author: 22CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Earl BRADLEY.
    No. 02-KA-1130.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for State.
    Margaret S. Sollars, Thibodaux, LA, for defendant-appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   22CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

This is defendant’s second appeal. Defendant was convicted of possession of cocaine on April 24, 2000 in violation of LSA-R.S. 40:967(C) after he entered a guilty plea under State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to five years. Defendant was subsequently found to be a second felony offender. His original sentence was vacated and he was re-sentenced as a multiple offender to five years without the benefit of parole, probation or suspension of sentence.

Defendant appealed his conviction challenging the trial court’s denial of his motion to suppress the evidence. In State v. Bradley, 00-1090 (La.App. 5 Cir. 6/27/01), 791 So.2d 156, 159, writ denied, 01-1973 (La.6/14/02), 817 So.2d 1151, this Court affirmed defendant’s conviction but set aside his multiple offender adjudication and sentence based on an error patent. This Court reinstated defendant’s original five-year sentence and remanded the matter for another multiple offender hearing.

|3On remand, the State withdrew the multiple offender bill of information against defendant. For unknown reasons, the trial court then ordered defendant’s original five-year sentence for possession of cocaine to run consecutively to his life sentence in another case bearing docket # 99-5825. In docket # 99-5825, defendant received a life sentence for a second degree murder conviction. Defendant filed this second appeal seeking review of the consecutive nature of his sentence.

FACTS

The following facts were determined in the first appeal:

At approximately eight o’clock in the morning on July 31, 1999, Officer David Carrick of the Gretna Police Department was on patrol, and observed defendant knocking on several doors of a motel in Gretna known for its high narcotics and prostitution activity.' Officer Carrick testified that he thought defendant was either looking to commit a burglary, looking for narcotics or looking for a prostitute.
Officer Carrick pulled his police unit into the parking lot of the motel to investigate defendant’s actions. During a pat down search of defendant for weapons, Officer Carrick found a key to defendant’s car, which was parked nearby, and in which two passengers were waiting. Officer Carrick instructed the two passengers to step out of the car and join defendant at his patrol unit.
Officer Carrick then observed a clear cellophane wrapper lying on the ground next to defendant’s left leg. The wrapper contained two off-white, rock-like substances which Officer Carrick recognized to be crack cocaine. Officer Car-rick explained that upon his initial questioning of defendant, defendant had his left pants leg rolled up to about mid-thigh, but that when he returned with the two passengers from defendant’s car, defendant’s pants leg had unrolled to about his knee.
Officer Carrick also found small fragments of the same off-white, rock-like substance on defendant’s left pants leg. Officer Carrick conducted field tests of the substances found on the ground and on defendant’s pants leg, and both tested positive for cocaine.

State v. Bradley, 791 So.2d at 157-158.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the consecutive nature of his five-year sentence to an already imposed life sentence is excessive. He asserts a sentence beyond natural life makes no contribution to acceptable goals of punishment and, thus, is | ¿excessive. The State does not address the consecutive nature of defendant’s sentence but merely argues the five-year sentence is statutorily permissible.

After the trial court ordered defendant’s five-year sentence to run consecutively, defendant orally objected and filed a motion for reconsideration of sentence. In his written motion, defendant specifically urged the trial court to run the five-year sentence concurrent with his life sentence in matter # 99-5825. The trial court denied defendant’s motion.

A sentence is excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. The consecutive or concurrent nature of a sentence is governed by LSA-C.Cr.P. art. 883 which provides in pertinent part:

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.

Defendant’s sentence for possession of cocaine was ordered to run consecutively to his life sentence for second degree murder in case # 99-5825. Although there was no appeal of’defendant’s conviction in # 99-5825, a writ application, # 02-K-0091, was filed by the State prior to trial seeking review of the trial court’s granting of a motion to exclude certain evidence of other crimes. This Court denied the writ finding the trial court did not abuse its discretion in excluding the evidence.

The writ application pertaining to case # 99-5825 reveals the murder at issue occurred on July 31, 1999, the same date as the present possession of cocaine offense. The present record pertaining to the possession of cocaine conviction ^reveals defendant was stopped at 8:00 a.m. while knocking on motel doors in a known drug and prostitution area at which time he was found to be in possession of cocaine. This was approximately six hours after the murder for which defendant was convicted in case # 99-5825. The evidence of other crimes sought to be introduced by the State in writ application # 02-K-0091, pertaining to docket # 99-5825, included a drug sale between the victim and defendant wherein defendant allegedly purchased cocaine from the victim on the night of the murder.

Under Rule 2-1.14 of the Uniform Rules — Courts of Appeal, any record lodged in this Court may be used, without necessity of duplication, in any other case on appeal or on writ. Based on the writ application pertaining to case # 99-5825, we find that defendant’s second degree murder conviction and possession of cocaine conviction arose out of a single course of conduct.

Since the two convictions arose from a single course of conduct, there is a presumption in favor of concurrent sentences under Article 883. Nonetheless, a trial judge retains discretion to impose consecutive sentences on the basis of factors such as the offender’s past criminal acts, the violent nature of the charged offenses, or the risk that the defendant may pose to the safety of the community. State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1070. If the trial court elects to impose consecutive sentences for crimes arising from a single course of conduct, it must articulate the reasons it feels the sentence is necessary. Id. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 451, writs denied, 97-1050 (La.10/13/97), 703 So.2d 609 and 97-1255 (La.10/13/97), 703 So.2d 612. In the present case, the trial court gave no reasons for imposing a consecutive sentence.

|(;We do note that LSA-C.Cr.P. art. 883 does not specifically require the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct. Rather, the history of the jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on LSA-C.Cr.P. art. 894.1, which requires a sentencing court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” State v. Franks, 373 So.2d 1307, 1308 (La.1979). Over time, the Louisiana Supreme Court has found that the failure to articulate reasons for sentence pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record. State v. Robicheaux, 412 So.2d 1313, 1319 (La.1982). Therefore, it logically follows that the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence.

In this case, as stated above, the trial court failed to give any reasons justifying the consecutive nature of the sentence. Furthermore, it does not appear the record provides adequate facts to support a consecutive sentence. The record is devoid of defendant’s criminal background. Additionally, the facts surrounding the possession of cocaine offense do not show a particularly heinous crime or suggest defendant is a danger to society. While defendant does have a murder conviction, the facts surrounding the murder are unknown. It is unknown whether defendant’s murder conviction was the result of a history of violent behavior or a one-time violent episode. As such, we find the trial court erred in ordering defendant’s possession of cocaine sentence to run consecutively with his second degree murder sentence.

|7In addition, even assuming defendant’s sentence is excessive because of its consecutive nature, a remand for resentencing would be “an academic exercise which has no practical benefit to anyone.” State v. Franklin, 519 So.2d 292, 295 (La.App. 5 Cir.1988), citing State v. Mosley, 466 So.2d 733 (La.App. 4 Cir.1985), writ denied, 468 So.2d 1202 (La.1985).

Defendant in the present case previously received a life sentence without the benefit of parole, probation or suspension of sentence. An additional five years beyond a life sentence has no practical effect. Defendant will be in jail for the rest of his life unless he is pardoned. Thus, we find that remanding the matter for resentencing would be pointless.

ERROR PATENT DISCUSSION

This Court previously conducted an error patent review of the original record in this case at the time of defendant’s first appeal. Based on an error patent, the matter was remanded for another multiple bill hearing. Upon remand, the multiple bill was withdrawn. As such, defendant is not entitled to another error patent review under the circumstances of this case. State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783; State v. Alberto, 95-540 (La.App. 5 Cir. 11/28/95), 665 So.2d 614, 625.

In accordance with the above, we reinstate the defendant’s original sentence of five years, to run concurrently with all other sentences, for his conviction of possession of cocaine.

ORIGINAL SENTENCE REINSTATED.

