author: | ¶ PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Ulysses A. SANTIAGO.
    No. 2003-KA-0693.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2003.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, Orleans, LA, for PlaintiffAppel-lant.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR.).
   | ¶ PATRICIA RIVET MURRAY, Judge.

In this appeal by the State, the sole issue presented is whether the trial court erred in granting the motion to quash the bill of information filed by the defendant, Ulysses Santiago. Because we find under the facts of this case the fifteen-month delay in prosecution did not constitute a violation of Mr. Santiago’s right to a speedy trial, we reverse and remand for further proceedings.

PROCEDURAL BACKGROUND

On October 12, 2001, Ulysses Santiago was charged by bill of information with possession of marijuana, second offense, in violation of La. R.S. 40:966(E) in case number 425-395. On October 31, 2001, he pleaded not guilty at his arraignment. On December 18, 2001, the trial court found probable cause and denied the motion to suppress the evidence. On March 13, 2002, when the case was called for trial, the State requested a continuance. When the trial court denied the request, the State entered a nolle prosequi.

On September 20, 2002, the State reinst-ituted the same charge against Mr. Santiago in case number 433-402. Arraignment was set and reset for October 2nd, 15th, 29th, November 12th, and 27th, but Mr. Santiago failed to appear. On 12Pecember 11, 2002, Mr. Santiago appeared in court with counsel and pleaded not guilty. On that same date, Mr. Santiago filed a motion to quash the bill of information, asserting a violation of his right to a speedy trial. On January 16, 2003, after a hearing, the trial court granted the motion to quash. This appeal by the State followed.

Because there was no trial, there are no facts to relate.

DISCUSSION

The Louisiana Code of Criminal Procedure authorizes the State to dismiss any prosecution without obtaining the trial court’s consent. La.C.Cr. P. art. 691. The only limitation the Legislature placed on the State’s authority to reinstitute charges is set forth in Article 576. See State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080. Article 576 provides that when the State has dismissed a timely instituted criminal proceeding, the State may institute new charges for the same offense “within the time limits established by this Chapter or within six months from the date of dismissal, whichever is longer;” however, the State must show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. La.C.Cr.P. art. 576. Given the charge in question is a non-capital felony, Article 578 requires that the State bring the defendant to trial within two years from the date of the bill of information. La.C.Cr. P. art. 578.

In this case, the bill of information was filed on October 26, 2001; therefore, the State had until October 2003 to bring Mr. Santiago to trial. These statutory time periods have not been surpassed in the instant case, and the State has not attempted to circumvent these statutory limitations. See La.C.Cr.P. art. 576.

|3In addition to the statutory right to a speedy trial recognized by La. C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing such a constitutional speedy trial violation claim, it is well-settled that the standard to be applied is the four factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. DeRouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40.

As the State points out, it is well-settled that a defendant challenging the State’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 2000-511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The State argues that Mr. Santiago failed to meet that burden. The State stresses that it only requested a single continuance on the date of the first trial setting and that it noted its reason for dismissing the charges at that time; on the bill of information, the State handwrote, “State forced to trial. Nolle prosequi.” As the State puts it, “[t]he State was simply not prepared to go to trial, most likely due to the lack of witnesses.”

The State further points out that the fifteen month delay is partially attributable to Mr. Santiago’s failure to appear on at least five occasions when the matter was set for arraignment. Although Mr. Santiago contends that his failure to appear was due to the fact he had not been served with notice of arraignment, the minute entries for those five days indicate that he was sent notices at his listed address. The State still further points out that Mr. Santiago never asserted the right | ¿to a speedy trial until he filed his motion to quash. Lastly, the State stresses that the prejudice to Mr. Santiago as a result of the delay was “minimal” given that he was not incarcerated during this period coupled with the fact that he makes no allegations that the delay caused any problem regarding witnesses. Finally, the State stresses that there is no indication that it dismissed and reinstituted the charges for the purpose of avoiding the statutory time limitations or depriving Mr. Santiago of his right to a speedy trial. Hence, the State argues the trial court’s ruling should be reversed and the case remanded.

Answering the State’s appeal, Mr. Santiago asserts that the delay was twenty-one months and thus presumptively prejudicial under the jurisprudence. However, our calculations reveal the actual delay from the initial institution of charges on October 12, 2001 until the granting of the motion to quash on January 16, 2003 was only fifteen months. As discussed below, under similar facts, in DeRouen, supra, we found a fifteen-month lapse between filing of charges and the granting of the motion to quash was not a violation of the defendant’s constitutional right to speedy trial. Nonetheless, we note Mr. Santiago’s other arguments. Particularly, he further argues that the only continuance sought in this case was by the State and that the State delayed seven months before reinsti-tuting the charges. For those reasons, he contends that the State was responsible for the significant delay in this case. Mr. Santiago concedes that he never filed a motion for speedy trial until he moved to quash. Lastly, contrary to the State’s contention, he contends he was prejudiced in that despite the fact he was previously informed this matter was closed, he must now defend these charges.

Recently, in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, 2003 WL 21205365, the Louisiana Supreme Court extensively analyzed the issue presented | ¡¡in this case. Citing DeRouen, supra, and other appellate decisions, the Supreme Court noted that Louisiana courts clearly understand that the determination of motions to quash in which the district attorney entered a nolle prosequi and subsequently reinstituted the same charges are to be decided on a case-by-case basis. Continuing, the Supreme Court cautioned that its decisions should not be read to constrain trial courts from exercising their discretion in appropriate cases to grant motions to quash when there is a showing that the district attorney has obviously flaunted his authority to favor the State at the defendant’s expense. Likewise, the Court instructed that appellate courts can appropriately reverse trial court rulings denying motions to quash under those circumstances. The converse of the latter example is presented by this case; the trial court granted Mr. Santiago’s motion to quash without such a showing.

As noted above, this case is factually indistinguishable from DeRouen, supra, which was cited in Love and in which we reversed a trial court’s ruling granting a motion to quash. In DeRouen, the State nolle prosequied when it was not prepared to begin trial. As noted, DeRouen, like this case, involved a fifteen-month delay. During that fifteen-month delay in DeR-ouen, there were seven scheduled trial dates, yet only two of those dates were upset by the State; the other five upsets were attributable to other causes — the May 1995 flood, the trial court’s calendar, and Mr. DeRouen’s co-defendants. Finding Mr. DeRouen’s allegation of prejudice insufficient, we noted that his complaints were based more on the existence of the charges themselves than on any delay in the proceeding. Still further, we noted that Mr. DeRouen had not been incarcerated and that the delay had not had any adverse impact on his defense. We thus reversed the trial court’s ruling granting his motion to quash and remanded for further proceedings.

