory provisions or public policy, insurers are entitled by their agreement with the insured to limit their liability and to impose reasonable conditions upon the obligations contractually assumed in a given policy. Crocker v. Roach, 33,507 (La.App.2d Cir.8/23/00), 766 So.2d 672. Summary judgment declaring a lack of coverage under a policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed [4facts shown by the evidence supporting the motion, under which coverage could be afforded. Crocker, at 675.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. La. C.C. art. 2056; Cadwallader v. Allstate Ins. Co., 2002-1637 (La.6/27/03), 847 So.2d 577. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. That strict construction principle applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations; for the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable.

Coverage Under the RLI Policy

We find that the trial court correctly found that the RLI insurance policy was more than an umbrella policy and should cover the claim arising from the accident at issue. Under the language of the RLI policy, RLI would be responsible for the loss in excess of the retained limit. The retained limit is defined on page nine of the policy, as the amount stated in item four of the declarations. Item four of the declarations page states that the retained limit is zero. Therefore, under number two of the limits of liability section for the RLI policy, RLI would be responsible for the ultimate net loss in excess of zero, which would cover the claim of Shannon Freeman. This places them as primary insurer up to the policy limits of $5 million. RLI could have listed the retained limit as the amount of the | ¡¡underlying insurance carrier as did the insurer in Kelly v. Weil, 563 So.2d 221 (La.1990).

In Kelly, supra, the Louisiana Supreme Court ruled that excess/umbrella policies are to be divided into the following three categories:

(1) Excess policies that state that the underlying limit of the excess coverage is dependent on the “collectability” of the primary limits;
(2) Excess policies that describe the excess coverage as the excess of the limits of the policies “covered” in the schedule of underlying coverage attached to the policy;
(3) Excess policies that define “retained limit” as “the greater of applicable limits of the scheduled underlying policies and the applicable limits of any other insurance collectible by the insured.”

In the third category, the supreme court held that whether the excess policy drops down depends upon the definition of “retained limit” and whether or not the “retained limit” creates any ambiguity in the contract of insurance. Because the retained limit in this case is clearly “0,” it is clear that the RLI policy is not a true excess carrier, but that it has posited itself as a primary obligor on a claim against Reliance. Consequently, RLI’s reliance on Kelly, supra, is misplaced.

The limits of liability provision of the RLI policy issued to Wray Ford carefully spells out the responsibility of RLI under each of the three circumstances noted above: (1) A loss covered under scheduled underlying insurance; (2) A loss covered under unscheduled insurance; and (3) A loss not covered either under scheduled or unscheduled underlying insurance. The RLI umbrella policy provides:

| fiII LIMITS OF LIABILITY
A. Regardless ..., we shall only be liable for the ultimate net loss in excess of:
1. The applicable limits of scheduled underlying insurance stated in Item 5, of the Declarations, for occurrences covered by scheduled underlying insurance, plus the limits of any unscheduled underlying insurance which also provides coverage for such occurrences; or
2. The unscheduled underlying insurance or the retained limit, which is greater, for occurrences covered by unscheduled underlying insurance and by this policy only; or
3. The retained limit, for occurrences covered by this policy only; ...

Subpart A(l) is applicable to the plaintiffs claims because the accident was covered by the underlying insurance. Unquestionably, the scheduled underlying insurance policy had automobile liability limits of $1,000,000.00. Subpart A(2) is inapplicable to this ease. However, Subpart A(3) is directly applicable because RLI’s liability begins when its retained limit is exhausted. Here that limit is $0, so coverage begins at dollar one.

The court properly noted RLI simply could have avoided liability by simply requiring the insured to maintain a retained limit in the same amount as the underlying insurance. The trial court focused on Numbers 2 and 3 of “Limits of Liability.” The policy states that RLI is liable for the ultimate net loss in excess of the retained limit. Thus, RLI is liable for the ultimate net loss in excess of zero.

In this case, the language is not clear, and is not sufficiently limited to create mutually exclusive categories of coverage. The RLI policy is ambiguous, and that ambiguity must be resolved against RLI. Moreover, 17the Financial Impairment exclusion provision of the RLI policy does not apply in this ease because liability attaches at the retained limit of zero and is not contingent on the insolvency of the underlying carrier.

Lastly, RLI’s policy is not a true excess policy. The trial judge properly found that RLI’s policy provides primary coverage to Freeman. In order for the RLI policy to be a true excess policy it would have had to have chosen a retained limit in excess of zero. Finally, under La. R.S. 22:1386, LIGA is the obligor of last resort because all other possible insurance coverage must be exhausted before coverage under LIGA is triggered.

In sum, the trial judge correctly ruled that the RLI policy provided primary coverage for the damages suffered by Freeman.

Liability Under the Allstate Policy

Allstate issued a policy of automobile liability insurance to Allen P. Philan covering his three vehicles for the period of February 13, 1999, to August 13, 1999. The accident at issue in the present case took place on May 24, 1999, while Philan was driving a shuttle bus owned by his employer Wray Ford, Inc. Philan’s policy with Allstate contains the following exclusion of liability:

This coverage does not apply to liability for:
(3) a non-owned auto while being used in any business or occupation of an insured person. However, coverage does apply while you, your chauffeur, or domestic servant are using a private passenger auto or trailer.

Allstate filed its motion for summary judgment on the basis of this exclusion and the allegedly uncontradicted fact that the accident occurred |swhile Philan was using his employer’s 1998 Ford shuttle bus while in the course and scope of his employment. Freeman alleges in her petition and Philan admits in his opposition to the motion for summary judgment that he was driving a non-owned auto while in the course and scope of his employment.

There is no question that the exclusion, as written, clearly precludes coverage for liability incurred by the insured while driving a non-owned vehicle while engaging in his occupation. Therefore, the two questions which remained for the trial court were: (1) Whether the evidence presented on the motion for summary judgment indicates undisputed facts giving rise to the exclusion, and; (2) whether the exclusion is otherwise unenforceable due to a conflict with statutory provisions or public policy. The trial court answered the latter question in the affirmative by finding the Louisiana Supreme Court’s public policy reasoning in Marcus v. Hanover Insurance Co., Inc., 1998-2040 (La.6/4/99), 740 So.2d 603, applicable to the business use exclusion in Allstate’s policy thus rendering it unenforceable. We disagree.

