author: THOMAS F. DALEY, Judge.

text:
    Brenda JINRIGHT v. Dr. Cynthia GLASS, Dr. George Linder, Houma Outpatient Surgery Center, Doctor’s Hospital, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company.
    No. 06-CA-888.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.

      Harry E. Cantrell, Jr., New Orleans, Louisiana, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Bryán J. Knight, Niles, Bourque & Fontana, L.C., New Orleans, Louisiana, for Defendants/Appellees, Dr. Cynthia Glass, Dr. George Linder and Louisiana Medical Mutual Insurance Company.
    Mickey S. deLaup, Alexandra L. Kelly deLaup, Schexnayder & Miranda, LLC, Metairie, Louisiana, for Defendant/Appel-lee, Houma Outpatient Surgery Center.
    Kathryn M. Caraway, Sheri S. Faust, Frilot Partridge, L.C., New Orleans, Louisiana, for Defendant/Appellee, Doctors’ Hospital.

      Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

| c.The plaintiff has appeáled the trial court’s grant of the defendants’ Exceptions of Prescription in this medical malpractice case. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

On September 23,1999, plaintiff, Brenda Jinright, underwent breast reduction surgery performed by Dr. Cynthia Glass and assisted by Dr. George Linder at the Hou-ma Outpatient Surgery Center. Subsequently, she developed an infection and required additional surgery that was performed at Doctors Hospital. On September 22, 2000, plaintiff mailed a complaint relative to her treatment. by Drs. Glass and Linder to the Louisiana Patients’ Compensation Fund pursuant to LSA-R.S. 40:1299.47. Houma Outpatient Surgery Center and Doctors Hospital were also named as defendants. A medical review panel was convened and a decision rendered on June 12, 2003. Plaintiffs counsel received a certified copy of the panel opinion on June 17, 2003.

|4On September 23,.2003, plaintiff filed suit in Civil District Court for the Parish of Orleans against Dr. Cynthia Glass, Dr. George .Linder, Houma Outpatient Surgery Center, and Doctors Hospital. All defendants filed Exceptions of Improper Venue claiming venue was proper in Jefferson Parish. The defendants also filed Exceptions of Improper Service of Process because plaintiff improperly served each party’s counsel whom had represented the respective defendants during the medical malpractice proceeding, rather than the party or their registered agents for service of process. On January 15, 2004, the trial court in Orleans Parish granted both the Exceptions of Improper Venue and Improper Service of Process. The plaintiff sought supervisory review from the Fourth Circuit Court of Appeal regarding this judgment. On April 28, 2004, the Fourth Circuit denied plaintiffs Writ Application.

At that point the matter was transferred to the 24th Judicial District Court (JDC) for the Parish of Jefferson pursuant to the judgment dated January 15, 2004 by the trial court in Orleans Parish. On July 13, 2004, the Clerk of Court for the 24th JDC sent notice of receipt of transfer indicating that the suit would be filed and assigned a case number upon receipt of payment of the requisite fees. On August 10, 2004, the Clerk of Court for the 24⅛ JDC notified all counsel that the case had been transferred and assigned it a filing date of July 27, 2004. After 90 days elapsed, the defendants filed Motions for Dismissal for failure to timely request service. On February 24, 2005, all of plaintiffs claims against defendants were dismissed without prejudice for failure to timely request service. On March 8, 2005, plaintiff re-filed her claims in Jefferson Parish against all of the defendants alleging the defendants were liable to her for damages suffered as a result of the defendants’ negligence in performing her surgery and during her treatment in the post-operative period.

[■¡Defendants then' filed Exceptions of Prescription, which were granted by the trial court. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, the plaintiff claims the trial court- erred in granting the exceptions of prescription because the timely filing of the suit in Orleans Parish interrupted prescription and her suit filed on March 8, 2005 in Jefferson Parish related back to the filing of the Orleans Parish suit. Defendants respond that the Jefferson Parish suit does not relate back to the Orleans Parish suit because the Orleans Parish suit was filed in a court of the improper venue and there was no proper service in the Orleans Parish suit. Defendants also argue that the suit in Orleans Parish was not timely filed and further that regardless of whether the Orleans Parish suit was timely filed, plaintiffs suit filed on March 8, 2005 in Jefferson Parish was prescribed.

Plaintiff contends that her suit in Orleans Parish was timely filed, explaining that prescription did not begin to run until she discontinued treatment with either Dr. Glass or Dr. Linder on August 17, 2000. She received the certified copy of the medical review panel opinion on June 17, 2003 and under LSA-R.S. 40:1299.47(A)(2)(a), she had 90 days from the receipt of the panel opinion in addition to any time remaining in her original prescriptive period to file suit. Using this reasoning, she concludes that she had until January 9, 2004 to file suit. Defendants contend that since the alleged date of malpractice was September 23, 1999, and the PCF suit was filed on September 22, 2000, plaintiff had only one day remaining on her prescriptive period to file suit in addition to the 90 days after receipt of the panel opinion. Defendants conclude plaintiffs had until September 16, 2003 to file suit and as a result the suit filed on September 23, 2003 in Orleans | fiParish was untimely. Defendants further argue that regardless of which prescriptive date is used, plaintiffs suit filed in Jefferson Parish on March 8, 2005 was prescribed and was properly dismissed.

LSA-R.S. 9:5628 A provides:
No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

We disagree with defendants’ contention that prescription began to run on the date of plaintiffs surgery. The record before us is insufficient to determine when prescription began to run. However, our review of the statutory law and jurisprudence results in plaintiffs suit being prescribed even if we were to adopt plaintiffs argument that she had until January 9, 2004 to file suit. This is because we conclude that plaintiffs suit filed in Orleans Parish did not interrupt prescription.

The burden of proof is generally on the party pleading prescription. Hudson v. East Baton Rouge Parish School Board, 02-0987 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286. However, when the petition is prescribed on its face, the plaintiff has the burden of showing that prescription has been interrupted in some manner. Id. Evidence may be introduced to support or controvert the peremptory exception raising the objection of prescription pursuant to LSA-C.C.P. art. 931 when the grounds for the exception do not appear on the face of the petition. In the absence of evidence the exception of prescription must be decided upon the facts alleged in 17the petition, and all allegations therein are accepted as true. Id. In the case at bar, no evidence was introduced at the hearing on the exception of prescription. Accordingly, we review the exception of prescription from the face of the pleadings.

LSA-C.C. art. 3462 provides:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

An action commenced in an incompetent court interrupts prescription under this article as to defendant served by process within prescriptive period, even if process is defective and subject to exception, if process is sufficient to inform persons served of legal demands made upon them. Breaux v. Vicknair, 507 So.2d 1242 (La.1987). However, the proper person, as designated by law, must be served before service of process will interrupt the running of prescription. Mejia v. Lineas Maritimas De Santo Domingo, 570 So.2d 548 (La.App. 4 Cir.1990).