CANNELLA, J., concurs without reasons.


source: Caselaw Access Project

author: 2MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jamaude SMITH.
    No. 02-KA-1018.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Thomas J. Butler, Terry M. Boudreaux, Cameron M. Mary, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Appellee.
    Jane L. Beebe, Gretna, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2MARION F. EDWARDS, Judge.

Defendant Jamaude Smith appeals his conviction for attempted simple burglary. We affirm for the reasons to follow.

Smith was charged with a violation of LSA-R.S. 14:27:62, was arraigned and pled not guilty. Prior to trial, the bill of information was amended to charge Smith with simple burglary in violation of LSA-R.S. 14:62. Also prior to trial, Smith’s motions to suppress statement and identification were heard and denied. The matter proceeded to trial, following which a six-person jury found him guilty as charged. Smith was sentenced to six years with the Department of Corrections and given credit for time served. The state filed a multiple bill of information on the same date alleging Smith to be a second felony offender. Smith admitted the allegations of the multiple bill after being advised of his rights by the trial court. The trial court later vacated the original sentence and Smith was sentenced to serve six years with the Department of Corrections and given credit for time served, along with a recommendation for boot camp. Smith appeals.

13At the hearing and at trial, Charles Hebert, a witness to the crime, testified that on March 26, 2002, he was in his backyard painting when he twice heard loud noises. He walked to the side of the house where he saw someone trying to get into his son’s car. Hebert testified that when the intruder opened the car door, which was locked, the alarm went off. When Hebert saw the suspect, the suspect was outside of the car with his arm in the door. Hebert then screamed at this intruder, at which time the suspect turned around, looked at the witness, and ran off. Hebert testified that he was approximately 30 feet away from the intruder, that he saw Smith’s face clearly for approximately 10 to 20 seconds, and saw him smash the window.

Hebert testified that after Smith ran, he called the police. When the police arrived, he gave a description of the individual who was breaking into the car, that of a black male, wearing black pants, a white shirt, and a hat. The officer left to search the area, and Hebert testified that he remained at home until the officer came back to his house, saying he had seen someone who fit the description. Hebert testified that he followed the officer to the area where the suspect had been seen, and at that time one of the three men on the scene took off running. After he was caught, Hebert identified the man who ran, Smith, as the burglar.

Deputy Brent Coussou, a road deputy with the Jefferson Parish Sheriffs Office, testified that on March 26, 2002 he investigated an automobile burglary. The deputy testified that he was dispatched to Charles Hebert’s home at a little past 11:00 a.m., at which time Hebert told Coussou that he had seen a black male wearing a white T-shirt, black jeans and a fishing hat attempting to break into his son’s car. The deputy testified that after receiving the description he aired the description over the police radio and canvassed the area looking for suspects. After about 15 or 20 minutes, Deputy Coussou saw three black males on Canal Road, walking back toward the victim’s residence. The deputy testified that one of the [¿three individuals was wearing a white T-shirt and jeans. Deputy Cous-sou then returned to Hebert’s residence and asked Hebert if he could take a look at the three individuals and identify any of them. After speaking with Mr. Hebert, he returned to the site where he had seen the three individuals and asked them to walk over to his vehicle and place their hands on his vehicle’s trunk. Two of the subjects complied while Smith at first walked toward the vehicle. When Hebert arrived in his own vehicle, Smith took off running through a field. After giving chase, Smith was apprehended with the assistance of other deputies. Deputy Coussou testified that subsequent to Smith’s arrest, Charles Hebert positively identified him as the perpetrator while Smith was handcuffed near the rear of the deputies’ vehicle. The deputy testified that Smith was advised of his rights and transported to the Jefferson Parish Correctional Center. Coussou stated that while Smith was being transported, he spontaneously asked if the man wearing the plaid shirt and baseball cap, Charles Hebert, was the one who identified him as being the person breaking into the car.

On appeal, Smith urges that the trial court erroneously denied his motion to suppress identification because the identification procedure was tainted and suggestive. He also argues that the identification was suggestive because he was the only individual in the group wearing a white T-shirt and black jeans, and that the identification procedure was further tainted because Hebert observed him running from the police and afterwards observed him in handcuffs.

The state argues that the identification is proper because when the crime was committed, Hebert saw Smith for approximately 10 to 20 seconds at a distance of 30 feet. The state farther argues that Hebert gave a description of Smith and the suspect was observed within 20 minutes. The state points out that after Smith saw Hebert arrive at the scene, he attempted to flee. After he was apprehended, Hebert made a positive identification.

R A defendant who seeks to suppress identification must prove both that the identification itself was suggestive and that there was a likelihood of misidentification as a result of the identification procedure. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Even if the identification could be considered suggestive, it is the likelihood of misidenti-fication which violates due .process, not merely the suggestive identification procedure.

The United States Supreme Court has set forth five factors to consider in determining if an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.

One-on-one identifications are generally not favored, but are permissible when justified by the overall circumstances. Such identifications have been found to be admissible when the identification occurred in close proximity to the time of | (¿he offense and the suspect is presented for immediate identification. Such a process assures reliability and fosters prompt release of innocent suspects.

We have previously held that an identification procedure was not suggestive because the defendant was alone in the backseat of a police car and in handcuffs at the time he was identified. There, the victims were confronted with the defendants approximately 30 to 45 minutes after the robbery. One victim identified the defendant as the man who robbed her as soon as she saw him in the back of the police car, and that none of the police officers on the scene suggested to her that the defendant was the robber. This Court reasoned that, even if the identification was suggestive, the identification did not present a substantial likelihood of misidentification.

In the present case, Charles Hebert testified both at the suppression hearing and at trial that he observed Smith from approximately 30 feet away on a well-lit sunny day. He and Smith looked at each other face-to-face for approximately 10 to 20 seconds before Smith took off running. As to his degree of attention, Hebert testified that the perpetrator was a black male wearing a T-shirt, black jeans and a fishing style hat. Smith, at the time he was stopped, was wearing a white T-shirt, black jeans and a black and white bandana but no fishing hat as described by Hebert.

Hebert was adamant in his identification of Smith as the individual who broke into his son’s car, and testified that there was no doubt in his mind that Smith was the perpetrator of the crime.

The testimony of Deputy Coussou evidenced that approximately 15 to 20 minutes after arriving on the scene of the call he spotted three individuals one of |7which was wearing a white T-shirt and black jeans. The time between when Hebert initially saw Smith and the confrontation was approximately 30 to 45 minutes. This court has previously held thirty to 45 minutes to be a relatively short period of time.

Applying the above facts to the law, we find that the identification was not suggestive, nor was there a substantial likelihood of misidentification. We find that the trial judge correctly denied Smith’s motion to suppress identification. This assignment of error is without merit.

Smith also asserts as error that the evidence was insufficient to support the jury’s verdict because the tainted identification was insufficient to identify him as the perpetrator. He also argues that the state did not prove he entered the vehicle to commit a theft therein, and that the only evidence in that regard was the inconsistent testimony of Mr. Hebert.

In addition to the testimony detailed hereinabove, Jeremy Edwards, the son of Charles Hebert and owner of the Nissan Sentra, testified at trial that he did not give Smith permission to enter his vehicle. Edwards also testified that his car had an alarm system.

Smith, testified that, on March 26, 2002, at approximately 11:00 a.m. he was at his mother-in-law’s house. He also testified that on that date he was wearing a white T-shirt, black pants and a white and black bandanna, but that he had never owned a fishing hat. Smith testified that he was standing in front of Treval Brooks’ house when the deputy first passed by. He, Brooks, and another individual were walking when the sheriffs deputy stopped the three of them. The deputy asked them to put their hands on the car. Smith testified that he began walking off at which point the deputy got in his car, reversed the car and squealed the tires, at which point Smith began to run. Smith testified that he was later |sapprehended and made to stand in front of someone to be identified. He stated that he had never been to the victim’s address, that he did not break into the car, and that he had never seen Hebert before.