Marcus, supra, is factually distinguishable from the present case and those distinctions make the public policy reasoning relied on in Marcus, supra, inapplicable as a basis for declaring the business use exclusion in Allstate’s policy unenforceable. In Marcus, supra, the supreme court found the business use exclusion to be contrary to the public policy stated in La. R.S. 32:851, et seq., when it excluded from coverage the named insured while operating his personal car. The court noted that the statutory scheme |9was intended to attach financial protection to the vehicle rather than to the operator. In the instant case, Philan was not operating his personal car insured under the Allstate policy while engaged in his occupation. Philan was operating his employer-owned vehicle in the course and scope of his employment. This employer-owned vehicle was at all times covered under the Reliance liability policy. The public policy considerations that the supreme court faced in Marcus, supra, are not present here. See Kinchen v. Lewis, 2002-2198 (La.App. 1st Cir.2/3/03), 844 So.2d 36.

However, in moving for summary judgment the burden of proof that the exclusion endorsement is applicable is on the insurer who filed the motion. Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La.App.2d Cir.1/23/02), 806 So.2d 945. Consequently, in order to show that the business use exclusion is applicable in the present case, Allstate was obligated to make a prima facie showing that Philan was driving a non-owned vehicle in the course and scope of his employment. A review of the record indicates that there is no genuine issue of material fact which precludes a finding that Philan was driving his employer’s vehicle while in the course and scope of his employment, thus making the business use exclusion applicable. The fact was alleged by Freeman in her petition and admitted by Philan in his memorandum in opposition to the motion for summary judgment.

Philan’s argument in opposing the motion that the exclusion does not apply because the shuttle bus he was driving could qualify as a “private passenger auto” which is excepted from the provisions of the exclusion is unpersuasive. While Phi-lan may have used the shuttle bus to transport [^passengers from one destination to another, he did so in a shuttle bus owned by a business for a “commercial” and not a “private” purpose. The suggestion that because “private passenger auto” is not defined in the policy, the commercially owned shuttle bus might qualify as one, is without merit.

We are likewise unpersuaded by Freeman’s reliance on this court’s decision in Ligeikis v. State Farm Fire and Casualty Company, 31,954 (La.App.2d Cir.10/27/99), 745 So.2d 806, 839. In Ligeikis, supra, two plaintiffs were injured when the driver of the van they were traveling in dozed off and the van flipped on the interstate. The parties were returning to Georgia after doing a renovation project in Shreveport, Louisiana. They were traveling in a van leased by their employer. Among the parties sued was the driver and his wife’s auto liability insurer, USAA.

The trial court granted USAA’s motion for summary judgment on the basis of the business use exclusion in its policy. The court of appeal reversed finding that there was a genuine issue of material fact as to whether the driver was in the course and scope of his employment. In citing the applicability of the Marcus, supra, public policy concerns, this court stated that “if Steve is found to be not employed or otherwise engaged in any business or occupation at the time of the accident” the same rationale would apply. No such doubt exists in the present case. Philan was admittedly in the course and scope of his employment, and no party has urged anything to the contrary. Allstate’s insurance covered his private vehicle, and the [ i business use exclusion operated to prohibit coverage to the commercial vehicle that Philan was driving.

Accordingly, we find that coverage under Allstate’s policy for the loss suffered by the plaintiff under the circumstances of this case is clearly excluded and that the trial court erred in denying Allstate’s motion for summary judgment.

CONCLUSION

Based on the foregoing, we affirm the trial court’s ruling that the RLI policy provides primary coverage for the damages sustained by Freeman and must be exhausted before coverage under LIGA is triggered. We reverse the trial court’s, denial, Allstate’s motion for summary judgment and render summary judgment in favor of Allstate. Costs assessed equally to RLI and Allen Philan.

AFFIRMED IN PART. REVERSED IN PART AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS, and MOORE, JJ.

Rehearing denied.


author: |,WILLIAM H. BYRNES, III, Chief Judge.

text:
    STATE of Louisiana v. Jose SANCHEZ, a/k/a Jose Estevez.
    No. 2003-KA-1214.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 15, 2003.

      Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for the State.
    Jerry L. Fontenot, Marion B. Farmer, Farmer & Burns, Covington, LA, for the Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD).
   |,WILLIAM H. BYRNES, III, Chief Judge.

Pursuant to a Crosby guilty plea, Jose Sanchez, a/k/a Jose Estevez, appeals his conviction and sentence for possession of crack cocaine. We affirm.

Procedural History

On November 20, 2002, Sanchez was charged with one count of simple possession of cocaine. On April 25, 2003, the trial court heard and denied his motions to suppress the evidence and statement. Sanchez withdrew his plea of not guilty and entered a plea of guilty as charged, reserving his right to appeal the trial court’s ruling on his suppression motions pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Sanchez waived all delays, and the trial court sentenced him to serve eighteen months at hard labor. In return for his plea, the State agreed not to file a multiple bill against the defendant.

Facts

On November 8, 2002, police officers received a hotline tip of narcotics activity at 6316 Ransom Street. The officers set up a surveillance of that residence |2and soon observed a man and woman pull up in a car. The man exited the car and conducted a hand-to-hand transaction whereby the man gave someone standing outside the residence some money, in exchange for which he received an unknown object. The officer conducting the surveillance radioed a back-up team, describing the man, his car, and the license plate number of the car.

The back-up officers soon saw the car and stopped it. As one officer approached the driver’s side of the car, the other officer approached the passenger side. The passenger, later identified as the defendant Jose Sanchez, began speaking with the officer at his door. The other officer, who was stationed at the driver’s side, saw Sanchez trying to hide a “large white rock of compressed matter” under his left leg as he conversed with the officer outside the passenger door. Believing the rock was crack cocaine, the officer on the driver’s side of the car told his partner what he had seen, and the officers ordered Sanchez out of the car. The officers handcuffed Sanchez, advised him of his Miranda rights, and retrieved the rock of crack cocaine. Pursuant to Sanchez’ arrest, the officers searched him and seized three small bags of marijuana from his pocket.

On cross-examination, the officer who testified at the suppression hearing (the one who had observed Sanchez trying to hide the rock of crack cocaine under his leg) admitted the gist of the police report listed Sanchez as “Mr. Esteves”, but the officer testified that the report used that name because that was the name he gave the officers at the time of his arrest. Apparently Sanchez made a few other statements, but the State indicated at the suppression hearing that it intended to use no other statements Sanchez made when he was arrested.

_|jErrors Patent

A review of the record reveals no patent errors.

Motion to Suppress

Sanchez contends the trial court erred by denying his motion to suppress the evidence. Specifically, he argues that the officers did not have reasonable suspicion to stop his car because the other officer only observed a handshake between him and his uncle. He further argues that the hotline tip by itself was not sufficient to give the officers justification to stop him.

La.C.Cr.P. art. 215.1(A) provides:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

In State v. Thompson, 2002-0333 pp. 5-6 (La.4/9/03), 842 So.2d 330, 335, the Louisiana Supreme Court addressed the standard for determining if an officer has reasonable suspicion to conduct an investigatory stop:

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 [the] 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).... 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.1983) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).)