In the case at bar, the plaintiff requested service on the attorneys who represented the various defendants in the medical review panel proceeding rather than serving the physicians individually and the corporate defendants through their agent for service of process “It is only after ... the appearance of a defendant through counsel that service of all other process in the suit may be accepted by his attorney of record.” Wadsworth v. Alexius, 99 So.2d 77, 80, 234 La. 187 (La.1958). In order to interrupt prescription by service of process, it is essential that the defendant be served. Conner v. Continental Southern Lines, Inc., 294 So.2d 485 (La.1974). Thus, prescription was not interrupted as to plaintiffs claims while |sthe suit was pending in Orleans Parish because the suit was filed in a court of improper venue and none of the defendants were properly served within the prescriptive period.

Additionally, the transfer of plaintiffs suit to Jefferson Parish did not serve to interrupt prescription. A transfer pursuant to the grant of an exception of venue does not interrupt prescription. Riley v. Louisiana I-Gaming, 98-1106 (La. 5, Cir. 3/10/99), 732 So.2d 541.

The record reflects that when plaintiffs suit was transferred to Jefferson Parish, no action was taken by plaintiff to correct the improper service instructions that appeared on the original petition filed in Orleans Parish, nor was any action taken to request service. Since the plaintiff did not request service upon the defendants within 90 days after the suit was assigned a transfer date as required by LSA-C.C.P. art. 1201, this suit was subsequently dismissed pursuant to LSA-C.C.P. art. 1672(C). Because plaintiffs claims were dismissed in their entirety for failure to request service there is no statutory basis upon which this suit filed in Jefferson Parish on March 8, 2005 could relate back to the Orleans Parish suit for the purposes of prescription.

In support of her position for relating back, plaintiff relies on LSA-C.C.P. art. 1153, which provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

|9The error in this argument is that plaintiff did not file an amended petition on March 8, 2005; rather, plaintiff filed a new lawsuit after her original petition was completely dismissed for failure to timely request service.

CONCLUSION:

The trial court correctly granted the defendants’ Exceptions of Prescription. Plaintiffs suit filed in Orleans Parish did not interrupt prescription because it was filed in a court of improper venue and service on the attorneys who represented the defendants in the medical review panel proceeding was not sufficient to interrupt prescription. There is no statutory basis for the lawsuit filed in Jefferson Parish on March 8, 2005 to relate back to the lawsuit filed in Orleans Parish where venue was improper and defendants were not served. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiff’s writ application relative to the trial court judgment granting defendants’ Exceptions of Improper Venue and Service were denied.

      . See 8 La. Civ. L. Treatise, Business Organizations § 31.10, which states:
      However, a transfer of venue will not fix prescription problems that would otherwise arise under art. 3462 of the Civil Code. Article 3462 provides that prescription is not interrupted by the filing of a suit in the wrong venue; when a suit is filed in the wrong venue, only service of process on the defendant within the prescriptive period will prevent the claim from prescribing. [FN omitted] A transfer of venue after a suit has prescribed under art. 3462 does not operate retroactively to fix the venue prob- ' lem for prescription purposes; the prescribed claim remains' prescribed. [FN omitted]


source: Caselaw Access Project

author: SEXTON, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Charles REYNOLDS, Appellant.
    No. 41,612-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Rehearing Denied March 29, 2007.

      Louisiana Appellate Project by Annette Roach, for Appellant.
    Don Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

|! Defendant, Charles Reynolds, pled guilty to sexual battery and was sentenced to five years at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals, assigning as error the excessiveness of his sentence.

Additionally, he alleges that the court failed to consider certain exhibits introduced on his behalf at the sentencing hearing. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

In May 2005, Defendant was indicted on a charge of forcible rape, a violation of La. R.S. 14:42.1. In February 2006, Defendant pled guilty to sexual battery, a violation of La. R.S. 14:43.1.

At the sentencing hearing conducted in April 2006, several letters written on Defendant’s behalf were introduced into evidence. The court noted that Defendant had entered a plea to sexual battery and that a pre-sentence investigation had been ordered. The court also noted that Defendant and the victim had some sort of prior relationship, and that, although Defendant was a first-felony offender, he had been charged with numerous misdemeanors in the past. Additionally, the court noted Defendant’s social history, including the fact that his employer had stated that Defendant was a good employee. After stating that it had reviewed the sentencing guidelines, the court observed that Defendant was originally billed with forcible rape and then pled down to sexual battery. Finally, the court stated that it was aware there was a dispute between Defendant’s version of the facts and the victim’s version of the facts and that the court piad noted the aggravating and mitigating circumstances in the case. The court then gave Defendant an opportunity to speak, which he declined.

As stated, the court sentenced Defendant to five years at hard labor to be served without benefit of parole, probation or suspension of sentence, and informed Defendant that he had two years from the date the judgment became final in which to file for post-conviction relief. A motion to reconsider the sentence subsequently was filed and was based on the following: (1) Defendant’s plea was entered under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), due to his alleged inability to locate a witness; (2) Defendant was a first-felony offender with a criminal history of only misdemeanor convictions; (3) Defendant was not guilty of an aggravated offense; and (4) any sentence imposed would have to be served without benefit of parole, probation, suspension of sentence or good time. After conducting a hearing on the motion for reconsideration, the court denied the motion and this appeal followed.

DISCUSSION

Defendant’s single assignment of error on appeal is that his sentence was cruel, unusual and excessive; however, he also states in the assignment that the trial court failed to consider various exhibits introduced on his behalf at the sentencing hearing.

Initially, we note that Defendant’s claims in his motion to reconsider did not include any argument that the trial court failed to consider exhibits presented at the sentencing hearing. When a defendant’s motion for | ¡¡reconsideration urges merely that the sentence is excessive, he is relegated on appeal to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Under the provisions of La. C. Cr. P. art. 881.1(A), failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising any objection to the sentence or from urging any ground not raised in the motion on appeal or review. Defendant’s claim that the trial court denied him a sentencing hearing by failing to consider exhibits presented at sentencing is not properly before this court for review, and our review is limited strictly to the claim of constitutional exces-siveness.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733.

The test imposed by the reviewing court in determining the excessiveness of sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance as long as the record reflects that the court adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.|6/24/98),4 715 So.2d 641. The articulation of the factual basis for sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions; where the record clearly shows an inadequate factual basis for the sentence, remand is unnecessary even where there has not been full compliance. State v. Lobato, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. In the instant case, given the facts and circumstances previously noted, we conclude that the trial court adequately complied with the provisions of Article 894.1. Thus, we now turn to the second prong of the test for excessiveness of sentence: . whether the sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. See State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1.

