text:
    STATE of Louisiana v. Christopher COLLINS.
    No. 04-KA-255.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of Record on Appeal, Kenneth Bordelon, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Kris A. Moe, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Defendant, Christopher Collins, appeals from his two convictions of operating a vehicle while intoxicated (DWD), fourth offense, and operating a vehicle while his license was suspended, and his respective sentences For the reasons which follow, we affirm.

On June 1, 2002, Officer Jennifer Sedge-beer, with the Kenner Police Department, was on patrol when she came upon the scene of an automobile accident at the intersection of Williams Boulevard and Vintage Drive involving two vehicles. She stopped and investigated the accident. Two of the four occupants in one vehicle were hurt and an ambulance was called. Officer Sedgebeer then approached the Defendant, the driver of the second vehicle, to determine if he was injured. The Defendant indicated that he was not. She detected a strong odor of alcohol coming from the Defendant. She asked the Defendant if he had been drinking and he replied that he had consumed five beers |3and had become confused. Officer Sedgebeer conducted a field sobriety test consisting of the eye test which revealed nystagmus. The Defendant refused additional field sobriety tests but Officer Sedgebeer noted on the observation sheet that the Defendant had slurred speech and was unable to stand. Officer Sedgebeer placed the Defendant under arrest and he was transported to jail. The Defendant subsequently refused to submit to the In-toxilyzer breath test.

The Defendant was charged in a bill of information on August 29, 2002 with Count one, third offense DWI in violation of La. R.S. 14:98(D), Count two, failure to yield the right of way in violation of La. R.S. 32:122, and Count three, operating a vehicle while license was suspended in violation of La. R.S. 32:415. He pled not guilty and filed several pre-trial motions. Count one of the bill was subsequently amended on March 17, 2003 to charge the Defendant with fourth offense DWI in violation of La. R.S. 14:98(E). The Defendant was re-arraigned on the amended charge and again pled not guilty. Thereafter, the Defendant filed a motion to suppress the evidence and a motion to quash the second, third and fourth DWI offenses, or predicate pleas, because he was not properly Boykinized. These motions were denied after a hearing on April 29, 2003.

During a bench trial on July 9, 2003, following Officer Sedgebeer’s testimony to the above facts, the Defendant presented three defense witnesses: his father, William Collins (Collins), a friend, Tony Strehle (Strehle), and a psychologist, Dr. Edward Shwery. According to Strehle, he had been with the Defendant all day on the date of the accident and did not see him drinking alcohol. Both he and Collins stated that the Defendant had stopped drinking a year to a year 14and a half prior to the accident. Strehle testified that the Defendant had not been feeling well that day and had taken NyQuil and Tylenol cold medicine. He stated that the Defendant had taken NyQuil prior to leaving the lake to go home that night. Strehle further testified that the Defendant’s truck smelled of beer because he and his friends had borrowed the truck the weekend before and had thrown beer cans in the bed of the truck. According to Strehle and Collins, the beer cans were still in the bed of the truck on the day of the accident.

Dr. Shwery, who examined the Defendant after the incident, testified that the Defendant suffered various mental problems including depression and anxiety. He stated that the Defendant suffers from panic attacks but could not state whether the Defendant’s psychological makeup or a panic attack caused the accident at issue.

The trial court found the Defendant guilty of fourth offense DWI (count one) and driving with a suspended license (count three) and not guilty of failing to yield the right of way (count two). The Defendant was sentenced to fifteen years imprisonment at hard labor on the fourth offense DWI conviction, with sixty days to be served without parole, probation or suspension of sentence. The remainder of his sentence was suspended and he was placed on home incarceration for four years after serving the sixty days. He was also ordered to pay a $5,000 fíne. For his driving with a suspended license conviction, the Defendant was sentenced to seven days incarceration at hard labor without parole, probation or suspension of sentence, which was ordered to run consecutive to his sentence on count one, and he was ordered to pay a $300 fine. It is from these two convictions and the corresponding sentences that the Defendant appeals. On appeal, the Defendant only assigns one error, challenging his conviction for DWI as a fourth offender.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial court erred in failing to quash two of the three predicate offenses upon which the fourth offense DWI charge was based on |Rthe grounds that there was no showing that the predicate pleas were knowing and voluntary. The Defendant challenges the second and third predicate offenses which are based on convictions in Jefferson Parish and St. Tammany Parish, respectively.

Regarding the second predicate offense, the Defendant maintains that the State only provided a waiver of rights form and failed to provide minutes or a transcript of the plea. He contends that the waiver of rights form with nothing more is insufficient to show that he knowingly and intelligently waived his rights. As for the third predicate offense, the Defendant asserts that the guilty plea was based on an understanding that an earlier St. Charles DWI conviction could not be used against him in the future. Because the St. Charles DWI conviction was being used in this case as the first predicate offense, the Defendant argues that his guilty plea to the St. Tammany charge and resulting conviction was not knowingly and intelligently entered.

The law is well settled that there is a presumption of regularity that attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior plea is constitutionally deficient. State v. Nabak, 03-919 (La.App. 5th Cir.12/30/03), 864 So.2d 758, 760. When a defendant challenges the constitutionality of a predicate guilty plea involving the recidivist portion of the DWI statute, the State has the initial burden of proof to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, 559. If the State meets this burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural 1 (¡irregularity in the taking of the plea. If the defendant carries his burden, the burden shifts back to the State to prove the constitutionality of the plea. Id.

In proving the constitutionality of the plea, the State must produce either a “perfect” transcript of the Boykin colloquy between the defendant and the trial judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “imperfect” transcript... .If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary....

State v. Hollins, 99-278 (La.App. 5th Cir.8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587.

After the bill of information was amended to charge the Defendant with fourth offense DWI, the Defendant filed a motion to quash DWI second, third and fourth offenses on the ground that the predicate convictions were based on guilty pleas that were not knowingly and intelligently entered. He attached exhibits pertaining to the third predicate offense to his motion. At the hearing on the motion to quash, the parties merely argued their positions by referencing documents that were neither marked as exhibits nor introduced into evidence. At the conclusion of the hearing, the trial court denied the motion to quash. Subsequently, at trial, the State introduced certified copies of portions of the record pertaining to the predicate offenses.

It is well established that in reviewing a trial court’s ruling on a motion to suppress, the appellate court may consider the evidence adduced at the hearing on the motion as well as evidence given at trial. State v. Davis, 02-1008 (La.App. 5th Cir.2/25/03), 841 So.2d 952, 958-959, writ denied, 03-0948 (La.11/7/03), 857 So.2d 516. This Court has applied the same rationale in reviewing a motion to quash based on improper venue. State v. Hester, 99-426 (La.App. 5th Cir.9/28/99), 746 So.2d 95, 113, writ denied by State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342. The First Circuit extended this rule further to a review of a motion to quash a predicate offense in a DWI proceeding on the ground that defendant was not properly advised of his constitutional rights. State v. Turner, 00-0630 (La.App. 1st Cir.12/22/00), 779 So.2d 906, 908. Thus, based on the foregoing, we will consider the evidence introduced at trial in reviewing the trial court’s ruling on the motion to quash the predicate DWI offenses.

Predicate Offense Two — March 19, 1998

The State alleged that the Defendant’s second predicate DWI offense was a March 19, 1998 conviction from First Parish Court, Jefferson Parish, bearing the docket number 1152518. At trial, the State introduced a certified copy of the bill of information, the minute entry which indicated that he pled guilty, the sentence and conditions of probation, and a waiver of rights form signed by him, defense counsel and the trial judge. The waiver of rights form evidenced that the Defendant was advised of his right to trial by jury, the privilege against self-incrimination, and the right to confront his accusers. Thus, the State bore its initial burden of proving the existence of a guilty plea and that the Defendant was represented by counsel at the time he entered the plea.

The burden then shifted to the Defendant to prove, with affirmative evidence, an infringement of his rights or a procedural irregularity in the taking of the plea. At the hearing on the motion to quash, the Defendant simply argued, “[w]e also feel that ... the First Parish Court of Jefferson also inadequately performed the Boykinization.” He further asserted that the State’s use of the waiver form alone without the plea colloquy transcript was insufficient to prove a knowing and intelligent plea.

Under State v. Carlos, supra, the State was not required to submit transcripts of the guilty pleas in its initial burden of proof. See, State v. Anderson, 00-1737 (La.App. 1st Cir.3/28/01), 784 So.2d 666, 681, writ denied, 01-1558 (La.4/19/02), 813 So.2d 421. The Defendant failed to show any constitutional deficiency in the plea and, therefore, the burden never shifted back to the State to prove the constitutionality of the plea. Accordingly, we find that the trial court did not err in denying the Defendant’s motion to quash the March 19, 1998 predicate conviction.

Predicate Conviction Three — January 19, 2000

The State based the third predicate conviction on the October 12, 1998 offense that lead to the January 19, 2000 conviction from St. Tammany Parish bearing docket number 296-372 “H”. At trial, the State introduced a certified copy of the bill of information, a minute entry, indicating that the Defendant was represented by counsel, was advised of his Boy-kin rights and pled guilty, and a transcript of the plea colloquy. Thus, the State carried its initial burden of proving a guilty plea and that the Defendant was represented by counsel at the time the plea was entered. At that point, the burden shifted to the Defendant to prove an infringement on his rights or a procedural irregularity with the plea.