On cross-examination Smith acknowledged that he was on two and one-half years of probation for possession of cocaine.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

In the present case Smith was convicted of simple burglary. Simple burglary is defined in LSA-R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60”.

Entry is accomplished whenever any part of defendant’s person passes the fine of the threshold. It is sufficient that any part of the person intrudes, even momentarily, into the structure. The requisite intent required by R.S. 14:62 is specific intent. Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact but may be inferred from the | ¡¡circumstances and actions of the accused. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard.

Charles Hebert testified at trial that Smith opened the door of the car, which caused the alarm to be activated, and further observed Smith with his arm inside of the vehicle. Smith contends that Hebert’s testimony was inconsistent because he did not inform the police at the time of the crime that Smith’s arm was ever inside of the vehicle.

By finding Smith guilty of simple burglary, the jury obviously believed Mr. Hebert’s testimony and inferred from the circumstances that Smith had entered into the Hebert vehicle without authorization and with the intent to commit a theft therein. It is not the function of the reviewing court to assess the credibility of witnesses or to re-weigh the evidence.

Smith also argues that the state failed to prove that he had the specific intent to commit a felony or theft inside the car. At trial, Hebert testified that he heard two loud noises, saw Smith’s arm inside of the vehicle and heard the alarm Charles Hebert’s testimony, summarized above, and Jeremy Edwards’ testimony that the 2000 Nissan Sentra did not belong to Smith and that Smith did not have permission to enter the vehicle makes it difficult to imagine any hypothesis that does not include the specific intent to commit a felony or theft therein. This assignment of error is without merit.

The record was reviewed for errors patent. Smith notes in brief that he was not arraigned on the amended bill of information. On the morning of trial, the state amended the bill of information to charge defendant with simple burglary in |invioIation of LSA-R.S. 14:62 to which defense counsel objected, not to the failure to be arraigned on the amended bill of information but rather to the state amending the bill the morning of trial. LSA-C.Cr.P. art. 555 provides:

Any irregularity in the arraignment, including failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

Because the defendant did not object to the failure to arraign him on the amended charge, the issue is waived. Additionally, the commitment/minute entry does not indicate that the jury was sworn as required by LSA-C.Cr.P. arts. 788 and 790. However, no mention of jury irregularities was raised in the trial court or on appeal. Therefore, we do not consider that issue.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . State v. Prudholm, 446 So.2d 729, 738 (La.1984); State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559, writ denied, 01-118 (La.11/21/01), 802 So.2d 626.

      . Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

      . State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

      . Manson v. Brathwaite, supra.

        . State v. Higgins, 01-368 (La.App. 5 Cir. 10/18/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164.

      . State v. Clennon, supra.

      . State v. Robinson, 404 So.2d 907, 909-910 (La.1981); State v. Johnson 01-0842 (La.App. 5 Cir. 2/13/02), 812 So.2d 106.

      . Id.

      . State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481.

      . See also State v. Jackson, 517 So.2d 366 (La.App. 5 Cir.1987).

      . See State v. Winfrey, supra; see also, State v. Jackson, supra.

      . State v. Williams 98-651 (La.App. 5 Cir. 2/10/99), 729 So.2d 14; writ denied 2001-KH-0532 (La. 11/21/01), 802 So.2d 630, citing State v. Ruffin, 96-226 (La.App. 5th Cir.8/28/96), 680 So.2d 85, and State v. Burrow, 565 So.2d 972 (La.App. 5th Cir.1990), writ denied, 572 So.2d 60 (La.1991); other citations omitted.

      . State v. Petty, 99-1307 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, writ denied, 00-1718 (La.3/16/01), 787 So.2d 301.

      . Id.

      . State v. Petty, supra.

      . Id.

      . State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20; State v. Batiste, 96-1010 (La.App. 5th Cir. 1/27/98), 708 So.2d 764.

      . See State v. Petty, supra.

      . State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, State v. Hidalgo, 95-319 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188.

      . State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 752, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.


author: 2CLARENCE E. McMANUS, Judge.

text:
    Michael COBENA v. METRO DISPOSAL, INC., Marick McKissic Lee, Scottsdale Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 02-CA-1062.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.

      Raymond S. Steib, Jr., Frank C. Miller, III, Lake Charles, LA, for plaintiff-appellant.
    Wayne R. Maldonado, Stephen M. Gele, Ginger K. Deforest, Ungarino & Eckert, Metairie, LA, for defendant-appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, Judge.

At issue in this case is whether the jury’s damage award to plaintiff for injuries he sustained in a motor vehicle collision was proper in light of the evidence presented at trial. For the following reasons, we increase the damage award.

FACTS AND PROCEDURAL HISTORY

This case arises from a March 4, 1998, motor vehicle collision in which plaintiffs car was rear-ended and knocked forward several feet by a garbage truck owned by Metro Disposal, Inc., operated by Marick Lee and insured by Scottsdale Insurance Company. Plaintiff, Michael Cobena, filed the instant suit against defendants alleging he sustained injuries to his neck, head, back chest, arms, legs, shoulders, muscles, bones, joints, nerves and tissues. These injuries allegedly aggravated his pre-exist-ing physical and mental condition causing him to undergo additional and prolonged medical treatment, physical therapy and mental health counseling.

Plaintiff has a history of other accidents as well as a long history of medical and psychological treatment. In 1987 plaintiff was injured in a head-on collision. [3 He has been disabled since that time and collects disability payments. In 1995, he was involved in a motor vehicle accident in which he suffered a broken rib and neck and back injuries. In 1998, this accident occurred. In 1999, plaintiff was involved in another motor vehicle accident but contends he suffered only minor injuries.

Plaintiffs contention at trial was that he was getting better prior to this accident and that he lost all progress gained thus far and lost all hope of returning to his pre-accident condition. Defendants asserted that plaintiffs long history of physical and mental injuries were only slightly aggravated by this accident, that his complaints of pain were purely subjective and that he failed to provide his treating physicians with a complete medical history calling his credibility into question.

At trial plaintiff presented the testimony of several witnesses. That testimony seemed to echo plaintiffs contention that he was making progress prior to this accident but that this accident set him back dramatically. Additionally, to the extent plaintiff did not provide his physicians with a complete medical history, they testified that it would not have altered their treatment and diagnosis of him. Dr. David Jarrot, plaintiffs treating neurosurgeon, testified that this 1998 accident seriously aggravated plaintiffs pre-existing cervical and lumbar spinal pain and bulging disc at C4-5. Dr. Roger Anastasio, plaintiffs psychiatrist, opined that this accident seriously aggravated plaintiffs preexisting clinical depression. He felt plaintiffs depression would not have worsened if this accident had not occurred. Dr. Ronald Collins, a chiropractor, testified that he treated plaintiff from 1996 through trial. He noted that plaintiff had complaints of pain that were similar to those previously treated for. However, the severity and intensity of pain in the neck and back increased after this accident. He also noted that the frequency of plaintiffs visits increased after this accident. He opined that plaintiff never returned to his pre-accident condition and that plaintiff will always need some [4form of chiropractic care. Prior to this accident, Dr. Collins felt plaintiff was making significant improvement and considered releasing plaintiff from treatment. Plaintiffs physical therapist, Michael Johnston testified the he first saw plaintiff following this accident and that plaintiff was referred to him by Dr. Jarrot. He opined that plaintiffs condition necessitated physical therapy between three and four times a week for a two year period. Plaintiffs father testified that he observed Michael to be less depressed prior to this accident. He noted that Michael began to resume social and everyday activities. However, those activities ceased after this accident. Plaintiffs testimony regarding his condition before the accident was consistent with the other witnesses.

The defendant presented the testimony of its IME doctor, Dr. Robert Applebaum. He examined plaintiff once for thirty minutes, reviewed medical records and agreed that plaintiff was injured in this accident. He also stated that it would not be unusual for plaintiffs pre-existing cervical or lumbar condition to be temporarily aggravated by this accident. However, he believed that plaintiffs continued complaints of pain were not corroborated by any physical or neurological findings. Moreover, he felt plaintiffs injuries could be conservatively treated with minor analgesics and anti-inflammatory medications but would otherwise defer to plaintiffs treating physicians.

