author: PEATROSS, J. PEATROSS, J.,

text:
    Patricia McLaurin CLEMONS, Plaintiff/Appellant, v. Tony Randall CLEMONS, Defendant/Appellant. Tony Randall Clemons, Plaintiff/Appellant v. Patricia McLaurin Clemons, Defendant/Appellant.
    Nos. 42,129-CA, 42,130-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    Opinion on Rehearing July 11, 2007.

      Snell and Robinson by A. Richard Snell, Bossier City, for Patricia McLaurin Clemons.
    Francis M. Gowen, Jr., Shreveport, for Tony Randall Clemons.
    Before GASKINS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

|! These appeals arise from the partition of community property between Patricia Clemons and Tony Clemons. Both parties appeal several aspects of the trial court’s judgment. For the following reasons, we amend and, as amended, we affirm.

FACTS

The parties physically separated in April 2002. A Judgment of Divorce was rendered on November 5, 2002, and was signed and filed December 2, 2002. A trial to partition the community property was held in November 2005. The Judgment of Partition divided the assets and liabilities between the parties and awarded Ms. Clemons an equalization payment of $165,216.61 less one-half of the value of their mobile home.

Prior to the Judgment of Partition, the trial court rendered an opinion disposing of the remaining contested issues in the case. In that opinion, the trial court denied a claim for reimbursement filed by Dr. Clemons for amounts he paid out of his separate property on the mortgage note and fire insurance premiums for the immovable property owned by the community. The property housed his veterinarian practice, Rocking Rooster Veterinarian Services (“Rocking Rooster”), and was in his exclusive possession after the parties separated. Ms. Clemons was prohibited by court order from entering the premises based on Dr. Clemons’ allegations of disruptive behavior when she would do so. The trial court denied his claim for reimbursement and determined the equity in the building by offsetting the total original debt against the agreed value of the building.

IsAmong the contested items also to be resolved by the trial court was the value of the cattle and horses owned by the community along with Dr. Clemons’ claim for reimbursement for their care. The trial court valued the livestock at $35,000, with a deduction of $10,000 for feed and miscellaneous expenses.

Also in dispute was an account resulting from a settlement with Dr. Ashley Buffing-ton stemming from her employment with the veterinarian clinic (“the Buffington account”). The suit and resulting settlement were for Dr. Buffington’s violation of a non-compete clause in her contract with Dr. Clemons. The account had a total of $19,000. Without providing reasons, the trial court found $10,000 of the account was community and the remaining $9,000 was the separate property of Dr. Clemons. The trial court also allowed a $4,000 deduction from the value of the veterinarian clinic for bad debts. In addition, under La. C.C. art. 121, the trial court awarded Ms. Clemons $17,500 for her financial support of Dr. Clemons while he was in veterinarian school.

The trial court initially denied the claim of Dr. Clemons for reimbursement of $16,932.72 for payments made by him on the 2001 Ford F-350 truck. Dr. Clemons was awarded exclusive use of the vehicle for personal and business purposes. In ruling on Dr. Clemons’ Motion for New Trial, however, the trial court reversed its original judgment and allowed Dr. Clemons a zero value for the truck resulting in a reduction of $15,105 in Dr. Clemons’ assets. This reduced the equalization payment owed to Ms. Clemons by $7,552.50.

laBoth parties filed Motions for a New Trial. The trial court denied Ms. Clemons’ motion. The trial court granted Dr. Clemons’ motion in part, reversing its decision on the truck, and denied the motion in part pertaining to his claim for reimbursement related to the immovable property.

Both parties appeal several issues to this court. Dr. Clemons appeals the denial of his claim for reimbursement for payments made on the immovable property and the La. C.C. art. 121 award to Ms. Clemons for financially supporting him through veterinarian school. Ms. Clemons appeals the amount of this award along with the value of the livestock and the reimbursement granted for them, the characterization of the Buffington account, the deduction for bad debts and the reimbursement for payments on the truck.

DISCUSSION

A trial court’s factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. McDaniel v. McDaniel, 35,833 (La.App.2d Cir.4/3/02), 813 So.2d 1232. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

14Reimbursement of Mortgage Payments

Dr. Clemons appeals the trial court’s denial of his claim for reimbursement for the use of his separate property to pay the monthly mortgage payments on the property housing the Rocking Rooster veterinarian clinic, along with the insurance premiums. The record supports that Dr. Clemons used $211,297.26 of his separate property, specifically, his income earned after separation, to pay the mortgage and insurance. In addition, Dr. Clemons testified that the bank required him to carry insurance on the building without which the bank would foreclose on the property. After referencing Ms. Clemons’ exclusion from the building and Dr. Clemons receiving all the income from the business, the trial court denied his reimbursement claim, reasoning that, “under these facts it would not be just or equitable.” The trial court, instead, found the more equitable approach to be taking the total original debt ($470,544.90) out of the agreed value of the property ($550,000) to determine the equity in the building. The issue before this court is whether Dr. Clemons is entitled to reimbursement from the community for the amount he paid on the building’s mortgage and insurance. We hold that Dr. Clemons was entitled to his reimbursement and, in addition, that the equity in the building should be recalculated, as discussed below.

The debt at issue originated as a line of credit with Gibsland Bank obtained by both parties prior to the termination of the community. The credit was used to purchase the real estate and construct a building for the Rocking Rooster veterinarian clinic. After the termination of the | (¡community, Gibsland Bank required that the line of credit be converted into a permanent loan and both Dr. and Ms. Clemons signed the promissory note and mortgage. The bank, however, provided Ms. Clemons with a commitment letter which would relieve her of any indebtedness when, in the future, Dr. Clemons was awarded sole ownership. In December 2004, Dr. Clemons refinanced the permanent loan with Regions Bank at a lower interest rate. That loan only paid off the loan with Gibsland Bank and Dr. Clemons received no additional funds beyond that of the outstanding amount of the Gibsland Bank loan. Ms. Clemons did not sign the promissory note, but signed the mortgage securing the loan as co-owner of the property. Ms. Clemons argues that the permanent loan with Gibsland Bank and the most recent loan with Regions Bank extinguishes the only community obligation, the line of credit.

A community obligation is “[a]n obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse.” La. C.C. art. 2360. Ms. Clemons argues that, because the two recent loans were made after the termination of the community, they cannot be considered community obligations for which reimbursement could arguably be due. We disagree. Both the permanent loan with Gibsland Bank and the refinance with Regions Bank encompassed the same community debt, i.e., the original line of credit. We find no guidance in the case law concerning a post-termination refinancing of a community obligation, but we are not|fipersuaded that Dr. Clemons’ prudent management of the community obligation somehow transformed the true nature of the debt.

We are further persuaded that a spouse should not be discouraged from taking prudent actions concerning community obligations. A former spouse has a duty to preserve and prudently manage former community property under his control. La. C.C. art. 2369.3. This duty is higher than that imposed on a managing spouse during the existence of the community. Ellington v. Ellington, 36,943 (La.App.2d Cir.3/18/03), 842 So.2d 1160, writ denied, 03-1092 (La.6/27/03), 847 So.2d 1269; La. C.C. art. 2369.3, comment (a). This article is usually addressed when one former spouse asserts a claim for compensation due to the breach of this article concerning management of a community business. E.g., Saacks v. Saacks, 05-365 (La.App. 5th Cir.9/26/06), 942 So.2d 1130; Hatsfelt v. Hatsfelt, 05-0947 (La.App. 3d Cir.2/1/06), 922 So.2d 732; Ellington, supra. We find, however, that the policy that a former spouse must act prudently with regard to former community interests is applicable to community obligations as well as community assets. Through its line of credit with Gibsland Bank, the community incurred a duty to repay the money it used for the construction of the clinic. Dr. Clemons’ necessary conversion of that line of credit into the permanent loan and then his prudent refinancing of that loan did not change the nature or origin of the duty to repay. The debt, even as a loan with Regions Bank, remained a community obligation.

|7A spouse who uses his separate property for the payment of a community debt is entitled to reimbursement. Louisiana C.C. art. 2365 provides, in pertinent part:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.

We find nothing in the civil code’s plain language or as persuasive in the case law that would allow us to ignore the code’s clear instruction that, when one spouse uses his separate property to satisfy a community obligation, he is entitled to reimbursement for one-half the amount that he paid. The comments for Article 2365 emphasize that, “[w]hen the separate property of a spouse is used to satisfy any community obligation,” the spouse is entitled to reimbursement. La. C.C. art. 2365, revision comment (a)(emphasis in original). As discussed above, the obligation at issue was community in nature and the record supports that Dr. Clemons used his separate property for the payment of that debt. The trial court, therefore, was manifestly erroneous and clearly wrong in denying Dr. Clemons’ claim for reimbursement and he is entitled to a reimbursement of $211,297.21 from the community. Ms. Clemons’ share of the community is, thus, reduced by $105,548.63.

