author: 11 LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of C.W.
    No. 2002-CA-2419.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2003.

      Frances M. Breyne and Linda Johnson, Bureau of General Counsel, New Orleans, LA, for Appellant.
    • (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   11 LOMBARD, Judge.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

On November 14, 2002, the Department of Social Services, Office of Community Services (“DSS/OCS”) instituted an investigation into the physical abuse of C.W., a three-year old child. After a preliminary investigation, physical abuse was confirmed, and the boyfriend of the child’s mother was placed under suspicion. When confronted, the child’s mother acknowledged the injuries, but denied the abuse, and offered no plausible explanation for the injuries. She further denied her boyfriend’s involvement.

C.W. came into the custody of DSS/OCS by oral instanter order on November 15, 2002 at the request of a child protection investigator. The oral order was confirmed on November 18, 2002 by Judge Lawrence L. Lagarde, Jr. and the custody hearing was set for the following day. In the Affidavit in Support of Instanter Order, attested to by the Child Protection Investigator, Pakima Betz-Stamps, the alternative services issue was addressed in Paragraph Number 8, which states: “That the following services have been offered to prevent the necessity of removal of said child(ren), to no avail: Ms. Webb’s refusal to protect her child from the perpetrator indicated that she would not comply with a safety plan. L Consequently a hold order was deemed necessary. Relatives were found for the placement of Clarence subsequent to the hold order.” (emphasis added).

At that time, the child was placed with relatives pending the hearing. A hearing for continued custody was held in juvenile court on November 19, 2002. Judgment was rendered on November 19, 2002, wherein the court found probable cause for the issuance of the hold order. Provisional protective custody of the child was awarded to DSS/OCS pending the filing of a petition and further proceedings.

Although the juvenile court agreed with appellant in finding probable cause for the hold order, the court expressed the finding that appellant made no reasonable efforts to arrange an informal placement of the child with relatives prior to getting the hold order: “The Court does not find that the Agency made reasonable efforts regarding placement with a relative prior to taking the child into custody for his protection.” It is this finding of “no reasonable efforts” that appellant takes issue with in this appeal.

ARGUMENT

Appellant argues that the juvenile court’s finding that appellant did not make reasonable efforts for placement with relatives prior to obtaining the hold order is contrary to law and facts. Specifically, appellant submits that it acted within its authority, pursuant to La. Ch.C. art. 622(A), to request that the child be placed in the temporary custody of the State. Article 622 states:

A. Unless the best interest of the child requires a different placement, a child who is determined to be abused, neglected, or harmed and whose parents have failed to protect, or who is taken into custody as a child in need of care shall be placed, pending a continued custody hearing, in accordance with this priority:
(1)In the home of a relative who is of the age of majority and with whom the child has been living in a wholesome and stable environment and who is willing hand able to continue to offer such environment for the child pending an adjudication hearing.
(2) In the home of a relative who is of the age of majority and who is willing and able to offer a wholesome and stable environment for the child pending an adjudication hearing.
(3) In foster care under the supervision of the department until further orders of the court.
(4) The following, among other relatives, are those who may be considered and to whom care of the child may be entrusted and are fisted in the order of priority:
(a) Grandparent.
(b) Aunt or uncle.
(c) Sibling.
(d) Cousin.

It is argued by appellant that the option of informally placing the child with an aunt who was available at the time would not have afforded the child any legal protection. Specifically, appellant asserts that informal placement with the relative would not have been secure, and would have allowed the mother to withdraw the child at any time. Instead, appellant submits that the decision was made to seek a hold order, thereby conferring legal custody to the State, and preventing the mother from retrieving the child pending the continued custody hearing. Appellant contends that its decision was influenced by the mother’s lack of candor concerning the abuse during the investigation.

LAW AND DISCUSSION

The judgment rendered by the juvenile court judge states in pertinent part:

The Court, after the taking of testimony of the worker and the mother, finds that there was probable cause for the issuance of the hold order based on the physical danger to the child as the mother offered no plausible explanation for the child’s injuries; that preventative services are being offered to the parents; that there is a substantial immediate danger which precludes preventative services as an alternative to removal. The Court does not find that the Agency made reasonable efforts regarding placement with a relative prior to taking the child into custody for his protection. The mother was advised of her rights and the consequences of the child being in need of care. (Emphasis added.)
14Accordingly, the Court awards the provisional custody of said child to the Department of Social Services pending the filing of a petition and further proceedings in this matter.

After a review of the record, it is apparent that the juvenile court agreed with appellant in finding probable cause for the issuance of the hold order. The court, however, took issue with appellant’s efforts in investigating alternatives to the hold order. Statements made by the juvenile court on the record give insight into the court’s ruling. The juvenile court opined that appellant failed to investigate every avenue such as a protective order or obtaining the consent of the mother to place the child with a relative while petitioning the District Attorney’s Office. Specifically, the judge stated, ‘You don’t go the measure of getting a hold order unless you absolutely have to. And you have to rule out all of those other things in order to get to that point.”

The finding of the juvenile court, that appellant failed to make reasonable efforts, is based upon the statutory requirement set forth in La. Ch.C. art. 619(B), which provides:

B. The Court shall determine whether reasonable efforts have been made by the department to prevent or eliminate the need for the child’s removal, including whether the department has requested a temporary restraining order pursuant to Article 617 or a protective order pursuant to Article 618. In making and determining reasonable efforts, the child’s health and safety shall be the paramount concern. However, the court may authorize the removal of the child even if the department’s efforts have not been reasonable.

The record indicates that the judge was of the opinion that appellant failed to make the reasonable efforts contemplated by La. Ch.C. art. 619(B). The judge further stated on the record that appellant was required to find relatives and make an assessment of whether or not the relatives were willing and able to care for the | ¡¡child. The • court stated further that, “With respect. to their, seeking out and finding appropriate relatives, I cannot find that they made reasonable efforts to that [sic], based on the testimony of the worker.”

In fact, the OCS worker testified that a relative was located who was willing to take the child, and that the relative was capable of providing for the child’s needs. Appellant further testified that the mother of the child agreed to leave him with the relative, but the OCS was worried that she might change her mind. DSS/OCS argued that the child would have been in danger at the relative’s home because the mother could have revoked her consent and removed the child from the relative’s home without the State being made aware of that event, thereby exposing the child to the boyfriend again.

Moreover, the OCS Child Protection Investigator specified in the Affidavit in Support of the Instanter Order that the reason for requesting a hold order in lieu of an informal placement arrangement with relatives was due to the mother’s lack of candor during the investigation and failure to protect her child from future exposure to the perpetrator. The mother initially lied to the OCS investigator when she stated that her boyfriend was the child’s “uncle.” She never offered any reasons for the injuries, instead continuing to call the impact marks a “rash.” Even the juvenile court found that the mother failed to offer any “plausible explanation” for the child’s injuries. Thus, the OCS worker considered the mother unwilling to protect her child from the boyfriend and determined that in order to protect the child adequately, the State must have legal custody of the child pending the custody hearing. Meanwhile, the OCS placed the child with relatives pending the hearing. Thus, the State had legal custody of the child, while the relatives had physical custody.

| ^Careful consideration of the evidence demonstrates that the OCS Child Protection Investigator did exactly what the juvenile court wanted OCS to do: investigate relative placement options prior to obtaining the hold order. The worker, in fact, placed the child with relatives; however, the OCS worker and her supervisor believed that such placement, without a change in legal custody, was insufficient to protect the child. Even though the OCS worker determined that the relatives could provide a safe placement for the child, the agency considered the child to be at risk without the transfer of legal custody from the mother to the State because of the mother’s refusal to acknowledge the abuse and to identify her boyfriend as the abuser. Thus, the OCS worker placed the child with relatives and sought the instanter order to ensure the child’s safety pending the custody hearing.

After a comprehensive review of the record, we find that, under the circumstances of this case,- the OCS had sufficient justification to be concerned that the child would not be adequately protected without requesting a hold order. Accordingly, we affirm the judgment of the juvenile court as it relates to the probable cause finding, but reverse the portion of the judgment where the juvenile court found that DSS/ OCS failed to exert “reasonable efforts regarding placement with a relative prior to taking the child into custody....”