In this regard, Defendant asserts that a mid-range sentence at hard labor, without the benefit of good behavior, and where he has had no felony contact and “little other contact” with the criminal justice system, is harsh and excessive. We disagree. Although Defendant is a thirty-eight-year-old male with no prior felony convictions, and apparently had some sort of prior relationship with the victim, he received a significant benefit by virtue of his plea bargain, reducing his sentencing exposure from a maximum of forty years under La. R.S. 14:42.1 to a maximum of ten years under La. R.S. 14:43.1. He was sentenced to five years, half of the maximum for the lesser offense. A substantial advantage obtained by means of a plea |,^bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the more serious offense originally charged, is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176.

Defendant argues on appeal that the benefit gained by the reduction in sentencing exposure should have no bearing in this case because his conduct is sufficiently encompassed in the sexual battery statute and that the facts presented do not support a finding of the originally charged offense of forcible rape. We find no merit to this argument. Sexual battery is defined in pertinent part as the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender without consent of the victim. On the other hand, forcible rape is defined in pertinent part as a rape committed when vaginal sexual intercourse is deemed to be without the, lawful consent of the victim because it is committed when the victim is prevented from.resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. In the case sub judice, Defendant admitted that the following account of his crime, as stated by the prosecutor, was correct:

Your honor, on April 18, 2005, Mr. Reynolds committed the crime of sexual battery by placing his penis inside the vagina area of the victim in this case. She had verbally told him that she did not want to have sex with him. She tried1 to .push him off and he insisted on it. Prior to this a week earlier, he had taken some pictures of her in a compromising position.

As shown by the description of the crime as agreed to by Defendant, Defendant did more than merely touch the genitals of the victim; there was [ fipenetration after the victim had told Defendantshe did not want to have sex with him and had tried to resist. Accordingly, we conclude that the benefit of the plea bargain should be included as an important consideration in assessing the alleged excessiveness of sentence, and we find no showing of abuse of the trial court’s sentencing discretion.

CONCLUSION

For the foregoing reasons, we find the sentence imposed herein neither grossly disproportionate to the severity of the offense, nor shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion in the imposition of the sentence chosen for this defendant. Accordingly, the conviction and sentence of Defendant, Charles E. Reynolds, are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, DREW, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Richard GRADY, Appellant.
    No. 41,693-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Sherry Watters, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

I t Originally charged with first degree murder, armed robbery and aggravated burglary in the death of an elderly woman, the defendant, Richard Grady, was allowed to plead guilty to only armed robbery. He was sentenced to 50 years at hard labor without benefit of probation, parole or suspension of sentence. He appeals his sentence as excessive. We affirm.

FACTS

On the afternoon of June 8, 2001, the defendant and two confederates, Gerod Brewer and Lashonda Hill, approached the home of the defendant’s elderly neighbor, Mary Little. Hill knocked on the door to get Ms. Little to open the door so that Brewer and the defendant could enter the house. The defendant later admitted to taking approximately $300 from Ms. Little’s residence and cutting the cord to her telephone so she could not call the police. Several days later, Ms. Little’s partially decomposed body was discovered. She had been beaten about the head; additionally, a pillowcase had been placed over her head and tied with lace around her neck.

The police soon developed the defendant as a suspect, and he was arrested in July 2001. The defendant was originally charged with first degree murder, aggravated burglary, and armed robbery. The homicide charge was later reduced to second degree murder. In exchange for his truthful testimony at Brewer’s trial, the defendant was allowed to plead guilty to only armed robbery in October 2005. The recitation of facts to which the defendant admitted guilt stated that Brewer armed himself with a board after entering Ms. Little’s house and used it to batter her about the head. There was no agreement between the state and the defendant as to his ^sentence. However, the plea agreement provided that a presentence investigation (PSI) report would be ordered and that sentencing would be delayed until after Brewer’s trial. In February 2006, the defendant testified as a prosecution witness in Brewer’s trial; however, the jury acquitted Brewer of Ms. Little’s murder.

In March 2006, the defendant was sentenced to serve 50 years at hard labor without benefit of parole, probation or suspension of sentence.

The defendant filed a motion to reconsider, arguing that a lesser sentence was warranted because he was only 19 years old at the time of the offense and he had been diagnosed as mentally retarded. He also contended that of the three persons involved in Ms. Little’s murder, he was the least culpable, whereas Brewer and Hill had been convicted of a similar murder of an elderly man. Defense counsel further argued that the outcome of the Brewer trial was not the defendant’s fault. The motion was denied.

The defendant appealed, claiming that the trial court imposed an excessive sentence.

LAW

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. |a894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 898 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to, society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

|4A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

DISCUSSION

In imposing sentence, the trial court considered the defendant’s status as a second felony offender. In 1998, the defendant, at age 16, was charged with the aggravated rape of a four-year-old < child. He pled guilty to indecent behavior with a juvenile and was sentenced to seven years at hard labor; four years of that sentence were suspended. The defendant served three years and was placed on supervised probation for five years. He was released from prison five months before the instant offense.

Noting that the victim in the instant case was an elderly woman, the trial court observed that the defendant’s criminal activity was directed toward “particularly vulnerable” people — the very old and the very young. The trial court observed that the defendant also had a significant juvenile criminal history.

As to the defendant’s social history, he finished only the 10th grade before quitting school, and he had no employment history or job skills. He began using marijuana at age 15.

IsThe trial court also presided over Brewer’s trial and was thus familiar with the defendant’s trial testimony. While unwilling to find that the defendant did not testify truthfully, the- court stated that it believed that the defendant had not told the “whole truth” during his testimony. As a result, the state was unable to prove important parts of its case against Brewer.

The trial court noted that in a letter the defendant wrote to the court he described the victim as “a kind and nice lady.” Yet, as the trial court observed, the defendant made no effort to help her after she was beaten, supposedly by Brewer without the defendant’s prior knowledge. Instead, by his own admission, the defendant left her lying on the floor, dead or dying, and went out that night with all of the robbery proceeds to buy drugs and alcohol for his friends.

In reviewing the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the court found that there was an undue risk of the defendant committing another crime, that he was in need of correctional treatment most effectively provided by commitment to an institution, and that a lesser sentence would deprecate the seriousness of the crime. Other aggravating factors included the manifestation of deliberate cruelty toward a particularly vulnerable victim and the defendant’s use of his position as a lessee of the victim to facilitate the commission of the crime. Also, he stole $300 from the victim during the offense. In mitigation, the trial court considered that Brewer and Hill were convicted of a similar crime in Caddo Parish which did not involve the defendant. The court also noted the defendant’s “fairly | (¡low” IQ, but found that the defendant knew the difference between right and wrong.

Contrary to the defendant’s assertions, the sentence imposed by the trial court is not constitutionally excessive. The defendant participated in a brutal home invasion which led to the death of a particularly vulnerable victim, an elderly neighbor whom the defendant himself described as a “nice lady.” The motive for this crime was to rob a helpless old woman of her money. To ensure that she could not call for help, the defendant admitted that he cut the cord on her telephone. The defendant claimed that he did not intend for the victim to be physically harmed. However, as pointed out during the defendant’s cross-examination at Brewer’s trial, the victim knew the defendant — who had been recently released from prison and was on parole — and she would have been able to identify him to the police as one of the people who entered her house and robbed her if she had been allowed to live. The record indicates that the victim was viciously attacked; she was not only bludgeoned in the head with a board but also asphyxiated with a pillowcase placed over her head.