The documents show that the Defendant was initially charged with third offense DWI, but pled guilty to a second offense DWI after one of the predicate convictions, a St. Charles Parish conviction, was deleted by the assistant district attorney. The Defendant argues herein that his guilty plea iñ the St. Tammany conviction was based on the alleged agreement that the deleted St Charles Parish DWI predicate conviction could never be used in another DWI proceeding to enhance the offense. The Defendant contends that the current use of the deleted DWI predicate conviction as a predicate in these proceeding renders the prior St. | ¡/Tammany plea invalid. The Defendant relies on a notation on the bill of information indicating that the St. Charles predicate DWI conviction was being deleted because there was no Boykin. However, the Defendant offered no evidence of the alleged agreement that the St. Charles DWI conviction could not be used in any other proceeding or that such an understanding induced him to plead guilty.

The plea colloquy shows that the Defendant was advised of the elements of the crime of second offense DWI. The trial court explained to the Defendant that DWI offenses were enhanceable and reviewed the potential penalties for third and fourth offenses. The trial court then advised the Defendant of his right to a jury trial, his right to confront his accusers, and his right against self-incrimination. The Defendant was asked if he was forced or coerced to plead guilty which he denied. The court further stated:

The court understands that your [sic] willing to plead guilty results from prior discussions between the district attorney and the court and your attorney. The substance of that plea agreement will be disclosed when I impose your sentence. If it is not in accordance with your understanding, you will be allowed to withdraw your plea of guilty and, at that time, reinstate your not guilty plea.

When the Defendant’s sentence was imposed, there was no discussion or notation that the St. Charles DWI conviction that was deleted from the bill of information could never be used in a subsequent proceeding. The trial court concluded that the Defendant had knowingly and intelligently entered the guilty plea. The Defendant offered no affirmative evidence of the alleged agreement. Thus, we find that the Defendant failed to carry his burden of proving an infringement on his rights or a procedural irregularity in the taking of the plea.

The Defendant also challenges the third predicate conviction on the basis that the plea colloquy was conducted en masse with sixteen other defendants. hoWhile the Louisiana Supreme Court has expressed its preference for personal colloquies between a trial court and a defendant entering a guilty plea on the basis that the failure to individually address the defendant may undermine the validity of any subsequent waiver of the defendant’s constitutional rights, the Supreme Court has consistently stated that the knowing and intelligent waiver of the defendant’s rights “depends upon the circumstances of each case.” State v. Richard, 00-0659 (La.9/29/00), 769 So.2d 1177, 1178 State v. Filer, 00-0073 (La.6/30/00), 762 So.2d 1080, 1081.

In Filer and Richard, the Supreme Court found that the “en masse” plea colloquies sufficiently established that the defendants knowingly and intelligently waived their rights and pled guilty. In both cases, the Supreme Court noted the trial court individually and personally addressed the defendant and assessed the defendant’s competency and understanding before collectively advising all the defendants present of the rights they would waive by pleading guilty.

In Filer, the Supreme Court found that the trial court individually and personally addressed the defendant to assure itself that the defendant had no questions about the constitutional rights he was waiving. In Richard, the Supreme Court specifically noted that portions of the plea colloquy were conducted individually with the trial court personally addressing the defendant to ascertain his age, work experience and education and to advise the defendant of the nature of the offense and its penalty provisions. The Supreme Court reasoned that this placed the trial court in a position to determine the knowing and voluntary nature of the defendant’s subsequent waiver of his rights.

In the present case, the transcript of the “en masse” plea colloquy shows that the trial court conducted portions of the colloquy individually and personally with the Defendant. The trial court individually inquired into the Defendant’s age and education. Thereafter, the trial court personally and individually advised the ^Defendant of the nature of the offense with which he was charged and the applicable penalties. The trial court then collectively advised all of the defendants of the constitutional rights that they were waiving by pleading guilty before individually ascertaining whether each defendant understood and waived his or her rights. The Defendant never asked the trial court any questions regarding his rights or indicated any hesitations in his answers. Also, the trial court asked the Defendant’s counsel if he were satisfied that the Defendant was knowingly, intelligently, voluntarily and willingly entering a guilty plea, to which counsel affirmatively replied. It is further noted that the Defendant was the only client that his counsel was representing in the plea colloquy.

Thus, we find that, as in Filer and Rick-ard, the record in the present case demonstrates that portions of the plea colloquy were conducted individually and personally so as to afford the trial court an opportunity to assess whether the Defendant’s guilty plea was knowing and intelligent. This record clearly establishes that the Defendant’s guilty plea in the third predicate conviction was validly entered with a knowing and intelligent waiver of his Boy-kin rights. Accordingly, we find that the trial court correctly denied the Defendant’s motion to quash the January 19, 2000, or third, predicate conviction. This assignment of error lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to 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). Following review, we find no errors patent on the face of the record.

Accordingly, based on the foregoing reasons, we affirm the Defendant’s two convictions, operating a vehicle while intoxicate, fourth offense, and operating a vehicle while his license was suspended, and the respective sentences, on the first 112count, to fifteen year imprisonment, with 60 days to be served without benefit of parole, probation or suspension of sentence, and the remainder suspended with four years of home incarceration, and with a $5,000 fine and, on the second count, to seven days imprisonment without benefit of parole, probation or suspension, to run consecutive, and a $300 fine.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Officer Sedgebeer testified at trial that these additional tests consisted of the "walk and turn” test and standing on one foot and following directions.

      . The joinder of these three offenses in one bill of information was improper. See, La. C.Cr.P. art. 493. However, the Defendant waived the misjoinder of offenses by not filing a motion to quash the bill of information on the basis of misjoinder of offenses as required by La.C.Cr.P. art. 495 and by moving forward with the trial. See, State v. Mallet, 357 So.2d 1105, 1109 (La.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979), where the Supreme Court found that the "misjoinder of offenses may be waived by the failure to timely assert it by a motion to quash, and improper consolidation of offenses for trial may be waived by the failure to object.”

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

      . The testimony of Strehle and Shwery were taken in advance of trial for perpetuation purposes.

      . This burden shifting scheme was first enunciated in State v. Shelton, 621 So.2d 769 (La.1993), which involved habitual offender proceedings. State v. Carlos, supra, extended Shelton’s burden shifting scheme to the recidivist portions of the DWI statute.

      . The bill of information lists the date of this conviction as October 12, 1998. The record reveals October 12, 1998 was the date of the offense and January 19, 2000 was the actual date on which the Defendant pled guilty. (Exhibit S — 13). This minor error does not affect the validity of the bill of information. See, State v. Bailey, 04-85 (La.App. 5th Cir.5/26/04), 875 So.2d 949; State v. Perez, 02-587 (La.App. 5th Cir.11/26/02), 831 So.2d 542, 547, writ denied, 03-0221 (La.5/2/03), 842 So.2d 1100.

      . The deleted St. Charles Parish DWI conviction was used in the current proceeding as the first predicate conviction listed in the bill of information.


source: Caselaw Access Project

author: J^CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alexander HYMES, Jr.
    No. 04-KA-320.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On August 30, 2000, the Jefferson Parish District Attorney filed a nine-count bill of information charging defendant, Alexander Hymes, with attempted first degree robbery in counts one and two; and with first degree robbery in counts three through nine. He was tried by a twelve-person jury on May 22-24, 2001. The jury found defendant guilty of attempted simple robbery on count one; guilty of simple robbery on count seven, and guilty as charged on all remaining counts. Defendant subsequently filed a motion for new trial.

On May 31, 2001, the trial court denied defendant’s new trial motion. Defendant waived statutory delays, and the trial judge sentenced defendant to three years at hard labor on count one; ten years at hard labor on count two; twenty years at hard labor on counts three through six and counts eight and nine; and five years on count seven. The judge ordered that the sentences run consecutively to each other, for a total term of imprisonment of 138 years. The state filed a habitual [ .-¡offender bill, which it later decided to nolle prose-qui. Defendant filed a Motion to Reconsider Sentence.

Defendant filed an appeal in this Court, seeking only a review of his sentences for excessiveness. Upon finding that the district court had failed to rule on defendant’s Motion to Reconsider Sentence, this Court dismissed the appeal and remanded to the trial court for a ruling on the motion. This Court further ordered that defendant re-lodge his appeal within sixty days of the date of the district court’s ruling on the Motion to Reconsider Sentence. State v. Hymes, 02-836 (La.App. 5 Cir. 12/30/02), 836 So.2d 648.

On January 27, 2003, the district court heard arguments on the Motion to Reconsider Sentence, and denied it. No written motion for appeal is found in the record, but it appears that defendant made an oral motion for appeal.

FACTS

The following facts and testimony were elicited at trial.

Nicole Courouleau testified that, on July 15, 2000, she was employed at Tru-Value Hardware at 6409 Airline in Metairie. Defendant, Alexander Hymes, entered the store and asked her to direct him to the plumbing tubing. Courouleau showed him where the plumbing merchandise was, and then she went to the store’s cash register to ring up defendant’s purchase. Defendant put his hand under his shirt and told her he had a gun. He ordered her to open the cash register or he would shoot her. Courouleau testified that she gave defendant money from the register because she believed he had a weapon, and she feared for her life. When defendant left the store, she called police. Courouleau testified that she identified defendant in a photographic lineup as the man who robbed her. She also identified defendant in court.