The well established standard of appellate review requires that an appellate court may not set aside a trial court’s or jury’s finding of fact in the absence of “manifest, error”- or unless it is “clearly wrong”. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). As explained by the Louisiana Supreme Court in Rosell, an appellate court may not substitute its judgment if the trial court’s findings are reasonable in light of the record reviewed in its entirety. This same standard of 17review must also be applied in appeals from our juvenile courts. In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47. Applying this standard of appellate review, we consider the portion of the juvenile court’s findings of fact pertaining to the probable cause for issuance of the hold order to be reasonable in light of the record, but conclude that the portion of the judgment finding that the OCS failed.to make reasonable efforts with relative placement prior to obtaining a hold order to be unreasonable in light of the circumstances evidenced in the record.

CONCLUSION

After a thorough review of the record, we ■ find the juvenile court judge’s ruling, that appellant failed to make reasonable efforts in investigating the child’s placement with relatives prior to seeking a hold order, is incorrect under the factual circumstances of this case where the mother failed to appreciate the danger to her child and failed to be completely forthright with the OCS during the investigation. Thus, we find manifest error in that portion of the lower court’s ruling. Accordingly, the portion of the judgment wherein the juvenile court found probable cause for the issuance of the hold order is affirmed, and the portion of the judgment finding that the State agency failed to make reasonable efforts to place the child informally with relative prior to obtaining the hold order is reversed.

AFFIRMED IN PART; REVERSED IN PART.


source: Caselaw Access Project

author: | .EDWARD A. DUFRESNE, JR., Chief Judge. It EDWARDS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Henry BOSS.
    No. 03-KA-133.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Paul D. Connick, Jr. District Attorney, Thomas J. Butler, Terry M. Boudreaux, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appel-lee.
    Jane L. Beebe, Gretna, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

By this appeal, defendant, Henry Boss, challenges the sufficiency of the evidence used to convict him of purse snatching. For the reasons which follow, we affirm his conviction but remand the matter for re-sentencing in accordance with this opinion.

On December 5, 1998, Stacy Debnam, then seven months pregnant, went to Do-rignac’s Grocery to shop. During the course of her shopping, Ms. Debnam had filled her cart with grocery items and she was nearly finished shopping. During her time in the grocery, she had placed her purse in the top compartment of the grocery cart. Ms. Debnam walked to the dairy case, while pushing the grocery cart. She parked the cart and stepped about three feet away, to retrieve a bottle of milk. When Ms. Debnam returned to her grocery cart, her purse was missing. As she did so, she also saw a man proceeding through the grocery aisle with her purse on his shoulder. Ms. Debnam screamed “stop that man” and she began to chase the suspect through the store. The suspect dropped the purse at the entrance to the store, and ran into the parking lot.

At this time, Officer Douglas Doyle, an off-duty Jefferson Parish policeman, had come to the store to shop. He heard the victim’s screams and saw the suspect 13running toward the store’s entrance carrying a purse. According to Officer Doyle, he saw the suspect drop the purse before the suspect exited the store and ran into the parking lot.

Officer Doyle apprehended the suspect, who was later identified as Henry Boss. Defendant briefly resisted the apprehension, but Officer Doyle was able to place him on the ground, handcuff him and return him to the security office of the store. According to Officer Doyle, it was within five minutes from the time he heard the victim scream until the apprehension occurred. Ms. Debnam immediately identified Boss as the man who took her purse. Officer Doyle was also able to retrieve the purse and its contents, consisting of a small amount of money, credit cards and a cell phone.

As a result of this incident, the Jefferson Parish District Attorney filed a bill of information charging defendant with theft of goods, valued between one hundred and five hundred dollars, in violation of LSA-R.S. 14:67. However, shortly before the matter was scheduled to go to trial, the state amended the bill of information to reflect a charge of purse snatching, a violation of LSA-R.S. 14:65.1. Defendant was arraigned on the amended charge and entered a plea of not guilty and not guilty by reason of insanity. Defendant waived his right to a trial by jury, and the matter proceeded to a bench trial. After listening to the evidence presented, the judge took the matter under advisement in order to review the medical reports relative to the insanity defense, which were submitted during trial. The judge thereafter rendered a verdict finding defendant guilty as charged.

Defendant then filed a motion for new trial, which was denied. Following this denial, the trial judge sentenced defendant to twenty years at hard labor. The state filed a multiple bill wherein it alleged that defendant was a fourth felony offender. After a hearing, defendant was found to be a third felony offender and ^sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

On appeal, defendant urges only one assignment of error, that the evidence was insufficient to support the verdict. He argues that the state failed to prove an essential element of the crime of purse snatching, and argues that the matter should have been considered a theft. Defendant points out that he was originally charged with theft and that the charge was not amended until over 2$ years after the incident, one month before trial. The state replies that pursuant to LSA-C.Cr.P. art. 61, it was within the discretion of the district attorney to amend the charge. We agree. The district attorney has the sole discretion to choose under which law he will prosecute. State v. Craig, 32,209 (La.App. 2 Cir. 8/18/99), 747 So.2d 604.

In this case challenging sufficiency of the evidence, this court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” On appeal, the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 772 So.2d at 83. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a ^reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

In the present case, defendant was convicted of purse snatching. That offense is defined in LSA-R.S. 14:65.1 as “the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.”

On appeal, defendant argues that there was no evidence of force or intimidation, and that the evidence was insufficient to find that a “snatching” had occurred. He points to the fact that no one could testify that this was a snatching or grabbing because there were no eyewitnesses to the incident. He thus urges that the matter should have been considered a theft. We find no merit to defendant’s argument.

The Supreme Court has held that “snatching” does not require an actual face-to-face confrontation, and is distinguished from “use of force” and “intimidation” by the statute’s very wording. State v. Anderson, 418 So.2d 551 (La.1982). The state need only show that force or intimidation or snatching was used to accomplish the theft of something of value from the purse that is within the immediate control or on the person. State v. Marts, 98-0099 (La.App. 4 Cir. 5/31/00), 765 So.2d 438, 444.

In State v. Anderson, supra, sufficient evidence of a purse snatching was found where the victim testified only that she felt a vibration, then noticed that her purse was no longer on the floor by her feet. Similarly, in State v. Capote, 474 So.2d 497 (La.App. 4 Cir.1985), the court held that even though the victim did not feel her purse being removed from the back of the chair, the theft constituted purse snatching because the statute does not require a face-to-face confrontation, but only a taking from the area within the victim’s control.

In State v. Neville, 96-0137 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, writ denied, 97-1637 (La.12/12/97), 704 So.2d 1180, the appellate court affirmed a purse snatching conviction where the defendant was found walking away with the victim’s wallet. On appeal, defendant had urged that there was nothing to rebut the hypothesis that he committed the theft after the wallet had fallen from the victim’s purse. The court found that even if the defendant merely picked up the wallet after it fell, the wallet was still in the victim’s immediate control since it would have been by her foot, where she also found a comb that had fallen.

In the present case, even though there was no eyewitness to the “snatching,” we find that the state proved, by circumstantial evidence, the essential elements of the offense of purse snatching beyond a reasonable doubt. Prior to finding her purse missing, the victim had her purse, containing things of value (cash, credit card, and a cell phone) in her immediate control. She turned away to retrieve some milk, and in the length of time that it took to do that, her purse was gone. She immediately spotted defendant with her purse in his possession as he attempted to flee the store. Defendant was also seen by Officer Doyle, running through the store with the purse on his arm. We find this evidence sufficient to sustain defendant’s conviction for purse snatching. Accordingly, the arguments raised by defendant in this assigned error are without merit.

We have also reviewed the record for errors patent according to LSA-C.Cr. P. art. 920. Our review reveals that the trial judge failed to vacate defendant’s original twenty year sentence for purse snatching prior to sentencing defendant to a term of life imprisonment as a multiple offender. Where the original sentence on the underlying offense has not been vacated at the time of defendant’s sentencing as a multiple offender, the original sentence remains in effect and the subsequent sentence |7as a multiple offender is null and void. State v. Dyer, 00-1866 (La.App. 5 Cir. 4/24/01), 794 So.2d 1. We therefore remand the matter to the trial court for resentencing, with instructions to vacate defendant’s original sentence before imposing the multiple offender sentence.

We acknowledge the case of State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, in which this court followed the dictates of State v. Mayer, 1999-3124 (La.3/31/00), 760 So.2d 309, and deviated from its long held practice of vacating the multiple offender sentence as null and void and remanding the case to the district court for the purpose of vacating the original sentence and resentencing defendant as a multiple offender. In Davis, this court found that the multiple offender sentence was valid despite the fact that the transcript failed to indicate that the trial judge had vacated the original sentence. However, both Davis and Mayer are distinguishable from the instant case. In those cases, the commitment/minute entry reflected that the trial court vacated defendant’s original sentence whereas the transcript did not so reflect. In the present case, neither the transcript nor the commitment/minute entry indicate that the trial court vacated defendant’s original sentence prior to imposing an enhanced sentence. Under these circumstances, we find that it is necessary to vacate defendant’s multiple offender sentence as null and void and to remand the matter for resentencing.