The defendant benefited greatly from the plea bargain which dismissed second degree murder and aggravated burglary charges against him. He was allowed to plead guilty to only armed robbery, an offense which carries a sentencing exposure of imprisonment at hard labor for not less than 10 years and not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64. The sentence of 50 Lyears at hard labor without benefits for the instant crime is in the middle range.

The trial court carefully and methodically considered both aggravating and mitigating factors in tailoring this sentence to this defendant. While the court noted the unhelpful impact of the defendant’s testimony in his co-defendant’s trial, the record demonstrates that it did not place undue emphasis upon this factor. The trial court did not abuse its discretion in imposing sentence upon the defendant. We find that the sentence of 50 years at hard labor without benefit of parole, probation or suspension of sentence is not constitutionally excessive.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Brewer’s conviction for manslaughter, his adjudication as a third felony offender,' and his life sentence were affirmed in State v. Brewer, 38,515 (La.App.2d Cir.8/20/04), 880 So.2d 1005, writs denied, 2004-2509 & 2004-2539 (La.2/18/05), 896 So.2d 27, 896 So.2d 28, reconsideration denied, 2004-2509 & 2004-2539 (La.3/24/05), 896 So.2d 1022. The recitation of facts in that case stated that Hill, pled guilty to armed robbery for her involvement in the offense against that victim and received an agreed sentence of 19 years.

      . The defendant was paroled on January 11, 2001. His parole period ended on June 14, 2001, and his probation period began on June 15, 2001. Thus, he committed the instant offense while on parole, but he was arrested while on probation.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Derrick S. JONES, Appellant.
    No. 41,672-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Sherry Watters, New Orleans, Edward K. Bauman, Lake Charles, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and STEWART, JJ.
   WILLIAMS, J.

liThe defendant, Derrick S. Jones, was charged by bill of information with four counts of second degree kidnapping in violation of LSA-R.S. 14:44.1. Following a trial by jury, he was convicted as charged. The defendant was adjudicated a third felony habitual offender and was sentenced to serve 30 years in prison at hard labor without benefit of probation, parole or suspension of sentence with regard to count one. Regarding counts two, three and four, the defendant was sentenced to serve 15 years in prison at hard labor without benefit of probation, parole or suspension of sentence on each count. Counts two, three and four were ordered to run concurrently to each other, but consecutively to count one. For the following reasons, we grant appellant counsel’s motion to withdraw as attorney of record, and we affirm the defendant’s convictions and sentences.

FACTS

The defendant was charged by bill of information with the second degree kidnapping of his former girlfriend, Kewanita Brownfield, and her friends, Cerone Brice, Calvin Banks and James Williams. Following a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant’s motion for mistrial and/or new trial.

The state filed a habitual offender bill charging the defendant as a fifth felony offender. A hearing was held and the defendant was adjudicated a third felony offender. He was sentenced to serve 30 years in prison at hard labor without benefit of probation, parole or suspension of sentence with regard to count one. Additionally, the defendant was ^sentenced to serve 15 years in prison at hard labor without benefit of probation, parole or suspension of sentence for each of the remaining three counts. Counts two, three and four were ordered to run concurrently to each other, but consecutively to count one. The trial court denied the defendant’s motion to reconsider sentence.

DISCUSSION

The defendant’s court-appointed appellate counsel filed a brief and motion in this court stating that he conducted a “conscientious and thorough” review of the trial court record and found no non-frivolous issues to raise on appeal nor any trial court rulings which arguably would support an appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Matthews, 41,047 (La.App.2d Cir.6/28/06), 935 So.2d 775; State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). In accordance with Anders, Mouton and Benjamin, supra, appellate defense counsel also notified the defendant of his right to file a pro se brief and sought to withdraw from the case.

This court held the motion to withdraw as counsel of record in abeyance and advised the defendant of his right to file an appellate brief within 30 days of the August 31, 2006 order. The defendant requested the record but has not filed a brief.

The record contains minutes of the court proceedings, the bill of information and transcripts of the preliminary examination, trial, habitual offender proceedings and sentencing hearing. The defendant was charged |aby a bill of information which was signed by an assistant district attorney. The defendant was present in court and represented by counsel at all stages of the proceedings.

A review of the transcript reveals there was sufficient evidence on which the jury could have based its verdict. All four of the victims testified with regard to the details of the kidnappings. Shortly after the incident, Brownfield identified the defendant as the perpetrator, and Brice and Williams, who did not know the defendant prior to the incident, identified the defendant in a photographic line-up. Brownfield, Brice and Williams identified the defendant in open court.

Additionally, the sentences imposed are within the sentencing ranges set forth in LSA-R.S. 14:44.1. Even if we reviewed the constitutionality of the sentences, there would be no merit to claims of excessiveness. The statutory range for the offense of second degree kidnapping is five to forty years at hard labor, with at least two years of the sentence imposed without benefit of parole, probation or suspension of sentence. The defendant’s enhanced sentence of 30 years at hard labor as a third felony habitual offender on count one is less than the maximum possible unen-hanced 40-year sentence for second degree kidnapping. The 15-year sentences at hard labor with regard to counts two, three and four are less than one-half the 40-year maximum possible unenhanced sentences. Thus, the sentences imposed neither shock the sense of justice, nor constitute a purposeless and needless infliction of pain and suffering. Our independent review of the record disclosed no non-frivolous issues and no rulings which arguably [ ..¡support an appeal.

ERRORS PATENT

We also examined the record for errors patent in accordance with LSA-C.Cr.P. art. 920. A review of the record herein reveals one error patent. At sentencing, the trial court did not advise the defendant of the time period within which to apply for post-conviction relief. See, LSA-C.Cr.P. art. 930.8(C); State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. By this opinion, we advise the defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

CONCLUSION

For the reasons set forth herein, the motion to withdraw as attorney of record is granted, and the defendant’s convictions and sentences are affirmed.

MOTION GRANTED; CONVICTIONS AND SENTENCES AFFIRMED.


author: EDWIN A. LOMBARD, Judge. GORBATY, J.,

text:
    STATE of Louisiana v. Clay MONTZ, Matthew Taylor, Arthur Irons and Brandon Vicknair.
    No. 2006-KA-1068.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.
    Eddie J. Jordan, Jr., District Attorney, Kimya M. Holmes, Assistant District Attorney, New Orleans, LA, for PlaintiffiAp-pellant.
    Ralph Capitelli, Capitelli & Wicker, New Orleans, LA, for Arthur Irons.
    Franz Zibilich, Martiny & Associates, Metairie, LA, for Matthew Taylor.
    Ralph Whalen, New Orleans, LA, for Brandon Vicknair.