Further, Dr. Clemons agrees that, if he is entitled to his reimbursement, the equity in the building should be recalculated. Recall that the trial court calculated the equity in the building by taking the total | «original debt ($470,544.90) out of the agreed value of the property ($550,000) resulting in a total of $39,727.55. The correct calculation is to reduce $550,000, the agreed value of the building, by $386,049.08, the stipulated balance of the mortgage at time of partition, and not the original amount of the line of credit. The total equity in the building is then $163,950.92. Ms. Clemons’ portion of the equity is, therefore, $81,975.46. Thus, the proper equalization payment should be recalculated using $81,975.46 as Ms. Clemons’ half share of equity in the Rocking Rooster building and then reduced by her half share of the reimbursement, i.e., $105,548.63.

As discussed below, we do not disturb any other aspect of the trial court’s original Judgment of Partition. Replacing the improper calculation of equity with the proper amount of $81,975.46 and reducing it by the reimbursement owed in the amount of $105,548.63, we amend the equalization payment owed Ms. Clemons to $101,915.89, rather than the $165,216.61 awarded by the trial court.

Educational Support Award

Both parties challenge the trial court’s award under La. C.C. art. 121 for Ms. Clemons’ financial support of Dr. Clemons during veterinary school after they were married. Dr. Clemons appeals both the propriety of granting the award and the amount, while Ms. Clemons argues for the amount of the award to be increased.

A professional degree or license is not community property and is not subject to community property distribution. Gill v. Gill, 39,406 (La.App.2d Cir.3/9/05), 895 So.2d 807; La. C.C. art. 121, 1990 revision comment (f). Article 121, instead, provides that:

In a proceeding for divorce or thereafter, the court may award a party a sum for his financial contributions made during the marriage to education or training of his spouse that increased the spouse’s earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power.
The sum awarded may be in addition to a sum for support and to property received in 'the partition of community property.

Dr. Clemons argues that Ms. Clemons does not qualify for this provision because, in their eight years of marriage, six years of which were after his graduation, she benefitted from his increased earning power. Ms. Clemons responds that she worked hard in the veterinarian practice of Dr. Clemons and contributed to its growth. She further asserts that the family residence, a mobile home worth no more than $8,000, is proof that she did not benefit from his increased earning power during their marriage. She claims that the award was proper considering her contributions to the growth of the business and that the parties separated just as Dr. Clemons was about to enjoy the greater earning potential of his degree by opening a new building for his veterinarian clinic.

In determining whether an award is warranted under article 121, a court should consider: (1) the claimant’s expectation of shared benefit when the contributions were made (2) the degree of detriment suffered by the claimant in making the contributions, and (3) the magnitude of the benefit the other spouse received. Shewbridge v. Shewbridge, 31,170 (La.App.2d Cir.10/28/98), 720 So.2d 780; Barrow v. Barrow, 27,714 (La.App.2d Cir.2/18/96), 669 So.2d 622, writs denied, 96-1057 (La.6/21/96) 675 So.2d 1080, and 96-1072 (La.6/21/96), 675 So.2d 1080. Benefits from the increased earning power may be in the form of an improved lifestyle or an increase in community assets. “A spouse who contributed financially to the education or training of the other spouse in a marriage of significant duration may have already benefitted during the existence of the marriage by an improved standard of living or an accumulation of community property.” La. C.C. art. 121, 1990 revision comment (e).

In reviewing the few cases that have addressed this provision, we find that cases which upheld an article ■ 121 award were for separations that occurred shortly after the graduation of the supported spouse. Shewbridge, supra (separation a year after the husband obtained his commercial pilot’s license); McConathy v. McConathy, 25,542 (La.App.2d Cir.2/23/94), 632 So.2d 1200, writ denied, 94-0750 (La.5/6/94), 637 So.2d 1052 (parties separated during the final year of husband’s schooling). This is the situation contemplated in the comments to article 121.

The usual situation that has prompted the making of awards of this kind in other states has involved a wife who supported her husband through professional school, only to be divorced by him shortly after his graduation. E.g., In re Marriage of Washburn, 101 Wash.2d 168, 677 P.2d 152 (1984); Lundberg v. Lundberg, 107 Wis.2d 1, 318 N.W.2d 918 (1982). Usually the wife has had little opportunity to share in the husband’s enhanced income, and ordinarily little or no community property has accumulated to be divided between them.

La. C.C. art. 121, 1990 revision comment (c). Based on this language, one court denied the wife an article 121 award for her financial support of her husband during law school three years prior to their separation. Bourgeois v. Bourgeois, 00-2149 (La.App. 1st Cir.5/10/02), 818 So.2d 1005. The |n court held that, in those three years, the wife had benefited from the husband’s substantial increase in income focusing on her improved lifestyle; and, as such, she was not entitled to an award under article 121.

Under this analysis, we find that the trial court improperly awarded Ms. Clemons money under article 121. While in both the trial testimony and argument before this court counsel for Ms. Clemons stresses her lack of an improved lifestyle, this focus overlooks the total community assets accumulated during the Clemons’ marriage. Most notably, the agreed value of their community business of Rocking Rooster was $161,883. Although Ms. Clemons contributed to this business with her own hard work, it was only made possible by Dr. Clemons’ veterinarian degree and license. In addition, the parties had various accounts and other assets that amounted to significant community property. As indicated by the comments of article 121, this is not the situation that this article was designed to remedy.

Ms. Clemons further argues that an article 121 award is due because the marriage terminated just before Dr. Clemons was about to enjoy a higher earning level. The analysis under article 121 is not whether a spouse has reached his full earning potential at the time of the separation, but to what extent the supporting spouse did not enjoy the benefits of the other spouse’s increased earning power. While Ms. Clemons had possibly anticipated greater financial benefits from Dr. Clemons’ degree at the time she was supporting him through school, she received such sufficient benefits based on the accumulated community property. This is simply not a case where the supporting spouse, Ms. Clemons, has received little or no benefit from ^supporting the other spouse, Dr. Clemons, through his education. We, therefore, reverse the trial court’s award under La. C.C. art. 121.

Valuation of Cattle and Horses

At the time of separation, the parties owned as community property twenty cows, eight calves and six horses. In addition, several calves were born after separation, but before partition. Those calves were community property as well. La. C.C. art. 484. The trial court valued the entire livestock at $35,000, subject to a deduction of $10,000 for feed and expenses related to the care of the animals.

Ms. Clemons appeals this valuation. She asserts that the best evidence of the value of the livestock is a Rocking Rooster balance sheet that was compiled by an accountant in March 2002. On the balance sheet, the cattle have a value of $40,000 and the horses have a value of $5,000. She also contends that Dr. Clemons consented to these valuations by submitting them to his bank when applying for loans. She insists that adding the sales proceeds of the calves born after the parties separated to this value is the best determination of the livestock’s value. She further appeals the deduction for feed and expenses as lacking sufficient evidence to support such a claim.

To the contrary, Dr. Clemons testified that he did not provide the livestock value to the C.P.A. After establishing that he was a person familiar with the value of cattle and horses, he testified that he valued the livestock, both sold and remaining, at $30,767.64. He explained that he produced that value based on the records kept by the Louisiana Department [13of Live Culture for values of livestock. In his testimony, Dr. Clemons estimated that he spent $10,000 to maintain the animals since the separation in April 2002.

We cannot say the trial court manifestly erred in accepting Dr. Clemons’ values instead of those shown on the March 2002 balance sheet. Dr. Clemons testified that he was familiar with the value of cattle and horses and the expenses involved in maintaining them. He further presented a methodology for how he determined those values. We, therefore, affirm the trial court’s valuation of the cattle and horses and the deduction for expenses.

Deduction for Bad Debts

The parties agreed to value the business of Rocking Rooster at $550,000, reduced by the accounts receivable, i.e., the bad debts, the amount of which they dispute. Dr. Clemons submitted a list of accounts receivable as of April 8, 2002, totaling $7,612.52. The trial court determined that the proper deduction for bad debts was $4,000. Ms. Clemons appeals on the grounds that Dr. Clemons failed to generally prove that these accounts were uncollectible versus merely uncollected. She also challenges the uncollectibility of several specific accounts.

Ms. Clemons argues that Dr. Clemons did not take sufficient actions to collect the debts and, therefore, failed to prove that the debts were uncollectable. She specifically faults Dr. Clemons for not hiring a lawyer to pursue the accounts, not filing suit to collect those accounts, not turning the accounts over to a collections agency and not sending certified letters | udemanding payments. In contrast, Dr. Clemons testified that, while for certain accounts he did not write a letter, his general process was to send a letter every 30 days that an account was outstanding. The letters, according to Dr. Clemons, progressed from what he described as a “nice little letter” to a “real ugly letter” that included a notice that the account was being sent to a collection agency. On other accounts in which he did not write a letter, he made or attempted to make personal contact to get the account resolved. We find these actions are sufficient to establish that an account is uncollectable and qualifies as a bad debt.

Ms. Clemons also insists that certain accounts should not be considered bad debts for various reasons. For example, Dr. Clemons sold some cattle for one of the persons with an outstanding balance and failed to offset the outstanding balance from the sale proceeds. He justified his action for the sake of maintaining an amicable relationship with the person. According to Ms. Clemons, two of the outstanding accounts listed by Dr. Clemons were not listed on the veterinary clinic balance sheet used to value the business; therefore, it was improper to consider those accounts as bad debts to be deducted from the value of the business. Finally, Dr. Clemons had previously deducted one sizable outstanding account from his income taxes. Ms. Clemons argues that it would be unfair to then deduct this amount from the value of the business.