Following trial, the jury found that plaintiff was injured as a result of the March 4, 1998, accident and awarded him $2,000.00 for past physical and mental pain and $8,000.00 for past medical expenses. Plaintiff filed a motion for new trial and/or additur. The trial court denied those motions. This appeal followed.

DISCUSSION

Plaintiff contends the jury award was woefully deficient and should be increased because the medical testimony supports a higher damage award. | R Defendant argues that the jury award reflects the fact that it reviewed all of the evidence, did not find plaintiff credible and set the award accordingly.

The fundamental principle of tort liability in Louisiana is that every act “of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civ.Code art. 2315. Thus, in a negligence action under article 2815, the plaintiff bears the burden of proving fault, causation and damages. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. One injured through the fault of another is entitled to full indemnification for damages caused thereby. Id. A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Id. In this case, we agree with the jury that plaintiff carried his burden of proving fault and causation. However, we disagree with the damage award and find it manifestly erroneous based on the medical testimony and evidence presented at trial.

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Id. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Id. Moreover, before a Court of Appeal can disturb an award made by a factfinder, the record must clearly reveal that the trier of fact abused its discretion in making its award. Id. Only after.making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Id.

Our review of the record demonstrates to us that the jury abused its discretion in only awarding plaintiff $2,000.00 for past physical and mental pain and $8,000.00 for past medical expenses. Plaintiff presented evidence at trial that [fihis medical expenses alone exceeded $50,000.00 and that he was treated for at least two years following the accident. Accordingly, we increase the general damage award to $27,000.00 for past physical and mental pain and affirm the jury award of $8,000.00 for past medical expenses raising the total award to $35,000.00.

CONCLUSION

For the foregoing reasons we amend the jury award to $27,000.00 for past physical and mental pain and affirm the award of $8,000.00 for past medical expenses for a total of $35,000.00.

AFFIRMED AS AMENDED.


author: 2WALTER J. ROTHSCHILD, Judge.

text:
    Barney BURKS v. CAMBECK & PARTNERS.
    No. 01-CA-948.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.
    John B. Fox, Robert W. “Doc” Booksh, Jr., New Orleans, LA, for Plaintiff/Appel-lee, Barney Burks.
    Owen W. Joyner, Law Offices of Sheryl Story, Metairie, LA, for Defendant/Appellant, Continental Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   2WALTER J. ROTHSCHILD, Judge.

This case is on remand from the Louisiana Supreme Court.

FACTS AND PROCEDURAL HISTORY

On May 9, 1990, the claimant, Barney Burks, was injured while working on a construction project at the Ninevah Baptist Church (“Ninevah”). At the time of the accident, Mr. Burks was employed by Cambeck and Partners, Inc. (“Cambeck”).

Mr. Burks filed a disputed claim for worker’s compensation benefits against Cambeck on March 6, 1995, and later added Ninevah as a defendant. Thereafter, Ninevah filed a third-party demand against CNA Insurance Co. (“CNA”), asserting that Mr. Burks’ claims should be covered by a worker’s compensation policy issued by CNA to Cambeck.

At trial, CNA argued that it had never issued a worker’s compensation policy to Cambeck. However, the worker’s compensation judge rendered a decision awarding worker’s compensation benefits to Mr. Burks and finding that [ ¡¡CNA was liable for these benefits because the claimant met his burden of proving that CNA was the insurer of Cambeck on the date of the accident. The worker’s compensation judge also found that CNA had been arbitrary and capricious for refusing to pay worker’s compensation benefits to Mr. Burks and awarded penalties and attorney fees.

CNA filed an appeal and asserted the following two assignments of error:

1) The trial court erred in finding that CNA Insurance Company, Continental Insurance Company, or Fidelity and Casualty Company of New York issued a policy of worker’s compensation or provided any insurance which would have covered this claim.
2) The trial court erred in awarding plaintiff penalties and attorney fees.

This Court found merit in CNA’s first assignment of error and reversed the decision of the worker’s compensation judge, finding that the testimony and evidence presented at trial was insufficient to establish that CNA issued a worker’s compensation policy to Cambeck. Burks v. Cambeck and Partners, 01-948 (La.App. 5 Cir. 12/26/01), 803 So.2d 438. Based on this ruling, we pretermitted CNA’s second assignment of error. Mr. Burks sought writs to the Louisiana Supreme Court.

The Supreme Court granted Mr. Burks’ application for writ of certiorari and/or review on May 10, 2002. Burks v. Cambeck and Partners, 02-324 (La.5/10/02), 815 So.2d 830. On October 15, 2002, the Supreme Court rendered a per curiam opinion finding that the worker’s compensation judge was not manifestly erroneous in finding that CNA issued a worker’s compensation- to Cambeck and that this policy was in effect at the time of the accident. Burks v. Cambeck and Partners, 02-324 (La.10/15/02), 834 So.2d 968. This Court’s previous opinion was reversed and the decision of the worker’s compensation judge was reinstated. The Supreme Court remanded the case to this Court for consideration |4of CNA’s remaining assignment of error, which was pretermitted on original appeal. Id.

DISCUSSION

In her decision, the worker’s compensation judge found that CNA had been arbitrary and capricious in refusing to pay worker’s compensation benefits to Mr. Burks, and CNA was ordered to pay a $2,000.00 penalty and $5,000.00 in attorney fees. In its second assignment of error on original appeal, CNA argued that the award of penalties and attorney fees was not warranted.

Penalties and attorney’s fees are authorized under LSA-R.S. 23:1201 F when an employer fails to commence payment of benefits, unless the claim is reasonably controverted. J.E. Merit Constructors, Inc. v. Hickman, 00-943 (La.1/17/01), 776 So.2d 435, 437. LSA-R.S. 23:1201 F(1) provides in part that “[s]uch penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault.” An award of attorney fees in a worker’s compensation case is penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers. Id. at 438. The determination of whether penalties and attorney fees should be assessed against an employer or insurer is a question of fact which will not be reversed on appeal absent a showing of manifest error. Ardoin v. Kipling Korner Grocery, 01-1596 (La.App. 3 Cir. 4/17/02), 824 So.2d 371, 374.

In its opinion, the Supreme Court found that CNA was precluding from denying the existence of a worker’s compensation policy, because it had previously admitted issuing such a policy to Cambeck. Burks v. Cambeck and Partners, 02-324 (La.10/15/02), 834 So.2d 968. Therefore, we have considered the worker’s compensation judge’s award of penalties and attorney fees in a situation where CNA was precluded from denying that a worker’s compensation policy existed and it failed to pay benefits to Mr. Burks. We find | sthat an award of penalties and attorney fees in such circumstances is not manifestly erroneous. Accordingly, we affirm the worker’s compensation judge decision awarding penalties and attorney fees in this case.

DECREE

For the reasons set forth above, we affirm the decision of the worker’s compensation judge ordering CNA to pay a $2,000.00 penalty and $5,000.00 in attorney fees.

AFFIRMED.

      . It is alleged that Fidelity and Casualty Company of New York, which was a subsidiary of Continental Insurance Company, issued the policy to Cambeck. However, CNA later acquired Continental, so we will refer to CNA when speaking of Fidelity, Continental, or CNA, in lieu of naming each entity separately.


text:
    Mark S. BOUDREAUX v. BELLSOUTH TELECOMMUNICATIONS.
    No. 02-CA-695.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.
    Writ Denied May 30, 2003.
    Jan P. Jumonville, Metairie, LA, for plaintiff-appellant.

      Nathan L. Schrantz, Hoffman, Siegel, Seydel, Bienvenu, Centola & Cordes, New Orleans, LA, for defendants-appellees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   2CLARENCE E. McMANUS, Judge.