In Thompson, officers received a tip from an untested confidential informant that drugs were being sold from a certain location by a man named “James”, whose 14description the informant included in the tip, as well as a description of the car “James” drove and its license plate number. The officers set up a surveillance of the residence and the car and observed the defendant exit the house and place something on the passenger floorboard of the targeted car. The defendant went back into the house and returned with a small infant whom he placed in the back seat of the car. At that point, an unknown man approached him, and the two men engaged in conversation. Soon the unknown man gave the defendant some money, and the defendant walked back to the car and retrieved an object from the front passenger floorboard. The defendant gave the man the object and then drove from the scene. Some officers tried to stop the man after he left the area, but upon seeing the officers he put something in his mouth and fled. Other officers followed the defendant and then detained him in another location as he was meeting with yet another man. As the officers approached the defendant, he threw something into the car. The officers detained the men and seized from the car a white tissue containing tin foils of heroin.

On review of this court’s reversal of the defendant’s conviction and sentence, the Supreme Court found that the officers had reasonable suspicion to detain the defendant. The Supreme Court stated:

... 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 a 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.... Accordingly, we hold that these activities, particularly when coupled with the tip that the defendant sold large | samounts 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.”).
State v. Thompson, at pp. 5-6, 842 So.2d at 335.

In State v. Brown, 2000-2120 (La.App. 4 Cir. 12/19/01), 804 So.2d 863, writ denied 2002-0308 (La.2/7/03), 836 So.2d 85, officers received citizen complaints about crack cocaine dealing at a certain address. The officers set up a surveillance and observed several people go to the residence at that address and exchange money for small objects from someone at the gate of the residence. The officers then observed a car pull up to the residence and blow its horn. A woman came out of the residence, went to the car, and spoke with someone inside the car. The woman received a small object from the driver of the car and then went back inside the residence. Believing they had just witnessed a drug delivery, the officers stopped the car and observed three packages of cocaine lying in plain view inside the car. On review of his conviction, this court found that the tip and the suspected drug transactions from the residence gave the officers reasonable suspicion to stop the car. This court further noted that given the citizen complaints and the suspected drug transactions witnessed by the officers: “There is no question that the officers would have had reasonable suspicion to stop someone leaving the house after they had completed a narcotics transaction.” Id., at p. 9, 804 So.2d at 868.

In the present case, as in Thompson, the officers had a hotline tip of drug sales from the residence, and during a surveillance of the residence, one officer |fisaw what appeared to her to be a hand-to-hand transaction wherein the defendant gave a person standing outside the residence money, in exchange for which he received an unknown object. Although Sanchez argues that these actions were really a handshake between him and his uncle, he presented no testimony of this assertion at the suppression hearing. This case did not have the added factors present in Thompson of someone putting something into his mouth and fleeing; however, pursuant to Brown, the tip and the observation of the hand-to-hand transaction gave the officers reasonable suspicion to stop the car in which Sanchez was a passenger.

In support of his argument that the officers did not have reasonable suspicion to stop him, Sanchez cites Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), where the United States Supreme Court held that the officers did not have reasonable suspicion to conduct an investigatory stop. The police received an anonymous tip that a man at a certain location, dressed in a certain way, was carrying a gun. The officer went to that location and saw the defendant, who matched the description. Even though the officers did not see the defendant engage in any suspicious activity, they stopped and detained him based on the tip. The United States Supreme Court found that the anonymous tip, which merely described the defendant and noted his location, did not give the officers reasonable suspicion to stop him. The Supreme Court noted that anonymous tips such as the one in that case, which gave no predictive information, gave the officers no means to test the informant’s knowledge or credibility. The Supreme Court stated:

An accurate description of a subject’s readily observable location and appear-anee is of course reliable in this limited sense: It will help the police correctly | identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person ....

Id., 120 S.Ct. at 1379.

In State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, the anonymous tip noted that the defendant was selling drugs, described the vehicle the defendant drove, and related where his vehicle would be parked when he was not using it to sell drugs. The officers went to that location and saw the vehicle being driven away. The officers followed, and when the defendant stopped the vehicle, the officers detained him and called for a canine unit. They subsequently discovered contraband. Upon review of the trial court’s denial of the motion to suppress the evidence and this court’s denial of writs from that refusal, the Louisiana Supreme Court reversed, finding that the corroboration of the “tip” did not give the officers reasonable suspicion to stop the defendant. The Supreme Court noted that the tip, being anonymous, lacked an indicia of reliability or basis of knowledge, and the officers’ failure to corroborate any claim of criminal activity gave them an insufficient basis for a finding of reasonable suspicion to support the stop. The Supreme Court stated:

We note that the police were not powerless to act on the non-predictive, anonymous tip they received. 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. These circumstances, however, were not present here. In the absence of any suspicious conduct or corroboration of information from which police could conclude that the anonymous informant’s allegation of criminal activity |gwas reliable, we must conclude that there was no reasonable suspicion to detain defendant. The trial judge erred in holding otherwise.
Id., 98-2960 pp. 5-6, 721 So.2d at 1270-1271.

In State v. Lee, 485 So.2d 555 (La.App. 5th Cir.1986), also cited by Sanchez, the police stopped the defendant based solely on a tip.

In the present case, the tip by itself did not give the officers reasonable suspicion to stop the car in which the defendant was riding. However, the stop was not based solely on the tip, but rather upon the tip and the transaction observed by the officer who conducted the surveillance. The tip was corroborated by the surveillance, during which the officer observed Sanchez engage in a suspected drug sale and obtain the suspected drugs from a person standing outside the residence named in the tip. Thus, the officers had reasonable suspicion to stop the car.

Once the car was stopped, one officer saw Sanchez trying to hide under his leg what appeared to be a rock of crack cocaine. The officers removed Sanchez from the car, and the officers could see the rock lying on the seat where Sanchez had been sitting. The officers lawfully seized this evidence pursuant to the “plain view” exception to the warrant requirement. See State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205. In addition, once the officers arrested Sanchez, they could lawfully seize the bags of marijuana they found in his pocket during the search pursuant to his arrest. See State v. Wilson, 467 So.2d 503, 515 (La.1985); State v. Fontenot, 2001-0178 (La.App. 4 Cir. 8/8/01), 795 So.2d 410, writ denied 2001-2627 (La.10/4/02), 826 So.2d 1114; State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95), 660 So.2d 942.