Even agreeing, in arguendo, with Ms. Clemons’ assertions regarding these accounts, we cannot find that the trial court manifestly erred in determining the amount of bad debts allowed. Dr. Clemons originally [^sought a deduction for $7,612.52. When reduced by the amount of the accounts against which Ms. Clemons has specific arguments, the result is approximately $4,000, the amount awarded by the trial court.

The only debt possibly not included in this reduction is a sizeable debt owed by the David Wade Correctional Center, a government entity. Ms. Clemons questions how a debt owed to a government entity can be considered uncollectable. Dr. Clemons testified he made several attempts to collect the debt by contacting individuals at the facility. We accept that collecting from a government entity could be difficult. See, e.g., Baudoin v. Acadia Parish Police Jury, 96-1288 (La.App. 3d Cir.9/17/97), 702 So.2d 715, writ denied, 97-2546 (La.12/19/97), 706 So.2d 458. We, therefore, affirm the trial court’s determination that $4,000 in bad debts should be deducted from the agreed value of the business of Rocking Rooster.

Reimbursement of Payments on Truck

As previously mentioned, the trial court granted Dr. Clemons exclusive use of a Ford F-350 truck from the time between separation and partition. Dr. Clemons used his separate property to pay off the loan on the truck after the termination of the community. Based on this loan payoff, the trial court granted Dr. Clemons ownership of the truck; and, on his motion for new trial, it assigned a zero value for the truck when partitioning the community. Ms. Clemons appeals the trial court rulings in those matters.

Dr. Clemons defends the valuation of the truck at zero as appropriate under Gill, supra. Under the facts of Gill, the wife sold a car in her exclusive use. The trial court assigned to her the small proceeds from thej^gsale in excess of the loan amount, but rejected her claim for reimbursement of any payments made on the loan. This court affirmed both actions of the trial court. Dr. Clemons argues that, under Gill, he should be assigned the remaining “value” in the truck at the time of payoff; and, because the loan amount exceeded the agreed value, the value was zeroed out. He further paraphrases Gill as allowing reimbursements for the payoff of the mortgage balance, but prohibiting the reimbursement of monthly payments. We consider this a difference without a distinction and disagree with his application of Gill.

Our most recent controlling case on this issue is Mason v. Mason, 40,804 (La.App.2d Cir.4/19/06), 927 So.2d 1235, writ denied, 06-1524 (La.10/13/06), 939 So.2d 366. In Mason, we held that the parties were not entitled to reimbursement for payments from separate property on the community obligation on the ears assigned to each party’s exclusive use because of the quickly depreciating nature of cars. Under this reasoning, whether used to make monthly payments or to pay off the entire loan amount, Dr. Clemons is not entitled to a reimbursement for payment of his truck loan, nor is he entitled to a zero value on the truck. Accordingly, we reverse the trial court and assess Dr. Clemons the value of the truck, $15,105, in determining his assets and deny his claim for reimbursement of any payments made on the loan for his truck.

Clemons v. Buffington

As mentioned above, Ms. Clemons also disputes classification by the trial court of the settlement proceeds in a suit styled, Clemons v. Buffington. Prior to termination of the marriage, Dr. Clemons recruited Dr. Buffington as a veterinarian for the Rocking Rooster clinic. Prior to separation, the employment of Dr. Buffing-ton was terminated and she established her own clinic. Dr. Clemons filed suit alleging that Dr. Buffington violated her non-compete clause in the contract with him. The settlement of the suit was signed by both Dr. and Ms. Clemons. The trial court classified the $19,000 settlement proceeds as $10,000 community and $9,000 separate. Dr. Clemons did not appeal this classification. Ms. Clemons, however, argues that the entire amount should be deemed community property.

Only the correctness of the classification of the separate portion is at issue. Under these facts, at least part settlement proceeds compensate for the harm done to the goodwill of the business. Goodwill is the excess value of a business enterprise beyond the buildings, inventory and contracts. Gill, supra. If the underlying business is community, the goodwill will be considered as community property for purposes of partition. Id. Goodwill that represents future earnings of a spouse may be considered a personal attribute not subject to distribution as community. Id.; 16 Louisiana Civil Law Treatise § 2.6 (3d Ed.2007). In addition, where one spouse holds a professional degree or license and the goodwill results solely from that professional’s personal relationship with clients, that goodwill is not included in the community. Gill, supra; Head v. Head, 30,585 (La.App.2d Cir.5/22/98), 714 So.2d 231; see, also, La. R.S. 9:2801.2. To the extent, therefore, that the suit between Dr. Clemons and Dr. Buffington arises from his personal relationship with his clients and injury to the future earnings of |1sDr. Clemons, the trial court properly classified the settlement proceeds as his separate property.

Included in the petition of Dr. Clemons in his suit against Dr. Buffington is an allegation that Dr. Buffington contacted existing clients of Rocking Rooster Veterinary Services in violation of the non-compete clause. In addition, the judgment after settlement reflects that Dr. Buffing-ton, in exchange for payments to Dr. Clemons, received lists of Rocking Rooster’s clients, particularly small animal clients. The record shows that at least part of the harm involved in the Buffington suit involved Dr. Clemons’ relationships with his clients and any potential future income that he, through his professional services, would derive from them. We, therefore, cannot find that the trial court manifestly ' erred in determining that $9,000 of the settlement proceeds were separate property and we affirm the trial court’s decision in that regard.

CONCLUSION

For the reasoning set forth above, we reverse the trial court’s denial of Dr. Clemons’ claim for reimbursement for payment of the mortgage and insurance premiums covering the community property. In addition, we amend the trial court’s calculation of equity in the property. We reverse the trial court’s award under La. C.C. art. 121 to Ms. Clemons. We affirm the trial court’s valuation of the cattle and horses owned by the community as $35,000 and affirm its deduction of $10,000 for maintenance of the animals. We further affirm the trial court’s valuation of bad debts as $4,000. We reverse the trial court’s valuation of Dr. Clemons’ truck at zero and assess |18Pr. Clemons with $15,105 for the value of the truck. Finally, we affirm the trial court’s characterization of the settlement proceeds from Clemons v. Buffington. Accordingly, we amend Ms. Clemons’ equalization award to $101,915.89. Costs of appeal are assessed equally to both parties.

AMENDED, AND AS AMENDED, AFFIRMED.

ON REHEARING

Before WILLIAMS, GASKINS, PEATROSS, MOORE & LOLLEY, JJ.

PEATROSS, J.,

on rehearing.

hWe grant rehearing as to the application of Dr. Clemons questioning the calculation of the equalization payment. We find that the judgment of the trial court does not clearly reflect what items were included in the equalization payment awarded to Ms. Clemons. Specifically, we note that it is not apparent from the judgment whether the trial court included in its equalization calculation the article 121 award for financial support during the veterinary education of Dr. Clemons. We have held in our original opinion that Ms. Clemons is not entitled to an award under article 121. We remand, therefore, for the narrow purpose of determining whether or not the article 121 award of $17,500 was included in the trial court’s original equalization payment and to calculate the equalization payment accordingly, as consistent with the original opinion of this court. On rehearing, we further find that the recalculation of the equalization payment must reflect a reduction of one-half the agreed value of the mobile home or $5,000.

Rehearing is denied as to all other issues raised by either party in this ease.

REHEARING GRANTED IN PART, DENIED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE INSTRUCTIONS CONTAINED HEREIN.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge. DALEY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Noel E. DAUZART.
    No. 07-KA-15.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Walter G. Amstutz, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Martin E. Regan & Associates, Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, THOMAS F. DALEY and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

[{.Defendant is appealing his second felony offender sentence. This is defendant’s second appeal from his second conviction in this case. A brief history of the case reflects that defendant was charged by bill of information with three counts of armed robbery, in violation of LSA-R.S. 14:64. The matter subsequently proceeded to trial on two of the counts. After considering the evidence presented, the twelve person jury unanimously found defendant guilty as charged on the two counts. The trial judge sentenced defendant to sixty years at hard labor without benefit of parole, probation or suspension of sentence on each count, to run concurrently.

This Court, in State v. Dauzart, 99-730 (La.App. 5 Cir. 11/30/99), 749 So.2d 806, affirmed defendant’s convictions and sentences. Thereafter, the Louisiana Supreme Court reversed defendant’s convictions based on a violation of his right to testify and remanded the matter to the trial court for a new trial. State v. Dauzart, 99-3471 (La.10/30/00), 769 So.2d 1206.

A second trial was held, and the jury found defendant guilty of count two, but not count one. As a result of his conviction for one count of armed robbery, the trial judge sentenced defendant to fifty years at hard labor.