[ fiThis case is factually indistinguishable from DeRouen. Beside the fact the delay was only fifteen months, the State’s stated reason for entering the nolo prosequi was because it was not prepared to begin trial. Like Mr. DeRouen, we find Mr. Santiago’s allegation of prejudice — having to defend the charge — is more the result of the existence of the criminal charge itself than the delay in prosecution. Mr. Santiago was not incarcerated, and he does not allege the delay resulted in any adverse impact on his defense. For these reasons, we find, as in DeRouen, that the trial court abused its discretion in granting Mr. Santiago’s motion to quash.

DECREE

For the foregoing reasons, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

      . The state filed a motion to supplement the record with the Criminal District Court record from case No. 425-395, which we granted.


source: Caselaw Access Project

author: hMAX N. TOBIAS JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cornell PHILLIPS.
    No. 2003-KA-0304.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2003.

      Eddie J. Jordan, Jr., District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   hMAX N. TOBIAS JR., Judge.

The defendant, Cornell Phillips (“Phillips”), was charged by bill of information on 5 November 2001 with one count of armed robbery, a violation of La. R.S. 14:64. Phillips entered a plea of not guilty at his 8 November 2001 arraignment. On 6 February 2002, a jury found Phillips guilty of attempted first-degree robbery. On 19 February 2002, Phillips was sentenced to thirteen years in the Department of Corrections. The trial court granted Phillips’s motion for appeal on 21 October 2002.

STATEMENT OF FACTS

Brenda Lastrapes testified that one afternoon as she was exercising in her room Phillips, who appeared nervous and panicky, broke into her bedroom holding a large gun believed to be an AK-47. Ms. Lastrapes lived with her sister, Maria Aguillard, and Maria’s two teenage children. Phillips asked Ms. Lastrapes about the whereabouts of a person she did not know. During the commotion Ms. Las-trapes’ niece, Jennifer Aguillard, came out of her room, and Phillips turned his attention to her. Phillips and Jennifer knew each other because Phillips’ brother and Jennifer were best friends. Phillips asked Jennifer to get her car and go with |2him. Ms. Aguillard convinced Phillips to take the car and leave Jennifer behind. When Phillips left in the vehicle Ms. Lastrapes, Jennifer, and Ms. Aguillard went to a nearby fire station to call the police and report the vehicle stolen. Later that same day Phillips turned himself in to the Ken-ner Police Department.

Ms. Aguillard testified corroborating Ms. Lastrapes’s testimony.

Terri Phillips, Phillips’ mother, testified that Phillips, his brother, Chad, and Jennifer would often hang out together. Ms. Phillips further testified that on the day of the incident Phillips was not trying to steal Ms. Aguillard’s vehicle; instead, he only wanted to borrow it to take his injured friend, Aaron Bennett, to the hospital. Ms. Phillips testified that she tried to explain the situation to Jennifer, and Jennifer stated that she understood, but Ms. Lastrapes and Ms. Aguillard were the ones insisting that Phillips be charged with a crime. Ms. Phillips further testified that Phillips turned himself into the Kenner Police Department because he was afraid of what the police would do to him if they picked him up.

New Orleans Police Detective Jan Christiansen testified that he assisted in the investigation of the armed robbery involving Phillips. He testified that he prepared and showed a photographic line up to Ms. Lastrapes and Ms. Aguillard. Both women separately identified Phillips as the person responsible for the robbery.

ERRORS PATENT

A review of the record reveals that the trial court failed to impose Phillips’ sentence for attempted first-degree robbery without the benefit of probation, parole, or suspension of sentence as required by La. R.S. 14:64.1. Formerly this court followed State v. Fraser, 484 So.2d 122 (La.1986), which held that a [¡¡sentencing error favorable to the defendant that is not raised by the state on appeal may not be corrected. However, the legislature enacted La. R.S. 15:301.1, which addresses those instances where sentences given contain statutory restrictions on parole, probation, or suspension of sentence. Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. Furthermore, in State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this court need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefit of parole, probation, or suspension of sentence. The correction is statutorily effected. (La. R.S. 15:301.1A).

ASSIGNMENT OF ERROR NUMBER 1

Phillips complains that the trial court erred in denying his motion for mistrial after the state improperly referred to an unrelated allegation of attempted murder by Phillips.

During the cross-examination of Terri Phillips the following exchange took place between the assistant district attorney and the witness:

State: Right. Cornell never brought them their car, did he? He took it to Kenner and it was left on the side of the road, right?
14Witness: Well, he was going to get his friend to bring his friend to the hospital when he went there to get the car. That’s what I heard.
State: You’re talking about Aaron Bennett right?
Witness: Yes.
State: And Aaron was shot that day by Cornell, right?
Witness: No. Aaron was not shot by Cornell that day.
State: You’re aware that Cornell was arrested for shooting Aaron Bennett, aren’t you?
Witness: Yes. I was aware of that.
State: With an AK-47?
Witness: I was aware of that but Cornell didn’t shoot Aaron. Aaron was playing with the gun.

During the above-quoted exchange defense counsel did not object to the state’s line of questioning. Defense counsel asked additional questions, briefly attempting to clarify that which had been brought up about Aaron Bennett. The defense then called its next witness. After resting its case for the defense, defense counsel then moved for a mistrial based on the above exchange, which the trial court denied.

La.C.Cr.P. art. 841 provides in part:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.

In the instant case defense counsel did not object to the state’s question at the time of occurrence. Therefore, Phillips failed to preserve his right to complain of the error on appeal. This assignment of error is without merit.

1 .ASSIGNMENT OF ERROR NUMBER 2

Phillips complains that he received ineffective assistance of counsel based on the trial counsel’s failure to move for mistrial sooner.

The Louisiana Supreme Court in State v. Brooks, 505 So.2d 714, 724 (La.1987), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), stated that hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.

This court in State v. Jason, 99-2551, p. 8 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, 871, stated that the claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that his counsel’s performance was deficient and that the deficiency prejudiced him. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Jason, supra. Counsel’s deficient performance will have prejudiced the defendant if he can show that the errors were so serious as to deprive him of a fair trial. To carry this burden, the defendant “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Jason, supra.

Appellate counsel argues that Phillips received ineffective assistance of counsel because trial counsel did not object to the exchange discussed in assignment of error number one above. However, appellate counsel has failed to show how Phillips was prejudiced by the trial counsel’s actions. Had trial counsel | .timely objected to the state’s question, it might have been sustained. However, after a review of the record on appeal, we find the error was harmless. We fail to see how Phillips has been prejudiced. An error is harmless unless a reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the verdict. State v. Byrne, 483 So.2d 564 (La.1986); La.C.Cr.P. art. 921.

Phillips’ arrest for the shooting of Aaron Bennett should be considered res gestae or an integral part of the charged offense. In State v. Major, 2002-0133, p. 12 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, 635, this court during a discussion of res gestae in footnote 8 noted:

The Legislature has codified the res ges-tae exception in La. C.E. art. 404(B), which provides that other crime evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” In so doing, the Legislature departed from the ambiguous phrase res gestae.