Lisa Polizzi testified that, on July 22, 2000, she was working at Adele’s Shoppers Mart at 6601 Veterans Boulevard in Me-tairie. Her grandmother, the Rstore’s owner, was also working there that day. Defendant entered the store and showed interest in a particular item. Polizzi took the item off the rack and told him the price. Defendant then said, “This is a robbery. Give me what’s in the register and I won’t hurt you.” Defendant held his hand inside the waistband of his pants. Polizzi testified she believed he had a weapon. She gave him $150 from the cash register. Defendant left the store, and Polizzi and her grandmother notified police. Polizzi identified defendant as the robber in a photographic lineup, and later identified him in court.

On July 24, 2000, Lola Julien was working as a cashier at Piccadilly Cafeteria on Veterans Boulevard in Metairie. She saw defendant eating in the restaurant’s dining area. Defendant later approached her as if he intended to pay for his meal. He told Julien, “I don’t want you to scream. I don’t want you to ring any bells. I need your money.” Julien testified that defendant did not say he had a gun, but she thought he had one, because he held his hand at his waist, and his shirt was loose-fitting. Julien gave defendant between $140 and $260 from the cash register. Defendant then left the restaurant.

Julien told a customer that she had been robbed. The man followed defendant out the door of the restaurant and watched him go to his truck. The customer called police on his cellular telephone and described the truck. Julien identified defendant in a photographic lineup, and at trial as the man who robbed her.

Rainna Lagnes was employed at C.C.’s Coffee House on Veterans Boulevard in Metairie on the night of July 25, 2000. Defendant entered and ordered a drink. She prepared his order. Defendant then told her he had a gun, and he wanted all the money in the cash register. Lagnes testified that she believed defendant had a gun, because he put his hand under his shirt. Defendant also told her he would shoot her if she screamed. Lagnes gave defendant $900 from the Leash register. Defendant then left the coffee shop. Lagnes identified defendant in .a photographic lineup. She also identified him at trial.

Masooda Khan operates Fashion Arcade, a clothing store on Veterans Boulevard in Metairie. She testified that she was working there on August 1, 2000, when defendant entered and told her he wanted to buy a sweater for his girlfriend. Khan told defendant she did not have any sweaters in stock, as it was summertime. Defendant told her, “I have a gun, lady. Open your cash register. Give me all the money.” Khan testified that defendant’s hands were in his pockets. She did not see a gun, but she could see the shape of an object pointing toward her. Khan did not give defendant any money. She told him to leave, and he ran out of the store. Khan called police four days later to report the incident. She identified defendant in a photographic lineup, and in court.

Sherry Luquette testified that, on August 1, 2000, she was working as the manager of Russell Stover Candies on Veterans Boulevard in Metairie. A man entered the store, picked up a bag of candy, and placed it on the counter as if to make a purchase. Luquette rang up the purchase on the cash register and gave the man the total price. He reached into his pants and said, “I have a gun, give me the money.” Luquette reached into the cash drawer, and the man told her, “Just don’t cause any trouble.” He then said, “Hand it to me.” Luquette gave him about $200, and he left the store.

Luquette told her co-worker she had been robbed, and asked her to call police. She then went next door to Red Wing Shoes and told Billy Hingle, a customer there, that she had been robbed. Hingle testified that Luquette pointed out the robber, who was by then walking away through the parking lot. Hingle watched the man get into a mauve or purplish pickup truck with a “V” in the license number. Hingle testified that the truck pictured in State’s Exhibits 4 and 5 was the one he saw. He noted that the truck in the photographs had a license plate |fiwith a “V” on it. Hingle was not able to identify the robber, as he did not get a good look at the man’s face.

Donna Rasch owns and operates a Hallmark greeting card shop on South Clear-view Parkway in Harahan. On August 2, 2000, defendant entered her store, selected a card, and threw it on the checkout counter. She rang up the card and told him the charge was fifty-four cents. Defendant told her, “Open the register and give me what you have in there.” Rasch testified that defendant seemed to be holding something in his hand, although she could not see what it was. She believed defendant had a weapon.

Rasch told defendant she could not get the cash register to open. Defendant said, “Give me what was in the register. Don’t make me do something we’ll both be sorry for.” Defendant continued to threaten Rasch and demand that she open the cash register. Rasch did not ultimately give defendant any money. He took the greeting card and left the store. Rasch testified that she saw defendant get into a maroon-ish purple pickup truck.

Rasch reported the incident to police. While officers were interviewing her at the Hallmark store, they received word that a man meeting the robber’s description had been apprehended. The officers transported her to a Burger King restaurant on Veterans Boulevard in Metairie, where she identified defendant as the robber. She also identified defendant in court.

Marta Gato owns and operates Golden Touch Florist on Veterans Boulevard in Metairie. Gato was working with an employee, Jennifer Fahrenholtz, on August 2, 2000, when defendant entered the shop. Fahrenholtz testified that she asked defendant whether he needed assistance. He asked her where the cash register was, and she told him it was in the back of the store. Defendant grabbed her arm and walked her toward the back of the shop. Fahrenholtz testified that defendant implied he had a gun by placing his hand in his pants.

17Gato testified that she saw defendant take Fahrenholtz’s arm. She noted that defendant’s hand was in his pants. She asked him whether he needed to find the bathroom. Defendant said, “No, I want your money. I have a gun.” Gato told defendant she did not have much cash. He replied, “That’s fine. Give me what you have.” She gave defendant fifty or sixty dollars. Gato testified that defendant told her not to try to go after him. He then left the store. She saw him leave in a purple truck. She identified State’s Exhibits 4 and 5 as photographs of defendant’s truck.

Gato testified that a police officer arrived at the store one-half hour after the robbery. He drove Gato to a nearby Burger King parking lot. She saw defendant there, inside a police car. She identified him as the robber. She also saw defendant’s truck at Burger King. Fahren-holtz testified that she identified defendant in a photographic lineup. Gato and Fah-renholtz both identified him at trial as the robber.

Deputy Louis Berard of the Jefferson Parish Sheriffs Office testified that he heard a robbery call broadcast over police radio. He saw defendant driving on Veterans, and both defendant and his truck met the broadcast descriptions. Berard followed the truck, and turned on his overhead lights. Defendant pulled into a Burger King parking lot in the 3900 block of Veterans. The officer followed. Berard ordered defendant to get out of his truck, and defendant complied. Berard testified that he held defendant until a robbery detective arrived.

Berard did not question defendant. He testified that defendant spontaneously stated, “You can’t charge me with armed robbery ‘cause I didn’t have no gun. All you can charge me with is second degree robbery.”

Detective William Jones of the robbery division testified that he was present when Sergeant Picone, his supervisor, presented defendant with a consent to search form. Defendant completed the form, consenting to a search of his truck. |sDetective Danny O’Neil searched the truck and recovered a Hallmark store bag and greeting card from the vehicle’s front seat.

Detective John Carroll testified that he was at the scene of defendant’s arrest. He later advised defendant of his Miranda rights at the investigations bureau. Carroll conducted three tape-recorded interviews with defendant. The detective testified that defendant lied to him in the first two interviews. In the third interview, defendant admitted to the offenses at Tru-Value Hardware (count three), Adele’s (count four), Piccadilly (count five), C.C.’s Coffee House (count six), Tiffin Inn (count one), Russell Stover Candies (count nine), Hallmark, Golden Touch Florist (count eight), and Hallmark (count seven). That tape recording was entered in evidence, and was played for the jury. A transcript of the statement was also entered in evidence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court erred in sentencing him without considering mitigating circumstances under the provisions of LSA-C.Cr.P. art. 894.1. Defendant further contends that the trial court erred in ordering that his sentences be served consecutively to each other. He argues that, because he is fifty-two years old, his total prison term of 138 years amounts to a life sentence. He asserts that his sentences constitute cruel and unusual punishment.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Tracy, 02-0227, p. 21 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213. Three factors to be considered in reviewing a sentence for excessiveness are: (1) the nature of the crime; (2) the nature and the background of the offender; and (3) the sentences imposed for similar crimes by the same court and other courts. State v. Tracy, supra. The trial judge has wide discretion in imposing sentences within the statutory limits, and a sentence will not be set aside if it is supported by the record. State v. Taylor, 02-1063, p. 11 (La.App. 5 Cir. 2/25/03), 841 So.2d 894, 900, writ denied, 03-0949 (La.11/7/03), 857 So.2d 516.

Under LSA-C.Cr.P. art. 881.1(E), defendant is entitled to a review for statutory excessiveness only as to issues he has specifically raised below. In his Motion to Reconsider Sentence, defendant argued the trial court failed to consider that he had no weapon during the commission of the offenses, that he did not use force against his victims, and all of the offenses occurred within a short period of time.

The trial judge said in his reasons for sentencing that he had considered the provisions of LSA-C.Cr.P. art. 894.1. He found that, based on the seriousness of the instant offenses, and defendant’s history of committing similar crimes, there was an undue risk that he would commit additional offenses were he not imprisoned. The trial court could have imposed sentences of up to forty years for each of defendant’s first degree robbery convictions. The twenty-year sentences imposed were in the middle of the sentencing range.