^Thereafter, the state subsequently filed a bill of information alleging defendant to be a third felony offender, LSA-R.S. 15:529.1. After a hearing, the judge found defendant to be a third felony offender, vacated defendant’s previous sentence, and imposed an enhanced sentence of life imprisonment at hard labor without benefit of parole, probation or suspension!!]

On appeal, this Court affirmed defendant’s armed robbery conviction but vacated his multiple offender adjudication and sentence. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159. In an error patent review, we concluded that the state erroneously used defendant’s 1989 conviction for attempted possession of a firearm as well as the underlying felony conviction used to support the firearm charge in finding him to be a triple felony offender. We indicated that using both convictions was prohibited as that constituted double enhancement. Accordingly, defendant’s multiple offender adjudication and sentence were vacated, and the matter was remanded for further proceedings.

On June 4, 2003, the trial court resen-tenced defendant as a second felony offender to 100 years at hard labor. This appeal followed.

The facts were set forth in defendant’s previous appeal, State v. Dauzart, 749 So.2d at 807-808, as follows:

On October 4, 1996, Hannon entered the Metro Bank brandishing a gun and demanded that the tellers hand over all the money in their drawers. A silent alarm was activated during the robbery and the police arrived immediately on the scene.
Office Oscar Munoz of the Kenner Police Department parked his unit next to a green Maxima parked in the rear of the bank. The vehicle was driven by Dauzart. As Officer Munoz surveyed the scene, Hannon exited the bank and jumped into the rear seat of the vehicle driven by Dauzart. The officer attempted to detain the suspects, but they fled the scene. At no time did the officers see a gun in view, nor did it appear that Dauzart was being threatened by Han-non.
pDauzart and Hannon were chased to the Esplanade Mall. They entered the mall and were spotted by Officer Labar-riere. He gave chase to the two suspects, who split up once they entered the mall. Dauzart was apprehended by two other officers, with the assistance of Officer Labarriere. He was in possession of a backpack containing some of the money stolen from the bank. Dau-zart resisted arrest and had to be physically manhandled back to the police car and secured within. Hannon was also arrested in the mall in possession of some of the money from the bank and a nine-millimeter revolver.
Two of the tellers from the bank were brought to the Esplanade Mall for identification purposes. They both affirmatively identified Hannon as the perpetrator of the robbery. Officer' Munoz identified Dauzart as the driver of the vehicle.

In this appeal, defendant’s counsel filed a brief in which two allegations of error are alleged. Defendant first argues that the trial court erred in failing to quash the multiple bill. Next it is argued that error patent was committed when defendant was not given a full evidentiary hearing before sentence was imposed.

A second brief was filed by different counsel in which the above allegations of error are also urged. In addition, defendant argues that the trial court erred in imposing an excessive sentence, and in failing to order a presentence investigation prior to resentencing.

In his first allegation of error, defendant argues that the trial court erred in denying his motion to quash the multiple bill. He contends that the delay in filing the multiple bill was unreasonable, as it was not filed until five years after the robbery and three years after he was originally convicted and sentenced, (later overturned by the Louisiana Supreme Court). Defendant also argues that the enhanced sentence imposed was vindictive and given to penalize him for having successfully attacked his first conviction.

The State counters that the defendant failed to file a written motion to quash the multiple bill in the trial court and therefore he is precluded from seeking review of this issue. The State further contends that this allegation is without merit and the Ifjdelay in filing the multiple bill was not unreasonable and the multiple bill was not filed for a vindictive purpose.

Defendant did not file a written motion to quash, and raised the issue orally after he was adjudicated a third felony offender. A motion to quash is a procedural vehicle for challenging an indictment or a bill of information. LSA-C.Cr.P. articles 531-533. Such a motion must be in writing. State v. Branch, 00-1668 (La.App. 5 Cir. 3/28/01), 784 So.2d 43; State v. Bentel, 00-0057 (La.App. 5 Cir. 9/26/00), 769 So.2d 1247. The record in this case reflects that the state did not object to the lack of a written motion in the court below, and has raised this issue for the first time on appeal. The record further reflects that the trial judge considered the oral motion without objection by the state and then denied it. We find that the State’s position that the assignment of error should not be heard is unwarranted and that defendant should be allowed to address the issue on appeal. State v. Kunzman, 31,976 (La.App. 2 Cir. 5/5/99), 741 So.2d 112.

LSA-C.Cr.P. art. 874 provides that a sentence shall be imposed without unreasonable delay. Under LSA-R.S. 15:529.1 D(l)(a), a multiple bill may be filed against a defendant who has been convicted of a felony “at any time, either after conviction or sentence.” While LSA-R.S. 15:529.1 does not establish a time limit for habitual offender proceedings, the jurisprudence holds that a multiple offender bill must be filed within a reasonable time after the state learns the defendant has prior felony convictions. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45, 55. This rationale is based upon a defendant’s constitutional right to a speedy trial and to know the full consequences of the verdict within a reasonable time. State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561, 562.

Speedy trial concerns require that habitual offender proceedings also be completed in a timely manner. State v. Muhammad, 875 So.2d at 55. The | JMuhammad court stated, “Abusive or vindictive delays should not be tolerated. The longer the state delays filing and is responsible for postponing the completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the state.” Id. The Louisiana Supreme Court, overruling State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), found that there is no bright line deadline by which a multiple offender proceeding must be completed. Muhammad, 875 So.2d at 56. Any conclusion as to what constitutes a reasonable time must be determined on a case-by-case basis. State v. Broussard, 416 So.2d 109, 110-111 (La.1982); State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561, 563.

The defendant bears the burden of proving prosecutorial vindictiveness. State v. Darensbourg, 06-572 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128. In determining whether there has been prosecuto-rial vindictiveness, the court examines the state’s actions in the context of the entire proceeding. Id. If, to a reasonable mind, the filing of the habitual offender bill can only be explained by a desire to deter or punish the defendant’s exercise of legal rights, the events in the case will create a presumption of vindictiveness. Id.

The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993); LSA-C.Cr.P. art. 61. The district attorney’s use of the habitual offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” State v. Orange, 02-711 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, 578, writs denied, 03-1352 (La.5/21/04), 874 So.2d 161, and 03-2195 (La.7/2/04), 877 So.2d 137. The use of the habitual offender law alone does not create a presumption of prosecutorial vindictiveness. Id.

|7The following timeline is applicable to this matter:

November 11, 1996 — defendant charged with three counts of armed robbery. Thereafter, the bill is amended to omit one count of armed robbery.
March 20, 1998 — defendant convicted of two counts of armed robbery. At the conclusion of trial, the state gave oral notice of intent to file multiple bill.
April 3, 1998 — defendant sentenced to 60 years at hard labor on each count, concurrent
October 30, 2000 — convictions and sentences reversed by Supreme Court. September 26, 2001 — defendant convicted of one count of armed robbery.
October 19, 2001-the state files a multiple bill charging defendant as a- third felony offender.
October 31, 2001 — defendant sentenced to 50 years at hard labor.
December 18, 2001 — the State files another multiple bill charging defendant as a third felony offender.
January 9, 2002 — defendant resentenced as a third felony offender to life imprisonment.
March 25, 2003 — multiple offender adjudication and sentence vacated by this Court.
June 4, 2003 — defendant resentenced as a second felony offender to 100 years.

The trial court, in denying the motion to quash at the original sentencing on the multiple bill stated that there was no evidence of vindictiveness on the part of the state because defendant won his appeal. The trial court further opined that the delay between defendant’s conviction and the appeal was not unreasonably long and that, even if the delay was unreasonable, that delay in no way prejudiced defendant. The trial judge noted that because defendant’s initial conviction was reversed, any multiple bill filed against defendant would have been “out the window as was the conviction.” The trial judge also noted that he was focused on |sthe short time period between defendant’s most recent conviction and the filing of the multiple bill.

In a similar case, State v. Carter, 32,733 (La.App. 2 Cir. 10/27/99), 746 So.2d 711, 713, writ denied, 1999-3336 (La.5/5/00), 761 So.2d 542, defendant was convicted in October 1996 and was sentenced in December 1996. In December 1997, the appellate court vacated the sentence and remanded for resentencing. In March 1998, a multiple bill was filed. Initially, a multiple bill was not filed because the district attorney believed that a 20-year sentence was adequate; however, when the sentence was vacated and the case was remanded for resentencing, the prosecutor took , the steps necessary to ensure that defendant would receive what he considered to be a proper sentence. In fact, defendant, although adjudged a multiple offender, received a lesser sentence than that initially imposed. The appellate court concluded that, under these circumstances, the delay was not unreasonable, the prosecutor’s actions were not vindictive or malicious, and the delay did not prejudice defendant’s ability to defend against the charge. Id.

In the instant case, we find that the delay in filing the multiple bill was not unreasonable, vindictive, or prejudicial. As in Carter, defendant’s two concurrent 60-year sentences initially imposed were adequate; however, when those convictions and sentences were vacated and defendant was convicted the second time of only one count of armed robbery, the prosecutor took the steps necessary, i.e., filed a multiple bill, to ensure that defendant would receive what he considered to be a proper sentence. We also note that the first multiple bill was filed very shortly (less than four weeks) after the second conviction.