At issue in this workers’ compensation case is whether claimant is entitled to multiple penalties under La. R.S. 23:1201(F). Based on our conclusion that claimant is entitled to multiple penalties, we amend the judgment to award one penalty for each of defendants’ three violations of La. R.S. 23:1201(F). In all other respects, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On March 20, 1998, claimant, Mark Bou-dreaux, injured his lower back in the course and scope of his employment as a service technician with BellSouth Telecommunications (“BellSouth”). He received temporary total disability and medical benefits from defendants, BellSouth and its insurer, Kemper Workers’ Compensation Corporation (“Kemper”). He returned to work as a line translation specialist.

In January 2000, Claimant filed a disputed claim for compensation asserting he was entitled to physical therapy as recommended by his treating physicians and temporary total disability benefits. In July 2000, he filed a supplemental and amended disputed claim for compensation seeking an ergonomic workplace evaluation, an ergonomic workplace, medical benefits, psychiatric benefits, | ¡¡mileage, physical therapy, penalties and attorney fees. In May 2001, BellSouth and Kemper stipulated they did owe claimant reimbursement for some of his medical expenses not paid within the sixty-day statutorily required period but did not stipulate to all the requested reimbursements.

On July 9, 2001, this disputed claim for medical reimbursement, penalties and attorney fees was heard by Workers’ Compensation Judge John Grout. After trial of this matter, the WCJ issued the following judgment. He found that medical treatments ordered by claimant’s treating physicians and stipulated to by the parties were to be provided; that claimant receive mileage reimbursement for medical visits substantiated by the appropriate medical providers; that claimant’s out of pocket expenses for reasonable medical supplies and equipment necessary for treatment of his condition be reimbursed to him; and, that the recommended ergonomic workstation modifications be incorporated into claimant’s existing workstation. The WCJ awarded claimant $2,000.00 for defendant’s failure to timely pay medical benefits based on the finding that defendants were arbitrary and capricious. In addition, claimant was awarded attorney fees of $13,000.00 and the costs of the proceedings were assessed to defendants.

Thereafter, claimant filed a motion for new trial asserting he was entitled to multiple penalties for the denial of each request for benefits. In it, he asked the WCJ to award him medical benefits due from 12/4/00-5/30/01, to clarify the money judgment, set court costs and amend the judgment. The WCJ denied claimant’s new trial as to the multiple penalties; clarified the judgment ordering defendants to pay claimant’s medical expenses he personally paid in the amount of $6,216.21; ordered defendants to provide medical benefits to claimant from 3/20/98 through 5/30/01; ordered defendants to provide claimant with an ergonomic workstation; and ordered defendants pay court costs in the amount of $730.00.

^Defendants suspensively appealed the portion of the judgment granting reimbursement of medical expenses personally paid by claimant. Claimant answered the appeal seeking an increase in penalties for defendants’ arbitrary and capricious behavior and that defendants pay all costs and attorney fees for this appeal.

DISCUSSION

Defendants assert the WCJ improperly awarded claimant $6,216.21 for reimbursement of his out of pocket medical expenses. Our review of the record (including testimony and documentary evidence) supports that award. Counsel for claimant answered defendant’s appeal, requesting additional attorney fees for work performed on appeal, sanctions for a frivolous appeal, as well as multiple penalties for multiple violations of La. R.S. 23:1201(F). We note that claimant received $13,000.00 in attorney fees below and that defendants do not challenge that award on appeal. We find nothing in the record to support an award of attorney fees on appeal nor do we find this appeal to be frivolous.

Turning to the issue of whether claimant is entitled to multiple penalties, we note that the WCJ awarded claimant one penalty despite finding that defendants arbitrarily and capriciously denied several of the claimant’s demand for particular benefits. La. R.S. 23:1201(F) provides:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy Lshall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4) of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

The Louisiana Supreme Court recently decided two consolidated cases, in one opinion, addressing the precise issue presented in this case. See, Fontenot v. Redell Vidrine Water District, 02-0439 and Haynes v. Williams Fence and Aluminum, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14. That opinion holds multiple penalties are properly awarded to a claimant who makes a demand or claim for particular benefits and those benefits are arbitrarily and capriciously denied by the employer or insurer.

Having so noted, our task is to determine the appropriate number of penalties. Claimant’s supplemental and amended disputed claim for compensation sought an ergonomic workplace evaluation and an ergonomic workplace, medical benefits, psychiatric benefits, mileage, physical therapy, penalties and attorney fees. Claimant argues in brief that he is essentially entitled to a penalty for each instance a benefit was denied. We disagree. The ergonomic workplace and | ^evaluation represents one benefit or claim. The medical benefits include psychiatric treatment and physical therapy as well as the mileage reimbursements related to those claims. Thus, claimant is not entitled to a separate penalty for the denial of mileage reimbursement associated with his visits to treatment providers. See, Fontenot, supra and Haynes, supra.

Separating the benefits as the WCJ did in the clarified judgment, we note that the WCJ found defendants acted arbitrarily and capriciously in denying the claims related to reimbursement for medical expenses claimant personally paid; the denial of medical benefits from 3/20/98 through 5/30/01; and the denial of an ergonomic workstation. Thus, the WCJ should have awarded a penalty to claimant for each of the three benefits that were sought and denied for a total of $6,000.00.

Accordingly, we affirm the portion of the judgment awarding claimant $6,216.21 reimbursement of medical expenses paid out of his own pocket and increase the award of penalties from $2,000.00 to $6,000.00. In all other respects, the WCJ’s judgment is affirmed.

CONCLUSION

Based on the foregoing, we affirm the portion of the judgment awarding claimant $6,216,21 reimbursement of medical expenses paid out of his own pocket and increase the award of penalties from $2,000.00 to $6,000.00. In all other respects, the WCJ’s judgment is affirmed. Costs of this appeal are to be paid by defendants.

AFFIRMED IN PART; AMENDED IN PART.


text:
    STATE of Louisiana v. Robert BOLTON.
    No. 02-KA-1034.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Bou-dreaux, Aison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee.
    Frank J. Larre, Metairie, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2MARION F. EDWARDS, Judge.

Defendant, Robert Bolton, appeals his conviction and sentence for distribution of marijuana. For the following reasons, we affirm and remand.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Robert Bolton, with distribution of marijuana, a violation of LSA-R.S. 40:966(A). The defendant pled not guilty at arraignment. On August 24,- 2000, Bolton was tried before a jury of twelve persons, which found him guilty as charged. On October 20, 2000, after denying Bolton’s motions for new trial and post-verdict judgment of acquittal, the trial judge sentenced him to ten years of imprisonment at hard labor. That day, Bolton also filed a filed a motion for appeal, which the trial judge granted.

|aThe State filed a multiple offender bill of information alleging Bolton to be a third felony offender, allegations which he denied. A multiple offender hearing began on April 26, 2001, but the matter was held open. On July 19, 2001, the State amended the multiple bill to allege that Bolton was a second felony offender, which he admitted after being advised of his multiple offender rights. The trial judge accepted Bolton’s admission, vacated the original sentence, and imposed an enhanced sentence of fifteen years of imprisonment at hard labor without benefit of probation or suspension of sentence.

On the night of Séptember 3, 1999, Jefferson Parish Sheriffs Officers Kevin Guil-lot and Philip DeSalvo of the Street Crimes Division, were patrolling the East-bank of Jefferson Parish. Deputy DeSal-vo testified at trial that the Sheriffs Office had received numerous complaints of narcotics activity in the 200 block of Wilker Neal during the week. At approximately 10:00 p.m. Deputy DeSalvo was driving the unmarked white Crown Victoria down Wilker Neal Avenue when Deputy Guillot told Deputy DeSalvo that he had just seen some suspicious activity and to stop the car.