In State v. Joseph, 2002-1370, pp. 4-5 (La.App. 3 Cir. 4/17/03), 854 So.2d 914, 919-21, 2003 WL 1889454, the Third Circuit found:

La.Code Evid. Art. 404(B) provides in pertinent part:
Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such | ^purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In State v. Colomb, 98-2813, pp. 3-4 (La.10/1/99), 747 So.2d 1074, 1075-76, the supreme court explained:

This Court has long approved of the introduction of other crimes evidence, both under the provisions of former R.S. 15:448 relating to res gestae evidence and as a matter of integral act evidence under La.C.E. art. 404(B), “when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it.” State v. Brewington, 601 So.2d 656, 657 (La.1992). This doctrine encompasses “not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances.” State v. Molinario, 383 So.2d 345, 350 (La.1980). We have required a close connexity between the charged and uncharged conduct to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” State v. Haarala, 398 So.2d 1093, 1098 (La.1981) (emphasis added); see also 1 McCormick on Evidence, § 190, p. 799 (4th ed., John William Strong, ed., 1992) (other crimes evidence may be admissible “[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.”) (footnote omitted). The res geaste [sic] or integral act doctrine thus “reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive | ^richness.” Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). The test of integral act evidence is therefore not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct but whether doing so would deprive its case of narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Id.
Additionally, “[n]o pre-trial notice is necessary for other crimes evidence when the evidence forms an integral part of the crime charged. State v. Arvie, 97-990 (La.App. 3 Cir. 2/4/98), 709 So.2d 810, writ denied, 98-2461 (La.1/29/99), 736 So.2d 827.” State v. Williams, 00-1277, p. 7 (La.App. 3 Cir. 2/28/01), 779 So.2d 1106, 1110.
The current jurisprudence holds that under Article 404(B)(1) “[i]t is no longer true that whatever forms part of the res gestae is admissible, and such evidence remains subject to the balancing test of La.Code Evid. Ann. art. 403 (West 1994).” State v. Smith, 94-1502, p. 6 (La.App. 4 Cir. 1/19/95); 649 So.2d 1078, 1083, citing Authors’ Note to Article 404(B), Handbook on Louisiana Evidence Law, Pugh, Force, Rault, and Triche (1994 ed.). See also, State v. McGuire, 577 So.2d 1120 (La.App. 1 Cir.), writ denied, 581 So.2d 704 (La.1991).
State v. Arvie, 97-990, pp. 16-17 (La.App. 3 Cir. 2/4/98), 709 So.2d 810, 818, writ denied, 98-2461 (La.1/29/99), 736 So.2d 827.
[RJelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, risk of misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; See State v. Mosby, 595 So.2d 1135, 1138 (La.1992). Absent a clear abuse of discretion, the trial judge’s determinations concerning relevancy and admissibility should not be overturned. State v. Vaughn, 431 So.2d 358, 361 (La.1982); State v. Bates, 397 So.2d 1331, 1334 (La.1981) (same); State v. Stramiello, 392 So.2d 425, 427 (La.1980) (same).
State v. Cosey, 97-2020, pp. 13-14 (La.11/28/00), 779 So.2d 675, 684, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001).

During the testimony of defense witness, Ms. Phillips, defense counsel asked the witness if Phillips had been arrested for stealing Ms. Aguillard’s vehicle. Ms. Phillips responded by saying that Phillips did not steal the vehicle, but he used it to take his injured friend to the hospital. The defense opened the door to further details about a shooting when Ms. Phillips’ testified that Phillips took the vehicle to help his friend.

Phillips was convicted of attempted first-degree robbery, a lesser-included offense of armed robbery. It does not appear and we do not find that the jury considered the state’s questions about Phillips’ arrest when determining its verdict. This assignment of error is without merit.

CONCLUSION

Accordingly, Phillips’s conviction and sentence are affirmed.

AFFIRMED.

      . We have deleted the footnote from the following quote, which cited additional jurisprudence.


author: LMICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana, v. Randy FINCH.
    No. 2002-KA-2481.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2003.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, Orleans, LA, for Plaintiff/Appel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.)
   LMICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

On November 15, 2001, Randy Finch was charged by bill of indictment with second degree murder, a violation of La. R.S. 14:30.1. At his arraignment on November 28th, he entered a plea of ntít guilty. However, after a bench trial on June 24 and 26, 2002, Finch was found to be guilty as charged. He was sentenced on July 16, 2002, to life imprisonment without benefit of parole, probation, or suspension of sentence. He was granted an out-of-time appeal on November 19, 2002.

FACTS

Ms. Etta Briscoe, the mother of the twenty-three year old victim, testified that the defendant had a seven-year relationship with her daughter, Tamika Moses, who was the mother of Finch’s three children. Finch lived with Tamika at Ms. Bris-coe’s house for some time. About 11:00 a.m. on September 16, 2001, Ms. Briscoe left her home to go to a cousin’s house to get her hair done. Tamika was at home. Sometime later she received a telephone call from Derika Jackson, a friend of Tamika, who told her that Finch was at the house and Tamika was crying. Ms. Bris-coe went home immediately. Tamika’s father had just arrived at the house and Lwas standing in the doorway. Ms. Briscoe rushed past him to Tamika’s bedroom. There she saw her daughter bleeding from a head wound. Ms. Briscoe and Tamika’s father took her to the hospital immediately. She was there about twenty minutes before she died. Under cross-examination, Ms. Briscoe stated that she was never aware of jealousy problems between Finch and Tamika. She denied knowing of her daughter’s relationship with any other men.

Dr. James Traylor, a forensic pathologist who performed the autopsy on Tamika, testified that Ms. Moses died from internal bleeding and injuries caused by repeated blows to her abdominal area. Ms. Moses’ liver was lacerated or torn from front to back, the vein supplying blood to her intestines was completely severed, and her right kidney had two lacerations or tears. Ms. Moses also suffered a spiral fracture in her upper right arm, abrasions to her left shoulder and on the left side of her neck, and a bruise on her right breast.

Winnie Peter, the victim’s co-worker, testified that the defendant called her several times after he left Ms. Moses’ apartment to inquire about the victim’s condition. Ms. Peters further testified that he admitted he repeatedly kicked Ms. Moses until she was unconscious.

Detective Danny Wharton, of the New Orleans Police Department, testified that while he was at the scene of the beating, the telephone rang and he answered it. A person identifying himself as “Randy” asked for Tamika. Upon being told that Tamika was not there Randy asked why the police were there. Detective Wharton then inquired if he had had an altercation with Tamika. Randy responded “yes,” that he did have an altercation. When told that he needed to come to the police station to discuss the situation, Randy declined saying he would call back. A short time later Randy called back wanting to know what was wrong with |sTamika. Detective Wharton informed him that he needed to go to the station and that Tamika “may not make it.” Randy replied that he did not know if he would come because he did not want to go to jail. Ultimately, though, he turned himself in after a warrant had been issued for his arrest.