Nevertheless, our inquiry does not stop here. In brief, the defendant also argues that, as a result of the multiple bill, the enhanced sentence imposed was vindictive. Defendant was originally convicted of two counts of armed robbery 19and sentenced to two concurrent sixty year terms. After his successful appeal, he was convicted of one count of armed robbery and sentenced to 50 years. Now, and as a result of the multiple bill, defendant is sentenced to 100 years, an increase of 40 years from his original sentence.

Generally, if a convicted defendant is successful in having his conviction overturned on appeal, and is subsequently re-tried and convicted, the trial judge may not then impose a more severe sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A defendant may not be punished for seeking appellate redress. State v. Tremain P., 06-438 (La.App. 5 Cir. 1/16/07) 956 So.2d 1. If a judge imposes a more severe sentence on a defendant when he is convicted following a successful appeal, the trial judge’s reasons for the increased sentence must affirmatively appear in the record. Otherwise, there is a presumption of vindictiveness. The purpose behind this rule is to prevent defendants from being penalized for having exercised their constitutional rights. State v. Fletcher, 845 So.2d 1213.

However, the presumption of vindictiveness is inapplicable where different judges have imposed the different sentences against the defendant, because a sentence “increase” cannot truly be said to have taken place. State v. Rodriguez, 550 So.2d 837, citing Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104. Where the presumption does not apply, the defendant may still be entitled to relief, but he must affirmatively prove actual vindictiveness. Wasman v. U.S., 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424, State v. Rodriguez, supra.

In this case, the judge who presided over defendant’s first trial, and imposed sentence pursuant to that conviction was not the same judge who presided over the retrial and the multiple bill hearing. Accordingly, defendant is not entitled to the presumption of vindictiveness, but bore the burden of affirmatively showing same. |inIn brief filed by the Appellate Project, defendant argues that trial court’s failure to articulate why the sentence was increased is sufficient to show vindictiveness. Just the fact that the sentence was increased is not sufficient, since defendant’s harsher sentence is as a result of his conviction as a multiple offender. State v. Conrad, 94-232 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062.

For the foregoing reasons, we find that the trial court did not err in denying the motion to quash the multiple bill as there is no evidence that the delay in filing the multiple bill was unreasonable, prejudicial, or vindictive. Furthermore, the defendant failed to bear his burden of affirmatively proving vindictiveness on the part of the trial judge in resentencing.

Next, defendant argues that error patent was committed because the State was obligated to file a new multiple bill and he was entitled to a full evidentiary hearing on the new multiple bill after remand. He maintains this contention even though defense counsel agreed with the trial judge that defendant was only brought back to court for resentencing as a second felony offender, and that an evidentiary hearing was not ordered. The state responds that defendant is not entitled to relief, and further that he faded to preserve this issue for appellate review, because he agreed that the trial court should not hold a full evidentiary hearing, and because he did not object to the introduction of the prior multiple bill hearing into the record.

In defendant’s prior appeal [State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159] we concluded that the state erroneously used defendant’s 1989 conviction for attempted possession of a firearm as well as the underlying felony conviction used to support the firearm charge in finding him to be a triple felony offender. This Court indicated that using both convictions was prohibited as that constituted double enhancement. Thereafter, we remanded the matter.

|nOn June 4, 2003, the trial judge conducted a hearing as mandated by this Court. At that hearing, counsel for the defendant, the district attorney and .the trial judge all agreed that the defendant was present to be resentenced as a second felony offender. At that time, the state offered to file into the record the entire first hearing on the multiple bill without objection by defense counsel. After hearing arguments of defense counsel and the state regarding an appropriate sentence, the trial judge resentenced defendant as a second felony offender to 100 years at hard labor.

Defendant argues that his allegations of error in the habitual offender proceedings warrant a vacation of his sentence and a remand for imposition of sentence on his conviction. Initially we note that errors in a habitual offender proceeding are subject to harmless error review. State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257.

Defendant first alleges that the state was required to file a new multiple bill, as per our language in the prior appeal. The state contends that it orally amended the multiple bill to cure the double enhancement defect. Although the minute entry dated June 4, 2003 supports the state’s contention, the transcript does not specifically so state. However, even assuming that there was no amendment to the multiple bill, such defect is harmless in this case, since the defendant was sentenced as a'second (not a third) offender. While the State did not provide written amendment or file a new bill, it is clear from the proceedings below that both the state and the defense counsel were aware that defendant was being considered as a second felony offender. Compare State v. Fletcher, 01-809 (La.App. 5 Cir. 2/26/02), 811 So.2d 1010, 1014, where this Court set aside defendant’s adjudication as a third felony offender, entered judgment adjudicating 112defendant a second felony offender, and remanded to the trial court for resentencing without the necessity of the state filing a new bill of information.

Next, defendant alleges that he was entitled to a new hearing on the multiple bill. However, defense counsel failed to lodge a contemporaneous objection when the trial judge resentenced defendant as a second felony offender without a second full evi-dentiary hearing. The record presently before this Court contains the prior multiple bill hearing and it reflects that at the prior hearing, defendant was advised of the allegations of the multiple bill, and the state presented testimony from their fingerprint expert, Captain Merril Buling. After hearing the testimony, considering the evidence and listening to arguments of counsel, the trial judge found sufficient proof to determine that the State had proven that defendant was the same person who had committed the prior offenses . The trial judge also provided written reasons for his finding.

We do not believe that defendant was prejudiced by the lack of a new multiple bill and a new multiple bill hearing. A review of the record and the transcript of the previous multiple bill hearing shows that defendant’s constitutional rights were not violated, because he was given the opportunity to and did deny the allegations of the multiple bill filed on December 18, 2001, and because a full evidentiary hearing was held on January 9, 2002 wherein defense counsel was given the opportunity to and did cross-examine the witness, review the exhibits, and present arguments. While the defendant did not specifically plead guilty to his status as a second offender, he did stipulate that the remand was for | isthe purpose of resentencing him as a second offender, and the evidence introduced into the record supports defendant’s adjudication as a second offender.

Accordingly, we find no merit to the defendant’s contention that the trial court committed reversible error by failing to file a new multiple bill or to hold a full evidentiary hearing before resentencing.

Defendant next argues that his 100-year enhanced sentence is constitutionally excessive. He notes that the trial court failed to provide reasons to justify the sentence under LSA-C.Cr.P. art. 894.1. He contends that the trial court should have considered the following mitigating factors pertaining to the crime prior to sentencing: (1) defendant did not enter the bank and demand money from anyone at gunpoint as he was sitting in the car outside the bank; (2) his co-defendant entered the bank and maintained possession of the gun used in the commission of the armed robbery; (3) his co-defendant testified against him in exchange for a 50-year sentence and no multiple bill and, therefore, it is unfair that the violent person who wielded the gun got a lesser sentence; (5) defendant was unaware of the co-defendant’s plan to rob the bank; (6) and the co-defendant forced defendant to drive away from the scene by threatening him with the gun.

Defendant also contends that the trial court failed to consider the following other mitigating factors pertaining to his medical condition prior to sentencing: (1) the Ken-ner Police Department physically abused him when they apprehended him, causing permanent hearing loss in one ear as a result of his injuries; (2) defendant could not have masterminded the robbery as the co-defendant alleged because he suffered from mental disorders; (3) defendant was a special education student in school, and he received psychiatric treatment as a child and while in prison; (4) defendant is taking a medication used to treat schizophrenia; however, defense counsel believes that defendant is autistic and not schizophrenic. Defendant | uconcludes that an adequate sentence can only be imposed after consideration of all the above factors related to his history.

The state responds that the record supports the imposition of the sentence, despite defendant’s contention that the circumstances of the crime and his alleged mental disorder warrant a lesser sentence.

Because defendant failed to file a motion to reconsider sentence, or state the specific grounds upon which the motion is based, he is limited on appeal to a review of the sentence for constitutional excessiveness. State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 677 (citing State v. Dorthey, 623 So.2d 1276 (La.1993)). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Three factors to be considered in reviewing a sentence for excessiveness are: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentences imposed for similar crimes by the same court and other courts. State v. Tracy, 02-0227 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213. The trial judge has wide discretion in imposing sentences within statutory limits, and a sentence will not be set aside if it |1ñis supported by the record. State v. Taylor, 02-1063. (La.App. 5 Cir. 2/25/03), 841 So.2d 894, 900, writ denied, 03-0949 (La.11/7/03), 857 So.2d 516.

As a second felony offender with an underlying armed robbery conviction, defendant was exposed to a sentencing range of 49½ years to 198 years. The record shows that the trial judge imposed a 100-year enhanced sentence without providing reasons. Similar sentences for similarly situated defendants have been found to be constitutional. See State v. Hargrove, 40,427 (La.App. 2 Cir. 3/8/06), 924 So.2d 477, 478-479, writ denied, 2006-1380 (La.12/8/06), 943 So.2d 1059; State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866, 870-871, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851; State v. Pierre, 02-838 (La.App. 5 Cir. 12/30/02), 834 So.2d 1229, 1231-1233, writ denied, 2003-0508 (La.10/17/03), 855 So.2d 755.