We also note that the trial judge failed to advise defendant of the prescriptive period for post conviction relief as required by LSA-C.Cr.P. art. 930.8. We instruct the trial court, at resentencing, to advise defendant of the prescriptive period for post conviction relief and to file written proof in the record that defendant received such notice.

For the foregoing reasons, defendant’s conviction and sentence for purse snatching, and the finding that defendant is a third felony offender, are hereby affirmed. Defendant’s multiple offender sentence is vacated and the matter is | ^remanded to the trial court for the resentencing of defendant in accordance with this opinion.

CONVICTION AFFIRMED, MULTIPLE OFFENDER SENTENCE VACATED, MATTER REMANDED FOR RE-SENTENCING.

EDWARDS, J., dissents with reasons.

It EDWARDS, J.,

dissents with reasons.

I dissent .from the majority finding that the act in question constituted “purse snatching.” I am concerned in the present case with the element of “immediate control” as used in R.S. 14:65.1. In the cases cited by the majority, although the bags were not on the persons of the victims when stolen, the victims were in extremely close physical proximity to their purses or wallets. In Anderson, the victim was near enough to both her purse and to the defendant so she felt the vibration of the theft. In the other cases, the victims were seated in chairs from which the purses were taken.

The concept of “immediate control” has been interpreted for other statutes. Cases involving crimes involving armed defendants have broadened the definition of immediate control to include “in the presence of the owner.” (However, the concept has been further explained by the condition that in order to establish robbery, the property must be sufficiently under the victim’s control that, absent violence or intimidation, the victim could have prevented the taking.)

Those cases involving armed robbery are neither controlling nor applicable in the present circumstances. Here, the victim’s purse was in her shopping cart at least three feet away from her, and she had turned both her |¡>person and her attention away from the basket. She remained unaware of the theft until she spotted Boss walking some distance away. In this situation, her purse was not in physical proximity, and thus under her immediate control, for purposes of R.S. 14:65.1. It is clear that “snatching” a wallet or purse either from the victim or from their immediate vicinity presents a potential physical danger to the person. Application of the statute to the present facts appears to be, in my opinion, a distortion of the purpose of its designation as a crime of violence to the person. At best, the state proved the elements of theft.

Therefore, I respectfully dissent.

      . There is no need for the state to present an eyewitness to the events if the circumstantial evidence is sufficient to prove beyond a reasonable doubt the essential elements of the crime. State v. Kirt, 94-2301 (La.App. 4 Cir. 6/29/95), 657 So.2d 775, 777, writ denied, 95-2059 (La.3/7/97), 690 So.2d 10.

      . See e.g., State v. Blanchard, 1999-3439 (La. 1/18/01), 776 So.2d 1165., footnote 9, and the cases cited therein.

      . State v. Thomas, 447 So.2d 1053 (La.1984); State v. Long 36, 167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552, 557.


author: [.CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Eric H. TRICHE.
    No. 03-KA-149.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, LA, for State.
    Prentice L. White, Baton Rouge, LA, for DefendanL-Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   [.CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court properly denied defendant’s motion to suppress. For the following reasons, we affirm but remand this case for resentencing.

STATEMENT OF THE CASE

On May 4, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Triche, with possession with intent to distribute marijuana. La.R.S. 40:966 A. Defendant was arraigned on June 28, 2001, and pled not guilty.

Defendant filed a Motion to Suppress the Evidence which was denied. The defendant objected to the ruling, and noticed his intent to apply for supervisory writs. However, there is no record that defendant filed a writ application in this Court. The trial was completed on October 25, 2001, and the jury returned a verdict of guilty as charged.

On November 9, 2001, the trial court sentenced defendant to 15 years at hard labor. The same day, the State filed a habitual offender bill of information, ^alleging that defendant was a second felony offender. A hearing was held on February 1, 2002, and the court found defendant to be a second felony offender. On March 1, 2002, the trial court imposed an enhanced sentence of 20 years at hard labor, 'without benefit of parole, probation, or suspension of sentence.

Defendant failed to make a timely motion for appeal. On November 18, 2002, he filed a timely Uniform Application for Post-conviction Relief, requesting reinstatement of his appeal rights. On November 22, 2002, the trial court granted defendant an out-of-time appeal.

FACTS

On September 30, 2000, Jefferson Parish narcotics agents John Pacaccio and Dennis Lynch conducted surveillance outside of the Red Lobster Restaurant at Lakeside Shopping Center, on Causeway Boulevard in Metairie. Pacaccio had received information from a “concerned citizen” that a black male employee of the restaurant (who went by the nickname “Red”) was selling marijuana from his car. The car was described as a tan Chevrolet Lumina, which was alleged to be parked at the restaurant. The caller supplied officers with the car’s license plate number. Pa-caccio ran the number on the police computer, and found that the Lumina was registered to defendant, Eric Triche. Lynch and Pacaccio arrived at the restaurant’s parking lot between 8 and 9 p.m. They saw the tan Lumina parked there. The officers were in separate cars and parked in different positions, so that they could see the Lumina from each vantage point. The officers first observed defendant exit the restaurant, dressed in a Red Lobster employee uniform. He walked to the Lumina, sat in the driver’s seat, and stayed there for several minutes. He appeared to search for something in the back seat area of the car. He then left the car and returned to the restaurant.

Thirty to forty five minutes later, he exited the restaurant with one of his coworkers. The two men got into defendant’s car. Defendant appeared to show his | companion the car’s stereo system. He turned on the radio, and played the music loudly. Pacaccio testified that defendant appeared to be looking around for something in the passenger area. The two men got out of the car and went back in the restaurant. At about 11:00 p.m., a man driving a blue Saturn automobile entered the parking lot, and parked alongside defendant’s car. This man went into the restaurant, then came back outside with defendant. ' Defendant and the unknown subject went to defendant’s car and opened the trunk. Defendant removed a brown bag from inside, and tried to give it to the driver of the Saturn. Defendant then closed the trunk. The second man took the bag to the Saturn, opened the trunk, and put the bag inside. Pacaccio testified that, based on the anonymous tip and his experience in narcotics work, he believed a drug transaction had taken place.

Pacaccio and Lynch moved from their position then parked behind the Lumina and the Saturn, and conducted what Pa-caccio characterized as an investigatory stop. The officers’ objective was to determine what was in the brown bag. Lynch detained defendant. Pacaccio asked the Saturn’s driver for permission to search his car. The subject gave his verbal consent for a search. Upon opening the trunk of the Saturn, Pacaccio discovered a brown Dillard’s department store shopping bag. The bag contained a white rag and a bag of green vegetable material. Pacaccio placed the driver of the Saturn under arrest.

Pacaccio asked defendant for permission to search the Lumina, and defendant allegedly consented. The officers opened the trunk of defendant’s car, and found a camera case. The case contained green vegetable material. Pacaccio searched inside of the car, and found a compact disk case in the rear passenger area. The case contained loose green vegetable matter, along with several small plastic bags with the residue of green vegetable matter. Pacac-cio searched the passenger area and located some smoked or burned hand-rolled cigarettes. The | ^officers placed defendant under arrest. Following the arrest, the officers found $122 on defendant’s person. Daniel Waguespack, a forensic scientist with the Jefferson Parish Crime Lab, testified that he analyzed the green vegetable matter seized in the instant case. All of it tested positive for marijuana.

DISCUSSION

Defendant argues the trial court erred in denying the motion to suppress because the evidence seized from the search was obtained after the arresting officers illegally detained him and that the search was conducted without valid consent from him. Defendant contends that the trial court erred in denying his motion to suppress the evidence. He maintains that the officers did not have reasonable suspicion to support the initial stop, and that the officers did not obtain valid consent to search either his own car, or that of the second subject. In this case, police officers obtained the information from an anonymous phone call.

The Fourth Amendment to the United States Constitution and Article I, Section V of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Mercante, 02 712, p. 4 (La.App. 5 Cir. 12/30/02), 836 So.2d 596, 599. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal behavior is recognized by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra; State v. Williams, 98-1006, p. 9 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70 writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. The Terry standard is codified in La.-C.Cr.P. art. 215.1, which allows a police officer “to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense” and to demand that the person identify himself and explain his actions.

| ^Reasonable suspicion for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Duckett, 99-314, p. 5 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230. Absent reasonable suspicion, an investigatory stop is illegal, and the evidence seized as a result is suppressible.