ERRORS PATENT

A review of the record revealed that there are no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

Defendant’s appellate counsel complains the evidence was insufficient to sustain the defendant’s conviction for second-degree murder.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror |4could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984).

La. R.S. 14:30.1(A)(1) defines second-degree murder in part as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10. Specific intent is a state of mind, and as such need not be proven as a fact but may be inferred from the circumstances of the situation and the actions of the defendant. State v. Brooks, 505 So.2d 714 (La.1987). Specific intent to kill or inflict great bodily harm can be inferred from a shooting which occurs at a fairly close range. State v. Cummings, 99-3000 (La.App. 1 Cir. 11/3/00), 771 So.2d 874

Appellate counsel argues the evidence supported a manslaughter conviction. La. R.S. 14:31 defines manslaughter as a homicide committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. State v. Collor, 99-0175, p. 10 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 102.

However, the evidence showed the defendant’s blood had time to cool. On September 15, 2001, the defendant moved out of the residence that he shared with the victim. On September 16, 2001, approximately twenty-four hours later the defendant returned to the victim’s residence where he beat her severely causing internal injuries and bleeding that led to her death. The defendant’s intent to kill or inflict great bodily harm can be inferred from the defendant’s actions. Additionally, the defendant admitted he repeatedly kicked the victim until she was 1¡¡unconscious. The evidence was clearly sufficient to support the verdict. Therefore, this assignment of error is without merit.

FINCH’S PRO SE ASSIGNMENT OF ERROR

The defendant complains his trial counsel was ineffective for waving his right to jury trial, for refusing to allow the defendant to testify, for refusing to call other witnesses, and for withdrawing the defendant’s motion for new trial and judgment of acquittal.

The Louisiana Supreme Court in State v. Brooks, 505 So.2d 714, 724 (La.1987) citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) stated that hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.

This court in State v. Jason, 99-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, 871 citing Strickland v. Washington, supra, stated that the claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland. The defendant must show that his counsel’s performance was deficient and that the deficiency prejudiced him. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Jason, supra. Counsel’s deficient performance will have prejudiced the defendant if he can show that the errors were so serious as to deprive him of a fair trial. To carry this burden, the defendant “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been Indifferent. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Jason, Id, citing Strickland, Id.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief filed in the trial court where a full evidentiary hearing can be conducted. Only if the record discloses sufficient evidence to rule on the merits of the claim do the interest of judicial economy justify consideration of the issues on appeal. State v. Myers, 97-2401 (La.App. 4 Cir. 12/6/00), 773 So.2d 884. The record before this court is not sufficient to review the defendant’s claim of effective assistance of counsel. Therefore, this court must decline to review this assignment, preserving the defendant’s right to raise the issue via an application for post conviction relief.

CONCLUSION

For the aforementioned reasons the defendant’s sentence and conviction are affirmed.

AFFIRMED.


author: | .MICHAEL E. KIRBY, Judge.

text:
    Janean CLARK v. LEGION INSURANCE COMPANY, Coleman Cab Company, Rolins Cab Service And Shahid Abbasi.
    No. 2002-CA-2487.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2003.

      Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Randall L. Kleinman, Hulse & Wanek, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.
   | .MICHAEL E. KIRBY, Judge.

Mercury Insurance Company (“Mercury”) appeals the trial court’s denial of its motion for summary judgment. Because no appellate jurisdiction lies from a trial court’s denial of a motion for summary judgment, this appeal must be dismissed.

FACTS AND PROCEDURAL HISTORY

This suit arises out of a pedestrian/automobile accident that occurred in the French Quarter on July 29, 1998. The plaintiff, Janean Clark (“Clark”), a California resident, was vacationing in New Orleans at the time of the accident. According to the plaintiffs petition, she was a pedestrian crossing the intersection of Decatur and St. Louis Streets when suddenly and without warning she was struck by a 1985 Lincoln owned by Coleman Cab Company (“Coleman”) and/or Rollins Cab Service (“Rollins”) and operated by Shahid Abbasi (“Abbasi”).

On July 15, 1999, plaintiff filed suit in Civil District Court for the Parish of Orleans against Coleman, Rollins, Abbasi, and Legion Insurance Company (“Legion”), the alleged liability insurer of Coleman and/or Rollins. Several ^months later, Mercury Insurance Company, plaintiffs uninsured/underinsured motorist (“UIM”) insurer, was named as an additional defendant.

By judgment dated February 2, 2000, Rollins was dismissed from the suit, with prejudice, upon the trial court’s grant of its motion for summary judgment, which had been unopposed by plaintiff. Later, on June 29, 2001, the trial court signed an order dismissing plaintiffs suit, with prejudice, as to Coleman, Rollins, Abbasi, Esta-van Carter, and Legion, upon plaintiffs fifing of a motion for partial dismissal wherein she stated that she had settled with those defendants. The order reserved plaintiffs right to proceed against Mercury.

Mercury filed a motion for summary judgment on January 11, 2002 urging the trial court to dismiss all claims against it based upon the application of California law to the dispute. Therein, Mercury claimed that the following facts were undisputed: (1) that plaintiff was a resident of California at the time of the accident, (2) that plaintiff had never permanently resided in Louisiana, (3) that the policy issued by Mercury to the plaintiff was issued and delivered in California, (4) that the Legion policy provided liability coverage to the tortfeasors, Coleman, Rollins, Abbasi, and Carter, in the amount of $25,000, and (5) that plaintiff had settled her claim against the tortfeasors for $24,250. Mercury argued that its policy stipulated that all disputes were to bed pursuant to the laws of California, and under those laws, the failure of judge plaintiff to settle for the tortfeasors’ full policy limits precludes any claim against her UIM insurer. Alternatively, Mercury claimed that even if the court were to ignore the choice of law provision in its policy, Louisiana’s conflicts of law rules dictate that California law should be | ¡¡applied to this matter, thereby requiring the dismissal of plaintiffs claims against it for her failure to settle for the tortfeasors’ full policy limits.

Plaintiff opposed Mercury’s motion for summary judgment arguing that Louisiana law and public policy favor settlement, as well as the right of victims of accidents occurring in Louisiana to get full recovery, and that imposing California’s law of an “all or nothing” settlement with the tort-feasors would go against this state’s law and strong public policy.

Following a contradictory hearing on September 20, 2002, the trial court rendered judgment on October 10, 2002, denying Mercury’s motion for summary judgment. The judgment provided, however, that “[although the Judgment does not dispose of all of the claims, the Court expressly determines that there is no just reason for delay and hereby designates this judgment as a final judgment pursuant to Article 1915(B) of the Louisiana Code of Civil Procedure.” This timely appeal followed.

DISCUSSION

The initial issue that we must address in this appeal is whether the trial court’s October 10, 2002, judgment is a final judgment for the purpose of an immediate appeal.