In the instant case, we find that the 100-year enhanced sentence is not constitutionally excessive, as the record supports the sentence imposed. With respect to the circumstances surrounding the crime, the record indicates that defendant purchased bullets for the weapon, that his participation was carefully planned the day prior to the bank robbery, and that defendant entered the bank the day before the robbery to review the bank’s security. The record also indicates that defendant was the person who drove the car to a shopping center after the robbery, and that he and co-defendant were apprehended there, thus endangering the safety and welfare of a large number of people. Furthermore, the record does not support defendant’s contention that the co-defendant forced him to participate in the robbery.

Defendant also argues that he is being treated unfairly because his co-defendant received a sentence of 50 years whereas he has received an enhanced sentence of 100 years. Defendant made a similar argument in his first appeal after |1fihe received two concurrent 60-year sentences; however, this Court found that defendant’s argument was without merit, stating that the trial judge must exercise his sentencing discretion to impose sentences graduated according to the individualized circumstances of the offense and the offender. State v. Dauzart, 99-730 (La.App. 5 Cir. 11/30/99), 749 So.2d 806, 812.

With respect to defendant’s medical history, there is no evidence in the record to support defendant’s assertion that he has a mental illness, or that he could not have planned the robbery due to a mental illness. Although defendant makes allegations regarding his medical history in his brief, this Court has no authority to receive or review evidence not contained in the trial court record. State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078, 1087.

Finally, we note that defendant’s 100-year enhanced sentence was approximately half the maximum sentence that could have been imposed (LSA-R.S.15:529.1 A(l)(a); LSA-R.S. 14:64). We find defendant’s allegation that the sentence imposed is excessive to be without merit.

Defendant argues that, in the event this Court remands for resentencing, he is entitled to a presentence investigation (PSI) prior to resentencing, and he requests that this Court instruct the trial court to order one. However, because we affirm the conviction and sentence, this issue is moot.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals two errors patent.

First, the trial court failed to properly inform defendant of the prescriptive period for filing post-conviction relief pursuant. LSA-C.Cr.P. art. 930.8. states that a defendant has two years after the judgment of conviction and sentence becomes final to file for post-conviction relief. Here the trial judge stated that the defendant |17would have “two years to file for post conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence becomes final renders that advisal incomplete. State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761. Accordingly, we remand this matter with instructions for the trial court to inform the defendant of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant after the rendition of this Court’s opinion and filing written proof that the defendant received the notice in the record. State v. Roche, supra.

Second, the trial judge did not impose the enhanced sentence without benefit of parole, probation, or suspension of sentence as mandated by LSA-R.S. 15:529.1 G and R.S. 14:64 B, the underlying statute. No corrective action is necessary, because the sentence is deemed to contain that restriction under the provisions of LSA-R.S. 15:301.1.

For the above discussed reasons, the defendant’s adjudication as a second offender and his enhanced sentence are affirmed. We remand the case to the district court with instructions for the trial court to correctly inform the defendant of the prescriptive period for seeking post-conviction relief.

AFFIRMED AND REMANDED.

DALEY, J.,

Concurs:

[1RI write separately to express my concern over the increase in Mr. Dauzart’s sentencing. He originally was sentenced to 60 years based on his conviction for two counts of armed robbery and is now sentenced to 100 years at hard labor for a conviction on one count of armed robbery. Appellant argues that had the defendant not appealed his original conviction he would have served only a 60 year sentence because the District Attorney did not pursue enhancement after the first conviction and he is now facing a 100 year sentence, which he contends is fundamentaly unfair.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) the United States Supreme Court held that the Due Process Clause of the 14th Amendment prevented an increase sentence following a retrial if the increase in the sentence was motivated by vindictiveness against the defendant, because the fear of such retaliation would have a chilling effect on the defendant’s exercise of his appellate rights. This rule of law has been cited and followed in State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971) and State v. Howard, 02-2435 (La.App. 4 Cir 3/19/03), 843 So.2d 439. In this case the standard set forth in North Carolina v. Pearce, supra was not technically violated because the filing of a habitual offender bill and enhancement pursuant to habitual offender proceedings created a basis for enhancement other than vindictiveness against defendant’s appellate rights. I suggest and recommend that the legislature consider establishing prescriptive l19limits for the filing of a habitual offender bill. Such limits, assuming they are reasonable, would eliminate any appearance of vindictiveness against a defendant if and when a defendant’s case is retried.

      . The trial court admitted the following exhibits into evidence without objection by the defense: State's Exhibit 1 which consisted of a bill of information, minute entry, guilty plea form, and arrest register pertaining to defendant’s conviction for second offense possession of marijuana in case number 323-665 of the Criminal District Court in Orleans Parish; State’s Exhibit 2 which consisted of a bill of information, guilty plea form, minute entry, docket master, and screening action forms pertaining to defendant’s conviction for attempted possession of a firearm by a convicted felon in case number 335-320 of the Criminal District Court in Orleans Parish; State’s Exhibit 3, an arrest register; and State’s Exhibits 4 and 5, defendant’s fingerprint cards taken the day of the hearing. (02-KA-1187, pp. 525-526).


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Juan J. PARNELL.
    No. 07-KA-37.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 15, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Martin Belanger, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate, New Orleans, LA, for De-fendanVAppellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

LThe Defendant, Juan J. Parnell, appeals from his convictions on three counts, (1) possession of a firearm by a convicted felon; (2) possession of marijuana, second offense; and (3) possession of an unidentifiable firearm, and his respective sentences of 12 years without benefit of parole, probation, or suspension of sentence and a $1000.00 fine, five years and, as a second offender, eight years without benefits of parole, probation, or suspension of sentence, all ordered to run concurrently. For the reasons which follow, we affirm.

On May 24, 2005, by an amended bill of information, the Jefferson Parish District Attorney’s Office charged the Defendant in count one with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, having previously | ¡¡been convicted in case number 01-1938, 24th J.D.C., Division “B,” of possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A), and possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). He was charged in count two with possession of marijuana for a second time, based on a previous conviction for possession of marijuana in case number 01-1938, 24th J.D.C., Division “B.” And he was charged in count three with possession of an unidentifiable firearm, a violation of La. R.S. 40:1792.

The Defendant was arraigned on this bill of information and pled not guilty. On October 13, 2004, the Defendant filed an omnibus motion, which included a Motion to Suppress Confession, Identification, and Physical Evidence. On June 3, 2005, after a hearing, the trial court denied the motion to suppress the Defendant’s statements and the evidence. On March 10, 2006, the Defendant filed a second omnibus motion, which included a Motion to Suppress Confession, Identification, and Physical Evidence. On July 10, 2006, trial commenced.

At the hearing on the motion to suppress and at trial, the following evidence was adduced. Deputy Lance Williams of the Jefferson Parish Sheriffs Office testified that he was on patrol with his partner, Deputy Harold Bourgeois, in the Lincoln-shire area in Marrero on August 31, 2004. They were traveling in a champagne-colored Crown Victoria, described as a “police package” and admittedly recognized as an unmarked police vehicle by people in the area. He described the area as “a pretty rough neighborhood” or a high crime area. At approximately 11:30 p.m. Deputy Williams testified that he observed the Defendant from approximately 25 to 30 yards away standing a few feet from the | ¿street in the front yard area of a house. Deputy Williams admitted that the Defendant was just standing there when he first observed him. As the vehicle moved closer, the Defendant looked toward them. Deputy Williams stated that the Defendant’s eyes opened fully and he “looked like a deer in the headlights.” He testified that the Defendant immediately placed his right hand into his right front pants pocket and started backing up the driveway. Deputy Williams stated that he thought the Defendant was acting like he was trying to hide something, possibly narcotics. Deputy Williams stated that he decided to stop and speak to the Defendant. Deputy Williams admitted that at that time he had no reason to believe that the Defendant had committed or was committing a crime.

As Deputy Williams stopped and exited the vehicle in his police uniform, he testified he could smell “burnt marijuana” in the air. Upon exiting, Deputy Williams noticed for the first time another individual who started walking away from the Defendant down the sidewalk. Deputy Williams began to approach the Defendant and Deputy Bourgeois approached the other individual. The Defendant continued to back up the driveway with his right hand in his pocket despite several requests from Deputy Williams to remove it. Deputy Williams’ suspicion grew when the Defendant said to him “I’m in front of my house, you can’t do nothing.” Deputy Williams thought the Defendant was looking around nervously and the Defendant’s fist was clenched so tightly in his pocket that the officer could see the tendons in his forearm.

At that time, Deputy Jeffrey Lehrmann drove up to assist. He approached Deputy Williams and the Defendant and they stood on each side of the Defendant in a “tactical L” position, described as preventing escape. Deputy Williams testified that when the Defendant turned to look at Deputy Lehrmann, changing angles, he could see the outline of the top of a small-frame revolver bulging | ¡^through the Defendant’s pants which were described as baggy shorts. At that point, Deputy Williams stated he was in fear of his safety and the safety of others and immediately grabbed the Defendant’s arm, restraining him and shouting the word “gun.” A loaded .38 caliber revolver was retrieved from the Defendant’s pocket and the Defendant was placed under arrest for carrying a concealed weapon. He was given his Miranda , rights. In searching the Defendant incident to this arrest, Deputy Williams found a partially smoked marijuana cigarette in a cigarette pack. Deputy Williams examined the handgun, and found that the serial numbers on the weapon had been obliterated.