19Because the evidence was lawfully seized, the trial court did not err by denying the defendant’s motion to suppress the evidence.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Sanchez was also charged in case number 434-897 with one count of simple possession of marijuana, a misdemeanor, first offense. He pleaded guilty and reserved his right to appeal the trial court’s ruling on his motions to suppress the evidence and statement, and the trial court sentenced him to serve six months in parish prison. The Appellate Division of the Criminal District Court has jurisdiction to hear the appeal of the misdemean- or, and this appeal is limited to a review of the felony conviction.


author: I JAMES F. McKAY III, Judge.

text:
    Patricia Wallace Cunningham, Wife of/and Earnest CUNNINGHAM v. CHALMETTE MEDICAL CENTER, Ralph Gessner, M.D., Mark Vrahas, M.D., John T. Thien, M.D., Michael K. Hill, M.D., Stephen Kishner, M.D., Walter H. Brent, Jr., M.D. and ABC Insurance Company. Patricia Wallace Cunningham, Wife of/and Ernest E. Cunningham v. Chalmette Medical Center, Ralph Gessner, M.D., Mark S. Vrahas, M.D., John T. Thien, M.D., Michael K. Hill, M.D., Stephen Kishner, M.D., Walter H. Brent, Jr., M.D., IMG Healthcare, L.L.C., and UHS of New Orleans, Inc.
    Nos. 2003-CA-0214, 2003-CA-0215.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 15, 2003.

      Allan Berger, Allan Berger & Associates, P.L.C., New Orleans, LA, and Gerald J. Calogero, Metairie, LA, Attorneys for Plaintiffs/Appellees.
    David A. Bowling, Douglas R. Kraus, Wilson, Bowling & Kraus, New Orleans, LA, Attorneys for Defendants/Appellants, Chalmette Medical Center, Inc. and UHS of New Orleans, Inc.
    Thomas C. Cowan, J. Roslyn Lemmon, Darrin L. Forte, Preston & Cowan, L.L.P., New Orleans, LA, Attorneys for Defendants/Appellants, Michael K. Hill, M.D., and IMG Healthcare Network, L.L.C.

      Harvey J. Godofsky, Deborah I. Schroeder, Mang, Batiza, Gaudin, Godofsky & Penzato Metairie, LA, Attorney for Defendants/Appellants, Ralph Gessner, M.D. and Walter H. Brent, Jr., M.D.
    Stephen M. Pizzo, Mary K. Peyton, Blue Williams, L.L.P., Metairie, LA, Attorneys for Defendant/Appellant, John T. Thien, M.D.
    Richard P. Ieyoub, Attorney General, E. Ralph Lupin, M.D., Special Assistant Attorney General, Kathleen A. Chapman, Special Assistant Attorney General, Jennifer M. Caulfield, Special Assistant Attorney General, New Orleans, LA, Attorneys for Defendants/Appellants, Mark S. Vra-has, M.D., and Stephen Kishner, M.D.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   I JAMES F. McKAY III, Judge.

On May 21, 1998, Patricia Wallace Cunningham underwent surgery for a total hip replacement at Chalmette Medical Center. The surgery was performed by Drs. Ralph Gessner and Mark Vrahas. Following this surgery, Mrs. Cunningham was monitored and treated by Drs. John Thien, Michael Hill, Stephen Kishner and Walter Brent, Jr. as well as Drs. Gessner and Vrahas. Mrs. Cunningham contends that these physicians failed to appropriately monitor her condition and an infection developed which rendered her wheelchair bound.

On May 20, 1999, Mrs. Cunningham and her husband, Ernest E. Cunningham, filed suit against Drs. Gessner, Vrahas, Thien, Kishner, Hill, Brent, and Chalmette Medical Center (CDC no. 99-8353). In response, Drs. Gessner, Thien, Hill, Brent and Chalmette Medical Center each filed exceptions of prematurity which the trial court maintained on September 13, 1999. The plaintiffs then proceeded with medical review panel proceedings against all of the defendants named in their lawsuit and UHS of New Orleans, Inc. (UHS). At the [2concIusion of the medical review panel proceedings, the plaintiffs filed a second lawsuit (CDC No. 02-5539), which was ultimately consolidated with their earlier lawsuit. This second lawsuit named all of the defendants included in the first lawsuit as well as UHS and IMG Healthcare, L.L.C. (IMG). In response, IMG, Dr. Hill, Chal-mette Medical Center, UHS, Dr. Vrahas and Dr. Kishner filed exceptions of improper venue. The trial court denied all of these exceptions. Dr. Kishner, Dr. Vrahas and IMG also filed exceptions of prematurity. The trial court found that the exceptions of Drs. Kishner and Vrahas were moot because they were filed in response to the original petition for damages filed prior to the medical review panel proceedings; the trial court also denied IMG’s exception of prematurity. Dr. Vrahas also filed an exception of insufficiency of service of process which the trial court ruled moot as proper service had been made on Dr. Vrahas in the earlier consolidated lawsuit. The defendants appeal the denials of their exceptions.

With regards to the exceptions of prematurity filed by Drs. Kishner and Vrahas, we agree with the trial court that they are moot as they were filed in response to the original petition for damages that was filed prior to the proceedings of the medical review panel. Following the conclusion of those proceedings, a second petition for damages was filed and the cases were consolidated pursuant to the rules of court. Because the claims were submitted to the medical review panel and the panel has concluded its proceedings, the actions against Drs. Kishner and Vra-has are not premature. We also agree with the trial court that the action is not premature as to IMG because whether or not it is a qualified healthcare provider |3any claims against it have already been presented to and reviewed by the medical review panel by submission of the claims against Dr. Hill. We also agree with the trial court that Dr. Vrahas’ exception of insufficiency of service of process is moot because proper service was made on Dr. Vrahas in the consolidated case (CDC No. 02-05539).

The central issue in this appeal is whether venue is proper in Orleans Parish. According to Louisiana Code of Civil Procedure article 42(1) and (2), an action against an individual who is domiciled in the state shall be brought in the parish of his domicile and an action against a limited liability company shall be brought in the parish where its registered office is located. Furthermore, in accordance with Louisiana Code of Civil Procedure article 73, an action against joint or solidary obligors may be brought in a parish of proper venue as to any obligor. A plaintiff defending against an exception of venue by invoking the provisions of the article governing venue in an action against joint or solidary obligors must allege sufficient facts as to prove that the venue chosen is the proper venue for at least one of the joint or solidary obligors, and must also allege facts showing that the various defendants are in fact jointly or solidarily obligated. Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00), 762 So.2d 1206.

In the instant case, all of the named defendants provided medical services in some form to the plaintiff, whether during, prior to or subsequent to her hip replacement surgery on May 21, 1998. As such, these defendants may be jointly liable for the plaintiffs damages. One of the defendant’s, IMG’s, registered office |4is in Orleans Parish. IMG is Dr. Hill’s employer and the limited liability company under which he operates his medical clinic. The evidence in the record indicates that IMG is the entity responsible for operating the medical clinic of which Dr. Hill is a member. In everything that it does, IMG holds itself out as the company responsible for running the clinic where Dr. Hill works, and IMG physicians, including Dr. Hill, hold themselves out as agents of IMG. .