To facilitate resolution of this issue, we issued an order on January 28, 2003, directing Mercury to show cause within ten days “why this appeal should not be dismissed on the grounds that the judgment sought to be appealed is a non-appealable interlocutory judgment, not subject to being designated under La. C.C.P. 1915(B) as a final judgment by the trial court.” The order directed the plaintiff to file a response within twenty days.

|4On February 18, 2003, Mercury filed a response to our show cause order. Therein Mercury admitted that La. C.C.P. art 968, which precludes appeals from the denial of a motion for summary judgment, might apply. Nevertheless, Mercury argues “it appears that the Supreme Court has refused to apply this stricture when the judgment has been certified as final pursuant to Article 1915 of the Code of Civil Procedure”, citing Williams v. Watson, 2001-0495 (La.10/16/01), 798 So.2d 55, as an example. In Williams, the Supreme Court granted certiorari to review our having affirmed the denial of a motion for summary judgment, which judgment had been certified as final for purposes of immediate appeal under La. C.C.P. art. 1915. The Court stated that it was granting certiorari to resolve a conflict among the circuits concerning an insurance coverage issue. Mercury claims that this court’s prior decisions relating to the conflicts of law issue presented in this appeal are not consistent, thereby requiring reconciliation and justifying our entertaining of this appeal. Compare Plyman v. Strain, 97-1169 (La.App. 4 Cir. 11/19/97), 702 So.2d 1204, with Dekeyser v. Automotive Cas. Ins. Co., 97-1251 (La.App. 4 Cir. 2/4/98), 706 So.2d 676.

Mercury further submits that the administration of justice would be furthered by our entertaining this appeal now, because if we reverse the trial court and hold that California law applies, plaintiffs case will be dismissed. Conversely, if we were to determine that Louisiana law should apply, that decision would be final |5and this court would then simply remand the matter to the trial court for a determination of liability and quantum.

Mercury next argues that this case falls within the precepts of Johns v. Jarimillo, 98-2577 (La.App. 4 Cir. 11/25/98), 724 So.2d 255, wherein we stated that whether a judgment is properly appealable should be determined on a case-by-case basis.

Finally, Mercury requests that this court consider this matter pursuant to our supervisory jurisdiction in the event we determine that we have no appellate jurisdiction. While acknowledging that this court expressly disapproved of the procedure of converting the appeal from a non-final judgment to a supervisory writ and then considering the merits in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, Mercury points to language from our subsequent opinion in Evans v. Charity Hospital in New Orleans, 00-0202 (La.App. 4 Cir. 11/14/01), 801 So.2d 1192, wherein we stated that “[t]he Supreme Court’s ruling in this case effectively has overruled this Court’s decision in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, in which it was held that this Court no longer would convert appeals from partial summary judgments that had not been certified as final by the district court to applications for supervisory writs.”

Although the plaintiff/appellee did not file a separate formal response to this court’s show cause order, she discussed the appealability of the judgment at issue in her appellee brief. Plaintiff stated that counsel for her and for Mercury had discussed whether the judgment should be reviewed by supervisory writ or appeal. | Plaintiffs counsel allegedly pointed out that there was jurisprudence to the effect that a denial of a summary judgment was non-appealable notwithstanding any agreement by the parties to the contrary or the inclusion of language in the judgment that it was a final judgment. According to the plaintiff, Mercury’s counsel drafted a proposed judgment incorporating the designation of finality despite their earlier conversion.

Mercury’s arguments are without merit. La. C.C.P. art. 968 could not be any clearer: an appeal does not lie from the court’s refusal to render summary judgment. Moreover, there is a substantial body of caselaw to the effect that the denial of a motion for summary judgment is an interlocutory judgment that is not susceptible to being certified by a trial court as final for purposes of immediate appeal under La. C.C.P. art.1915. See Belanger v. Gabriel Chemicals, Inc., 2000-0747 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, writ denied 802 So.2d 612 (La.); S.S. v. State, 00-953 (La.App. 3 Cir. 9/20/00), 771 So.2d 187; Granger v. Guillory, 2000-363 (La.App. 3 Cir. 4/26/00), 762 So.2d 640; Davis v. Specialty Diving, Inc., 98-0458, 98-0459 (La.App. 1 Cir. 4/1/99), 740 So.2d 666; Brennan v. Shell Offshore, Inc., 93-1525 (La.App. 4 Cir. 3/29/94), 635 So.2d 429. Nevertheless, we will address Mercury’s arguments in favor of our maintaining this appeal.

A careful reading of both our opinion and that of the Supreme Court in Williams reveals that Mercury’s reliance on it is misplaced. First of all, the issue of appealability does not appear to have been raised by the parties, and we apparently accepted the trial court’s certification of its judgment denying Allstate’s motion for summary judgment as final and appealable without questioning the validity of that certification. Secondly, the Supreme Court specifically stated that it was granting certiorari to resolve a conflict among the circuits over an insurance |7coverage issue. Again, the issue of appealability of a denial of a summary judgment was not specifically discussed by the Court, other than its statement that the trial court had certified its judgment as final for purposes of immediate appeal under La. C.C.P. art. 1915.

Mercury’s argument that the administration of justice would be furthered by our entertaining its appeal of the trial court’s denial of its motion for summary judgment now, rather than after final judgment has been rendered adjudicating all of the claims, issues and theories as to all parties, is rejected for the reasons stated by this court in Jackson.

While Mercury is correct in its assertion that Johns was reviewed and cited with approval by this court in Jackson, we do not read Johns as broadly as does Mercury. A careful reading of Johns reveals that we held that a trial court’s decision to certify a judgment as appealable should rest upon a case-by-case consideration. We did not say that an appellate court should exercise its appellate jurisdiction based upon a case-by-case consideration of the underlying issues involved in the matter sought to be appealed. Instead, we believe it better to have a bright line rule that no right of appeal lies from a trial court’s denial of a summary judgment.

Likewise, while we understand Mercury’s reliance on the language found in Evans, we recently rendered an opinion wherein we reaffirmed this court’s continued adherence to Jackson and rejected jurisprudence to the contrary as no longer of precedential value. Miller v. Tassin, 2002-2383 (La.App. 4 Cir. 6/4/03), 849 So.2d 782. Therein, we specifically stated that despite the language in Evans, “we find that the Supreme Court’s remand in Evans did not effectively overrule this court’s en banc decision in Jackson .... ” Miller, 2002-2383, p. 8, 849 So.2d at 787.