Whether an informant’s tip establishes probable cause to arrest, or reasonable suspicion to stop must be considered under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The sufficiency of an anonymous tip under Terry is determined by the reliability of its assertion of illegality, and not just its tendency to identify a determinate person. Florida v. J. L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000); State v. Johnson, 01-2436, p. 3 (La.App. 5 Cir. 1/25/02), 806 So.2d 647, 648. The anonymous caller’s ability to predict the suspect’s future behavior goes toward reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960, pp. 7-8 (La.10/20/98), 721 So.2d 1268, 1270.

Corroboration of details of an informant’s tip by an independent police investigation is valuable when applying the totality of the circumstances analysis. State v. Raheem, 464 So.2d 293, 296 (La.1985). A non-predictive anonymous tip, paired with either police corroboration or independent police observation of unusual suspicious conduct, can provide police with the reasonable suspicion needed to temporarily detain the suspect. State v. Robertson, supra; State v. Liles, 01-573, p. 10 (La.App. 5 Cir. 11/27/01), 803 So.2d 125, 129-130.

|7In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, the appellate court may consider pertinent evidence adduced at both the suppression hearing and at trial. State v. Nelson, 02-65, p. 4 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 799. The hearing on the motion to suppress in the instant case was held on the day of trial. Agents John Pacaccio and Dennis Lynch testified for the State.

The record in this casé reveals that a “concerned citizen” telephoned Agent Pa-caccio to inform him that Eric Triehe (a/ k/a “Red”) was selling narcotics from his car. The caller said defendant did this at about 10:30 every night, and that it was an ongoing activity. The caller further informed Pacaccio that defendant routinely met with buyers in the parking lot outside of Red Lobster, and distributed marijuana from the trunk of his car. The informant described defendant’s car as a tan Chevrolet Lumina, and gave the car’s license plate number.

The officers confirmed info received from the caller when they went to the Red Lobster parking lot between 8:00 and 9:00 p.m: on September 30, 2000. They located the car and found the make, model, and license plate number of the car were consistent with the information provided by the caller. A computer check confirmed that the car was registered to defendant. The officers began surveillance in the parking lot, several yards away from defendant’s car. They initially saw defendant exit the restaurant and go to his car at 10:00 p.m. Defendant later returned to his car with another individual. The officers did not see defendant engage in suspicious activity up to that point in time. On a third trip to his car, defendant met with a man (known only as Mr. Zara) who arrived in a Saturn automobile to conduct what the officers believed was a drug transaction. Defendant removed a bag from the trunk of his car and passed it to Zara who then placed it in his trunk. The time frame, along with the activities observed by the officers, confirmed the information given by the caller.

|sThe anonymous caller not only gave detailed information about defendant, but he or she gave predictive information that was later corroborated. Moreover, the officers testified that the caller’s information, along with their experience in narcotics work, led them to suspect defendant was engaging in a drug transaction. Moreover, Pacaccio testified that the Dillard’s shopping bag was typical of the type of bag used to conceal marijuana, and that the covert hand-off of the bag, and Zara’s placement of the bag in his car’s trunk, were consistent with a narcotics transaction. We agree with that assessment of the facts.

Defendant points to the officers’ testimony that they did not see any money change hands during the transaction. He argues that without an exchange of money, the handing over of a bag from one person to another would not have given the officers a basis for reasonable suspicion that a crime had been committed. At trial, however, Agent Lynch testified that a drug transaction can involve the exchange of drugs for money or property. Alternatively, the distributor might receive nothing at the time of the transaction, and instead collect his payment at a later date. Based on the foregoing, we believe the officers had reasonable suspicion to believe a crime had been, or was about to be committed and were justified in making an investigatory stop.

Defendant next asserts that even if the initial stop was justified the officers were not authorized to search his or Zara’s car, as they did not receive valid consent. While defendant has standing to challenge the seizure of evidence from his car, he does not have standing to challenge the seizure of marijuana from his companion’s car.

A search conducted without a warrant issued upon probable cause is per se unreasonable, unless justified by a specific exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Moreno, 619 So.2d 62, 66 (1993). Consent to search is an| flexception when it is freely and voluntarily given by a person who possesses authority or other sufficient relationship to the premises or other effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999); State v. Gomez, 01-717, p. 6 (La.App. 5 Cir. 11/27/01), 802 So.2d 914, 918. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Gibson, 97-1203, p. 8 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276, 1280. Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances. State v. Edwards, supra; State v. Gibson, 97-1203 at p. 9, 708 So.2d at 1281. The decision to deny a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. Gibson, supra.

The record reflects that Agent Pacaccio testified that, when he and Agent Lynch approached the suspects, Zara spontaneously said, “Hold up, I’m not going to resist. The weed’s in the trunk.” Pacaccio and Lynch then performed a search of Zara’s car, and found the bag of marijuana they saw defendant give Zara. Agent Lynch next did a pat-down search of defendant for weapons. Agent Pacaccio explained the nature of the investigation to defendant. Pacaccio testified that he then asked defendant for permission to search his car, and defendant verbally consented. Defendant points out that there is no written evidence of his consent. However, oral consent to a search is sufficient; written consent is not required. State v. Ossey, 446 So.2d 280, 287, n. 6 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984).

It appears that, even if defendant did not give valid consent to search, the officers had probable cause to search defendant’s vehicle, based on the transaction hnthey witnessed, and the marijuana recovered from Zara’s car. Accordingly, this assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The transcript of the habitual offender sentencing does not show that the trial court vacated defendant’s original sentence before imposing the enhanced sentence. The habitual offender commitment, however, reflects that the original sentence was vacated. Generally, where the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). However, in State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309 (per curiam), the Louisiana Supreme Court found that an enhanced sentence in such circumstances was valid:

To the extent that the ..." commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

This Court has followed Mayer. See, State v. Simmons, 02 960 (La.App. 5 Cir. 1/28/03), 839 So.2d 239; State v. Davis, 01-123, pp. 6-7 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 130.

La. R.S. 15:529.1(G) denies a habitual offender the benefit of probation or suspension of sentence, but does not deny him parole eligibility. The habitual offender hearing transcript shows that the trial court denied defendant the benefit of parole. We are remanding for correction of this error.

The trial judge did not explicitly rule that defendant was a second felony offender. However, where the habitual offender bill, alleges only one prior felony, the trial judge’s finding that the defendant is a habitual offender can only relate to a hisecond offense. See, State v. Esteen, 01-879, p. 28 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78, n. 22, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983. Accordingly, we vacate defendant’s sentence and remand for resentencing.

CONCLUSION

Based on the foregoing, we affirm defendant’s conviction but vacate the sentence and remand this case for resentencing.

AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.


author: I JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Ruben BELL.
    No. 03-KA-217.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Alan D. Alario, II, Counsel of Record on Appeal, Assistant District Attorneys, Gret-na, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   I JAMES L. CANNELLA, Judge.

The Defendant, Ruben Bell, appeals from his conviction of possession of stolen things valued over $500 and his enhanced sentence to seven years imprisonment at hard labor. For the reasons which follow, we affirm the conviction and vacate the finding of the Defendant as a second felony offender and the enhanced sentence and remand.

On December 5, 1997, the Defendant was charged by bill of information with possession of stolen things valued over $500 in violation of La. R.S. 14:69. He pled not guilty and proceeded to trial on April 3, 2001.

At trial the following evidence was produced. On November 21, 1997, Valerie Jackson’s (Jackson) 1995 white Chevrolet Baretta automobile was parked in the driveway behind her father’s house. Around midnight, her father called and told her that her car had been stolen. Jackson reported the theft to the New Orleans Police Department.

Is At approximately 2:00 a.m. on November 22, 1997, Officer Chad Guidry was patrolling the Westbank Expressway at Lafayette Street when he observed a white Chevrolet Baretta traveling eastbound with cardboard over the rear right side vent window. Officer Guidry was suspicious because the rear vent window is the most common way to make entry into a vehicle to commit theft of the vehicle or to burglarize it. He followed behind the vehicle and ran a license plate check. The license plate “did not come back to anything whatsoever” and Officer Guidry stopped the vehicle.

The Defendant was driving the vehicle and Jones was riding as a front seat passenger. Officer Guidry ordered the occupants out of the vehicle and ran a check of the vehicle identification number (VIN). The VIN check revealed that the car had been stolen in New Orleans. Officer Gui-dry noticed the steering column around the ignition area was defeated and there was no key in the vehicle. He arrested both the Defendant and Jones.