Because IMG is a limited liability company whose registered office is located in Orleans Parish, venue would be proper in Orleans Parish as to IMG. Due to the nature of TMG’s relationship to Dr. Hill and the other named defendants, all of the parties may be jointly or solidarily liable for Mrs. Cunningham’s damages. As such, venue in Orleans Parish would be proper not only as to IMG but also for all of the other named defendants. Accordingly, the trial court was correct in denying the defendants’ exceptions of improper venue.

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

AFFIRMED.

      . The plaintiffs also filed a lawsuit in St. Bernard Parish with the same allegations against the same defendants.

      . UHS is a division of Chalmette Medical Center.


author: |, JAMES F. MCKAY III, Judge.

text:
    SUCCESSION OF Abraham G. MANHEIM. Liquidation of Manheim Antique Galleries an in Commendam Partnership.
    Nos. 2003-CA-0282, 2003-CA-0283.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 15, 2003.
    Writ Denied Dec. 19, 2003.

      Leon H. Rittenberg, Jr., Baldwin & Haspel, L.L.C., I. Jay Krieger, Krieger & Krieger, New Orleans, LA, for Appellants, Gayle Manheim Cohen, Edward L. Weitz and Sandra Weitz Lipschutz.
    Fred L. Herman, Thomas J. Barbera, Law Offices of Fred L. Herman, New Orleans, LA, for Appellee/Liquidator, John P. Hammond.
    Kyle Schonekas, Joelle F. Evans, Joann I. Johnson, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Appellant, Ida Manheim Zachary.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR.).
   |, JAMES F. MCKAY III, Judge.

Following the death of Abraham Man-heim, the general partner of a limited partnership known as Manheim Antique Galleries, a bitter family dispute resulted in the liquidation of the business. This lead to litigation regarding the succession of Abraham Manheim as well as the liquidation of the business. On November 5, 1999, the trial court appointed John P. Hammond, a retired lawyer with the law firm of Montgomery, Barnett, Brown, Read, Hammond and Mintz, as liquidator.

The liquidator was charged with the duty of winding down the affairs of Man-heim Antique Galleries. Before beginning this task, Mr. Hammond posted a five million dollar bond. Mr. Hammond determined that in order to obtain the highest dollar amount for the assets of Manheim Antique Galleries, it would be best to operate the business for as long as possible in order to maximize the sale of inventory and conclude the liquidation with discount sales and auctions when it could no longer be operated in its usual fashion. The inventory was appraised at $6 million while the business’ real estate holdings were appraised at $2.55 million. |2 Ultimately, the sale of the business’s inventory brought in $16 million, while the sale of its real estate raised $4.425 million. However, throughout the liquidation process, the liquidator was faced with the constant threat of litigation from the various heirs, many of whom had competing and conflicting interests.

On March 16, 2001, the liquidator filed a motion to fix his fee and a memorandum in support thereof. Sometime thereafter, Mr. Hammond learned that his fee would be opposed. Thereupon, he retained attorney Fred Herman to represent him in this fee dispute. After a lengthy hearing on April 18, 2002, the trial court fixed the liquidator’s fee at five percent of all assets to be calculated by including “all property on hand from the date of inception of the liquidation and any proceeds derived therefrom.”

On October 11, 2002, a hearing was held on the motion to homologate the provisional accounting, including the application of the five percent liquidator’s fee. There was no objection to the accounting and the trial court ordered the homologation of the accounting as presented by the liquidator. After a hearing on October 31, 2002, the trial court rendered a judgment setting the liquidator’s fee at $1,129,608.00. The various Manheim heirs now appeal.

On appeal, the appellants raise the following assignments of error: 1) the district court’s decision awarding the liquidator a fee of $1,129,608.00 is manifestly erroneous; 2) the district court erred when interpreting the decision of Judge Pro Tempore Mickey P. Landry that the liquidator’s fee should be five ^percent of the liquidation’s gross receipts rather than five percent of the sums distributed to the owners; 3) the district court erred when opining that the decision of Judge Pro Tempore Mickey P. Landry was a final judgment and could not be revised; 4) the district court erred in not holding that the liquidator’s request for a fee of $480,000.00 was a judicial admission as to the sum to which he was entitled; 5) the district court erred when not accepting into evidence Cohen proffered exhibits 5 and 6 which indicate that Judge Pro Tempore Mickey P. Landry should have recused himself; 6) the district court’s decision awarding the liquidator a fee of five percent is manifestly erroneous; and 7) the district court erred in accepting into evidence a letter from the Honorable Max N. Tobias, Jr.

Assignment of Error No. 1

In the instant case, the trial court awarded the liquidator a fee of $1,129,608.00, which amounted to five percent of the amount that the liquidation raised. La. R.S. 12:142(D) provides that when a court appoints a liquidator, the court may determine “conditions as to bond and compensation as it may deem proper.” Accordingly, there is no set amount that a liquidator is to be compensated for his services. Louisiana Code of Civil Procedure Article 3351, which deals with successions, sets a fee of two and one-half percent of the amount of the inventory as compensation for the executor or administrator of the estate. However, “[t]he court may increase the compensation upon a proper showing that the usual compensation is inadequate.” In Pasternack’s For Liquidation v. Samuels, 446 So.2d 969 (La.App. 3 Cir.1984), the Third Circuit held that a trial court has much |4discretion in setting a liquidator’s fee and the fee award can be disturbed only if that discretion has been abused.

In the instant case, Mr. Hammond had to perform a variety of duties, including the making of all management decisions for the business, setting compensation and bonuses of the employees, reviewing the monthly financial statements, reviewing the monthly itemized bank accounts, obtaining the necessary appraisals of the assets, obtaining an audit of the business, keeping track of over twenty-five hundred items of inventory, selecting and negotiating contracts with auction houses, determining when and where to conduct auctions, determining when and where to hold discounted sales and the amount of the discounts to be allowed to customers, contracting with an advertising agency to advertise the discount sales, handling claims of customers, attending auctions in New York City and New Orleans, signing and filing income tax returns of the business as well as other functions.

Due to the complex nature of this particular liquidation, a certified public accountant, Mr. Wilson Lagraize, was hired to assist Mr. Hammond in accounting and financial matters and was requested to perform an audit. Furthermore, at virtually every step of the liquidation he was met with objections, threats of suits and court filings by various former partners of the Manheim Antique Galleries. In spite of this, the liquidator obtained $12,000,000.00 more than the appraised value of all of the assets of the business. Due to the complex nature of this liquidation as well as the exceptional results realized by the liquidation, the trial court determined | sthat the liquidator was entitled to a fee of five percent of the liquidation ($1,129,-608.00). Based on the record before this Court as well as considering the exceptional results realized by the liquidation, we find no abuse of discretion in the trial court’s setting the liquidator’s fee at $1,129,608.00.