Finally, we note that La. C.C.P. art.2083 provides that “an appeal may be taken from ... an interlocutory judgment which may cause irreparable injury....” The denial of a motion for summary judgment is an interlocutory decree that is not appealable absent a showing of irreparable injury. Nalty v. D.H. Holmes Co., Ltd., 99-2826, p. 6 (La.App. 4 Cir. 12/27/00), 775 So.2d 695, 698, citing Orleans Parish School Board v. Scheyd, Inc., 95-2653, p. 1 (La.App. 4 Cir. 4/24/96), 673 So.2d 274, 275. Irreparable injury exists in the context of an interlocutory judgment only where the error cannot be corrected on appeal following a determination of the merits. Blanchard v. State Through Parks & Rec. Comm’n, 96-0053 (La.5/21/96), 673 So.2d 1000. Mercury has not cited La. C.C.P. art.2083 in any of its arguments to this court, nor has it alleged that it will suffer irreparable injury in the event that we decline to exercise our power of supervisory jurisdiction to review this interlocutory ruling now. Requiring a party to go to trial generally does not constitute irreparable injury turning an otherwise interlocutory order into an ap-pealable one. Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00), 752 So.2d 825, 830. Other than requiring that it go to trial, there has been no showing of how the denial of its motion for summary judgment will result in irreparable harm to Mercury.

1 ^CONCLUSION

For the foregoing reasons, the appeal of Mercury Insurance Company is dismissed without prejudice.

APPEAL DISMISSED WITHOUT PREJUDICE.

      . We are unable to determine from the record who Estavan Carter is or his role in this matter, but that information is irrelevant to the merits of this appeal.

      . La. C.C.P. art. 968, entitled “Effect of judgment on pleadings and summary judgment”, provides as follows:
      Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover’s right to the relief not granted on motion.
      An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment, [emphasis added]

      . Plaintiff’s appellee brief was filed on February 3, 2003, after we had issued the show cause order on January 28, 2003.

      . As we discuss later in this opinion, the statement in Evans that the Supreme Court's remand in that matter effectively overruled our decision in Jackson, where we held that we would no longer convert appeals from partial summary judgments that had not been certified as final by the district court to applications for supervisory writs, was incorrect.


author: |,MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana, v. Clarence FOY.
    No. 2003-K-1274.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 24, 2003.
    Eddie J. Jordan, Jr., District Attorney, Cynthia K. Simon, Assistant District Attorney, New Orleans, LA, for Relator, State of Louisiana.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   |,MAX N. TOBIAS, JR., Judge.

We grant the application for a supervisory writ filed by the state of Louisiana seeking review of an order of the trial court directing that the defendant, Clarence B. Foy (“Foy”), be released from jail after a finding of no probable cause arising out of a preliminary examination ordered by the court on its own motion. The state presented no evidence at the preliminary examination; it’s witness failed to appear as had occurred previously. A motion to suppress evidence is set for 22 August 2003.

The docket master of Criminal District Court reflects the following: On 6 March 2003, Foy was charged by bill of information with possession of heroin, a violation of La. R.S. 40:966. He was arrested and incarcerated. Foy appeared for arraignment on 12 March 2003; because he had no counsel, the court appointed the Orleans Indigent Defender Program to represent him for the arraignment only. Foy entered a plea of not guilty and a hearing to determine counsel was set for 24 March 2003. On 24 March, Foy appeared without counsel and the motion was reset for 16 April 2003. On 16 April, Foy again appeared without counsel for a | ¡.hearing on motions (which are not specifically identified but apparently included a motion for a preliminary examination to determine probable cause); the matter was reset for 2 May 2003. On 2 May, Foy appeared for the hearing with counsel, Michael F. Melton (“Melton”). The motions were reset for 23 May 2003. For reasons not clear to this court, the matter came for hearing on 22 May 2003; Foy did not appear and the matter was reset for 26 June 2003. On 26 June, Foy and Melton appeared in court, but the matter was again reset for 10 July 2003. On 10 July, Foy again appeared with Melton, but the matter was reset for 17 July 2003. At the hearing on 17 July, the state argued that the motions, including a hearing for a preliminary examination, could not go forward because Foy had not filed written motions with accompanying written memoranda of law and fact as required by court rule. We note that the state does not allege that it was not aware that a | .^preliminary examination was going to be tried on 17 July 2003. The state had failed to note or object at any earlier scheduled hearing that no written motion had been filed by the defendant.

During this whole time, Foy has remained incarcerated.

We first note that Melton was suspended from the practice of law by judgment of the Louisiana Supreme Court on 30 May 2003. In re Melton, 03-0516 (La.5/30/03), 848 So.2d 519,. Melton did not apply for a rehearing of his suspension from the practice of law and thus the Supreme Court’s decision became final on 13 June 2003. Accordingly, Melton inappropriately appeared and represented Foy at the 26 June, 10 July, and 17 July 2003 hearings.

The state in support of its application cites to La.C.Cr.P. art. 292, which provides:

The court, on request of the state or the defendant, shall immediately order a preliminary hearing in felony cases unless the defendant has been indicted by a grand jury.
After the defendant has been indicted by a grand jury, the court may rescind its order for a preliminary examination.
An order for a preliminary hearing in felony cases may be granted by the court at any time, either on its own motion or on request of the state or of the defendant before or after the defendant has been indicted by a grand jury.

[4The state, however, only quoted a portion of the codal article to this court, omitting reference to the portion of the law that permits the trial court to order a preliminary examination on its own motion. As La.C.Cr.P. art. 292 implicitly makes clear, a written motion is not required for a preliminary examination when the court orders one on its own motion.

We find the state’s reliance on State v. Holmes, 388 So.2d 722 (La.1980) and State v. Johnson, 529 So.2d 466 (La.App. 1 Cir.1988) misplaced for both cases deal with the right of a defendant to a preliminary examination once he has been indicted by a grand jury. In the case at bar, no grand jury indictment is present; Foy’s prosecution commenced upon the filing of a bill of information. Here, the preliminary examination was apparently granted by the court on its own motion; it required neither written motion nor memorandum of law.

We note that our law requires an accused to file a written motion for the following:

(a) motion to quash (La.C.Cr.P. art. 536);
(b) motion for continuance (La.C.Cr.P. art. 707);
(c) motion for a change of venue (La. C.CrJP. art. 621);
(d) motion to recuse a judge (La.C.Cr.P. arts. 674 and 679);
(e) motion to recuse the district attorney (La.C.Cr.P. art. 681); and
(f) motion in arrest of judgment (La. C.Cr.P. art. 860).

Under certain conditions or circumstances as set forth in the statute, written motions are required for the following:

|5(a) motion for new trial (La.C.Cr.P. art. 852);
(b) motion for additional time to file a pretrial motion (La.C.Cr.P. art. 521);
(c) motion to amend, modify, or reconsider sentence (La.C.Cr.P. arts. 881 and 881.1);
(d) motion to produce a portion of the district attorney’s file after sentence (La.C.Cr.P. art. 822(B));
(e) motion to set aside a guilty verdict or plea of guilty (La.C.Cr.P. art. 822(A));
(f) motion to suppress evidence (La. C.Cr.P. art. 703); and
(g) motion to amend or modify sentence after sentence is imposed (La.C.Cr.P. art. 822(A)).

In any case where the defense is required to file a written motion or a written motion is necessitated by the circumstances, the rules of Criminal District Court mandate a memorandum of law of fact. We do not address whether the trial court can waive the requirement of a memorandum of law.