In his Motion to Reconsider Sentence, defendant asserted that his sentences should have been made to run concurrently rather than consecutively. Defendant re-asserts that argument here. LSA-C.CrJP. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall | inspecify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Defendant committed nine offenses on six separate days over the course of about two weeks. Each charge involved a different victim. While the offenses were similar in nature, they were not part of the same act or transaction for purposes of Article 883. Nor were defendant’s actions part of a common scheme or plan. In State v. Wilson, 99-105, p. 4 (La.App. 5 Cir. 7/27/99), 742 So.2d 957, 959, writ denied, 99-2583 (La.2/11/00), 754 So.2d 935, this Court found that consecutive sentences are indicated under Article 883 where the bills of information allege offenses that occurred on different dates, and at different locations.

In State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779, the defendant received consecutive twenty-year sentences for five counts of distribution of cocaine. He was subsequently found to be a third felony offender. One of his five sentences was vacated, and he received a life sentence as a habitual offender. The judge ordered that the life sentence be served consecutively to the other four sentences. On appeal, the defendant made an excessive sentence claim, based in part on the judge’s decision to have his sentences run consecutively. This Court found that the trial court did not err in running the sentences consecutively. The defendant’s convictions resulted from five separate sales to two different undercover agents occurring over a three-month period. Based upon those factors, this Court held that the five sales were acts sufficiently separate and distinct to justify consecutive sentences. Dillon, 01-906 at p. 6, 812 So.2d at 774.

Defendant’s consecutive sentences are justified because of the separate and distinct nature of the acts, and because of the seriousness of the offenses. In imposing sentence, the trial judge commented:

lnThis is a very serious pattern of crimes. I know that these victims who operate these small shops that you preyed upon, their lives will never be the same when anyone enters their shop. They will be concerned and in fear that that person may again perpetrate a robbery on them, that they may be armed with a dangerous weapon, that they may be harmed, that they may in fact lose their life. That’s a fear that they will have to live with based upon the types of actions that you perpetrated on them.

In denying defendant’s Motion to Reconsider Sentence, the judge said, in part:

Based upon Mr. Hymes’ past record and obviously, the number of crimes he committed over a period of time in this case; the Court believed that the sentence that the Court handed down to Mr. Hymes was appropriate. Mr. Hymes stopped his crime spree only because he was caught. Certainly, the Court has a concern over the safety of the citizens of the Parish of Jefferson.
In a case like this, it was obviously a number of different individuals and businesses who were affected by Mr. Hymes over a period of time. The Court finds that the sentence in Mr. Hymes’ case was appropriate. The crimes were not all committed at the same time, on the same day. They deserve to be in the form of consecutive sentences.
Each sentence for each crime was the appropriate sentence for that crime; Mr. Hymes just happened to commit a large number of them. The Motion to Reconsider Sentence is denied.

We find the sentences imposed are supported by the record. Therefore, we affirm the defendant’s sentence of 138 years total for all counts.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant has requested that this Court review the record for any patent errors. The Court conducted this review and notes three errors which are discussed below.

First, the commitment does not properly reflect the verdicts on counts one and seven. It shows that defendant was found guilty of attempted first degree robbery on count one, when defendant was actually found guilty of attempted simply robbery. The commitment shows that defendant was found guilty of first degree robbery on count seven, when he was found guilty of simple robbery. 112When the transcript and minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Behre, 03-896, p. 7 (La.App. 5 Cir. 12/9/03), 864 So.2d 668, 672. Therefore, we remand this matter with orders that the trial court correct the minute entry so that it reflects the proper verdicts.

Second, the trial court erred in failing to order that defendant’s sentence on counts two, three, four, five, six, eight, and nine be served without benefit of parole, probation, or suspension of sentence, as is required by LSA-R.S. 14:64.1. However, no corrective action is necessary because the sentences are deemed to contain that restriction under LSA-R.S. 15:301.1.

And third, tins Court notes a sufficiency of evidence problem not affirmatively raised by the defendant. In count one of the bill of information, the state charged defendant with attempted first degree robbery of Chelsea Portune on July 30, 2000. The jury rendered a verdict of guilty of attempted simple robbery.

LSA-R.S. 14:65(A) defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, but not armed with a dangerous weapon. LSA-R.S. 14:27(A) further provides that to attempt to commit a crime, an accused must do or omit an act tending directly toward the accomplishment of the crime while “having a specific intent” to commit the crime. In order to prove an attempted simple robbery, the state had to prove that defendant: (1) had a specific intent to commit the crime of simple robbery, and (2) did an act for the purpose of and tending directly toward the commission of the crime of simple robbery.

Nothing in the transcripts or minute entries shows that Chelsea Portune testified at trial. No one else testified at trial that they witnessed that offense. The only evidence in the record regarding the attempted robbery of Portune is the defendant’s own recorded confession. In his third interview with defendant on August 2, 2000, Detective John Carroll asked whether the defendant recalled an 11sattempted first degree robbery at the Tiffin Inn at 6601 Veterans. The defendant responded that he went into the Tiffin Inn and told the lady he was hungry and his family needed food. He further responded that the lady then walked away from him and he walked out of the store. Detective Carroll asked him if he got anything and the defendant responded “No.” Detective Carroll then asked the defendant what the lady did when he implied he had a weapon and told her he needed money. The defendant responded that the lady walked away from him and he left.

In State v. Willie, 410 So.2d 1019, 1029 (La.1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984), the Louisiana Supreme Court noted:

It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti.... The corpus de-licti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt....

(Internal citations omitted).

The Supreme Court outlined the rule of law regarding corpus delicti in State v. Brown, 236 La. 562, 571, 108 So.2d 233, 236 (1959):

In the trial of every criminal case the State, to warrant a legal conviction of an accused, must prove the corpus delicti, or the fact that a crime has been committed. Without such proof no conviction will be permitted to stand....
Suspicion, rumor, gossip, or mere hearsay evidence is not sufficient to establish the proof of corpus delicti, ...

In this case, the state failed to prove the corpus delicti with respect to the charge against the defendant in count one of the bill of information, which was the attempted first degree robbery of Chelsea Por-tune. Since the evidence is insufficient to support that conviction, we will modify the verdict by entering a judgment of acquittal with respect to that offense.

| uDECREE

In accordance with the above, we modify the verdict and enter a judgment of acquittal as to count one. As a result of that modification, we reverse defendant’s sentence of three years as to count one. We affirm defendant’s sentences on all other counts. We also remand this matter to the trial court for correction of the minute entry as discussed above in the error patent review.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Chelsea Portune, the alleged victim in the Tiffin Inn robbery, did not testify at trial. See discussion under Assignment of Error Number Two (errors patent), ante.


author: |-/THOMAS F- DALEY, Judge.

text:
    STATE of Louisiana v. Luke Brandon TIMBERLAKE.
    No. 04-CA-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for PlaintiffAp-pellee.
    Kenneth J. Beck, Julie C. Tizzard, Gret-na, LA, for Intervenor/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and THOMAS F. DALEY.
   |-/THOMAS F- DALEY, Judge.

Bankers Insurance Company appeals the trial court’s denial of their Motion to Set Aside Judgment of Bond Forfeiture. We affirm.

The record shows that defendant, Luke Timberlake, was arrested on December 16, 2001 on several charges. He posted a $10,000.00 bond on December 19, 2001, said bond was posted by Louis Marcotte III as agent for Bankers Insurance Company. Defendant’s arraignment was set for May 2, 2002, but he failed to appear. The court ordered the bond forfeited and an attachment was ordered. Notice of the bond forfeiture was mailed to defendant, at the address he supplied for the bond, and Bankers Insurance Company on May 9, 2002.

Bankers Insurance Company filed its Motion to Set Aside Judgment of Bond Forfeiture on February 3, 2003, arguing that the judgment of bond forfeiture was a nullity because Timberlake was not served with notice of his arraignment date, and notice was mailed to the wrong agent for surety. An amended motion was filed on February 6, 2003, taking out the second ground. Apparently defendant was apprehended and surrendered on March 12, 2003. The motion was originally |3argued on March 17, 2003, when it was denied, but the motion was reset for argument due to the absence of counsel for Bankers Insurance Company. Bankers Insurance Company’s Motion to Reset was apparently treated as a Motion to Reconsider, which was heard on June 16, 2003. The motion was denied. Bankers Insurance Company took this appeal on June 20, 2003.

Bankers Insurance Company argues that the bond forfeiture should have been set aside because Timberlake was not properly served with notice of his original arraignment date. We find, however, that Bankers Insurance Company’s Motion to Set Aside Bond Forfeiture was untimely, and thus do not reach the merits of Bankers Insurance Company’s appeal. LSA-R.S. 15:85 states, in pertinent part:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
(6) Appeals.
(a) The defendant and his sureties shall have the right to an appeal that suspends the effect or the execution of the judgment of bond forfeiture. The security to be furnished for this suspensive appeal shall be equal to the bail obligation.
(b) The defendant and his sureties shall have the right to a devolutive appeal of the judgment of bond forfeiture.
(c) All appeals shall be to the appellate court having general civil appellate jurisdiction over the court issuing the judgment of bond forfeiture.
I s¡* ❖ ❖ # & _k
(9) Nullity actions. Nullity actions pursuant to Code of Civil Procedure Art.2001 et seq. not filed within the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.