Assignment of Error No. 2

The appellants contend that the district court erred when interpreting the decision of Judge Pro Tempore Mickey P. Landry that the liquidator’s fee should be five percent of the liquidation’s gross receipts rather than five percent of the sums to be distributed to the owners. The April 18, 2001 judgment stated that the liquidator’s fee should be set at “five percent (5%) of the total partnership assets of Manheim Antique Galleries, An In Commendam Partnership, which shall include all property on hand from the date of inception of the liquidation and any proceeds derived therefrom.” The language of this judgment is clear. Accordingly, this assignment of error is without merit.

Assignment of Error No. 3

The appellants contend that the district court erred when opining that the decision of Judge Pro Tempore Mickey P. Landry was a final judgment and could not be revised. Ordinarily, absent a substantial change in circumstances upon which the fee is based, i.e. fraud, mismanagement, or breach of fiduciary duty, there can be no modifications or revisions of a prior order or judgment fixing the amount of a fee. Succession of McLean, 651 So.2d 920 (La.App. 2 Cir.1995).

IfiOn April 18, 2002, Judge Pro Tempore Mickey P. Landry fixed the liquidator’s fee at five percent of all assets to be calculated by including “all property on hand from the date of inception of the liquidation and any and all proceeds therefrom.” On October 11, 2002, a hearing on the motion to homologate the provisional accounting, which included the application of the five percent liquidator’s fee, was held before Judge Rosemary Ledet. At that hearing, the appellants requested that the trial court review the prior judgment of Judge Landry because they believed it was influenced by prejudice on the part of Judge Landry; however, the appellants filed no motion to reconsider the April 18, 2001 judgment, nor did they file a motion for a new trial or a petition to annul the April 18, 2001 judgment. Judge Ledet stated that she believed the April 18, 2001 judgment to be a final judgment from which no timely appeal had been taken and therefore was not subject to review. However, in her reasons for judgment, she stated that she believed the allegations of prejudice on the part of Judge Landry were “baseless and unsupported by any evidence in the record.” This court dismissed the appeal of the April 18, 2001 judgment. On August 18, 2003, the Supreme Court found that this Court acted prematurely in acting on the motion to dismiss and ordered this Court to refer this motion to the merits.

The issue of whether or not the April 18, 2001 judgment was a final judgment is now moot. This Court has considered both Judge Landry’s judgment and Judge Le-det’s judgment on the merits. Based on the record before this Court, |7we find no error or abuse in discretion regarding the setting and award of the liquidator’s fee.

Assignment of Error No. 4

The appellants contend that the district court erred in not holding that the liquidator’s request for a fee of $480,000.00 was a judicial admission as to the sum which he was entitled. The appellants’ contention ignores the fact that the liquidator continued to perform additional services for a considerable length of time after this fee was requested. Furthermore, the appellants never requested the trial court consider the request for the $480,000.00 fee as a judicial admission. Accordingly, this assignment of error is not properly before this Court.

Assignment of Error No. 5

The appellants contend that the district court (Judge Ledet) erred in not accepting into evidence Cohen proffered exhibits 5 and 6 which indicate that Judge Pro Tempore Mickey P. Landry should have recused himself. The appellants allege that these documents show that counsel for appellants’ law firm (Baldwin and Haspel) were representing clients in nineteen separate cases against the personal interests of Judge Landry. These are nineteen cases where the law firm of LeBlanc, Maples & Wadell, L.L.C. intervened for attorneys’ fees in asbestos related personal injury cases, where the law firm of Landry & Swarr, L.L.C. (where Mickey P. Landry is a partner) undertook the representation of persons previously represented by LeBlanc, Maples & Wadell, L.L.C. The appellants, however, never filed a motion to recuse Judge Landry.

lsIn order to justify recusal of a judge, bias, prejudice, or personal interest on the part of the judge must be of a substantial nature and be based on more than conclusory allegations. Tamporello v. State Farm Mutual Automobile Ins. Co., 95-458 (La.App. 5 Cir. 11/15/95), 665 So.2d 503. A judge can only be removed upon a finding of actual bias or prejudice; a substantial appearance of impropriety or even a mere appearance of impropriety are not causes for removing a judge. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930, 2000-1931 (La.App. 1 Cir. 9/28/2001), 809 So.2d 1040. Furthermore, a contention that a trial judge should have recused himself will not be considered on appeal where no motion for recusal was made at trial. Campbell v. National Union Fire Ins. Co., 92-592 (La.App. 3 Cir. 12/7/94), 647 So.2d 569. In the instant case, as no recusal motion was ever filed, the issue is not properly before this Court.

Assignment of Error No. 6

The appellants contend that the trial court’s decision awarding the liquidator a fee of five percent is manifestly erroneous. This assignment of error is essentially the same as appellants’ assignment of error number one. As stated earlier, we find no error or abuse of discretion on the part of the trial court awarding the liquidator a fee of five percent.

| ^Assignment of Error No. 7

The appellants contend that the district court erred in accepting into evidence a letter from the Honorable Max N. Tobias, Jr. This leads to the interesting question of how exactly Judge Tobias’s November 13, 2000 letter should be classified. Judge Tobias’s letter was in response to appellants’ counsel, Mr. Rittenberg, requesting a status conference; Judge Tobias was the original district court judge in this case and it was he who appointed Mr. Hammond as liquidator. In his letter, Judge Tobias opined that it was not Mr. Hammond but the parties and their lawyers who were responsible for the delays. This opinion appears to be based on Judge Tobias’s observations while he was the presiding judge on this case. It does not appear therefore that the letter is hearsay. Accordingly, it does not appear that the trial court erred in admitting the letter into evidence.

DECREE

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

AFFIRMED.

      .Mr. Hammond was appointed by the Honorable Max. N. Tobias, who at that time was the Judge of Division L of the Civil District Court for the Parish of Orleans.

      . After Judge Tobias was elected to the Fourth Circuit Court of Appeal, attorney Mickey P. Landry was appointed Judge Pro Tem-pore of Division L. by the Supreme Court.

      . By this time, the Honorable Rosemary Le-det had been elected Judge of Division L.

      . When Judge Ledet addressed the appellants' allegations of Judge Landry's bias and improper conduct, she found them "baseless and unsupported by any evidence in the record.” Although this issue is not technically before this Court, based on our review of the record, we concur with Judge Ledet that these allegations are baseless and unsupported by any evidence in the record.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee, v. Noble Elias BATES, Appellant.
    No. 37,282 KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2003.
    Rehearing Denied Dec. 4, 2003.