Deputy Guillot, an officer with eight years of law enforcement experience, testified that he saw a white truck that was parked on the side of the road facing them. As the officers drove past the truck, Deputy Guillot noticed a black male in the driver’s seat of the truck and another black male, later identified as Bolton, standing in the open doorway of the passenger’s side of the truck. As Deputy DeSalvo drove past the truck, Deputy Guillot made eye contact with Bolton. Deputy Guillot said that Bolton appeared startled, as if he were a “deer in a headlight.” Deputy Guillot looked over his shoulder as they drove passed the truck and saw Bolton turn his body away from the officer’s view. According to |4Peputy Guillot, Bolton was holding a brown bag with a clear bag protruding from the brown bag.

After driving past the truck, Deputy DeSalvo pulled on to the side of the road about 25 to 30 feet away from the white truck. The officers exited their vehicle and crept up to the white truck, with Deputy DeSalvo approaching the truck’s driver’s side and Deputy Guillot approaching the passenger’s side where Bolton was standing. Deputy Guillot testified that Bolton was leaning into the truck and the driver, later identified as Michael Shannon, was leaning toward Bolton. The interior of the truck was illuminated by the truck’s dome light. As he approached the truck, Deputy Guillot looked through the truck’s rear window and observed Bolton receiving money from Shannon while simultaneously passing a clear plastic bag containing green vegetable matter to Shannon. Believing that a hand-to-hand transaction was in progress, Deputy Guillot said, “Hey, what are you doing?” Bolton then grabbed the money from Shannon and tried to shove it into his pocket. Shannon was left holding the plastic bag, which he threw on the seat.

At that point, Deputy DeSalvo opened the driver’s side door and removed Shannon from the truck. After patting down Shannon and Bolton, the officers returned to the truck and retrieved the bag Shannon had discarded upon the truck’s seat. The matter in the bag was identified at trial by the State’s expert as 12.3 grams of marijuana.

The officers found a brown paper bag containing a scale and small, empty plastic bag on the passenger’s side of the truck. Deputy DeSalvo testified that the small bag was commonly known as a “dime bag” that is used for packaging marijuana. According to Deputy DeSalvo, scales such as the one found in the lRbrown paper bag were commonly used to measure grams of marijuana. According to Deputy Guillot, Bolton had $40.00 in cash in his pocket.

Bolton was arrested for distribution of marijuana and Shannon was arrested for possession of marijuana, a charge to which Shannon later pled guilty. Michael Shannon testified on behalf of the defense that he and Bolton had known each other for about three years and “smoked the same drugs.” According to Shannon, he had driven to Bolton’s house that night and parked the truck on the street. He and Bolton shook hands, and then Bolton entered the truck. Shannon said that he and Bolton were planning to go to a night club, and Bolton asked if Shannon would bring him to fill a prescription before going out. Shannon said he saw the car pass by, but did not know its occupants were police officers until the officers showed up next to the truck. According to Shannon, the officers yelled, “Don’t move.” Shannon said he remained in the seat until one of the officers opened the door, grabbed him and placed handcuffs on him. The other officer, whom Shannon described as the “tall police officer,” “grabbed” Bolton. Then, the officers searched the truck.

Shannon denied that he had attempted to purchase marijuana from Bolton. Instead, Shannon explained that he had purchased the bag of marijuana in the Fisher housing project before going to the defendant’s house. Shannon also claimed ownership of the scale. Further, Shannon claimed that he planned to smoke the bag of marijuana with Bolton that night.

The defendant’s wife, Theresa Bolton, testified that Bolton had a job and received a paycheck. Mrs. Bolton explained that it was not unusual for each of them to carry cash because the couple did not have a checking account. Mrs. Bolton admitted, however, that she did not know her husband’s whereabouts at 10:00 p.m. on the night in question.

Bolton contends in his first assignment that the State's evidence presented at trial is legally insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that he distributed marijuana to Michael Shannon. The State responds that it proved beyond a reasonable doubt that Bolton committed the offense.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia. According to Jackson, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:488 provides that “assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, supra.

The bill of information in the present case charges Bolton with distribution of marijuana, a violation of LSA-R.S. 40:966(A), which provides as follows:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a | .¡.controlled dangerous substance or controlled substance analogue classified in Schedule I;

In this assignment, Bolton claims the evidence was insufficient because the police officers’ testimony did not prove beyond a reasonable doubt that he distributed marijuana to Shannon. Further, Bolton asserts that he should not have been found guilty, since Shannon claimed responsibility for the drugs. However, Deputy Guillot’s testimony established that he saw Bolton in the process of exchanging a bag of marijuana for money with Michael Shannon. Also, the physical evidence supports the officer’s version of the events. Deputy Guillot testified that when he first saw Bolton, he was holding a brown paper bag with a clear bag protruding, which he tried to conceal from view. A brown paper bag containing a scale and an empty plastic bag were seized from the passenger’s side of the truck where Bolton was standing.

Although Shannon testified that he brought the marijuana to Bolton’s house for their use that night, the jury obviously discounted that testimony. The jury heard this evidence, and in returning the guilty verdict, the jury obviously found Deputy Guillot’s testimony to be more credible than Mr. Shannon’s. Where there is conflicting testimony as to factual matters, the question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of witnesses will not be re-weighed on appeal. Viewing the evidence in the light most favorable to the prosecution, it appears that a rational trier of fact could have found beyond a reasonable doubt that the defendant distributed marijuana. Accordingly, we find this assignment to be without merit.

s In his second assignment, Bolton contends that the evidence should have been suppressed because police lacked reasonable suspicion for an investigatory stop and because he was arrested without probable cause. The State responds that the trial judge properly denied the motion to suppress because defendant was lawfully arrested.

An investigatory stop, authorized by LSA-C.Cr.P. art. 215.1 and Terry v. Ohio, must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is something less than probable cause to arrest. Rather, it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference. An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidents of crimes, are factors that may support reasonable suspicion for an investigatory stop. The reputation of a neighborhood as a high-crime area is an articulable fact upon which an officer may legitimately rely in making a determination as to reasonable suspicion for an investigatory stop. The reviewing court must consider the totality of the circumstances, according deference to the inferences and deductions of a trained police officer that might elude an untrained person. Applying these principles in the instant case, it appears that reasonable suspicion existed for an investigatory stop. The record reflects that the defendant was in the 200 block of Wilker Neal Avenue, an area about which the Sheriffs Office had received |flcomplaints of narcotics activity the week preceding September 3, 1999. Deputy Guillot, an experienced police officer of eight years, observed the defendant’s startled expression and attempt to the conceal a brown paper bag as the officers passed in the unmarked car. According deference to Deputy Guillot’s eight years of law enforcement experience, we find that the circumstances in this case, including Deputy Guillot’s testimony that Bolton looked like a “deer in a headlight” when he saw the white Crown Victoria, the fact that defendant attempted to shield the brown paper bag he was holding in his hand from view, and Bolton’s presence in a high crime area at night, provided reasonable suspicion of criminal activity for an investigatory stop.

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable, trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. An officer may make a warrantless arrest when the officer has probable cause to believe that the person to be arrested has committed an offense. After witnessing Bolton conduct what the officer reasonably believed was a hand-to-hand narcotics transaction, we find that it appears Deputy Guillot had probable cause to arrest the defendant. Based on the foregoing, we find that trial judge properly denied the motion to suppress.

Bolton finally contends that his fifteen-year sentence as a second felony offender is constitutionally excessive because he was not proven to be a drug dealer at trial and because he was a hard working husband when he was arrested. The State responds that, based on LSA-C.Cr.P. art 881.2(A)(2), Bolton cannot hoappeal his sentence because it was imposed as part of a plea agreement. The State also responds that the sentence is not excessive, citing State v. Johnson.

Under LSA-C.Cr.P. art. 881.2(A)(2), a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This prohibition encompasses sentences imposed pursuant to plea agreements setting forth specific sentences as well as plea agreements with sentencing caps. This Court has applied these provisions to cases in which a defendant admits to the allegations in a habitual offender bill as part of a sentencing agreement.