The record shows that Bankers Insurance Company employed summary proceedings when it filed its Motion to Set Aside Bond Forfeiture on February 3, 2003. The Motion was filed approximately nine months after the notice of judgment of bond forfeiture was mailed to Bankers Insurance Company. This motion was untimely because it was filed more than six months after the notice of judgment of bond forfeiture was mailed, which is the latest date that Bankers Insurance Company could have asserted any defenses to the bond forfeiture under LSA-R.S. 15:85 by using summary proceedings. (The particular defense asserted by Bankers Insurance Company, that Mr. Timberlake was not properly served with notice of his arraignment date, must be raised within sixty days of the notice of judgment of bond forfeiture, if by summary proceedings. R.S. 15:85(5)).

Under R.S. 15:85(6), Bankers Insurance Company could have filed an appeal of the judgment ordering the bond forfeiture. That judgment was rendered on May 6, 2002. The record is devoid of any appeal from that judgment. Likewise, under R.S. 15:85(9), Bankers Insurance Company could file a nullity action via ordinary proceedings as per LSA-C.C.P. art.2001 et seq. The action on appeal before this court was instituted by summary proceedings and therefore C.C.P. art.2001 does not apply to this particular proceeding.

At the hearing on June 16, 2003, Bankers Insurance Company argued that the defendant had in fact been surrendered to the court, which occurred on March 12, 2002, and thus equity argued that the bond forfeiture be set aside. We note that this surrender occurred approximately ten months after the notice of judgment of bond forfeiture, which is after the time allowed for relief under LSA-C.Cr.P. art. | S345(A), and in fact occurred after Bankers Insurance Company filed its untimely Motion to Set Aside Bond Forfeiture.

For the reasons above, we affirm the judgment of the trial court denying Bankers Insurance Company’s Motion to Set Aside Bond Forfeiture.

AFFIRMED.

      . LSA-C.Cr.P. art. 345(A). A surety may surrender the defendant or the defendant may surrender himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond. For the purpose of surrendering the defendant, the surety may arrest him. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. Thereafter, the surety shall be fully and finally discharged and relieved of any and all obligation under the bond.


author: 1 {.WALTER J. ROTHSCHILD, Judge.

text:
    Deirdre BATTAGLIA and Steven Battaglia v. Maron L. LEEGAN, State Farm Insurance Company, Progressive Insurance Company and Fortis Insurance Company.
    No. 04-CA-375.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.
    Michael J. Bourquard, New Orleans, LA, for PlaintifPAppellee.
    K. Wade Trahan, Paul J. Hebert, Lafayette, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   1 {.WALTER J. ROTHSCHILD, Judge.

In this personal injury suit resulting from an automobile accident, plaintiff filed a petition for declaratory judgment against Fortis Insurance Company seeking benefits payable under a short term medical insurance policy. By judgment rendered on January 15, 2004, the trial court declared that the Fortis policy provided coverage for the surgery sought by plaintiff. Fortis now suspensively appeals from this judgment. We affirm.

Plaintiff, Deirdre Battaglia, purchased a short time insurance policy from Fortis Insurance Company on May 31, 2001. She was subsequently injured in an automobile accident on September 7, 2001 during the policy’s effective period, and Fortis paid for some medical treatment necessitated by the accident. However, in November of 2001 plaintiffs treating physician recommended a shoulder surgery to repair a torn rotator cuff sustained in the accident. This surgery was scheduled for November 28, 2001. On this date, Ms. Battaglia appeared at the hospital for the surgery, but was informed that LFortis claimed that Ms. Battaglia had not complied with the policy requirement of a seven day waiting period prior to non-emergency surgeries. Based on this information, Ms. Battaglia did not undergo surgery on November 28, 2001, and the Fortis policy expired on December 2, 2001. Ms. Battaglia subsequently made a claim against Fortis for payment for the surgery, but Fortis denied the claim based on the expiration of the policy.

On September 6, 2002, plaintiff filed a petition for damages against the second driver involved in the automobile accident and the insurer of that driver. Plaintiff also included this petition for declaratory judgment against Fortis. In this pleading, she sought a judgment declaring that she was entitled to coverage under the Fortis policy for the recommended surgery to repair her torn rotator cuff.

The parties submitted the declaratory judgment portion of the petition to the trial court on memoranda alone. On January 15, 2004, the trial court rendered judgment finding that Fortis was responsible for coverage for the surgery sought by plaintiff.

In its reasons for judgment, the trial court stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this Court finds that the policy covered the type of surgery that was requested by Ms. Battaglia. During the policy period, she sustained an injury and during the policy period, she timely requested a surgery covered under the policy. Under the “Extension of Benefits” provision of the policy, extended coverage was provided under the facts of this case.
Although defendant used a policy provision that required a delay of seven (7) days for non-emergency surgery, they did that [sic] provide the extended coverage.
This Court finds the defendant is responsible for coverage of the surgery.
Penalties under LSA 22:657 and LSA 22:1220 will be determined at a later date.

LFortis now appeals from this judgment on the basis that the trial court committed manifest error in interpreting the insurance policy to require an extension of benefits in this case. Fortis contends that by applying the “Extension of Benefits” section of the policy, the court created new terms of the policy and changed the expressed intent of the parties. Specifically, Fortis contends that Ms. Battaglia failed to request an extension of benefits and failed to prove she was totally disabled as necessary to receive an extension of benefits.

A copy of the short term medical policy issued to Deirdre Battaglia by Fortis Insurance Company on May 31, 2001 is contained in the record. There is no dispute that the policy expired on December 2, 2001. Further, there is no dispute that the surgery sought by Ms. Battaglia on November 28, 2001 was a covered expense under the policy. The question presented here is whether the policy provides coverage for a claim for surgery made during the policy period but not performed during that time period.

In finding there was coverage under the policy, the trial court relied on the following policy provision:

EXTENSION OF BENEFITS: When the Benefit Period expires, coverage may be extended for a continuous Injury sustained or Sickness which commenced while the policy was in force and for which a Covered Person is then being treated. The Extension of Benefits provision will apply when the conditions under item (1) or (2) exist:
1. Only for the Covered Person receiving treatment if he or she remains Totally Disabled beyond the expiration date and is under the care of a Physician for the disability during the Benefit Period.
Fortis Insurance Company will extend benefits to the earliest of: a) the date on which treatment is no longer required; b) the end of Total Disability; c) payment of the maximum benefit; or d) 12 months from the expiration date.
|BThe term Total Disability means that You or Your spouse are unable to pex-form the duties of any occupation for which reasonably fitted by education, training or experience. A dependent child is totally disabled if confined as a patient in a Hospital.
2. Only for the Covered Person, who: a) has met his or her Deductible during the policy period; and b) is being treated for complications of or needs follow-up treatment for an Injury sustained or Sickness which commenced during the policy period. A $1,000 maximum benefit will be provided for a period of not more than 60 days beyond the expiration date. The Covered Person does not have to be Totally Disabled to qualify for this portion of the Extension of Benefits provision.
This Extension of Benefits provision does not create coverage for expenses incurred as a result of conditions not covered, as noted in the Exclusions section or elsewhere in the contract.

The record also contains joint pre-trial stipulations by the parties which indicate that that Deirdre Battaglia suffered physical injury on September 7, 2001 for which she received treatment from Dr. Warren Bourgeois, and that prior to November 25, 2001 Fortis paid all claims which were submitted by Ms. Battaglia as a result of this injury. Dr. Bourgeois recommended plaintiff undergo surgery in conjunction with this injury which was scheduled for November 28, 2001 and Paul Caruso, a surgical assistant from Dr. Bourgeois’ office, contacted Fortis to determine coverage and secure the necessary approval. Mr. Caruso was informed by a Fortis representative that the policy required a seven day advance notification for out-patient surgery and that Fortis had the ability to reduce the payments based on the failure of claimant to comply with this requirement. -Mr. IfjCaruso related this information to Ms. Battaglia, who chose not to undergo the recommended surgery based on Fortis’ response.

The record also contains an affidavit of Deirdre Battaglia, who stated that on November 28, 2001, she appeared at the hospital to undergo the surgery recommended by Dr. Bourgeois, and was told by Mr. Caruso that Fortis was invoking a seven day delay for authorization for the surgery. Ms. Battaglia was aware that the policy was set to expire in less than seven days, and that the doctor’s office and hospital were demanding payment in advance for the surgery which she was not able to afford. Ms. Battaglia also stated that she spoke to a representative of Fortis on that day who continued to invoke the seven-day notice requirement, and she was not informed that she could elect to undergo the surgery after the expiration of the policy date. She stated she did not appeal from this decision, but instead hired an attorney to assist her in pursuing this claim. Ms. Battaglia stated that she has not yet undergone the recommended surgery, but that she still continues to experience unbearable pain in her shoulder.

Fortis contends that because Ms. Bat-taglia voluntarily chose not to undergo the surgery during the policy period and failed to request an extenstion in benefits or take an appeal, coverage is not afforded under the policy which has now expired. However, the record in this case indicates that the surgery sought by Ms. Battaglia was recommended by her treating physician, and that Fortis had previously covered the costs of the medical treatment for this injury. Further, the only reason Ms. Bat-taglia chose not to undergo the surgery was based on her belief that Fortis had denied coverage for the surgery. This belief was reasonable based on the statements made by Paul Caruso, the surgical assistant who contacted Fortis on Ms. Bat-taglia’s behalf. In addition, Ms. Battaglia stated that based on the information 17obtained from Fortis by Mr. Caruso, Dr. Bourgeois and the hospital required payment for the surgery in advance. The record also shows that although surgery was recommended by the physician and scheduled within the policy period, Fortis did not confer coverage at the time the claim was made notwithstanding the authorization waiting period.