      Hersy Jones, Jr., Shreveport, for Appellant, Noble Elias Bates.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson Assistant, J. Thomas Butler, Edward M. Brossette, Assistant District Attorney, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   JjDREW, J.

Noble Bates appeals two convictions at a bench trial for aggravated criminal damage to property and aggravated flight from an officer. He also appeals the life sentence imposed. We affirm.

FACTS

In the summer of 2000, the defendant was observed shoplifting at the Kroger grocery store on Benton Road in Bossier City. Off-duty detective Sam White approached the defendant, who began fighting White, grabbing at the officer’s firearm. Bates freed himself, ran out of the store, and entered his car. When the officer attempted to pull Bates from the vehicle, Bates jerked White partially into the car. With the door swinging open, Bates dragged White around the store parking lot, finally slinging him off. White notified Bossier City Police by pressing an emergency button on his radio. Once police arrived, the defendant stopped his vehicle, observed the officers for a moment, and then rammed into one of the police cars. A chase ensued, beginning on Benton Road and proceeding onto Interstate 20 westbound into Shreveport. The Shreveport Police Department picked up the pursuit through the downtown and Allendale areas.

During the chase, the defendant drove quite recklessly, running several stop signs and red lights. He crossed over yellow lines and drove across medians. He drove up to 70 miles per hour in residential neighborhoods. When the defendant approached another Shreveport police vehicle, he slowed down, then accelerated and struck the vehicle, causing the police car to crash into a light pole and injuring both officers therein. Officer Ramsey received several stitches in the top of his head and several pbruises and lacerations on his arms; and Officer Anderson sustained back and shoulder injuries. Their police unit also received heavy damage.

The chase continued up Milam Street and ended at the intersection of Dowling and Patzman Streets, where Shreveport Police Officer Peters was standing. Peters attempted to flag Bates down. During that time, children were crossing the intersection. Peters blocked part of the intersection with his vehicle, but left a portion of the intersection open as an avenue of escape for Bates, in the hope that, if he did not stop, at least he would not strike any children with his car. Upon reaching Peters, Bates accelerated his vehicle toward Peters and the youngsters. Peters drew his weapon and shot three times, striking Bates in the leg. The injured defendant then drove around the corner to Clay Street, where he abandoned his vehicle. After a foot chase, police officers apprehended the defendant, who later received treatment at LSU Medical Center.

After a bench trial, the defendant was found guilty as charged. He was then adjudicated as a third felony offender, and sentenced to life in prison, without the benefit of parole, probation, or suspension of sentence for the aggravated criminal damage to property conviction. For the aggravated flight from an officer conviction, the defendant was sentenced to serve two years at hard labor to run concurrent with any other sentence.

DISCUSSION

Sufficiency of the Evidence

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first [¡¡determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Aggravated Criminal Damage to Property

La. R.S. 14:55 provides:

Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.
Whoever commits the crime of aggravated criminal damage to property shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not less than one nor more than fifteen years, or both.

The defendant argues that the crime of aggravated criminal damage to property requires general intent. He contends that there was conflicting testimony by Officers Ramsey and Anderson and that their testimony did not prove that he voluntarily or intentionally struck their patrol car. He further argues that Anderson was not even sure if the defendant’s vehicle had actually made contact with the patrol unit.

Shreveport Police Officer Cole testified that the defendant intentionally rammed, at an accelerated speed, the Shreveport Police vehicle |4in which Ramsey and Anderson were riding, forcing the unit to hit a nearby steel light pole. Ramsey’s and Anderson’s testimony established they occupied the police unit rammed by defendant, they sustained injuries and under those circumstances, it was foreseeable that human life might be endangered. Ramsey sustained cuts from the collision, a concussion and temporary memory loss, resulting in his missing approximately one month of work. Anderson received back and shoulder injuries. The evidence submitted by the state was sufficient to show that the defendant committed all essential elements of the crime of aggravated criminal damage to property.

Aggravated Flight from an Officer

In pertinent part, La. R.S. 14:108.1 states:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic.
E. Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than two years.

To prove the elements of aggravated flight from a police officer, Bossier City Officer Wells testified when he and Officer Cole arrived at the Ustore, they partially blocked the exit toward which the defendant was traveling. The officers activated the emergency lights on the vehicles, exited their clearly-marked patrol vehicles and gave the defendant repeated verbal commands to exit his vehicle. Their testimony was that defendant stopped, partially exited his vehicle, quickly got back in his vehicle and accelerated out of the parking lot, striking Wells’ police vehicle. The chase described earlier ensued with the lights and sirens activated on the pursuing patrol units.

The police described defendant’s driving at high rates of speed, well in excess of 25 miles per hour over the posted speed limit. The testimony was that Bates crossed the median, after colliding with the Shreveport Police unit, and traveled against the flow of traffic. McConnell observed the defendant leave the roadway when he crossed over the median; his unit’s video camera portrayed the criminal vehicular operation as it happened.

Although the state is only required to prove two aggravating factors for a conviction of aggravated flight from an officer, the state proved all four, and each was proven beyond a reasonable doubt. Based on this record, there is ample evidence to sustain both convictions.

Mandatory Life Sentence

The defendant argues that the trial court failed to conduct a constitutional analysis of mitigating factors in the record prior to sentencing him to the mandatory life sentence under La. R.S. 15:529.1. He also asserts the testimony of four doctors confirmed that he suffers from various mental | ^illness disorders. The defendant argues that evidence showed that he was “in a state of paranoia [sic] due to his psychological illness.” He urges that his conviction and sentence for the aggravated criminal damage to property should be vacated and set aside. The record does not show a response from the state to this assignment of error. He argues that his “mental condition was more so attributed to his failure to take prescribed medication and that all crimes committed by the defendant, a Vietnam war veteran, occurred after he was diagnosed with auditory hallucinations, post-traumatic stress disorder as well as schizophrenic paranoid (sic).” The defendant also contends that based on a psychiatric evaluation performed by Dr. Paul Ware, “at the time of the arrest and his behavior and the reason for arrest, he was psychotic, overly suspicious, paranoid, and misperceiving his environment and actually was not aware of the wrongness of the wrongness [sic] of his behavior.” Bates further argues that there was ample evidence of factors mitigating against the imposition of the mandatory life sentence. In response, the state relies upon Bates’ stunning 63 prior arrests and 23 prior convictions.

Citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court in State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339 repeats:

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to |7the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Lindsey at p. 343.

Since the Habitual Offender Law is presumed constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, supra. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case which would rebut this presumption of constitutionality. State v. Johnson, supra. Downward departures from the minimum senténce under the Habitual Offender Law should occur only in rare cases in which the punishment violates the prohibition of La. Const. art. I, § 20 against excessive sentences. State v. Johnson, supra.