      Stephen D. London, New Orleans, LA, for Clay Montz.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

LThe State appeals the judgment of the trial court granting the defendants/appel-lees motions for change of venue. After review of the record in light of the applicable law and arguments of the parties, we reverse and remand.

Relevant Facts and Procedural History

On December 81, 2004, Levon Jones, an African-American college student from Georgia was celebrating New Years Eve on Bourbon Street with a group of friends and family members. The group was denied admission to Razzoo’s Bar, purportedly because of a dress code violation by one of the group members. During an ensuing scuffle, Jones was fatally injured by the bar’s security personnel (a/k/a “bouncers”) stationed at the barroom entrance. Several bystanders videotaped the incident and those videotapes subsequently were shown in the television coverage of the student’s death.

On June 2, 2005, the four Razzoo bouncers, Clay Montz, Matthew Taylor, Arthur Irons, and Brandon Vicknair, were indicted for manslaughter, a violation of La. Rev. Stat 14:31. The defendants pleaded not guilty and, subsequently, moved for a change of venue. In support of their motion, the defendants introduced over one hundred and forty articles and stories published or broadcast between January 12and August 2005 which mentioned the incident at Razzoo’s. In addition, the defendants submitted thirty-eight articles pertaining to racial strife in the city of New Orleans after Hurricane Katrina, arguing that the post-Katrina racial strife will adversely affect their trial. At the motions hearing held on March 24, 2006, the defendants also presented the testimony of their pollster, Joe Walker, who testified that based on two polls he conducted in the summer of 2005 prior to Hurricane Katrina and in February 2006, it was his opinion that it was highly unlikely that the defendants would receive a fair trial in Orleans Parish.

In a written judgment rendered on April 7, 2006, the trial judge granted the motion to change venue. In his reasons for judgment, the trial judge stated that his jqdgment was based on the following factual conclusions: (1) polls indicated that 98% of those polled were familiar with the facts of the case and 82% of those interviewed had seen the videotape of the incident; (2) public officials, specifically Dr. Frank Min-yard, Jefferson Parish Sheriff Harry Lee, and a group of prominent clergy members, had publicly stated their opinions of the incident; (3) there was a likelihood that the videotapes would be shown again near the trial date; (4) the trial should take place in another venue because of the backlog of cases in the aftermath of Hurricane Katrina and ongoing logistic difficulties at Criminal District Court.

Discussion

On appeal, the State argues that it was error for the trial court to render judgment prior to conducting a voir dire of jurors. We agree.

13A defendant is guaranteed an impartial jury and fair trial and, when a defendant establishes inability to obtain an impartial jury or fair trial in the original venue, the law provides for a change of venue. See La.Code Crim. Proc. art. 622; State v. Hoffman, 98-3118, p. 5 (La.4/11/2000) 768 So.2d 542, 552 (citations omitted); see also State v. Wilson, 467 So.2d 503, 512 (La.1985), cert denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985) (burden is on the applicant seeking a change of venue to show that an impartial jury or fair trial is not possible in the original venue). The guarantee to an impartial jury and fair trial is not, however, the equivalent of an entitlement to a jury that is completely ignorant of the case and extensive knowledge in the community of the crime is not sufficient by itself to render a trial unconstitutionally unfair. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Accordingly, the defendant “must prove more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish.” State v. Comeaux, 514 So.2d 84, 90 (La.1987). On appeal, a trial court’s determination on the venue issue may be overturned upon an affirmative showing of error and abuse of discretion. Hoffman, supra.

In this case, a voir dire of potential jurors has not yet been conducted. Rather, the sole testimony presented at the motion hearing was that of the defendants’ pollster who concluded that, based on two polls taken on behalf of the defendants, it was highly unlikely that an impartial jury could be empanelled in Orleans Parish. Mr. Walker testified that his polls showed that a(l) a high percentage of people saw the videotape and were familiar with the incident; (2) a majority of blacks polled think the incident was racially motivated; (3) the fact that |470% of the blacks polled said they could be fair jurors was problematic in light of the 59% who said they thought the bouncers were guilty.

Clearly, such polls are beneficial to defense counsel in determining whether to file a motion for change of venue. However, poll results and the pollster’s subsequent conclusion does not constitute an adequate substitute for the voir dire of potential jurors. We find no jurisprudence wherein a poll served as the primary basis for a change of venue or where such judgment was reached without an examination in court of potential jurors and we decline this opportunity to establish such a precedent. Additionally, we find that the trial court’s other reasons for granting the motion for change of venue do not rise to the level of prejudice required by La.Code Crim. Proc. art. 622. Accordingly, we find that the trial court’s judgment granting the defendants’ motion prior to conducting a voir dire of potential jurors was, in effect, premature and an abuse of discretion. Therefore, we reverse the judgment and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

GORBATY, J.,

dissents, with Reasons.

hi disagree with the majority that a dry run voir dire should be conducted, and therefore, respectfully dissent.

The evidence produced at the hearing convinces me that there is no way to seat a fair and impartial jury in Orleans Parish. The media was saturated with stories about this incident, including statements made by the district attorney, the mayor, the coroner, etc. Although the media has had other fish to fry as of late, once it learns of the beginning of trial and the picking of a jury in this case, the frenzy will begin anew. Indeed, the Times Picayune saw fit to mention this case in a totally unrelated article about Judge Bige-low on February 3, 2007. The article noted, that Judge Bigelow is the judge in two “high-profile, racially sensitive cases: ... and the case of three white bouncers charged with manslaughter after 25-year-old Levon Jones, who was black, died outside the Bourbon Street bar Razoo on New Year’s Eve, 2004.” It is my opinion that a dry run voir dire is a waste of judicial time, because although potential jurors may not remember all of the details .surrounding this case, the media will thoroughly refresh their minds long before they are submitted to a true voir. dire.

      . The trial judge noted that "[w]ith a total of 96 peremptory challenges available to the parties and the certainty that many challenges for cause will be sustained, a conservative estimate is that a venire of at least 200 persons would be needed for trial of these defendants.” In its brief, however, the State notes that on April 18, a motion to sever the trials of the defendants was granted and, accordingly, a maximum of 24 peremptory challenges will be available in each trial. The State also notes that since Criminal District Court reopened in July 2006, more than 40 jury trials have taken place.

      . Mr. Walker indicated that views of the black poll participants were particularly relevant because almost 70% of the potential jury pool in Orleans Parish based on voter registration, was black.

      . A "dry run” voir dire of potential jurors may be used for purposes of determining the merits of a motion to change venue prior to the trial date.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Floyd PAYTON.
    No. 2006-KA-1202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

L.The State of Louisiana appeals the judgment of the district court granting defendant’s motion to quash the bill of information. For the reasons below, we reverse the trial court’s ruling and remand the case to the district court for further proceedings.