Deputy Williams’ testimony at trial was essentially the same as that at the motion to suppress hearing except for the additional fact that he could smell the marijuana while still in his vehicle through the open window. Deputy Bourgeois and Deputy Lehrmann corroborated most of Deputy Williams’ testimony except that Deputy Bourgeois, pursuing the other person, did not see the handgun in the Defendant’s pocket and Deputy Lehrmann did not smell the marijuana nor notice the Defendant’s hand or a gun in his pocket.

Kathleen Parnell, the Defendant’s mother, testified that she was at her home with the Defendant on the night of August 31, 2004, when she received a telephone call informing her that the police were in her yard. The Defendant had been sleeping and had gone outside no more than five to ten minutes before she received the call. She did not see the Defendant with a gun or marijuana that night. She looked outside and saw the Defendant and one of the three police officers, on the scene, standing by her gray car that was always parked behind the gate. She did not smell marijuana when she went outside and stood beside the Defendant. Ms. Parnell opined that the officers could not have smelled marijuana either, especially |fisince she was cooking two large pots of pears with the windows open in the direction in which the incident took place. Before she went back inside, she saw one officer whispering something into the Defendant’s ear and, later, saw the officers laughing to themselves. The other two police officers were in her yard. She did not see the Defendant standing in the street; rather, he was approximately three or four feet from the street. She also did not hear her son say that he was in his yard and, for that reason, the police could not do anything to him.

Twana Polk testified that, on the date of the incident, she lived across the street from the Defendant. That night she had been talking to the Defendant when some men from the neighborhood arrived at her home. She crossed the street to talk to them. One of the men went across the street to talk to the Defendant. She was in her yard when she saw cars coming down the street with many lights. She was surprised to see it was the police playing rap music. The police stopped near the stop sign, which was past the back gate of the yard where the Defendant was standing. One of the officers got out of their vehicle, pointed at the Defendant, and told the Defendant, “Hey, you, come here.” Then, according to Polk, the Defendant responded, “What you want? I’m in my yard.” The Defendant put his hands up, as if to suggest, “I ain’t got to come to you like this.” The Defendant did not have his hands in his pockets when the police approached him, and the Defendant never left his yard during the entire incident. The police went into the Defendant’s yard, grabbed the Defendant’s arm, twisted it, and slammed the Defendant against a car, in the driveway. Then, while the officer had the Defendant on the car, one of the officers screamed, “He has a gun.” She was surprised when the police said the Defendant had a gun, because she had not felt one. According to Polk, the officers then slammed the Defendant against the car three times causing him to scream. She then called the Defendant’s mother. Polk |7claimed that she watched the entire incident from her yard, and she did not smell marijuana. Polk admitted that she was on six months active probation involving a misdemeanor conviction for possession of marijuana.

The trial court denied the Defendant’s motion to suppress the evidence. The court noted that the officers were in a high crime area when they saw the Defendant. As the officers were driving up, the Defendant put his hand in his pocket and started to walk away. As the officers got out of the car to investigate, they smelled marijuana. In addition, one of the officers saw the Defendant’s hand clenched in a fist leading to the officer’s concern that the Defendant had narcotics. One of the officers also saw the outline of a weapon in the Defendant’s clothing. The court found that at that time, there was probable cause to arrest and search.

On July 12, 2006, after a two-day trial, the Defendant was found guilty as charged on all counts. On September 2, 2006, the Defendant filed a Motion for Post Verdict Judgment of Acquittal, Arrest of Judgment, and Alternatively Motion for New Trial, which were all denied by the trial court on September 22, 2006. On September 22, 2006, after waiving delays, the Defendant was sentenced on count one to 12 years at hard labor without benefit of parole, probation, or suspension of sentence and a fine of $1000, on count two to five years at hard labor to run concurrent with count one, and on count three to five years at hard labor without benefit of parole, probation, or suspension of sentence to run concurrent with counts one and two. The Defendant received credit for time served.

On the same day, the State filed a multiple bill alleging the Defendant to be a second felony offender. The State sought to enhance only the Defendant’s current conviction for possession of an unidentifiable firearm (count 3) based on his previous conviction in case number 01-1938, 24th J.D.C., Division “B,” for possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). The [ ^Defendant admitted to the allegations in the multiple offender bill. After the Defendant’s original sentence on count 3 was vacated and sentencing delays were waived, the Defendant was sentenced on count 3 to eight years without benefit of parole, probation, or suspension of sentence to run concurrently with the sentences imposed on counts one and two. On September 25, 2006, the Defendant filed a timely motion for appeal, which the trial court granted. On October 2, 2006, the Defendant filed a Motion to Reconsider Sentence. A hearing on the Defendant’s motion to reconsider sentence is set for May 4, 2007. The Defendant takes this timely appeal assigning only one error.

On appeal, the Defendant argues that the trial court erred in failing to grant the defense’s motion to suppress the' evidence. He argues that the officers lacked reasonable suspicion for a stop and probable cause for an arrest at the time he was “seized.” More particularly, he points out that none of the deputies claimed that he was doing anything unusual or suspicious prior to them questioning him. He contends that putting his hand in his pocket, backing up into his yard, and not removing his hand from his pocket when requested to do so are not indications of suspicious activity under the circumstances presented where there was no reasonable suspicion to stop him and he was free to walk away from the officers. The Defendant claims that his obvious decision not to interact with the deputies was prudent, and not indicative of suspicious criminal activity. Furthermore, at the point when the officers “seized” him within the meaning of the Fourth Amendment, when he was no longer free to walk away and an actual stop was eminent because the Defendant’s movements were blocked by the “tactical L” | flpositioning of the officers, the officers did not have probable cause for the arrest or seizure. Thus, it is argued, any evidence seized as a result of the unconstitutional stop and seizure should have been suppressed.

The State argues, based upon the testimony presented at the suppression hearing and at trial, the trial court did not err in denying the motion to suppress. The State claims that, at the suppression hearing, it was able to show through the testimony of Deputy Williams and Deputy Bourgeois that there was reasonable suspicion for the officers to institute an investigatory stop, which led to probable cause to arrest the Defendant for carrying a concealed weapon, and, subsequently, to search him incident to arrest, revealing that the Defendant possessed marijuana. The State contends that, based on the aforementioned testimony, the high incidence of crime in the area, the Defendant’s reaction to the police, the smell of marijuana, the Defendant’s suspicious behavior in putting his hands in his pockets, and the police officers’ observation of the outline of a gun, there was amble probable cause for the arrest.

It is well settled that when the constitutionality .of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving the admissibility of any evidence seized. La.C.Cr.P. art. 703(D); State v. Warren, 05-2248 (La.2/22/07), 949 So.2d 1215; State v. Brown, 04-882, p. 4 (La.App. 5th Cir.12/14/04), 892 So.2d 45, 48, writ denied, 05-1274 (La.4/28/06), 927 So.2d 278. The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

The Fourth Amendment to the United States Constitution and the Louisiana Constitution article I § 5 protects individuals from unreasonable searches and | mseizures. State v. Liles, 01-573, p. 4 (La.App. 5th Cir.11/27/01), 803 So.2d 125, 129. Although a seizure occurs for Fourth Amendment purposes either when an individual has been subjected to physical restraint or when he submits to the assertion of official authority, California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), no bright-line rule exists for distinguishing between investigatory stops, characterized by brief restraint imposed on a lesser showing of reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and arrests based on probable cause. Inherent in an officer’s right to make an investigatory stop of an individual and to demand his name, address, and explanation of his actions is the right to detain the subject temporarily to verify information given or to obtain information independently of his cooperation. State v. Broussard, 00-3230, p. 3 (La.5/24/02), 816 So.2d 1284, 1286. The use of actual restraint does not alone transform a street encounter between the police and a citizen into an arrest because an investigatory stop necessarily “involves an element of force or duress, temporary restraint of a person’s freedom to walk away.” State v. Salazar, 389 So.2d 1295, 1298 (La.1980); see 4 Wayne R. LaFave, Search and Seizure, § 9.2(d), p. 35 (3rd ed. 1996) (“A stopping for investigation is not a lesser intrusion, as compared to arrest, because the restriction on movement is incomplete, but rather because it is brief when compared with arrest....”). See also Terry v. Ohio, 392 U.S. 1 at 21, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Obviously, not all personal [encounters] between policemen and citizens involve[ ] ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”). State v. Broussard, 00-3230 at 3, 816 So.2d at 1286-7.

|T1Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops to interrogate persons reasonably suspected of criminal activity. State v. Liles, 01-0573, p. 4 (La.App. 5th Cir.11/27/01), 803 So.2d 125, 129. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is something less than probable cause to arrest, and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Liles, 01-0573 at 4, 803 So.2d at 129. “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.C.Cr.P. art. 215.1; State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039, 1043. “[T]he threshold of one’s dwelling ... as is the yard surrounding the house,” are public places under the cases interpreting the Fourth Amendment. U.S. v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976).