We conclude that the state has not shown an error committed by the trial court. Further, we find on the record before us no abuse of the trial court’s vast discretion or any error committed by the trial court. The state presented no evidence at the 17 July 2003 hearing establishing that probable cause existed for the arrest of Foy.

For the foregoing reasons, we deny relief to the state and recall our stay of 17 July 2003, which prevented the release of the defendant, Clarence B. Foy, from his current incarceration on the charge of possession of heroin.

WRIT GRANTED; RELIEF DENIED; STAY RECALLED.

ARMSTRONG, J., dissents.

      .We note Rule 15.1 of the uniform rules applicable to all district courts states:
      All motions, ex parte, or otherwise, must be filed with the clerk of court and served on all opposing parties, except as otherwise provided by law. Service on the district attorney shall be accomplished by mailing a copy to the district attorney, unless the court has adopted an alternate method of service. Those courts that have adopted an alternative method of service on the district attorney are listed on Appendix 15.
      The Criminal District Court has adopted a further rule set forth in Appendix 15:
      Motion must be filed in open court. Minute entry prepared and motion placed in record. When motion filed, counsel is responsible for serving opposite counsel.
      We note further Criminal District Court rules that have application to the case before us. Appendix 11, Miscellaneous, subsection 4 reads as follows:
      All motions are to be filed in the Section in which the matter is pending. After filing, motions are to be delivered to the respective Section which will then schedule a hearing for the motion to be heard. The Clerk shall then notify the defense counsel and the District Attorney of the date of the hearing. The minute clerks are in no way responsible for the delivery of motions to the Judges.
      Appendix 14, subsections 2, and 3 read as follows:
      2.All pleadings shall be in writing, properly endorsed and filed in Open Court.
      3.All Motions filed by defense counsel in any case in this Court shall be accompanied by an applicable Memorandum on the law and the facts of the case. Such Motion shall not be accepted by the Minute Clerk or the Clerk of Court when a Memorandum in [sic] not filed with the Motion
      The state cited this court to obsolete rules of court.

      . We note that an oral motion for continuance can be made at other times under appropriate circumstances.

      . By implication, a pretrial motion does not have to be in writing.

      .Our listing of motions is intended to be illustrative and not all-inclusive.


author: | .PETERS, J. | t COOKS, J.,

text:
    Dana DESSELLE v. Michael LAFLEUR, et al.
    No. 03-0562.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2003.
    Rehearing Denied Sept. 17, 2003.
    John Taylor Bennett, Bennett Law Offices, Marksville, LA, for Plaintiff/Appellee Dana Desselle.

      Lawrence Lyle Parker, Bolen, Parker & Brenner, Alexandria, LA, for Defendant/Appellee Liberty Mutual Fire Insurance Co.
    John Scott Thomas, Attorney at Law, Baton Rouge, LA, for Defendants/Appellants Town of Cottonport Michael Lafleur.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   | .PETERS, J.

This appeal arises from a trial court judgment rendered in favor of the plaintiff, Dana Desselle, and against the defendants, Michael Lafleur and the Town of Cotton-port. The matter is now before us on a motion to dismiss the defendants’ appeal. For the following reasons, we deny the motion to dismiss.

DISCUSSION OF THE RECORD

Ms. Desselle brought suit against Michael Lafleur, Louisiana Municipal Risk Management, Liberty Mutual Fire Insurance Company, and the Town of Cotton-port to recover damages she sustained in an automobile accident. On December 6, 2002, after a two-day bench trial, the trial court rendered judgment awarding Ms. Desselle, among other relief, damages in the amount of $450,480.61. The trial court rendered its judgment against Mr. Lafleur and the Town of Cottonport. Written judgment to this effect was executed by the trial court on December 9, 2002. The language of the written judgment pertinent to this motion is as follows:

The Court, after considering the law and the evidence and the stipulation of counsel, for the reasons set forth orally in Court on December 6, 2002, it is by reason thereof,
ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, DANA DES-SELLE, and against MICHAEL LA-FLEUR and the TOWN OF COTTON-PORT, in solido, in the full sum of $450,480.61, which sum includes $850,000 for general damages, $14,586.61 for past medical expenses, $75,000 for future medical expenses, and $10,944.00 for future earnings.
IT IS FURTHER ORDERD[sie], ADJUDGED AND DECREED that a Re-versionary Trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to Judgment be paid pursuant to the Reversionary Trust Agreement.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Reversionary Trust Instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred.
LIT IS FURTHER ORDERED, ADJUDGED AND DECREED that all medical care and related benefits incurred subsequent to Judgment be paid from the future medical care fund as provided in LSA R.S. 39:1533.2 and that said medical care and related benefits shall be paid directly to the provider as they are incurred out of the $75,000 in future medical bills awarded by the Court, this Order being made pursuant to LSA R.S. 39:1506(3)(c).

The clerk of court mailed the notice of judgment required by La.Code Civ.P. art. 1913 on December 10, 2002.

On December 30, 2002, Lafleur and the Town of Cottonport filed a single-page document entitled “MOTION TO ESTABLISH REVERSIONARY TRUST’’ which contained the following assertions:

1.
In the December 9, 2002 Judgment, Dana Desselle was awarded $75,000.00 in post-trial future medical expenses.
2.
Pursuant to Louisiana Revised Statute 13:5106 such awards against a political subdivision shall be placed in a re-versionary trust for the future benefit of the claimant, Dana Desselle.
3.
Thus, the future medical expenses awarded to Dana Desselle shall be placed in a reversionary trust in favor of Ms. Desselle.

Attached to the motion was an ex parte order which the trial court executed on the same day. The order provided in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED that the future medical expenses awarded to Dana Desselle as described in the December 9, 2002 Judgment shall be placed in a reversion-ary trust.

On January 6, 2003, Ms. Desselle filed a motion for new trial wherein she asserted that “[t]he Judgment dated December 9, 2002 is contrary to the law and the evidence, the amount for pain and suffering being grossly insufficient, and in addition the requirement that any monies be placed in a reversionary trust as set forth by the December 9, 2002 Judgment and the ex parte order dated December 30, 2002, is | ¡¿Ilegal and unconstitutional.” The trial court, by written order, set a March 14, 2003 hearing date for the motion.

On the same day, January 6, 2003, La-fleur and the Town of Cottonport filed a motion for suspensive appeal of the December 9, 2002 judgment. However, the trial court refused to sign the attached order granting the suspensive appeal. Instead, the trial court wrote across the order, “Denied as premature, pending rule on pleadings filed 1/06/03 by Plaintiffs counsel.”

At the March 14, 2003 hearing the trial court denied Ms. Desselle’s motion for a new trial as untimely. The trial court signed a written judgment to this effect on March 20, 2003, and the clerk of court mailed notice of the judgment as required by La.Code Civ.P. art.1913 on the same day.