Jackson was notified that her vehicle had been found. She came to the scene and identified the vehicle as hers. At trial, Jackson testified that she did not know the Defendant or Jones and had not given either one of them permission to drive her car.

The Defendant testified that Jones was driving the vehicle when he asked Jones for a ride. The Defendant stated that he had no knowledge that the vehicle was stolen. In fact, the Defendant testified that he asked Jones if the vehicle was “hot” and Jones denied it, showing the Defendant the keys. The Defendant then asked Jones to drive the vehicle, after which time he was stopped by the police.

Following trial, a unanimous six-person jury found the Defendant guilty as charged. The Defendant was sentenced to seven years imprisonment at hard labor.

Thereafter, the State filed a habitual offender bill of information alleging that the Defendant was a second felony offender based on his current conviction 14and a 1994 conviction for possession of stolen things valued over $500. The Defendant initially denied the allegations in the habitual offender bill of information. The matter proceeded to a habitual offender hearing where the Defendant admitted being a second felony offender. The trial court found that the Defendant was a second felony offender, vacated the Defendant’s original sentence and imposed an enhanced sentence of seven years imprisonment at hard labor. The Defendant appeals from his conviction and enhanced sentence. He asserts no errors relating to his conviction. Both assigned errors relate to the habitual offender proceedings and the enhanced sentence.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant contends that the trial court erred in accepting his admission and stipulation to the habitual offender bill of information without a proper advisement of rights. He notes that the trial court did not conduct any type of colloquy advising him of his right to a hearing and his right to remain silent before accepting his stipulation as a second felony offender.

The State concedes that the trial court’s failure to apprize the Defendant of his right to remain silent and the right to have the habitual offender bill of information proven against him before accepting his admission was reversible error.

La. R.S. 15:529.1(D)(l)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the Defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Walker, 01-348 (La.App. 5th Cir.8/28/01), 795 So.2d 459, 463, writ denied, 01-2788 (La.10/4/02), 826 So.2d 1115. Generally, the failure of the trial court to advise the Defendant of his right to a hearing and his right to remain silent is not considered reversible error where the Defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the Defendant. State v. Knight, 01-881 (La.App. 5th Cir.2/13/02), 811 So.2d 947, 949. However, when the guilt of the Defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. Id.

In this case, the record indicates, and the State concedes, that there was no proof introduced of the Defendant’s identity to the alleged predicate offense. The only evidence of that essential element was the Defendant’s own admission. The admission by the Defendant without prior advisement of his rights requires reversal of the habitual offender finding. Therefore, we vacate the trial court’s habitual offender finding and sentence and remand the case to the district court for further proceedings.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant contends that the seven year enhanced sentence for a non-violent property crime imposed by the trial court is excessive. Because of our ruling in assignment of error number one, vacating the sentence and remanding for re-sentencing, we find that this assignment of error is moot.

ASSIGNMENT OF ERROR NUMBER THREE

The Defendant requests that the record be reviewed for errors patent. The record was reviewed in accord with La. C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). We note that the commitment is inconsistent with the transcript regarding the crime of which the Defendant was convicted. Both the original commitment and | fithe habitual offender commitment indicate that the Defendant was found guilty of receiving stolen things valued over $100. However, the transcript shows that the Defendant was convicted of possession of stolen things valued over $500. Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). The error in the commitments is a clerical one. Since a clerical error does not cause prejudice to a defendant’s rights, such error does not merit reversal. State v. Gil more, 522 So.2d 658, 661 (La.App. 5th Cir.1988). Nevertheless, the error should be corrected. Therefore, we order the trial court to correct the original commitment to insure an accurate record. Because of our ruling in assignment of error number one, vacating the sentence and remanding for resentencing, any errors in the habitual offender commitment are moot.

Accordingly, for the reasons state above, the Defendant’s conviction for possession of stolen things valued over $500 is affirmed. The trial court finding that the Defendant is a second felony offender and enhanced sentence are vacated and the case is remand for resentencing and further proceedings consistent with this opinion.

CONVICTION AFFIRMED; HABITUAL OFFENDER FINDING AND ENHANCED SENTENCE VACATED; CASE REMANDED.

      . Co-defendant, Willis Jones (Jones), was also charged in the bill of information with possession of a stolen things valued over $500 and possession of cocaine. The parties were severed for trial and Jones subsequently pled guilty.

      . Defendant’s enhanced sentence was imposed without restriction in violation of La. R.S. 15:529.1(G), which requires an enhanced sentence under the habitual offender laws to be imposed without the benefit of probation or suspension of sentence. However, under La. R.S. 15:301.1(A) and the rationale in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the restrictive provision of La. R.S. 15:529.1(G) is self-activating.


text:
    STATE of Louisiana v. John C. NORMAN.
    No. 03-KA-248.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Paul D. Connick, Jr., District Attorney, Margaret E. Hay, Terry M. Boudreaux, Lisa Schneider, Frank A. Brindisi, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Bertha M. Hillman, Attorney, Thibo-daux, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   I «EDWARD A. DUFRESNE, JR., Chief Judge.

This case arises out of an incident that occurred on December 16, 1999. On that day, Deputy David Randall, in an undercover capacity, patrolled various areas of the Westbank, in an attempt to purchase narcotics. While in the Tallowtree subdivision in Harvey, Deputy Randall approached a black male and asked the man if he had “three twenties,” meaning three rocks of crack cocaine. The subject, later identified as defendant, John Norman, told Randall that he would have to pay for the narcotics first. Randall refused to pay in advance and departed the area.

Randall continued to drive around the subdivision in an attempt to make other narcotics purchases. After another unsuccessful try, Randall decided to leave the area. However, he then observed three black males who signaled him to approach. Randall drove closer to the men, one of whom told him to wait there. Defendant, who was in the group of three, approached the driver’s side window of Randall’s car and asked him if he was a police officer. Randall responded that he was not. Defendant raised his left hand as if he were going to hand Randall something. Defendant said, “Give me the money.” Randall did not intend to give defendant any money until he had seen the narcotics. The deputy put out his right hand to receive the three pieces of crack he believed defendant had in his left hand. ^However, defendant quickly reached into the back of his waistband with his right hand and produced a gun. He pointed the gun directly at Randall and told him to get out of the vehicle. Although defendant did not demand money after he brandished the gun, Randall surmised from his prior statements that he wanted the money. Randall threw his sixty dollars out of the window and quickly drove away. As Randall drove away, he saw defendant picking up the money he had thrown from his vehicle. Later that evening, Randall identified defendant in a photographic lineup as the man who had pointed the gun at him. Defendant was subsequently arrested.

As a result of this incident, the Jefferson Parish District Attorney filed a bill of information charging defendant with attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30.1 (count 1); armed robbery, in violation of LSA-R.S. 14:64 (count 2) ; and possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1 (count 3). Counts 1 and 2 proceeded to trial before a twelve person jury on January 15 — 18, 2002. At the conclusion of trial, the trial court properly charged the jury as to the responsive verdicts. However, the verdict form given to the jury was defective insofar as it contained two non-responsive verdicts to the armed robbery charge, specifically attempted armed burglary and attempted first degree armed robbery. After considering the evidence presented, the jury, on count 1, found defendant not guilty to the charge of attempted second degree murder. With regard to count 2, the jury returned a verdict of guilty of attempted first degree armed robbery. The judge made the verdict the order of the court.

Thereafter, on February 14, 2002, the judge ruled that the verdict returned by the jury on count 2 was illegal, as it was not a responsive verdict to the charged poffense, nor was it an offense which exists under Louisiana law. The court, over defendant’s objection, acted on its own motion in arrest of judgment, set aside the verdict on count 2, and scheduled the matter for a new trial on March 25, 2002. On that day, defendant filed a motion to quash, arguing that the principles of double jeopardy barred the state from retrying him. The trial court denied defendant’s motion. Defendant applied to this court for supervisory writs seeking review of the trial court’s ruling. On April 23, 2002, this court denied defendant’s writ application. State v. Norman, writ number 02-K-419. The Louisiana Supreme Court likewise denied defendant’s writ application. State v. Norman, 02-1419 (La.5/24/02), 819 So.2d 285.