Relevant Facts:

On February 24, 2004, under case number 445-359, Defendant, Floyd Payton, was charged by Bill of Information with one count of possession of cocaine, a violation of Louisiana Revised Statute § 40:967. On March 10, 2004, he failed to appear for arraignment and the matter was reset. Defendant was arraigned on March 17, 2004, and he entered a plea of not guilty. A hearing on defense motions was set for March 80, 2004. On that date, the trial court denied defendant’s Motion to Suppress the Evidence and made a finding of probable cause. Trial was set for April 27, 2004. On the day trial was to begin, the State requested a continuance due to the unavailability of a newly-discovered witness. The district court denied the State’s request for a continuance and the State then entered a nolle prosequi whereupon the case was dismissed.

One week later, on May 4, 2004, the State reinstituted charges against the defendant and a new Bill of Information was filed under case number 448-051, Lagain charging him with one count of possession of cocaine. Defendant failed to appear for arraignment and an alias capias was issued for his arrest. He was subsequently arrested over a year later on June 22, 2005, and appeared for arraignment as to the reinstituted Bill of Information on July 29, 2005. On that date, the defendant, through counsel, filed a Motion to Quash, which the trial court summarily granted. The State now appeals that judgment.

On appeal, the State argues that the court erred in granting defendant’s motion to quash because the State has plenary authority to dismiss a charge and then reinstitute it in any case when doing so does not violate the defendant’s right to a speedy trial. Despite the fact that counsel for defendant filed a Motion praying that the trial court quash the bill of information because “the defendant’s constitutional right to a speedy trial was denied,” defendant urges that the district court granted the motion, not on speedy trial grounds, but because the State used its authority to dismiss and reinstate the charges as a mere contrivance to take control of the court’s docket and avoid the denial of the motion for a continuance. Unfortunately, there is neither a transcript of the hearing on the motion to quash nor a per curiam opinion for our review. Accordingly, we will address both arguments.

Discussion

The sole issue on appeal is whether the trial court erred in granting Mr. Payton’s Motion to Quash the Bill of Information. A court’s resolution of motions to quash in cases where the district attorney enters a nolle prosequi and later reinstitutes charges should be decided on a case-by-case basis. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court, |4and absent abuse, the ruling should not-be disturbed by the appellate court. See, Id. at 1208.

Article 61 of the Louisiana Code of Criminal Procedure provides

[sjubject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

Additionally, the State has the authority to enter a nolle prosequi and reinstate the charge pursuant to Articles 691 and 576 of the Louisiana Code of Criminal Procedure. Both this court and the Louisiana Supreme Court have recognized this authority, but have also recognized that the defendant’s constitutional right to a speedy trial may outweigh the State’s statutory authority under the circumstances of any given case. State v. Hill, 05-1123, p. 4 (La.App. 4 Cir. 5/10/06), 931 So.2d 1146, 1148

A defendant has the right, pursuant to the Sixth Amendment of the United States Constitution and Article 1, Section 16 of the Louisiana Constitution, to a speedy trial. Id. A defendant challenging the state’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. Id, citing, State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/31/00), 775 So.2d 1138, 1142. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out the following four factors to determine whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay, (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant as a result of the delay. The first of the factors' — the length of the delay — has been held by Louisiana courts to be the “triggering mechanism” and “absent a presumptively | ¡^prejudicial delay, further inquiry into the Barker factors is unnecessary.” State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40.

The defendant has been charged with a felony, possession of cocaine, which carries a fine of not more than $5,000 and not more than five years in prison with or without hard labor, or both. The record in this case shows that approximately seventeen months elapsed between the filing of the original bill of information and the filing and granting of the motion to quash. Under similar circumstances, this court has found delays like the one in this case to be non-violative of the right to a speedy trial. For example, in State v. DeRouen, supra, this court found that although fifteen months elapsed between institution of prosecution and motion to quash two counts of possession of cocaine, the fifteen month delay was not presumptively prejudicial. And, in State v. Johnson, 622 So.2d 845 (La.App. 4 Cir.1993), although there was a twenty-two month delay between the date of arrest and the day of trial, this court found that defendant’s right to a speedy trial was not violated since much of the delay was due to the failure of the defendant to appear in court and because the defendant had not been prejudiced by the delay. Thus, under the circumstances of this case, the seventeen month delay is not presumptively prejudicial and we need not inquire into the other Barker factors. However, even if an analysis of the remaining Barker factors was necessary, it would give no support to defendant’s claim.

In the reinstituted case, 448-051, the defendant failed to appear for his arraignment on June 9, 2004, which resulted in a warrant for his arrest. Defendant’s absence, which is not at all attributable to the State, caused slightly over a one-year delay of the total seventeen-month delay. In addition, defendant does not allege in his motion to quash nor does the record reflect, that he ever filed |fia motion for speedy trial. Moreover, defendant has not alleged that any prejudice was caused by the delay. He was arrested on June 22, 2005, after being at large for a year, and released on his own recognizance on June 27, 2005, five days later. Finally, he has not alleged that any witnesses nor evidence has been lost or compromised due to the delay.

The Louisiana Supreme Court held that the unavailability of a state witness was a legitimate reason for delaying trial under the Speedy Trial Clause as interpreted by Barker. State v. Love, supra, at 1204. Recently, in State v. Batiste, 2005-1571, (La.10/17/06), 939 So.2d 1245, where the prosecutor entered a nolle prosequi due to the unavailability of the alleged victim to testify, the Louisiana Supreme Court found no violation of the defendant’s right to a speedy trial. The court considered the defendant’s speedy trial claim and found that although nineteen months had elapsed between the filing of the bill and the quashing of the charges in the second case, the reasons for the delay were not solely those of the State. The court found that there was no intentional delay on the State’s part to gain a tactical advantage, that the defendant did not assert his speedy trial right prior to filing the motion to quash, and that there was no suggestion that his defense was impaired by the delay. Id., at 1250-1251

In this case, as in Batiste, there is no indication that the district attorney was flaunting his authority at the expense of the defendant. Rather, the record indicates a nolle prosequi was entered because a newly discovered witness was not available for trial. It is clear that the unavailability of a state witness is a legitimate reason for the delay of trial. Therefore, the defendant’s right to a speedy trial was not violated.

| interestingly, despite the fact that the defendant alleged a violation of his right to a speedy trial in his motion to quash, he now avers that the trial court granted the motion to quash solely on the ground that the State reinstituted criminal proceedings it had previously dismissed as a means of avoiding the consequences of the district court’s denial of an improperly filed motion to continue. This court has held that the Louisiana Code of Criminal Procedure does not provide for quashing a bill of information for failure to comply with the proper procedure for obtaining a continuance under article 707. See State v. Polk, 05-1118, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 838, 841; State v. Anderson, 05-1116, p. 6 (La.App. 4 Cir. 8/23/06), 940 So.2d 682, 685; La.Code Crim. Proc. arts. 532 and 534. Although the trial court was clearly frustrated with what it deemed the State’s disregard of proper procedure, the quashing of a bill of information is not a permissible legal sanction for the failure of the state to comply with La.Code of Crim. Proc. art. 707.