Under the circumstances presented in this case, we find no error of the trial court in finding that coverage exists for the surgery sought by plaintiff in this ease. Although Ms. Battaglia did not undergo the surgery during the policy period, the record indicates that Fortis’ indication that the policy expired before authorization was obtained was the reason surgery was not completed. Fortis’ action in invoking the seven day delay without allowing an extension of coverage effectively prevented coverage for this surgery to which the insured was clearly entitled under the policy. Accordingly, for the reasons assigned herein, the declaratory judgment of the trial court stating that coverage exists under the For-tis policy for the surgery sought by plaintiff is hereby affirmed.

Fortis also contends that the trial court erred in declaring that penalties pursuant to La. R.S. 22:657 and 22:1220 are reserved for a later date. Fortis contends that plaintiff is not entitled to penalties. However, the trial court has not ruled in favor of plaintiff on the issue of penalties, and Fortis’ argument is therefore premature. We will therefore not address the second issue raised in Fortis’ brief.

Finally, the request for attorney’s fees for this appeal argued by the plaintiff is dismissed for failure to file an Answer to the appeal. See, La. C.C.P. art. 2133.

|sFor the reasons stated herein, the judgment of the trial court is affirmed. Fortis is to bear all costs of this appeal.

AFFIRMED.


author: PER CURIAM.

text:
    FORUM FOR EQUALITY PAC, A Registered Louisiana Political Action Committee, Louisiana Log Cabin Republicans, an Unincorporated Louisiana Association, Laurence E. Best, Jeanne M. LeBlanc, Gerald W. Thibodeaux, William A. Schultz, and Julie A. Jacobs v. The Honorable W. Fox McKEITHEN, in His Official Capacity as Secretary of State of Louisiana Only, and Not Individually, and The City of New Orleans.
    No. 2004 CE 2182.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 13, 2004.
    John D. Rawls, Regina O. Matthews, Kenneth Randall Evans, New Orleans, Counsel for Plaintiffs/Appellees/Appel-lants, Forum for Equality PAC, Louisiana Log Cabin Republicans, Laurence E. Best, Jeanne M. LeBlanc, Gerald W. Thibo-deaux, William A. Schultz, and Julie Jacobs.
    Thomas A. Robichaux, Evelyn Pugh, Sherry S. Landry, New Orleans, Counsel for Defendant/Appellee, City of New Orleans.
    Charles C. Foti, Jr., Attorney General, Angie Rogers LaPlace, Roy A. Mongrue, Jr., Thomas Halligan, Assistant Attorneys General, Baton Rouge, Counsel for Defendant/AppellanVAppellee, The Honorable W. Fox McKeithen, Secretary of State of Louisiana.
    J. Michael Johnson, Shreveport, Counsel for Intervenors/Appellants/Appellees, Hon. Heulette “Clo” Fontenot, State Senator, Hon. John J. Hainkel, Jr., State Senator, Hon. A.G. Crowe, State Representative, Hon. Steve J. Scalise, State Representative, Louisiana Family Forum, Louisiana Family Forum Action, and American Family Association of New Orleans.
    Before: CARTER, C.J, WHIPPLE, PETTIGREW, GAIDRY and MCDONALD, JJ.
   PER CURIAM.

This court has been asked to address the correctness of the district court judgment, which in addition to other conclusions, expressly declares Constitutional Amendment No. 1 (“Amendment”), approved by a majority of the Louisiana electorate at the September 18, 2004 election and proposing the addition of Article XII, Section 15 to the Louisiana Constitution, unconstitutional. Finding jurisdiction rests with the Louisiana Supreme Court, we transfer the appeal.

FACTS AND PROCEDURAL BACKGROUND

Pursuant to Acts 2004, No. 926, the legislature resolved that there be placed on the official ballot at the September 18, 2004 statewide election a proposition, upon which:

[T]he electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows: To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction which is not the union of one man and one woman. (Adds Article XII, Section 15)

Act No. 926, Section 3.

The September 18, 2004 election was held, and the measure was approved by 77.78% of the electorate: 619,908 votes for and 177,067 votes against the Amendment.

Plaintiffs, Forum for Equality PAC, a registered Louisiana political action committee, Louisiana Log Cabin Republicans, an unincorporated | Louisiana association, Laurence E. Best, Jeanne M. LeBlanc, Gerald W. Thibodeaux, William A. Schultz, and Julie A. Jacobs, filed suit in the Nineteenth Judicial District Court, Parish of East Baton Rouge, against defendants, W. Fox McKeithen, in his official capacity as Secretary of State of Louisiana, and the City of New Orleans. Plaintiffs’ suit, identified as brought pursuant to the Louisiana Election Code, raised six challenges to the September 18, 2004 election and to the Amendment. These challenges include allegations that:

1. Fatal irregularities occurred in the Orleans Parish election.
2. The Louisiana Election Code is unconstitutional and fatally defective under Article XI, Section 1 of the Louisiana Constitution.
3. The Amendment is unconstitutional because it violates Article I of the Louisiana Constitution, the Declaration of Rights.
4. The Amendment is unconstitutional because it violates Article XIII, Section 1 of the Louisiana Constitution, in that a constitutional amendment must be confined to one object.
5. The Amendment is unconstitutional because it violates Article XIII, Section 1 of the Louisiana Constitution, in that a proposed amendment must be pre-filed prior to the legislative session where it is approved. •
6. The Amendment is unconstitutional because it violates Article XIII, Section 1 of the Louisiana Constitution, that a proposed constitutional amendment be submitted to the voters at a statewide election.

|KIn response to allegation number 6, that the amendment was not submitted to the voters at a statewide election, defendant McKeithen filed an exception raising the objections of res judicata and no cause of action. In support of his exceptions, defendant McKeithen relied on the earlier resolution of that issue in a related case, Forum for Equality PAC v. City of New Orleans, 04-1521 (La.App. 4 Cir. 8/30/04), 881 So.2d 777.

Thereafter, State Senators Heulette “Clo” Fontenot, John J. Hainkel, Jr., and State Representatives A.G. Crowe and Steve J. Scalise, along with Louisiana Family Forum, Louisiana Family Forum Action, and American Family Association of New Orleans filed a Petition of Intervention. Intervenors are aligned and united with defendants, McKeithen and City of New Orleans, in resisting the plaintiffs’ demands.

On October 5, 2004, trial was held, and on October 6, 2004, a final judgment was signed. The judgment granted the petition for intervention; granted, as against all plaintiffs, defendant’s exception raising the objection of res judicata in regard to Allegation No. 6; declined to rule on Allegations Nos. 1-3 and 5; granted judgment favorable to all plaintiffs and against all defendants in regard to Allegation No. 4, specifically invalidating the September election and declaring the Amendment in violation of Article XIII, Section 1(B) of the Louisiana Constitution, which provides in pertinent part that “[a] proposed amendment ... shall be confined to one object.” The district court also stayed the effect of the Amendment, including the issuance of any proclamation, to permit review of its judgment by higher courts.

| ^Defendant McKeithen and intervenors jointly filed a motion for suspensive appeal. The order of appeal simultaneously grants defendant McKeithen and interve-nors a suspensive appeal to this court and to the Louisiana Supreme Court. Plaintiffs have answered that appeal.

ANALYSIS

The threshold issue in this and every appeal is whether jurisdiction properly lies with this court. The district court judgment provides, “the court expressly declares the said proposed constitutional amendment to be unconstitutional and in violation of Article XIII, Section 1(B), 1974 Constitution of Louisiana.” Under Article V, Section 5(D), of the Louisiana Constitution, “a case shall be appealable to the supreme court” if a law or ordinance has been declared unconstitutional. Moreover, Article V, Section 5(F) of the Louisiana Constitution states “that the supreme court has appellate jurisdiction over all issues involved in a civil action properly before it.”

As the supreme court has exclusive appellate jurisdiction to review the declaration of unconstitutionality, it also has appellate jurisdiction over all other issues involved in this case. See Louisiana Electorate of Gays and Lesbians, Inc. v. State, 99-2949 (La.App. 4 Cir. 11/14/01), 806 So.2d 678, 684 (on application for rehearing en banc); see also Church Point Wholesale Beverage Co. v. Tarver, 614 So.2d 697, 700-01 (La.1993). As observed by the fourth circuit, “[i]t defies logic and any consideration of judicial economy to split any case, much less a complex case, into different appeals, within different tribunals.” Louisiana Electorate, 806 So.2d at 683.

^CONCLUSION

Considering that the district court expressly declared the proposed constitutional amendment to be unconstitutional and in violation of Article XIII, Section 1(B) of the 1974 Louisiana Constitution, under Article V, Section 5(D) of the Louisiana Constitution, this case must be directly appealed to the supreme court. For the additional reasons set forth herein, the appeal is transferred to the Louisiana Supreme Court, which has jurisdiction pursuant to Article V of the Louisiana Constitution. See LSA-C.C .P. art. 2162.

APPEAL TRANSFERRED TO LOUISIANA SUPREME COURT.