A second trial on count 2 commenced on May 21, 2002. On the following day, the trial court declared a mistrial when the jury revealed that it was deadlocked. On July 30, 2002, the state amended count 2 of the bill of information reducing the charge to attempted armed robbery. Defense counsel reurged his motion to quash, again arguing double jeopardy. The trial court denied defendant’s motion, and the matter proceeded to trial on the amended charge. After considering the evidence presented, the jury found defendant guilty of attempted armed robbery. The trial judge thereafter sentenced defendant to thirty-three years at hard labor without benefit of parole, probation, or suspension of sentence.

The state then filed a multiple offender bill of information, alleging that defendant was a third felony offender. After a hearing, the court found defendant to be a second felony offender, vacated defendant’s original sentence, and imposed an enhanced sentence of fifty years at hard labor without benefit of parole, probation, or suspension. Defendant now appeals.

In his first assignment of error, defendant argues that the trial court erred in ordering a new trial because the verdict was non-responsive. Defendant maintains | fthat the jury’s non-responsive verdict at the conclusion of his January 2002 trial constituted an acquittal as to the armed robbery charge. Therefore, he argues, the court should have granted his motion to quash. Instead, the court erred in allowing the state to subject him to double jeopardy by later trying him on the charge of attempted armed robbery. Defendant moves this court to vacate his conviction and sentence for attempted armed robbery. We find no merit to defendant’s argument.

The Double Jeopardy Clause of the Fifth Amendment protects against 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In State v. Mayeux, 498 So.2d 701 (La.1986), the Louisiana Supreme Court determined that the Double Jeopardy Clause does not bar retrial when a defective or illegal verdict is ultimately set aside as invalid. In that case, defendant was charged with aggravated battery, and the jury was erroneously given attempted aggravated battery as a responsive verdict. The jury found defendant guilty of attempted aggravated battery, and the state did not object despite the fact that no such crime exists in Louisiana. The Third Circuit reversed the conviction and ordered defendant released. The Louisiana Supreme Court reversed the appellate court and held that entry of the invalid verdict was judicial error which could not operate as an acquittal. In remanding the matter for a new trial, the Supreme Court reasoned as follows:

... we conclude the Fifth Amendment does not bar retrial when a jury’s verdict, containing a nonwaivable defect, must be set aside by an appellate court. The jury rendered an illegal verdict. It purported to convict of a crime unresponsive under art. 814 and unspecified in our criminal law. It amounted simply to conviction of a non-crime. As such it could operate neither as a conviction nor acquittal. Naturally it should not have been received by the trial judge. After having been received, the verdict may not be modified or reformed on appeal. |fi Accordingly, the appropriate action is to set aside the conviction and remand for retrial.

State v. Mayeux, 498 So.2d at 705.

Mayeux was then retried on the two charges of aggravated battery. He was acquitted on one charge and convicted on the other. That conviction was affirmed on appeal. State v. Mayeux, 526 So.2d 1243 (La.App. 3 Cir.1988), writ denied, 531 So.2d 262 (La.1988). Mayeux sought ha-beas corpus relief. The federal district court reversed the conviction on double jeopardy grounds. The court held that the jury’s verdict, although non-legal, constituted an acquittal on the aggravated battery charge, and that a second trial on that charge put defendant twice in jeopardy. Mayeux v. Belt, 737 F.Supp. 957, 961 (W.D.La.1990). It is this federal court opinion that defendant now relies on to support his double jeopardy argument.

Despite the federal court’s ruling in Mayeux v. Belt, the appellate courts of this state have continued to follow the ruling of the Louisiana Supreme Court in State v. Mayeux. As noted by the Fourth Circuit in State v. Nazar, 96-0175 (La.App. 4 Cir. 5/22/96), 675 So.2d 780, 783:

... Although this Court finds the reasoning of the federal district court in Mayeux v. Belt, 737 F.Supp. at 957, persuasive, we follow State v. Mayeux, 498 So.2d at 701, which holds that the verdict of guilty of a non-crime cannot serve as an acquittal or a conviction for double jeopardy purposes.

See also State v. Arita, 01-1512 (La.App. 4 Cir. 2/27/02), 811 So.2d 1146; State v. Norman, 34,868 (La.App. 2 Cir. 10/31/01), 799 So.2d 619; and State v. Walker, 00-1028 (La.App. 3 Cir. 1/1/01), 778 So.2d 1192, writ denied, 01-0546 (La.2/1/02), 808 So.2d 336.

l7In the present case, after the January 2002 trial, the jury convicted defendant of attempted first degree armed robbery. LSA-C.Cr.P. art. 814(A)(22) sets forth the responsive verdicts for armed robbery as follows: guilty; guilty of attempted armed robbery; guilty of first degree robbery; guilty of attempted first degree robbery; guilty of simple robbery; guilty of attempted simple robbery; not guilty. The article does not set forth a responsive verdict of guilty of attempted first degree armed robbery. Under the Louisiana Supreme Court decision in Mayeux, attempted first degree armed robbery is a non-crime, and the jury’s verdict of guilty is invalid. As such it could operate neither as a conviction or acquittal. Following the reasoning in Mayeux, there was no double jeopardy bar to defendant’s retrial. Accordingly, the trial court did not err in denying defendant’s motion to quash, nor did he err in ordering a new trial. The arguments raised by defendant in this assigned error are without merit.

In his second assigned error, defendant complains that the trial court failed to follow the proper procedure to correct a non-responsive verdict. He specifically complains that the trial judge erred in vacating the non-responsive verdict on count 2 by acting on his own motion in arrest of judgment, a procedure that was not legally available to him.

When responsive verdicts are mandated by LSA-C.Cr.P. art. 814, the trial court is without authority to vary or to add to those prescribed verdicts. State v. Simmons, 357 So.2d 517 (La.1978). As discussed above, the court gave the jury a verdict form containing responsive verdicts not provided by Article 814. As a result, the jury returned a verdict of guilty of attempted first degree armed robbery, a non-responsive verdict to armed robbery. Had the trial court acted immediately it might have remedied the error according to the provisions of LSA-C.Cr.P. art. 813 which provides as follows:

|sIf the court finds that- the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.

Because the court did not recognize the fact that the verdict was non-responsive until well after the jury was dismissed, it could not avail itself of the procedures prescribed under that article. A non-responsive verdict is, nevertheless, an error which constitutes grounds for reversal. State v. Thibodeaux, 380 So.2d 59, 61 (La.1980). Even if the parties do not object at trial, an error in the verdict constitutes an error patent on the face of the record because it is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. LSA-C.Cr.P. art. 920. State v. Vincent, 387 So.2d 1097, 1099 (La.1980). See also State v. Campbell, 95-1409 at p. 3, 670 So.2d at 1213..

The issue here is whether a sua sponte motion in arrest of judgment was a remedy available to the judge in correcting the illegal verdict. In vacating the non-responsive verdict, the trial court stated:

[I]t was brought to this Court’s attention after the verdict, post verdict, that the verdict itself was not responsive to the indictment or bill, therefore is so defective that.it could not form the basis for a valid judgment, even though as the Court recognizes no motion to arrest the judgment has been filed in this case by the defense or for that matter by the State, the Court on its own motion does so initiate same.

The defense objected to the court’s ruling on grounds that it did not have statutory authority to initiate its own motion in arrest of judgment. The court denied the objection, and set the matter for a new trial.

The ruling at issue was made prior to sentencing. Therefore, the trial court still had jurisdiction over the case. LSA-C.Cr.P. art. 859 provides, in pertinent part:

|gThe court shall arrest the judgment only on one or more of the following grounds:
(5) The verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment.

There is no language contained in this article to indicate that the trial court may not initiate a motion in arrest of judgment. The verdict in the instant case was clearly illegal, and had to be vacated. Moreover, even assuming the trial court erred in vacating the verdict on its own motion, the error was harmless. Had the trial court not corrected the problem, this court could have recognized it as a patent error on appeal. Based on the foregoing discussion, we find that the trial court utilized the proper procedure to correct the non-responsive verdict.

We have also reviewed the record for errors patent, LSA-C.Cr.P. art. 920, and have found none.

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

CONVICTION AND SENTENCE AFFIRMED.

      . The bill originally charged defendant with attempted armed robbery, in violation of LSA-R.S. 14:64 and 14:27. The state amended count two of the bill to reflect a charge of armed robbery.

      . The third count was severed and later dismissed by the slate.

      . The supreme court revisited the double jeopardy in State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212. However, the court declined to address the continuing validity of its Mayeux opinion in light of that case’s subsequent history.