There was no legal basis for the district court’s granting of defendant’s motion to quash. Therefore, the district court abused its discretion in doing so. Accordingly, the judgment of the district court is reversed and is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: JAMES F. McKAY III, Judge.

text:
    NATIONAL AUTOMOTIVE INSURANCE COMPANY, as Partial Subrogee of Arthur Warning, Jr. and Arthur Warning, Jr. v. CHAMP’S NEW ORLEANS COLLISION CENTER, LLC and Columbia Casualty Company.
    No. 2006-CA-1144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.

      Wade A. Johnson, Johnson Law Office, L.L.C., Metairie, LA, for Plaintiff/Appellant.
    Richard E. King, Peter A. Bourgeois, Stephen J. Moore, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   JAMES F. McKAY III, Judge.

liOn August 29, 2005, Hurricane Katrina ravaged New Orleans and much of the surrounding area. In the aftermath of the hurricane, much of the city was inundated with floodwater.

Prior to August 29, 2005, Arthur Warning, Jr. brought his 2004 Nissan Titan to Champ’s New Orleans Collision Center, L.L.C. (Champ’s) for body repairs. Due to the necessary repairs, the vehicle was disassembled and not drivable when the hurricane struck. However, Mr. Warning’s vehicle and approximately sixty other vehicles were moved into Champ’s garages before its employees evacuated. Nevertheless, Champ’s garages flooded and the vehicles inside were damaged. Mr. Warning’s vehicle sustained damage in an amount that was beyond repair.

Following the hurricane, Mr. Warning’s liability and collision insurer, National Automotive Insurance Company (National), paid Mr. Warning $22,125.00 minus the $500.00 deductible for the damage to his vehicle. Thereafter, National sued Champ’s and its liability insurer, Columbia Casualty Company (Columbia), for reimbursement of the insurance benefits it paid to Mr. |2Warning. National alleged that Champ’s failed “to properly safeguard Petitioner’s vehicle from flooding with a Category Five hurricane bearing down on the City of New Orleans.” Champ’s and Columbia moved for summary judgment, arguing that Champ’s discharged its duty as an onerous depositary of Mr. Warning’s vehicle under the Louisiana Civil Code and that it could not be held liable for the destruction of Mr. Warning’s vehicle by an unprecedented disaster. National and Mr. Warning filed a cross motion for summary judgment. The trial court heard both motions on June 30, 2006 and on July 11, 2006, it granted Champ’s and Columbia’s motion while it denied National’s and Mr. Warning’s cross motion. It is from this judgment that National and Mr. Warning now appeal.

On appeal, the plaintiffs contend that the trial court erred in granting the defendants’ motion for summary judgment.

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that governed the trial court’s consideration of whether summary judgment was appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). If the opposing party cannot produce evidence to show that he will be able to meet his burden of proof at trial, then there is no genuine issue of material fact. Davenport v. Albertson’s, 32000 — 00685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, 342. Plaintiff may not “rest on the mere allegations or denials in his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Danna v. Barq’s, Inc., 612 So.2d 253, 255 (La.App. 4 Cir.1992). Arguments of counsel, “no matter how artful, are not sufficient to raise a genuine issue of material fact” precluding summary judgment. Attardo v. Brocato, 96-1170 (La.App. 4 Cir. 2/5/97), 688 So.2d 1296, 1297.

In the instant case, Champ’s was a compensated depositary while it was working on Mr. Warning’s vehicle. Louisiana Civil Code Article 2930 provides:

A deposit is a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand.

Louisiana Civil Code Article 2930 further provides:

When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary’s failure to perform such obligations.

Where a deposit is not returned as made, a presumption arises of the depositary’s negligence or fault and the depositary has the burden to show that the loss or damage to the deposit was occasioned other than by his own negligence. Willis v. Louisiana Downs, Inc., 499 So.2d 155, 159 (La.App. 2 Cir.1986). However, the depositary is not answerable, in any case, for accidents produced by overpowering force, unless he has delayed improperly to restore the deposit. A14depositary is not an insurer of the deposit, but he owes a duty to exercise reasonable care to take precautions against reasonable foreseeable damage to the deposited property. Broussard v. Fournet, 574 So.2d 541 (La.App. 3 Cir.1991).

A hurricane that causes unexpected and unforeseeable devastation with unprecedented wind velocity, tidal rise, and upriver tidal surge, is a classic case of an “Act of God.” Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 2000-2754 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, 92. Champ’s set forth the affidavit of Chris Antanatos, the manager of Champ’s prior to the hurricane. Mr. Antanatos attested that on Saturday, August 27, 2005, a mandatory evacuation went out. He also attested that Champ’s employees moved about sixty vehicles, including Mr. Warning’s, inside its facility. Because Mr. Warning’s vehicle had been disassembled, it could not be moved to a different city or location.

Champ’s exercised reasonable care to take precautions against reasonable foreseeable damage to the deposited property. The damage caused by Hurricane Katrina was not only unforeseeable but also unprecedented. Accordingly, we agree with the trial court’s granting of Champ’s and Columbia’s motion for summary judgment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: CHARLES R. JONES, Judge.

text:
    Curklin ATKINS v. EASTOVER REALTY, INC. and XYZ Insurance Company.
    No. 2006-CA-1055.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 28, 2007.
    Eric A. Wright, Wright, McMillan & Moore, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Richard B. Montgomery III, Georgia Kobos Thomas, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.
   CHARLES R. JONES, Judge.

|,The Appellant, Eastover Realty, Inc. (hereinafter “Eastover”), seeks review of a district court judgment granting the motion for summary judgment of the Ap-pellee, Curklin Atkins (hereinafter “Mr. Atkins”), and finding that Eastover was liable for breaching an Agreement to Purchase or Sell Real Estate that was executed between the parties.

Facts and Procedural History

On or about May 30, 1997, Mr. Atkins and Eastover entered into an Agreement to Purchase or Sell Real Estate (hereinafter “Agreement”) for a lot located in Phase III of the Eastover subdivision. Mr. Atkins paid an earnest money deposit of $5,000.00 pursuant to the Agreement.

The sale, however, never occurred. Mr. Atkins avers that this is because Eastover sold the subject property to a third party. The alleged sale of the lot in question is what prompted Mr. Atkins to sue Eastover for breach of contract.

Subsequent to filing suit, Mr. Atkins filed a Motion for Summary Judgment against Eastover on the issue of liability that was heard on April 21, 2006. The | ¡.district court granted Mr. Atkins’ Motion for Summary Judgment from which East-over filed its timely appeal.