The record reflects that the State amended the multiple bill to allege that Bolton was a second felony offender instead of a third, and Bolton admitted that he was a second felony offender. However, the record does not reveal any agreement regarding the enhanced sentence. Rather, the trial judge merely advised Bolton that sentencing range as a second felony offender convicted of distribution of marijuana was between fifteen and sixty years of imprisonment. The only indication in the record that the sentence could have been part of an agreement between the State and Bolton is in the trial judge’s remarks when sentencing Bolton:

THE COURT:
Mr. Bolton, in connection with your guilty plea, the Court is going to vacate the original sentence rendered in case number 99-6389, and resentence you to a period of fifteen years in the Custody of the Department of Corrections, without benefit of probation or suspension of sentence....

In Conceivably, the court’s remark that the sentence was in connection with the defendant’s guilty plea, could indicate there was an agreement for sentencing. However, because such an agreement is not disclosed by the record, we find that Bolton is not precluded from challenging his sentence as constitutionally excessive.

The record does not reflect that Bolton made or filed a motion to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.”

1P. When a trial court determines the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. However, the Johnson court cautioned that a trial judge’s determination that a mandatory minimum sentence is excessive requires more than merely uttering the above-quoted phrases.

Further, the trial court cannot impose whatever sentence it may feel is appropriate. Rather, the court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. However, “[a] sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Statute only under rare circumstances.”

As a second felony offender, Bolton was subject to a sentence of not less than one-half the longest term and not more than twice the longest term for the underlying felony, which is distribution of marijuana. LSA-R.S. 15:529.1(A)(l)(a). At the time this offense was committed in 1999, distribution of marijuana was punishable by not less than five nor more than thirty years of imprisonment at hard labor, pursuant to LSA-R.S. 40:966(A). Thus, Bolton faced a sentencing range between fifteen and sixty years of imprisonment at hard labor. In the present case, the record reflects that the Bolton received the mandatory minimum sentence of fifteen years at hard labor.

|1sAs discussed above, mandatory minimum sentences under the habitual offender statute may be found to be unconstitutional as to a defendant if he meets the guidelines set out in State v. Johnson and State v. Lindsey, supra. However, Bolton does not even acknowledge on appeal that he received the mandatory minimum sentence, nor does he suggest any reasons other than his guilt was questionable and that he was a “hard working husband” to indicate he is exceptional within the meaning of State v. Johnson, supra. Further, Bolton offered no evidence in the sentencing hearing to rebut the presumption of the constitutionality of the mandatory minimum fifteen-year sentence, nor does he provide support for his argument on appeal. Therefore, we find that Bolton has not met his burden of rebutting the presumption of constitutionality. Accordingly, there was no reason for the trial court to deviate from the mandatory minimum fifteen-year sentence.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Wetland. We note the following:

The record reflects that the trial court failed to completely advise Bolton of thé prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8 in that he failed to indicate when the period began to run. We therefore remand this case to the district court and order it to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record.

u Bolton’s motion for appeal was premature when it was filed after conviction and sentence on the offense but before he was. adjudicated a multiple offender. However, that procedural defect was cured by the subsequent resentencing.

For the foregoing reasons, the defendant’s sentence and conviction are affirmed, and the case is remanded.

AFFIRMED; REMANDED.

      . This is the defendant’s second appeal to this Court. Bolton’s first appeal, 02-KA-114, was dismissed on September 24, 2002 because the appellate record did not reflect that the defendant was tried by a jury of twelve persons. The trial minutes and the jury poll results reflected that the defendant had been tried by a jury of eleven persons. And, the appellate record did not contain the transcript of the voir dire. Accordingly, this Court dismissed the case and remanded the matter to the district court so that the appellate record could be supplemented with the voir dire transcript. The present record, 02-KA-1034, contains the voir dire transcript, which reflects that a properly composed jury of twelve persons was selected to try the case.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . See also, State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1292-1293; State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

      . State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

      . State v. Richards, 97-1182 (La.App. 5 Cir. 4/15/98), 713 So.2d 514, 517, writ denied, 98-1452 (La.10/9/98), 726 So.2d 27.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),

      . State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 101-102.

      . State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 527, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117.

      . State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049; State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

      . State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, 1331, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).

      . State v. Davis, 00-278 (La.App. 5 Cir. 8/29/00),768 So.2d 201, 212, writ denied, 00-2730 (La.8/31/01), 795 So.2d 1205; LSA-C.Cr.P. art. 213.

      . 97-1906 (La.3/4/98), 709 So.2d 672.

      . State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Simmons, 00-161 (La.App. 5 Cir. 8/29/00), 767 So.2d 918, 921.

      . See, State v. Wilson, 00-1378 (La.App. 5 Cir. 6/27/01), 789 So.2d 766, 769, and the cases cited therein.

      . State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243.

      . State v. Johnson, supra; State v. Dorthey, 623 So.2d 1276 (La.1993).

      . State v. Johnson, 709 So.2d at 676; State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, 1093, writ denied, 98-3201 (La.4/23/99), 742 So.2d 876.

      . State v. Johnson, supra, at 676.

      . State v. Dorthey, 623 So.2d at 1280.

      . State v. Johnson, 709 So.2d at 676.

      . State v. Johnson, 709 So.2d at 677.

      . State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 345.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276, 1281.

      . State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.


author: 3MARION F. EDWARDS, Judge.

text:
    Willard A. EASTIN Jr., et al. v. ENTERGY CORPORATION, et al.
    No. 02-CA-1119.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.
    Writ Granted June 6, 2003.

      Linda S. Harang, Stephen B. Murray, New Orleans, LA, Thomas G. Wilkinson, Robert P. Early, Sr., Gretna, LA, for Appellants.
    Harry Rosenberg, Kim M. Boyle, Joanne Rinardo, Kenneth P. Carter, Louis Leonard Galvis, Keith M. Pyburn, Jr., New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   3MARION F. EDWARDS, Judge.

Plaintiffs/Appellants, former Entergy employees, appeal the trial court’s judgment that granted defendants’ peremptory exception of prescription. For the following reasons, we reverse.

On November 29, 1993, suit was filed in the 24th Judicial District Court for the Parish of Jefferson alleging a pattern of wrongful termination, based upon age, on behalf of putative class of plaintiffs who were formerly employed by either Entergy Corporation or an Entergy subsidiary. In seven subsequent supplemental and amending petitions, several hundred additional plaintiffs were added to the initial action. On August 13, 1997, the plaintiffs were granted class certification by the District Court. This Court subsequently reversed the class certification and remanded the case for further proceedings.

^Pursuant to an order by the District Court, in May of 2001 plaintiffs filed their Eighth Supplemental and Amending Petition. Defendants thereafter filed several exceptions including a peremptory exception of prescription. In a hearing on September 20, 2001, the District Court ordered plaintiffs to complete a series of questionnaires and use the information to amend their petition accordingly. On September 24, 2001, the court granted defendant’s exception of prescription as to the following plaintiffs: Ellen Blanchard, James Boudreaux, Robert Butler, Andrew Ford, Robert Fugok, Joy Hughes, Williams Lee, Theresa Luker, Glenn Parsons, Carlos Savona, and Lewis Touna. The court further allowed the same plaintiffs an opportunity to amend their petition in order to state when they became aware of their cause of action.

On October 28, 2001, plaintiffs filed their Ninth Supplemental and Amending Petition, and defendants once again urged their exception of prescription. After a hearing on August 21, 2001, the trial court granted defendant’s exception of prescription as to the 11 above named plaintiffs, rendering a Partial Final Judgment on October 31, 2002. It is from this judgment that plaintiffs appeal.

LAW AND ARGUMENT

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of |Bevidence, but prior to its submission after trial. La.C.C.P. art. 931 states that on the trial of the peremptory exception prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, arid all allegations thereof are accepted as true.