      . LSA-C.Cr.P. art. 916 provides, in part, that "[t]he jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal.”


author: 1 ¡JAMES L. CANNELLA, Judge.

text:
    Charles YUSPEH, Julie Y. Benson, Joel Y. Ashner and Wallace Murphy v. Hansen E. KOCH, David E. Koch, Certified Security Systems, Inc., CSS Acquisition, L.L.C. and Michael Ditcharo.
    No. 02-CA-1179.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Denied July 9, 2003.

      Michael H. Rubin, Justin M. O’Brien, McGlinchey Stafford, PLLC, Baton Rouge, LA, Harry Rosenberg, Phelps Dunbar, L.L.P., New Orleans, LA, William W. Hall, William W. Hall & Associates, Metairie, LA, for Appellants.
    Keith R. Credo, Metairie, LA, Joseph R. Ward, Jr., Lynn H. Frank, New Orleans, LA, for Appellees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   1 ¡JAMES L. CANNELLA, Judge.

Defendants, Hansen Koch and David Koch, appeal from the trial court judgment setting costs and fees in the lawsuit in which judgment was rendered in favor of Plaintiffs, Charles Yuspeh, Julie Benson, Joel Ashner and Wallace Murphy. For the reasons which follow, we amend the judgment and, as amended, affirm.

By way of background, Plaintiffs, minority shareholders in a closely held corporation, Certified Security Systems, Inc. (CSS), filed suit for breach of fiduciary duty against Defendants, majority shareholders of CSS, for losses they suffered as a result of a “freeze out” merger that was approved by the majority shareholders. Following a jury trial, judgment was rendered in favor of Plaintiffs for approximately $4 million dollars. Defendants sus-pensively appealed. On appeal, this Court conducted a de novo review and reduced the damage award in favor of Plaintiffs to approximately $365,000, remanding the case for a hearing to set attorneys fees. Yuspeh v. Koch, 02-0698 (La.App. 5th Cir.2/25/03), 840 So.2d 41.

laMeanwhile, on March 22, 2002, Plaintiffs filed a rule to assess costs, seeking an award in the amount of $70,393.85. Following arguments on the rule, the trial court rendered judgment on September 19, 2002 rejecting some of the costs sought by Plaintiffs and ultimately awarding them $38,285.08. It is from this cost assessment that Defendants appeal.

On appeal, Defendants take issue with two specific items in the cost award, (1) $17,302.34 assessed as the expert witness fee for Mark Gronowski (Gronowski), and (2) $11,925 assessed as the expert witness fee for Harold Asher (Asher).

There is no dispute about the law applicable to the award of costs. La. R.S. 13:4533 provides:

The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

Generally, expert witness fees attributable to trial testimony or depositions introduced as evidence at trial are recoverable as costs. Smith v. Roussell, 00-1672 (La.App. 1st Cir 6/22/01), 808 So.2d 726. Expert witness fees for time spent in preparation for that testimony are also recoverable. Smith, supra; Orea v. Scallan, 32,622 (La.App. 2nd Cir.1/26/00), 750 So.2d 483. However, fees for time spent in consultation and other matters that simply benefit the attorney are not properly taxed as costs. Smith, supra. Further, the amount of the expert witness fees must be reasonable. The amount actually charged by the expert does not determine the amount to be taxed as costs. Mossy Motors, Inc. v. Sewerage and Water Bd. Of City of New Orleans, 01-0486 (La.App. 4th Cir.9/19/01), 797 So.2d 133, writs denied, 01-2809 (La.1/4/02), 805 So.2d 203. The factors to be considered by the trial judge in setting expert witness fees to be taxed as costs include time spent testifying, time spent in preparatory work for trial, time spent away from regular [4duties while waiting to testify, the extent and nature of work performed, the knowledge, attainments and skill of the expert {Selvage v. Robert Levis Chevrolet, Inc., 96-1035 (La.App. 5th Cir.7/29/97), 698 So.2d 442), the helpfulness of the expert’s report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and the awards in similar cases. Albin v. Illinois Cent. Gulf R. Co., 607 So.2d 844 (La.App. 1st Cir.1992). The trial court is afforded great discretion in awarding costs, including expert witness fees, and the costs awarded will not be set aside absent a showing of abuse of that discretion. Smith, supra; Mossy, supra; Oreo, supra; Selvage, supra; Garlepied Transfer, Inc. v. Guaranty Bank and Trust Co., 94-549 (La.App. 5th Cir.5/30/95), 656 So.2d 728.

Defendants contend that the expert fees set in this case were set in error and should be amended. They argue that they were not reasonable and were not based solely on time spent for trial testimony and preparation. They support this argument with the fact that each expert only testified for approximately three hours and yet fees were set in excess of $38,000.

Plaintiffs argue that the trial court was well within its discretionary bounds in setting the expert witness fees. The trial court analyzed the fee request and the submitted bills. The trial judge, having presided over the lengthy trial, was well aware of the complexity of the issues in the case and the time reasonably necessary for preparation by the expert witnesses. There is no showing that the trial court abused its discretion in setting the expert fees.

Fees for Gronowski

Plaintiffs requested, and the trial court assessed fees for Gronowski in the amount of $17,302.34, which was the entire amount paid to Gronowski for his services. Defendants argue that this was error. First, they argue that an amount of $3,980 was designated as relating to his deposition. Gronowski’s deposition was |Knot used at trial and, therefore, this amount should not be recoverable. Likewise, Defendants argue that reimbursement of $1,400 for the time that he spent reviewing and critiquing the expert report by Plaintiffs’ expert, John Rooney (Rooney), is not recoverable, because it was litigation assistance and not trial testimony preparation time. Defendants also argue that the $4,000 paid to Gronowski for access to his database, which was excluded from trial, is not a recoverable cost. Finally, Defendants take issue with $171 assessed for an airline ticket in May of 2001, when trial was in February of 2002.

Plaintiffs argue, to the contrary, that the trial court was in the best position to know what fees were reasonable, considering all the circumstances, and the fees assessed herein should be affirmed because an abuse of the trial court’s great discretion in assessing fees has not been shown. Gronowski was called upon to give complex, expert testimony on the valuation of alarm security companies based on industry valuation methodology and the market for alarm companies in the New Orleans area at the time of the merger. An instate expert in this area was not available. Plaintiffs argue that the database that Gronowski used to arrive at some of his conclusions was discussed at trial, with the Defendants opening the door after the trial court’s ruling excluding it. Thus, the award of $4,000 for use of the database was not an abuse of discretion. Plaintiffs also argue that the $1,400 awarded for the time Gronowski spent reviewing Rooney’s report was in preparation for trial testimony and therefore properly awarded. The Rooney report was a challenge to Gronow-ski’s methodology and conclusions and, therefore, understanding and preparing a response to it was preparation for trial. Similarly, Plaintiffs argue that preparation for his deposition is compensable because such preparation is also preparation for trial that he would have had to do anyway. lfi Further, Plaintiffs argue that the questions raised in deposition assisted Gronow-ski in preparation for his trial testimony.

As stated above, this Court has held that the trial judge may assess the costs of a suit in any equitable manner and his assessment of costs can only be reversed by this Court upon a showing of abuse of discretion. The trial court set the expert fee for Gronowski at $17,302.34. While Defendants have raised questions about some of the fees awarded, Plaintiffs have explained all of the expenses in relation to trial testimony preparation except for the $4000 fee for use of the private database, which was excluded in trial. Therefore, although this was mentioned at trial, we do not find that the database was used at trial to assist the trial court. Rather, we find that the inclusion in the expert fee of the $4000 for use of the private database was beyond that legally permitted as “used on the trial.” However, as to the rest of the fees assessed, the trial court gave considered reasons for its judgment and, we do not find that the trial court abused its wide discretion in this area in awarding the remainder of the expert fee of $13,302.34 for Gronowski.

Fees for Asher

The trial court set expert fees for Asher in the amount of $11,925 and rejected over 2/3 of the amount requested. Defendants still argue that the amount awarded is not supported by the record, namely, less than three hours of testimony at trial. They argue that the documentation in support of Asher’s fees is conclusory and perfunctory.

Plaintiffs counter that Asher’s testimony was vital. The documents reviewed and the complexity of the case, all within the knowledge of the trial judge, warrant the award. Further, they point out that Asher prepared twice for his trial testimony because the Defendants’ expert issued a supplemental report shortly before trial. There is no showing of abuse of discretion in the trial court’s award of $11,925.