      . It is questionable whether a suit, or that part of a suit, seeking a declaration that a voter-approved constitutional amendment is in violation of the Louisiana Constitution is properly brought under the Election Code, with its accompanying exigency. Regardless, we expedite this matter as a courtesy to the parties, the citizens of Louisiana, and the Louisiana Supreme Court.


author: | .MARION F. EDWARDS, Judge.

text:
    Cheryl ELLSWORTH v. ALLSTATE INSURANCE COMPANY and Robert Harrison.
    No. 04-CA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.
    Peter M. Meisner, New Orleans, LA, for Plaintiff/Appellee.

      Carl R. Danna, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

Plaintiff/appellee Cheryl Ellsworth filed suit in the Twenty-Fourth Judicial District Court against Robert Harrison and his insurer, Allstate Insurance Company, for injuries sustained in an accident on the Causeway Bridge on August 30, 2001. The petition alleged that Ms. Ellsworth was a passenger in a vehicle owned and operated by Mr. Farrell Porche, when Harrison swerved out of the left lane of travel into the right, colliding with the Porche vehicle. At the commencement of trial, Harrison was dismissed as a party, and Ellsworth stipulated that the monetary value of her damages would not exceed Fifty-Thousand Dollars. Trial proceeded against Allstate, at the conclusion of which the court found that Harrison was at fault. Allstate was found liable for general and special damages in an amount that would exceed the stipulation, and accordingly, limited the judgment to $50,000.00 plus interests and costs.

Allstate appeals only the quantum portion of the judgment dealing with injuries to Ellsworth’s knee.

Is At trial, Ellsworth testified that in the accident, she suffered a chipped tooth, scratched the front part of her eye, smashed her left knee into the dashboard, and her right shoulder hit the glass. She was taken by ambulance to East Jefferson Hospital’s emergency room. She was later treated for her knee and shoulder injury at Tulane University, with Dr. Michael Bruni. Thereafter, she began treatment with Dr. Raul Diaz, an orthopedic surgeon. Dr. Diaz recommended steroid injections for her shoulder and knee, but because of the side effects, Ellsworth did not want to have those injections. Dr. Diaz also recommended arthroscopic surgery, and while she did not really want surgery, she has decided to try it because her knee has gotten worse.

In connection with the accident, she also went to her dentist, Dr. Glen Schmidt, for her chipped tooth, although she has not gotten it fixed, and she still has a scar on her lip. Ellsworth also went to the Retinal Institute of Louisiana for the scratches on her cornea. She was formerly very active, and was a personal fitness coach and general manager at Salvation Studio. Because of her injuries, she is unable to train as she used to, and can only run for about five minutes without extreme pain. She now does different types of therapeutic exercise, such as yoga.

On cross-examination, counsel pointed out that in her deposition, Ellsworth had stated she had missed two months of work after the accident, while at trial she testified that she had missed work and taken off sometimes, but was not out during that entire period. She testified at trial that she left her employment because she was not able to use the facilities, and she had a conflict with the new manager. Further, she was living in Abita Springs and it was a difficult commute. She began selling real estate in August 2002.

Ellsworth testified at trial that her right shoulder has not improved, but rather has gotten worse. Defense counsel pointed out that she had previously stated in her deposition that after the accident, she had problems with both shoulders, but the 14pain in her right shoulder lasted about one month, while her left shoulder only hurts when she sleeps on it. Ellsworth responded that since the deposition, her shoulder has gotten worse. As for her knee, she testified that it was swollen at the emergency room, where she was given ice to put on it. She could walk on it. Dr. Diaz ordered an MRI, telling her that her condition was something she had to live with for some time. Therefore, she did not return to him until four months after the MRI was taken.

Rusty Roussel, general manager at Salvation Studio, testified regarding Ells-worth’s wages at the time of the accident, referring to documents not introduced into evidence. Roussel testified that Ellsworth worked 14 hours the week of August 13-19; the week after the accident she worked 8 hours; and then she worked 31, 28/&, and 23]6 hour weeks in September. Ellsworth stipulated at trial that she worked more hours after the accident than just before, testifying later in rebuttal that she was paid for hours that she did not actually work. She also stated at that point that she was the only one who would stay and work with Roussel.

The deposition of Dr. Diaz, an orthopedist, was admitted into evidence. Dr. Diaz stated that Ellsworth’s initial complaints were limited to the right shoulder and left knee, which injuries she attributed to the accident. At that time, the physician believed that Ellsworth suffered from chon-dromalacia of the left knee and a bursitic condition of the right shoulder. He ordered an MRI and prescribed anti-inflammatory drugs. Later, Dr. Diaz believed she suffered an impingement on her right shoulder, and it is probably in about the same condition as it was in December, 2001, when he first saw her. However, he believed the shoulder problem could be cured with steroid injections.

Regarding her left knee, the doctor felt Ellsworth had suffered a traumatic contusion, probably the accident, leading her to develop chondromalacia. | ¡¿However, because she was physically active, she may have been more likely to develop that condition than some others. She needs a diagnostic arthroscopy to delineate the extent of the problem, and then an OATS procedure, a more aggressive surgery, to replace damaged cartilage. His fee for the arthroscopy would be between $5000.000 and $7000.00, and the hospital bills would run about $10,000.00. For the OATS procedure, his fee would be $6000.00-$7000.00, plus an assistant’s fee of about 25% of that amount. The hospital costs would be about $12,000.00-$13,000.00. Although on occasion her knee did not pain her as much as other times, the doctor felt that during the course of his treatment, her condition has not basically changed. Dr. Diaz opined that based on her history of having no knee complaints previous to the collision, he believed the accident to be the cause of her problems.

The deposition of Dr. Terry Habig, an orthopedic surgeon who examined Ells-worth for the defense, was also admitted. Dr. Habig examined her in September 2002, more than two years after the accident. She had crepitus in both knees, with the left knee somewhat worse. His interpretation of the MRI was that Ellsworth suffered from mild chondromalacia, and based on the history of the accident, it was probably caused by injury to the kneecap. This condition is sometimes helped by arthroscopic surgery, and whether or not to do surgery is a judgment call. Dr. Habig did not think an OATS procedure was necessary. Most people with chondro-malacia heal on their own, with physical therapy.

In granting judgment, the trial court found that the hospital records indicated that Ellsworth initially complained of arm and knee pain, injuries consistent with deployment of the air bags. She also went to her dentist because her mouth was bleeding, and to her eye doctor. The trial court discussed Ellsworth’s testimony regarding her shoulder injuries, and found it to be not credible, holding that the most believable statements were made by Ellsworth at the emergency room. The | (¡court felt that her trial testimony regarding her lost wage claim and injury to her shoulder was completely changed from her earlier deposition, and that she contradicted herself. However, the court believed that an MRI of Ellsworth’s knee was consistent with the diagnosis of chondromalacia. The court gave more weight to the testimony of Dr. Diaz, Ellsworth’s treating physician, who recommended arthroscopic surgery.

Having found that Ellsworth’s knee was asymptomatic before the accident, the court determined that Ellsworth suffered a knee injury that caused chondromalacia, which is properly treated by arthroscopic surgery. The court granted general damages of $40,000 for injuries to Ellsworth’s knee. Further, the court awarded $1,000.00 for the shoulder injury, which it determined was of one-month’s duration; $400 for her split lip; and $400.00 for her eye injury. Past medical expenses in the amount of $3,329.00 and future medical expenses in the amount of $17,000.00, the cost of the proposed surgery, were also granted.

On appeal, Allstate urges that the court erred in awarding $40,000 for pain and suffering for the left knee, and for past and future medical expenses, when the court determined that Ellsworth lacked credibility, and “the testimony of two physicians indicated that whether or not she had knee pain depended on her credibility.” Allstate further avers that Ells-worth’s history of pain was subjective.

The court believed the statements made by Ellsworth at the emergency room (that she injured her knee in the accident) were the most credible, noting that both Dr. Diaz and Dr. Habig also based their opinions on that history, as well as on the objective MRI findings of chondromalacia. The court found Ellsworth was asymptomatic before the accident, finding that “... the objective evidence is hit knee plus immediate onset of pain ...” Arthroscopic surgery was found to be a reasonable recommendation. Thus it appears that the court based its findings on objective, rather than subjective, evidence.

[7It is well settled that the fact-finder’s reasonable evaluations of the credibility of witnesses will not be disturbed on appeal absent a finding that they are manifestly erroneous. In the present case, the finding by the trial court that Ellsworth’s statements at the emergency room were credible is not manifestly erroneous. Further, we see no error in the court’s conclusion that the accident was the cause of the problem necessitating future surgery on Ellsworth’s knee. Allstate presented no evidence of another likely cause for the fact that Ellsworth’s left knee, which she claimed from the outset was injured in the accident, was somewhat worse than her right knee. Although she was a runner, there was no showing that Ellsworth experienced any problems with her knee prior to the accident.

The standard for the review of damage awards is whether, after an articulated analysis of the facts, the appellate court finds that the trial judge abused his great discretion. This determination is made with consideration to the individual circumstances of the injured plaintiff. After an analysis of the facts and circumstances peculiar to the particular case and the particular plaintiff, an appellate court may conclude that the award is inadequate (or excessive). Only then does the appellate court resort to prior awards, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion.