Louisiana courts have noted that claims brought for violations of Louisiana Age Discrimination Employment Act, pursuant to LSA-R.S. 51:2264, are delictual actions subject to the one year prescription of La.C.C. Art. 3492. On appeal plaintiffs assert, however, that the trial court erred in granting defendant’s exception of prescription, arguing that under the doctrine of contra non valentum their claims did not prescribe although suit was filed over one year after their respective terminations.

In Spruiell v. Ludwig, this Court recounted the law on the doctrine of contra non valentem agere nulla currit praeseriptio:

A judicially created exception to the running of liberative prescription is afforded by the doctrine of contra non va-lentem agere nulla currit praescriptio, (prescription does not run against one who is unable to act). The four recognized situations where the doctrine applies to prevent the running of prescription are:
(1) Where there was some legal cause which prevented the courts or their officers from talcing cognizance of or acting on the plaintiffs [01-1323 La.App. 5 Cir. 6] action;
lt;(2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
(4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

The fourth category, commonly known as the discovery rule, provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Hence, prescription does not accrue. It does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent, and unreasonable. The plaintiff further bears the burden of showing why prescription has not run when the face of the petition reveals that the action is prescribed.

In Hospital Service Dist. No. 1 of Jefferson Parish v. Alas, this Court elaborated on the discovery rule:

For purposes of the discovery doctrine of contra non valentum, a plaintiff will be deemed to know that which he could have learned from reasonable diligence. LaPlaque Corp. v. Chevron, USA, Inc., 638 So.2d 354 (La.App. 4 Cir.1994). ‘If an opportunity is afforded to a party to know and to learn about a certain matter bearing on his interest and he fails or refuses to profit by it, if he closes his eyes to the notice spread before him and shuts his ears to oral information directly imparted to him, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted |7and of the notice given.’ Id., at p. 1383, citing Bory v. Knox, 38 La.Ann. 379 (La.1886).

In Groom v. Energy Corp. of America, Inc., we also noted:

The precise point at which a plaintiff becomes aware of the facts sufficient for prescription to begin running is often difficult to identify, but the question is answered based on whether plaintiff was reasonable in delaying filing suit in light of his own information. Cole v. Celotex Corporation, 620 So.2d 1154, 1156-1157 (La.1993). These are factual questions which can only be determined by analysis of evidence.

In this case, no evidence was introduced by either party in regard to the exception for prescription. The record before us reflects that the only documentation for the trial court to consider regarding the claim for prescription was contained within the ninth amending petition itself, the alíe-gations in which must be considered as true. Attached to the petition were copies of documents, entitled, “Entergy Age Discrimination Litigation-Court-Ordered Client Questionnaire,” from which the information contained in the petition was derived. Question number five on this form directed, “State the day, month and/or year when you first became aware, learned or believed that your termination from Entergy was based on your age.” The 11 plaintiffs at issue each provided relevant information in answer to the question. In all instances the plaintiffs claim to have first learned of the alleged potential discrimination more than one year after their respective terminations from employment. In this case, plaintiffs argue that because they were among the first to be terminated by ^defendants, an alleged pattern of age discrimination was not yet apparent, and therefore they had no reason to inquire about, nor were they aware of, a potential cause of action.

After careful consideration, we find that there is nothing in the record which contradicts plaintiffs assertions that they did not become aware of a potential cause of action against Entergy before the one year prescription had tolled. The plaintiffs’ claims in the petition indicate that they did not have a reason to suspect that age was a motivating factor in their termination from Entergy. Further, there is nothing in the record to suggest that the ignorance of their potential claim approached the benchmark of being willful, negligent, and unreasonable. Accordingly, we find that the plaintiffs have met their burden to show why their claims have not prescribed and that the trial court erred in finding the doctrine of contra non valentum did not apply under the facts.

Accordingly, the judgment of the trial court is reversed.

REVERSED.

      . Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835.

      . In Eastin v. Entergy, 2001-C-1224 (La.App. 5th Cir. 1/11/01), which was unpublished, this Court denied Entergy's supervisory writ application on several trial court rulings unrelated to the present appeal. The Supreme Court subsequently granted writs in Eastin v. Entergy, 2002-CC-0443 (La.4/19/02); 813 So.2d 415, and remanded the case to the trial court for reconsideration of the exceptions of improper venue and improper cumulation. In Eastin v. Entergy, 2002-C-1056 (La.App. 5th Cir.12/16/02), this court recently denied Entergy’s writ application based on the judgment after rehearing.

      . LSA-C.C.P. arts. 927 and 928(B).

      . Castaneda v. Louisiana Ins. Guar. Ass’n, 95-29 (La.App. 5 Cir. 5/30/95), 657 So.2d 338; writ denied, 95-2097 (La.11/17/95), 663 So.2d 715; National Union Fire Insurance Company v. Ward, 612 So.2d 964 (La.App. 2 Cir.1993).

      . Brunett v. Department of Wildlife and Fisheries, 96-0535 (La.App. 1 Cir. 12/20/96), 685 So.2d 618; writ denied, 97-0186 (La. 3/14/97), 689 So.2d 1385.

      . 568 So.2d 133 at 138 (La.App. 5 Cir.1990); writ denied 573 So.2d 1117 (La.1991).

      . Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206.

      . Turnage v. Columbia Lakeside Hosp., 98-1263 (La.App. 5 Cir. 3/30/99), 731 So.2d 919, 922; writ denied, 745 So.2d 26 (La.1999).

      . Wimberly v. Gatch, supra.

      . 94-897 (La.App. 5 Cir. 6/28/95), 657 So.2d 1378; writ denied, 95-1959 (La.11/13/95), 662 So.2d 473.

      . 94-623 (La.App. 5 Cir. 1/18/95), 650 So.2d 324.

      . In summary, the plaintiffs answered as follows in regard to when they learned about the lawsuit against Entergy: Ellen Blanchard-late 1995; Robert Butler-January, 1993; James Boudreaux-mid-October, 1997; Andrew Ford-1995; Robert Fugok-Does not know exact date; Joy Hughes-mid 1993; William Lee-after November 29, 1992; Theresa Luker-January or Februaiy, 1993; Glenn Parsons-January or February, 1993; James Savona-November, 1996; Lewis Touna-July, 1993.


author: 1PER CURIAM.

text:
    Jonathan CARROLL v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2002-CA-2230.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2003.

      Rita K. Akehurst II, The Morice Law Firm, Gretna, LA, for Plaintiff/Appellant.
    Patrick R. Bossetta, Assistant City Attorney, Franz L. Zibilieh, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS Sr., Judge MICHAEL E. KIRBY).
   1PER CURIAM.

The Civil Service Commission (hereinafter the “Commission”) erred when it dismissed the appeal of the Appellant, Officer Jonathan Carroll. The Commission ruled on July 15, 2002 that Officer Carroll did not have a right to an appeal because of his length of employment with that force, concluding that he was classified as a probationary officer. Officer Carroll was terminated from the New Orleans Police Department on September 20, 2001, for testing positive for marijuana through a urine sample. Both the New Orleans Police Department (hereinafter the “NOPD”) and Officer Carroll stipulated at trial that the drug test was a false positive and proved to be erroneous as to Officer Carroll. Thereafter, the Commission concluded:

The Appointing Authority has failed to establish by a preponderance of the evidence that the Appellant had marijuana in his system ... the appeal would be granted but for the fact that the Appellant does not does not have a right to an appeal because of his probationary status.

A review of the record reveals that the NOPD did not put forth any evidence at trial as to the probationary status of Officer Carroll. Louisiana Constitution Art. X § 8(a) states that the burden of proof on appeal, as to the facts, shall be on the appointing authority. The Notice of Appeal within the record containing | ¡¿handwritten dates is not enough to establish evidence of Officer Carroll’s employment status. For these reasons, the judgment of the Commission is reversed and Officer Carroll is ordered to be reinstated to his original position prior to any discipline action taken by the New Orleans Police Department. Further, Officer Carroll is granted any back pay from the date of his original suspension through the date of reinstatement and all costs and attorney fees associated with this matter.

REVERSED.