An area with the reputation of having “high crime” is an articulable fact upon which the police may rely and is relevant in the determination of whether there is reasonable cause to conduct an investigatory stop. State v. Barney, 708 So.2d at 1207. Flight, nervousness, or a startled look at the sight of a police officer are insufficient alone to justify an investigatory stop by itself. State v. Massey, 03-1166, p. 5 (La.App. 5th Cir. 1/27/04), 866 So.2d 965, 968. However, these types of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion. Id. In addition, a police officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support a finding of reasonable suspicion for an investigatory stop. State v. Massey, 866 So.2d at 969.

LaA determination regarding the credibility of witnesses at the suppression hearing is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Enclade, 03-353, p. 5 (La.App. 5th Cir.9/16/03), 858 So.2d 8, 13. A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Gagnon, 01-1302, p. 5 (La.App. 5th Cir.4/10/02), 817 So.2d 167, 171.

In the present case, Deputy Williams testified that he and his partner Deputy Bourgeois were patrolling in Lincolnshire, a high crime area where he had made numerous narcotic arrests. They first observed the Defendant standing by the street. According to Deputy Williams, he became suspicious when the Defendant recognized their unmarked vehicle, as a Jefferson Parish Street Crimes Unit vehicle, and seemed startled. When the Defendant made eye contact, he jammed his right hand into his front pants pocket and immediately began to back up into the driveway. This behavior, coupled with his years of experience, led Deputy Williams to believe that the Defendant was trying to hide something or might have narcotics.

Deputy Williams stopped his car near where the Defendant was standing. As Deputy Williams got out of the vehicle, he immediately smelled marijuana. Another man who had been standing near the Defendant started walking away. Deputy Williams started to walk toward the Defendant and the Defendant told Deputy Williams that he could not do anything to him because he was in his driveway. The Defendant refused on several occasions to take his hand out of his pocket despite Deputy Williams’ request that he do so.

|1sWhen Deputy Williams first stopped, he just wanted to ask the Defendant some questions. However, we find that what started as a hunch ripened into reasonable suspicion for an investigatory stop and a Terry pat down, with the smell of marijuana, the startled look, and the immediate insertion of his hand in his pocket with a clenched fist and his refusal to remove it after numerous requests, along with his backing up the driveway and pronouncement that he could not be questioned because he was in his yard. As Deputy Lehrmann approached and the Defendant turned, changing his angle, Deputy Williams saw the outline of the top strap and front site of a .38 caliber revolver through the Defendant’s pants. He immediately restrained the Defendant, having cause to conduct a Terry pat down search for weapons for the protection of himself and others, as well as probable cause for arrest.

After the gun was removed, the Defendant was placed under arrest and given his Miranda rights. In a search of the Defendant incident to his arrest, the marijuana was found. Based on the foregoing, we find Deputy Williams had reasonable suspicion to question the Defendant as he followed the Defendant up the driveway, and, upon seeing the outline of the weapon through the Defendant’s pants, probable cause to arrest him. Therefore, we find no error in the trial court ruling denying the Defendant’s motion to suppress.

ERROR PATENT DISCUSSION

The defendant has requested an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990) regardless of whether the Defendant makes such a request. The review reveals the following matters.

luFirst, the record reveals that the trial court did not rule on the Defendant’s timely filed motion to reconsider sentence. The motion for appeal was granted, on September 27, 2006, before the motion to reconsider sentence was filed, on October 2, 2006. The jurisdiction of the trial court was divested. La.C.Cr.P. art. 916. However, even though the jurisdiction of the appellate court has attached, the trial court can still “[cjorrect an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.” La.C.Cr.P. art. 916(3). “If a -motion is made or filed [in a felony case], the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of the sentence.” La.C.Cr.P. art. 881.1(C). However, “[i]f necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evi-dentiary hearing,” pursuant to La.C.Cr.P. art. 881.4(C).

In State v. Winfrey, 97-427, (La.App. 5th Cir.10/28/97), 703 So.2d 63, writ denied, 98-264 (La.6/19/98), 719 So.2d 481, the defendant appealed his armed robbery conviction, his second felony offender status, and his sentence, assigning 13 errors including the denial of his motion to suppress identification and the excessiveness of his sentence. State v. Winfrey, 703 So.2d at 66-68. This Court addressed all of the assigned errors on the merits including the motion to suppress, but declined to address the error on excessiveness of sentence because the record did not reflect a ruling on the defendant’s motion for reconsideration. State v. Winfrey, 703 So.2d at 68-80. This Court reasoned that rather than acting on the defendant’s assigned error on the excessiveness of his sentence, while the defendant’s motion for reconsideration was pending and might vacate his present sentence, it would remand the case for a ruling on the motion and order supplementation of the record with the results. State v. Winfrey, 703 So.2d at 81.

|1sIn the present case, like State v. Winfrey, supra, the Defendant assigns as error the trial court’s denial of his motion to suppress. However, unlike the defendant in State v. Winfrey, the Defendant has not raised any errors regarding his sentence, i.e. excessiveness of sentence. Therefore, we find that the Defendant’s pending motion to reconsider sentence in no way affects our ability to consider this appeal, only raising as error the trial court’s denial of his motion to suppress. ■

Second, the record reveals that the original commitment/minute entry and the original sentencing transcript are inconsistent. The original commitment/minute entry has a clerical error indicating that the Defendant was informed of his Boykin rights. However, the Defendant was convicted in a jury trial. Therefore, upon remand, the trial court is ordered to correct the original commitment/minute entry to reflect that the Defendant was not informed of his Boykin rights upon entering a guilty plea, but rather was convicted in a jury trial. See, State v. Quest, 00-205, p. 10 (La.App. 5th Cir.10/18/00), 772 So.2d 772, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866, in which this Court found that even though clerical errors in the commitment that do not cause prejudice to a defendant’s rights do not merit reversal, the errors .should be amended. State v. Quest, 772 So.2d at 788.

In addition, the transcript of the Defendant’s original sentencing, as well as that of habitual offender commitment and sentencing, indicate that the Defendant was sentenced to five years on count two without any restrictions. However, the original commitment/minute entry suggests that the sentence on count two was imposed with restrictions, because of the restrictions imposed on the Defendant’s entire sentence. Therefore, upon remand, we order the trial court to correct the | ^original commitment/minute entry to reflect that the sentence imposed on count two was imposed without restrictions.

Third, the record reveals that the Defendant did not receive a complete advisement of his post-conviction rights as provided by La.C.Cr.P. art. 930.8. After his original sentencing, the trial judge informed the Defendant that he had “two years from the date of judgment of conviction [became] final to seek post-conviction relief.” The original commitment/minute entry does not indicate that the Defendant received any notification of his post-conviction rights. In addition, the record reveals that the Defendant did not receive a second notification of his post-conviction rights at his multiple bill sentencing.

La.C.Cr.P. art. 930.8 states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Therefore, the Defendant received an incomplete advisement of his rights. State v. Tran, 05-518, p. 8 (La.App. 5th Cir.12/27/05), 919 So.2d 787, 795. Therefore, we remand the case to the trial court and order the court to inform the Defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate written notice to the Defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that the Defendant received the notice. State v. Evans, 01-1148, p. 3 (La.App. 5th Cir.2/26/02), 811 So.2d 994, 996.

Accordingly, for the reasons stated above, the Defendant’s convictions for possession of a firearm by a convicted felon, possession of marijuana, second offense, and possession of an unidentifiable firearm, and his respective sentences of 12 years without benefit of parole, probation, and suspension of sentence and a $100.00 fine, five years and, as a second offender, eight years without benefit of parole, probation, or suspension of sentence, all ordered to run concurrently, are |17affirmed. The case is remanded for the trial court to amend the commitments as ordered and to provide proof in the record of the Defendant’s receipt of appropriate notice, under La.C.Cr.P. art. 930.8 of the prescriptive period for post conviction relief.

CONVICTIONS AND SENTENCES AFFIRMED; CASE REMANDED.

      . The original bill of information and an amendment to it had been previously filed but are not relevant to any issues before this Court on appeal.

      . On the first day of trial, the Defendant stipulated to these two prior convictions.

      . The record indicates that the trial court did not rule on the Defendant’s second pre-trial motion to suppress but we note it was almost identical to the first and he waived his right to a ruling by proceeding to trial without objection and informing the court that there were no outstanding motions. State v. Fletcher, 02-707, p. 3 (La.App. 5th Cir. 12/30/02), 836 So.2d 557, 559.

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

      . In the multiple bill sentencing transcript, the trial court states "[the defendant's multiple bill sentence] will run concurrently with what I’m giving you in count one and concurrently with what I’m giving you in count three.” Since it is impossible for the multiple bill sentence to run concurrently with the original sentence in count three that was vacated, it appears that the trial court meant that the multiple bill sentence should run concurrently with the sentences imposed on counts one and two.

      . See error patent discussion.

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