Lafleur and the Town of Cottonport filed a second motion for a suspensive appeal on March 26, 2003, and, by written order, the trial court granted the motion on the same day. The record of this appeal was lodged in this court on May 7, 2003. On June 9, 2003, Ms. Desselle filed the motion now before us seeking dismissal of the suspensive appeal as untimely perfected.

OPINION

The delay for obtaining a devolutive appeal of a judgment is set forth in La.Code Civ.P. art. 2087(A) which provides:

Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to |4grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

The delay for obtaining a suspensive appeal of a judgment is set forth in La.Code Civ.P. art. 2123(A) which provides:

Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Louisiana Code of Civil Procedure Article 1974 provides:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

The clerk of court mailed the notice of judgment on Tuesday, December 10, 2002. Therefore, any party to the litigation had until December 19, 2002, in which to apply for a new trial. The record contains no timely filed application.

The January 6, 2003 request for a sus-pensive appeal fell -within the thirty-day period provided for in La.Code Civ.P. art. 2123(A) and was thus timely filed. However, because of Ms. Desselle’s motion seeking a new trial, the trial court denied the suspensive appeal request as premature. The trial court erred in this respect as Ms. Desselle’s application for new trial was not timely filed and the delays provided by La.Code Civ.P. arts. 2087(A) and 2123(A) had already begun to run.

On March 20, 2003, the clerk of court mailed notice of the trial court’s rejection of Ms. Desselle’s request for a new trial. Thus, the trial court’s grant of the | ¡¡second request for suspensive appeal occurred within thirty days of that notice, but more than ninety days after the clerk of court mailed the notice of the December 9, 2002 judgment. In her motion to have the appeal dismissed, Ms. Desselle argues that, because her motion for a new trial was untimely, the second motion for a suspen-sive appeal filed by Lafleur and the Town of Cottonport was also untimely.

Before addressing the merits of Ms. Desselle’s motion to dismiss the appeal, we must address the issue raised by Lafleur and the Town of Cottonport in their opposition memorandum. In that memorandum, they argue that Ms. Des-selle’s motion to dismiss their appeal is untimely and should be dismissed. In making this argument, they rely on La. Code Civ.P. art. 2161, which states, in pertinent part, “Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.” The record on appeal was lodged in this court on May 7, 2003. Therefore, Ms. Desselle’s motion was filed more than three days after that date.

While recognizing the time delays provided in La.Code Civ.P. art. 2161, we also note that an appeal may be dismissed at any time for lack of jurisdiction. La.Code Civ.P. art. 2162. As the first circuit recognized in Lay v. Stalder, 99-402, p. 5 (La.App. 1 Cir. 3/31/00), 757 So.2d 916, 919:

An appellant’s failure to file a devolu-tive appeal timely is a jurisdictional de-feet, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise or modify a final judgment after the time for filing a devolutive appeal has elapsed. When an appellant fails to file a devolutive appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment.

^Although Lafleur and the Town of Cot-tonport were granted a suspensive and not a devolutive appeal, the rationale is the same. Therefore, we conclude that Ms. Desselle’s motion to dismiss the appeal was timely filed.

We are presented with an unusual factual situation in this matter. The Louisiana Code of Civil Procedure provides for the situation wherein an order of appeal is prematurely granted. See La.Code Civ.P. arts. 2087(D) and 2123(C). Basically, if the order is granted while timely filed motions are pending, it becomes effective when the trial court denies the motions. Id. However, the Code has no provision for a situation where untiniely motions are pending when a party requests an appeal and the trial court erroneously denies the appeal.

Despite the lack of codal authority, we do find that the facts of the instant case are similar to those presented to this court in Thibodeaux v. Western World Ins. Co., 387 So.2d 601 (La.App. 3 Cir.1980). In Thibodeaux, this court initially issued an opinion granting a motion to dismiss the appeal. However, on rehearing, the court reversed its position and reinstated the appeal. In doing so, the court stated:

Appellant contends that the trial judge refused to sign its order for sus-pensive appeal until a formal judgment denying appellant’s motion for a new trial was presented and signed.

Following argument on appellant’s motion for new trial, the court stated,

“Okay. Gentlemen, I am going to rule on this now and I’ll deny the motion for a new trial. Prepare a judgment and send it to me.”

After the denial of its motion for new trial, appellant filed a motion for suspen-sive appeal. In September, 1979, appellant’s counsel received a call from Judge Coreil, the presiding judge, informing counsel that he could not sign the order for suspensive appeal until a formal judgment denying appellant’s motion for new trial was presented and signed. On October 5, 1979, a formal judgment denying appellant’s motion for new trial was signed. Thereafter, appellant immediately |7obtained an order for sus-pensive appeal.

We held, at the original hearing on the motion to dismiss, that appellant’s motion for suspensive appeal was perfected untimely. That finding was correct. However, the untimeliness of the appeal was not the fault of appellant. Appellant filed a motion for appeal after its motion for new trial was orally denied. The trial judge refused to sign the order for appeal until a formal judgment denying appellant’s motion for new trial was signed on October 5, 1979. Since appellant’s motion for new trial was not taken under advisement, the judgment denying the motion did not have to be signed. Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1st Cir.1971).

C.C.P. art. 2161 provides, in pertinent part,
“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant.” (Emphasis supplied)
In the instant action, the appeal was perfected untimely because the trial judge erroneously refused to sign the appeal order until a formal judgment denying appellant’s motion for new trial had been signed. The failure of the trial court to promptly consider and sign the appellant’s motion for a suspensive appeal is not an irregularity, error or defect imputable to the appellant. Hall v. Board of Supervisors, Southern University, etc., et al., 387 So.2d 643 (La.App. 1st Cir.1980).
For the foregoing reasons, we find that the error or defect is not and should not be imputable to the appellant and that this appeal was timely perfected. Therefore, we recall and vacate our previous judgment dismissing the appellant’s appeal, and we further hold that this court has jurisdiction to consider this appeal.

387 So.2d at 602-3.

In the matter before us, as in Thibo-deaux, although we find that the subsequently filed motion for appeal was untimely, this untimely filing was not due to an error imputable to Lafleur and the Town of Cottonport. Accordingly, we deny the motion to dismiss the appeal. La.Code Civ.P. art. 2161.

MOTION TO DISMISS DENIED.

COOKS, J., dissents and assigns written reasons.

| t COOKS, J.,

dissents.

I disagree with the majority’s position that “the code has no provision for a situation where untimely motions are pending when a party requests an appeal and the trial court erroneously denies the appeal.” The mover’s are not without options. In this case, the mover’s could have informed the trial judge that the delays for filing the new trial motion had elapsed and/or applied for writs with this court advising us of the trial judge’s failure and the appeal would have been timely perfected. Instead, they opted to do nothing despite the existence of clear procedural law in their favor; and, now insist that all blame ought to be shouldered by the trial judge. I believe it ought to be shared; and, for this reason I am unwilling to declare that the error is not imputable to Lafleur and the Town of Cottonport.