17Again, it is noted that a trial court’s setting of costs will only be disturbed by this Court to the extent they are deemed an abuse of discretion. The trial court reduced the requested amount by over 2/3. In doing so, he surely considered the lack of specificity in Asher’s billing. However, the trial judge was also well aware of the complexity of the case, the multitude of documents that were reviewed and Asher’s contribution to the trial court’s understanding of the issues. While the Defendants have raised some general objections to the award, those objections, when viewed in the light of Plaintiffs’ response, do not rise to the level of establishing abuse, by the trial court, of its wide discretion in awarding costs. This case was lengthy, with the trial lasting several days and the valuation issues were very complex. Accordingly, we find no abuse of discretion in the award of $11,925 for expert fees for Asher.

Based on the foregoing, we amend the trial court judgment, reducing the fee awarded to Gronowski by $4,000, and as amended, we affirm the rest of the trial court judgment in favor of Plaintiffs and against Defendants, setting costs in the amount of $34,285.08. Each party is to bear its own costs of appeal.

AMENDED AND AFFIRMED.

      . We note that the argument raised in the trial court was general excessiveness of the fee and did not set out the particulars raised in this Court.

      . Although the trial court ruled that Rooney’s testimony and report were not admissible, it was proffered at trial. That ruling was reversed on appeal and the proffered evidence was considered in the de novo review.


author: | ¡.SOL GOTHARD, Judge.

text:
    JEFFERSON DOOR COMPANY, INC. v. LAGO DEVELOPMENT, L.L.C., Paul A. DiBenedetto, Individually and April DiBenedetto, A Party of Interest.
    No. 03-CA-61.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Thomas M. Calogero, New Orleans, LA, for Defendants/Appellants (Paul A. DiBen-edetto, Individually, and April DiBenedet-to, A Party of Interest).
    Roy M. Bowes, Mark A. Moeller, Bowes & Marrero, Gretna, LA, for Plaintiff/Ap-pellee (Jefferson Door Company, Inc.).
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   | ¡.SOL GOTHARD, Judge.

Defendants, Lago Development, L.L.C. (Lago),- Paul Dibenedetto and April Diben-edetto, appeal a judgment of the trial court that cast them in judgment for $4,612.55 for attorney’s fees and other related costs of collection on a debt owed to plaintiff, Jefferson Door Company, Inc. (Jefferson Door) For reasons that follow, we affirm.

The record shows that Paul and April Dibenedetto are the owners of Lago, which is a small construction company building houses in a Slidell subdivision. Lago sought to purchase windows and other related merchandise from Jefferson Door to use in the construction. To establish a business relationship with Jefferson Door, Lago signed a “Confidential Credit Application” that contains the following clause:

The customer certifies that the above is true to the best of his knowledge and agrees that if this credit application is accepted by Jefferson Door Co., Inc., the issuance of credit to customer shall be considered for commercial purposes as an open account and all purchases are due net 10th day of the month. Any balance due thereafter shall be charged 1/6 % per month service charge until paid in full. Customer does hereby agree to pay reasonable attorney’s fee (minimum 25% of gross amount due or $150.00, whichever is greater) and all other cost or expense which may be incurred by Jefferson Door Co., Inc., in the collection of all sums by customer.

|3Six days later, Paul DiBenedetto signed a personal guarantee for,

. all indebtedness, including but not limited to principal, service charges, accrued interest, court cost, reasonable attorney’s fees and other costs connected with the amount due to the Jefferson Door Co., Inc. hereunto.

The contract further provides:

I/we further agree that this guarantee is an absolute, completed and continuing one and no notice of the indebtedness already or hereafter contracted by or extended need be given. The terms may be rearranged extended and/or renewed with thirty (30) days written notice to me/us. That I/we will, within five (5) days date of notice that the account is past due, pay the amount.

Some of the charges went unpaid and Jefferson Door filed a petition against all defendants seeking $12,148.25 plus service charges, attorney’s fees and other costs. Jefferson Door attached copies of the credit application and the guarantee to the petition. Defendants filed a general denial to all claims.

The defendants also disputed the amount due and, in a “joint Pre-Trial Order” filed subsequent to the answer, both parties agree that one of the contested facts is the exact amount due. Plaintiff asserts the amount due is $12,148.25, while defendants maintain the correct amount due is $12,120.98.

On the morning of trial the parties stipulated to the court that the principal amount is no longer in dispute and the defendants tendered a check to plaintiff in the amount of $12,120.98 one week before trial. Thus, the only remaining issues before the trial court were the other demands made in the petition for fees and costs. Both parties stipulated to the authenticity of the credit application and the guarantee.

At trial defendants argued that this was a suit on open account and, because plaintiff had not followed the dictates of La. R.S. 9:2781, no attorney’s fees are due. Defendants further asserted that the failure of Jefferson Door to produce an accurate statement for the principal amount due precludes any award of attorney’s fees pursuant to the suit on open account law. In the alternative, if the court found [4that the matter was not a suit on open account, defendants argue that only reasonable attorney’s fees should be awarded since the correct principal amount due was only established one week before trial.

Plaintiffs argued that defendants stipulated to the amount due and attorney’s fees were due by virtue of the credit application and guarantee. After hearing both sides, the trial court ruled that:

It is the judgment of this Court that the arrangement, if you will, the contractual arrangement existing between the parties went beyond that of open account to something akin to a guarantee, actually a contract which provided for attorney’s fees, supported by a personal guarantee signed by Mr. Di Beneditto. Evidence of this contract is the two page exhibit identified as S-l, which went in by stipulation as being representative of the actual contract.

Subsequently, judgment was rendered in favor of plaintiffs and defendants brought this appeal.

In brief to this Court, defendants assign two related errors. Defendants argue the trial court erred in holding that the petition sounded in contract and not open account. Further, defendants maintain that, because this is a suit on open account, the trial court erred in awarding attorney’s fees when plaintiff failed to comply with the provisions of La. R.S. 9:2781 by failing to make written demand for payment in the correct amount due.

Plaintiff counters that the agreement between the parties consisted of both a contract and a resulting open account. Further, plaintiffs concur with the trial court’s finding that the fees were properly awarded pursuant to the contract between the parties that specifically sets out the terms and amounts of fees due.

The judgment on appeal awards $986.04 for service charges on the principal amount paid by defendants on August 22, 2002, $3,276.51 for attorney’s fees, and $350.00 for court costs. Assignments of error and arguments made by defendants to this Court only reference the award of attorney’s fees. Consequently, that is the only part of the award before this Court.

|RIt is well settled in Louisiana that attorney fees are not allowed except where authorized by statute or agreed to by contract. Dixie Machine V. Gulf States Marine Tech., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167. The trial court in the case before us found that the attorney’s fees were due under the contracts signed by defendants that consist of the credit application and guarantee. Given the language in the documents and the claims in the petition, we do not find error in that decision. While the plaintiff could have availed itself of the provisions of R.S. 9:2781, it chose to sue in contract.

La. C.C. art.2000 provides:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by Article 2924. The obligee may recover these damages without having to prove any loss, and whatever loss he may have suffered he can recover no more. If the parties, by written contract, have expressly agreed that the obligor shall also be liable for the obligee’s attorney fees in a fixed or determinable amount, the obligee is entitled to that amount as well.

Attorney’s fees are provided for in the credit application as well as the guaranty agreement. Therefore, plaintiffs recovery of attorney’s fees is proper under the contract and he need not avail himself to the rights granted by LSA-R.S. 9:2781(A). W.H. Ward Lumber Co., Inc. v. Merit Homes, Inc., 522 So.2d 648, (La.App. 5 Cir.1988).

Defendant also argues that the discrepancy between the amount sued for and the amount finally paid precludes plaintiff from collecting attorney’s fees pursuant to R.S. 9:2781.

La. R.S. 9:2781A provides:

When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written | ^demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

In support of their position defendants cite Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014 (La.1984), which holds that the statute must be strictly construed and requires written demand correctly stating the amount owed. We do not quarrel with defendants’ statement of the holding in Beier Radio. However, we find that case is inapplicable here for two reasons. Initially, as previously discussed in this opinion, this is not a suit on open account. We further note that in Beier Radio and the cases that follow it, the amount due was a disputed amount at the time of trial. Thus, a judgment of the court was rendered on the exact amount due. This is in keeping with the language of the statute that provides for attorney’s fees “for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.” La. R.S. 9:2781A (emphasis added).

In the instant case the parties reached an agreement prior to trial on the correct amount due and that amount was accepted and paid by the defendants one week before trial. Thus, the amount due was a subject of a settlement between the parties before the matter came to trial and there was no judgment rendered on the claim.

For the foregoing reasons, we find the judgment of the trial court is correct and we affirm it by this opinion.

AFFIRMED.