In this case, Ellsworth testified that she would have the arthroscopy. Further, Dr. Diaz, whose opinion was given the greatest weight by the trial court, stated that Ells-worth’s knee condition had basically not improved since the time of the accident. Although her credibility in certain areas is surely questionable, it is clear that Ells-worth did suffer injuries as a result of the accident, and the entirety of her testimony cannot be discounted wholesale. We are presented with no contradictions to her statements that although she used to run triathlons, she is no longer able to run without pain, and that she is less physically active. Whereas she used to participate in more vigorous training, she now engages in therapeutic type | ¡¡exercises. Considering all the facts and circumstances peculiar to this plaintiff, we find that the award of $40,000.00 although rather high, is not so high as to constitute an abuse of discretion. Under these circumstances, the trial court also properly awarded Ellsworth damages for past and future medical expenses.

For the foregoing reasons, the judgment is affirmed. Costs are taxed to Allstate.

AFFIRMED.

      . Vinet v. Estate of Calix, 03-572 (La.App. 5 Cir. 10/28/03), 860 So.2d 160, citing Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

      . Farrell v. Pierre, 02-1136 La.App. 5 Cir. 4/8/03, 846 So.2d 49, citations omitted.


text:
    Dale and Virgene Koehler BIGGERS v. ALLSTATE INSURANCE COMPANY, Donna Bianchini-Tully and American Automobile Insurance Company.
    No. 04-CA-282.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2004.

      Frank B. Hayne, New Orleans, LA, and William T. Abbott, Jr., New Orleans, LA, for Plaintiff/Appellant.
    James L. Donovan, Jr., P.M. Donovan, Metairie, LA, Donald A. Hoffman, Lawrence J. Centola, Jr., New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

On July 28, 2003, plaintiffs/appellants, Dale and Virgene Koehler Biggers, filed a petition in the 24th Judicial District Court against defendants/appellees Allstate Insurance Company, Donna Bianchini-Tully, and American Automobile Insurance Company Inc. as the errors and omissions insurer of Bianchini-Tully. The petition alleged that in 1995, Dale Biggers contacted Bianchini-Tully, an agent for Allstate, for a homeowner’s insurance application. According to the petition, Biggers informed Bianchini-Tully that he wanted the same amount of coverage that he had with other carriers, including coverage for loss of jewelry and silverware. The petition alleged that Bianchini-Tully provided an application “which made no discernible reference to the possibility of an exclusion of coverage or a limitation of liability on coverage for the Biggerses jewelry and silverware.” Following issuance of the policy, a copy of which the Biggerses denied receiving, plaintiffs provided Bianchini-Tully in June 1996 with updated appraisals of the jewelry. On July 29th, 2002, the Biggers’ home was burglarized at which time |smany items were stolen, including silverware valued at $13,700.00 and jewelry valued at $27,700.00. After making a claim, Bianchi-ni-Tully advised the plaintiffs that there was a $1000.00 limit on coverage for jewelry, and a $2500.00 limit on coverage for silverware. According to the petition, Allstate acknowledged the existence of coverage under the policy and made payment in December 2002 in the amount of $14,320.00, which payment included the above-stated limited sums for the jewelry and silverware.

Since the burglary, $960.00 worth of jewelry, and $165.00 worth of silverware has been recovered. The Biggers sued for the remaining value of the jewelry and silver, as well as for emotional distress and “personal degradation” alleging that Bian-chini-Tully was negligent in failing to obtain the proper coverage. It was further alleged that Allstate was vicariously liable as the agent of Bianchini-Tully, and liable under its policy.

Allstate filed a general denial. Bianchi-ni-Tully and American Automobile filed a “Peremptory Exception of Prescription/Presumption (sic) Of Or In The Alternative Motion For Summary Judgment.” The pleading urged that La. R.S. 9:5606 governs actions against insurance agents and that under that statute, the claim is barred by peremption. Following a hearing, the trial court granted the exception and dismissed the claim against Bianchini-Tully and American Automobile. The Big-gerses appeal.

La. R.S. 9:5606, Actions for professional insurance agent liability, reads as follows:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest 1¿within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

La. Civil Code Art. 3458 defines per-emption as “a period of time fixed by law for the existence of a right.” Further, under that article “unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” Peremption may not be renounced, interrupted, or suspended. La. Civil Code Art. 3461.

Our Supreme Court has considered a case involving the preemptive period for legal malpractice claims under La. R.S. 9:5605, a statute closely akin to the law at issue. In that matter, the plaintiff sued his former attorney for malpractice, alleging that the attorney was negligent in failing to file a particular claim on his behalf. This Court had held that the preemptive period of R.S. 9:5605 was, in effect, suspended during the period in which the defendant attorney continued to represent plaintiff. In its finding that the malpractice suit was barred by preemption, the Supreme Court held:

As a suspension principle based on contra non valentem, the “continuous representation rule” cannot apply to peremptive periods. This is clear from the wording of La. R.S. 9:5605 (“[t]he one-year and three-year periods of limitations ... are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended”) and of Civil Code article 3461 (“[p]eremption may not be renounced, interrupted, or suspended.”) In addition, this Court has distinguished prescription from peremption in that contra non valentum does not apply to preemption.
| ¡(Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762(1)); peremption, however, extinguishes or destroys the right (La., Civ. Code art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable.

The Supreme Court recognized the “perceived inequities” of that law, nevertheless finding that while the terms of the legal malpractice statute of limitations statute may seem unfair in that a person’s claim may be extinguished before he realizes the full extent of his damages, the enactment of such a statute of limitations is exclusively a legislative prerogative. The Court found La. R.S. 9:5628, the medical malpractice statute, analogous in that a person’s cause of action may prescribe before he even knows he has a cause of action because of the latency period of his condition.

Dale Biggers submitted an affidavit in opposition to the Exception, attesting that in 1996, Bianehini-Tully requested jewelry appraisals which he obtained and provided, and that the agent did not tell him that the coverage she obtained was inadequate to cover the jewelry as appraised. In the trial court and in brief on appeal, the Biggers, in essence, urge that the renewal of the policies each year after 1995 were new contracts and thus constituted a continuing tort on the part of Bianehini-Tully. According to plaintiffs, when each previous policy was annually replaced, these were separate contracts in which Bianchini-Tully “failed to take advantage of the specific opportunity available to point out to the Biggers the inadequacy of the coverages of their silverware and jewelry...”

|fiA similar argument has been rejected by the First Circuit. There, plaintiffs had in effect an automobile insurance policy which provided UM coverage. They also had a Personal Liability Umbrella Policy in which, prior to the fatal accident, plaintiffs decedent had executed a waiver of UM coverage. Plaintiffs sued the carrier and agent for various alleged acts of negligence in relation to the waiver, including allegations that the agent misrepresented the nature of the coverage and mislead them into believing it was not necessary. Plaintiffs there urged that each renewal of the policy constituted a separate tort. The court found:

In order for each renewal to be the basis of a separate tort, the complained of conduct must consist of separate and distinct acts, each of which gives rise to immediately apparent damages. See Bustamento v. Tucker, 607 So.2d 532, 540 (La.1992). However, we find that these renewals were nothing more than a continuation of the ill effects of an original unlawful act. See South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). It was at the time that Craig Lewis obtained Douglas and Mary Bel’s signatures on the 1993 waiver and 1994 rejection respectively that any damage would have been sustained, being the loss of UM coverage under the PLUP. After the rejections were signed, the rejection of UM coverage under the PLUP remained effective for the life of the policy, and no additional rejection was necessary when a renewal was issued.

Further, in that ease, plaintiffs did not change or discuss coverage with the agent after the rejections were signed. “Therefore, after the rejections were signed, there was no occasion for Craig Lewis to misrepresent the nature of Douglas and Mary Bel’s coverage or the implications of not having UM coverage.”

Although the Biggers attempt to distinguish their situation, we find these cases analogous. The Biggers claim that they never received a copy of their policy in the approximately seven years prior to the burglary, yet there is nothing in the record to indicate that they contacted Bianchini-Tully to obtain a duplicate copy during this period. After the initial error on the part of Bianchini-Tully and the issuance of the original policy, there was no occasion for Bianchini-Tully to 17misrepresent the amount of coverage. We concur with the reasoning of the First Circuit that such policy renewals did not constitute a continuing tort.

We agree with the Supreme Court that while a three-year peremptive period may not be particularly generous:

“[i]t is not our role to consider the policy or the wisdom of the [Legislature] in adopting [t]he statute. It is our province to determine only the applicability, legality and constitutionality of the [statute].”

For the foregoing reasons, the judgment is affirmed. Plaintiffs are assessed all costs of appeal.

AFFIRMED.

      . Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291.

      . Id., citing Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986).

      . Bel v. State Farm Mut. Auto. Ins. Co., 2002-1292 (La.App. 1 Cir. 2/14/03), 845 So.2d 377, writs denied 2003-0733 (La.5/30/03), 845 So.2d 1057; 2003-0734 (La.5/30/03), 845 So.2d 1058.

      . Id.; see also Huffman v. Goodman, 34,361, (La.App. 2 Cir. 4/4/01), 784 So.2d 718, writ denied 2001-1331 (La.6/22/01) 794 So.2d 791.

      . Reeder, supra, citing Chamberlain v. State, Through DOTD, 624 So.2d 874, 879 (La.1993).