A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The Habitual Offender Law seeks to both deter and punish recidivism by treating a defendant with multiple felony convictions as a recidivist who is to be punished for a particular crime in light of his continuing disregard for the laws of our state. State v. Johnson, supra and State v. Lindsey, supra. It was Bates’ burden to prove the extraordinary reason for a ^downward departure and he failed to do so. With 63 arrests and two dozen convictions, the only exceptional circumstance is what an extraordinary reprobate the Bates is.

The defendant points to some testimony urging that the defendant suffered from auditory hallucinations and post-traumatic stress disorder and that Bates was diagnosed as a schizophrenic paranoid. Defendant argues that the initial report of the examining psychiatrist, Dr. Paul Ware, stated the defendant was not aware of the wrongness of his actions. During trial, Ware testified that after evaluating the defendant, his final determination was that Bates was aware of the wrongness of his actions and/or knew the difference between right and wrong at the time of the incident. In a motion to reconsider sentence, defendant argues that the court did not take into account the defendant’s mental condition at the time he committed the instant crimes. This bare allegation does not rise to a threshold level by which to rebut the presumption that a mandatory sentence under the Habitual Offender Law is constitutional.

When viewed in light of the harm done to society, the punishment Bates received does not shock the sense of justice. The record reflects that the defendant could appreciate the wrongness of his actions and was conscious of the difference between right and wrong. He did not show any regard for human life as he fled the police. He intentionally damaged police property wherein it was foreseeable that human life might be endangered. |a The instant offense of aggravated criminal damage to property was his third felony conviction and the mandatory life sentence is appropriate.

The Mayeux Argument

Defendant argues that the trial court erred in sentencing the defendant under the version of La. R.S. 15:529.1 in existence at the time the defendant committed the instant offense, rather than the version in existence at the time he was convicted of the third felony, citing State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, in which the Louisiana Supreme Court held that the version of the DWI statute in effect at the sentencing of the offense applied because the statute provided for its application “upon conviction” rather than upon commission of the third felony.

The state correctly argues that the case law cited by defense counsel does not apply to the Habitual Offender Statute. In Mayeux, the Louisiana Supreme Court, in a plurality decision, was addressing DWI cases only, clearly resorting to its policy-making function as well as analyzing closely the wording peculiar to La. R.S. 14:98 E. In State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213, we held the 2001 amendment to La. R.S. 15:529.1 is prospective only.

Bates committed aggravated criminal damage to property on July 20, 2000. After being adjudicated a third felony offender, the defendant was correctly sentenced by the court under the Habitual Offender Law in effect at the time the criminal act was committed. At the time of the commission of the instant offense, La. R.S. 15:529.1(A)(b)(ii) stated:

|inIf the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without the benefit of parole, probation, or suspension of sentence.

The sentencing judge applied the appropriate law at sentencing.

Motion In Arrest of Judgment

According to Bates, the state used the act of the collision that occurred between his vehicle and the police unit occupied by Officers Ramsey and Anderson to satisfy elements in both the aggravated criminal damage to property charge and the aggravated flight from an officer charge. Bates asserts that evidence adduced at trial indicates the offenses are based upon the same intertwined and inseparable transactions, claiming that prosecution on both counts constituted double jeopardy.

Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal offense. State v. Vaughn, 431 So.2d 763 (La.1983); State v. Gay, 36,357 (La.App.2d Cir.10/23/02), 830 So.2d 356. The test enunciated by the United States Supreme Court for determining whether two offenses are the same for double jeopardy purposes is whether each statute requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Steele, 387 So.2d 1175 (La.1980).

The “same evidence” test is used in Louisiana. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Didier, 262 La. 364, 263 So.2d 322 (1972). If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, supra; State v. Doughty, 379 So.2d 1088 (La.1980). If each offense requires proof which the other does not, then the two offenses are not subject to a double jeopardy plea.

The record indicates that, under La. C. Cr. P. art. 859, the defendant submitted a motion in arrest of judgment on count two, aggravated criminal damage to property. The trial court denied this motion, finding that the particulars of the instant facts and the language of these two statutes adequately sustain both convictions. By definition, the crimes of aggravated flight from an officer and aggravated criminal damage to property are not the same offenses and have different required elements; i.e., each offense requires proof that the other does not.

Flight from an officer is a misdemeanor requiring proof of a driver’s failure to stop when being pursued by an officer of the law who is utilizing lights, siren, and a marked unit to effectuate the stop. La. R.S. 14:108 A. and B. To get this crime into a felony category, as charged here, there must also be competent proof of two of four aggravating circumstances. In this case, all four aggravating factors were present.

1. Speed at least 25 mph over the posted speed limit,
2. Traveling against traffic,
|123. Leaving the roadway, and
4. Causing a collision.

Only the last of these elements, a collision, is even arguably necessary to establish one of these four possible aggravating-elements, proof of two of which are required to prove aggravated criminal damage to property. However, the contemplated defendant under aggravated flight from an officer is the driver of a motor vehicle. The contemplated defendant in aggravated criminal damage to property could be a pedestrian hurling a rock, a rifle, or a raccoon.

Proof was had here that Mr. Bates committed all four aggravating elements; therefore, proof of a collision was not necessary to support the conviction of aggravated flight from an officer. Aggravated criminal damage to property was proven here by an intentional vehicular collision wherein the danger to human life was readily apparent. This is a separate crime from aggravated flight from an officer. Double jeopardy does not apply here.

Bill of Information

The defendant argues that the bill of information failed to state the amount of damage on the aggravated criminal damage to property charge, nor did the state present any evidence regarding the amount of damage during the trial. He contends that this is error patent and that his conviction must be reversed and his sentence set aside, relying upon State v. Bass, 509 So.2d 176 (La.App. 1st Cir.1987).

| ^Jurisdictional defects, discoverable as error patent on the face of the record, are those defects which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. State v. Kendrick, 34,097 (La.App.2d Cir.12/20/00), 779 So.2d 884. La. Const. Art. 1, § 13 requires that a criminal defendant shall be informed of the nature and cause of the accusation against him. State v. Kendrick, supra.

While the punishment for simple criminal damage to property is dependent upon the amount of damage to the property, no such requirement exists for aggravated criminal damage to property under La. R.S. 14:55. The defendant’s reliance on State v. Bass, supra, is misplaced. In Bass, the First Circuit Court of Appeal was dealing with a defective bill of information for a simple criminal damage to property charge. In a charge of simple criminal damage to property the bill of information must allege an amount of damage committed or the bill of information is defective. See, La. R.S. 14:56; State v. Bass, supra. However, in the instant case, the bill of information charging the defendant with aggravated criminal damage to property clearly informed Bates as to the accusation. His convictions and sentence are well-deserved.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Possibly a North. Louisiana record.