Assignments of Error on Appeal

Eastover contends that the district court did not consider the following five genuine issues of material fact when it granted Mr. Atkins’ Motion for Summary Judgment: 1.) the price of the lot in question; 2.) the amount of the deposit required for said lot; 3.) the availability of the lot for purchase; 4.) the fact that the act of sale was to take place in front of Mr. Atkins’ notary, and 5.) the remedies available to Mr. Atkins pursuant to the executed Agreement were either for specific performance or the return of the deposit.

Law and Discussion

On review of a summary judgment, the appellate court considers the matter de novo. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119, 136. Further, the reviewing court “asks the same questions as does the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

Issues of Material Fact

Purchase Price

Eastover claims that the purchase price of the subject lot is a genuine issue of material fact. The Agreement states that the purchase price for the property is One Hundred Twenty Thousand ($120,000.00) dollars. In Mr. Atkins’s petition for damages, he stated that the purchase price was One Hundred Thousand |¾($100,000.00) dollars. Eastover asserts that this discrepancy is a genuine issue of material fact.

The Louisiana Supreme Court reasoned in Penalber v. Blount, 550 So.2d 577, 583 (La.1989), that a fact is material “if its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Furthermore, “[f]acts are ‘material’ if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

In the instant case, we find that the actual price of the property is not a genuine issue of material fact because determining the correct purchase price is immaterial to deciding whether Eastover breached its obligation to sell this particular lot to Mr. Atkins prior to the purchase price being remitted to Eastover.

The Deposit Amount

Eastover contends that the district court overlooked a second genuine issue of material fact: whether Mr. Atkins ever tendered the full deposit amount to East-over pursuant to the Agreement. East-over asserts that the deposit amount was Ten Thousand ($10,000.00) dollars.

The deposit clause of the Agreement, however, states the following:

Upon acceptance of this offer, SELLER and PURCHASER shall be bound by all of its terms and conditions and Purchaser becomes obligated to deposit immediately with SELLERS Agent/Broker $5,000.00 CH + $5,000.00 Upon Sale ... and failure to do so shall be considered a breach of this agreement. This deposit is to be non-interest bearing and shall be placed in any federally insured baking or savings and loan institution without responsibility on the part of the Agent/Broker in case of failure or suspension of such institution.”

14We find that $5,000.00 of the deposit was to be paid immediately while another $5,000.00 — as the Agreement clearly states — was to be paid upon completion of the sale. Indeed, Mr. Atkins paid $5,000.00 via check to Eastover. Considering that the act of sale never occurred, Mr. Atkins had no reason to tender the remaining $5,000.00 to Eastover. Therefore, Eastover received all of the earnest money that it was entitled to in this instance. As a result, the deposit amount is not a genuine issue of material fact.

The Availability of the Lot

The third issue that Eastover presents as a genuine issue of material fact is that the lot in question never became available for Mr. Atkins to purchase. Mr. Atkins attests that Eastover breached its obligation to him by selling the lot to a third party, who constructed a residence upon the property.

According to the terms of the Agreement, the property was to be sold within thirty (30) days of it becoming available. If the lot was sold to a third party, it must have become available; yet, Mr. Atkins was not advised of said availability.

Nevertheless, the record is void of any evidence that the lot was sold; when it was sold; to whom it was sold, and whether a house was erected on said property. There is no proof in the record that the lot is — as Mr. Atkins argues — unavailable.

The availability of this property is indeed a genuine issue of material fact because it is directly related to whether Eastover breached its obligation to sell the subject lot to Mr. Atkins. Having found a material issue of genuine fact exists, this Court holds that the district court erred and should be reversed.

| ¡(Further, we pretermit discussion of the fourth and fifth assignments of error because a determination that any genuine issue of material fact exists is sufficient to deny a motion for summary judgment.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine factual dispute. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). This matter warrants that a trial be held as there is at least one genuine issue of fact that exists as to whether Eastover is indeed liable unto Mr. Atkins.

Decree

The judgment of the district court is reversed as our de novo review indicates there are genuine issues of material fact. This matter is hereby remanded to the district court.

REVERSED AND REMANDED.

      . Eastover neither filed an opposition to the motion nor attended the oral argument of the motion.


author: BROWN, Chief Judge.

text:
    CITY OF MONROE, Plaintiff-Appellee v. Yancy TOLLIVER and Administrator, Office of Employment Security, Defendants-Appellants.
    No. 41,969-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Cynthia Batiste, J. Jerome Burden, Louisiana Department of Labor, for Appellants.
    Nanci Summersgill, City Attorney, La Koshia R. Roberts, Assistant City Attorney, for Appellee.
    Before BROWN, WILLIAMS, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

I ¡The issue in this case is whether incarceration for criminal charges later dismissed serves to disqualify a discharged employee from collecting unemployment compensation benefits. Specifically, whether under these circumstances, the employee’s discharge, which occurred while he was in jail and was based upon violation of the employer’s attendance policy, was for misconduct connected with his employment.

Facts

Claimant, Yancy Tolliver, had been employed by City of Monroe for more than three years when, on February 26, 2005, he was arrested and charged with forcible rape and intimidating a witness. Tolliver, a labor leader, promptly informed his employer of his incarceration and his inability to post bond. Tolliver remained incarcerated until July 14, 2005, when charges were dismissed. The City of Monroe allowed Tolliver to exhaust all available vacation leave and an additional five days leave without pay before discharging him on May 10, 2005.

After his release from jail, Tolliver filed a claim for unemployment benefits with the Louisiana Department of Labor, Office of Regulatory Services (“Department”). In response, the City of Monroe asserted that Tolliver was ineligible for benefits because he was discharged for violating the City’s attendance policy which provided that incarceration for any reason which causes an employee to be absent from work is an unauthorized absence.

| ¡.After evaluating the claim, the Department determined that Tolliver was discharged for insubordination and, therefore, not eligible to receive unemployment compensation benefits. Tolliver appealed to an Administrative Law Judge (“ALJ”) for the Office of Regulatory Services. At the hearing on September 23, 2005, both Tol-liver and his employer appeared and testified. Following the hearing, the ALJ concluded that Tolliver did not willfully violate the employer’s rule on absenteeism due to incarceration and was qualified for benefits.

The City appealed the ALJ’s decision to the Louisiana Board of Review, which affirmed the ALJ’s decision. Thereafter, the City filed a petition for judicial review with the Fourth Judicial District Court. The district court reversed and disqualified Tolliver from receiving unemployment compensation benefits. The court eonclud-ed that it would be unreasonable to expect an employer to indefinitely hold a job for an incarcerated employee, that the City’s attendance policy was clear, and that its violation warranted Tolliver’s disqualification. Tolliver and the Louisiana Department of Labor, Office of Employment Security, have appealed from the district court’s ruling.

Discussion

In Grimble v. Brown, 247 La. 376, 171 So.2d 653, 655-56 (1965), the supreme court stated:

The Court of Appeal, relying on the Smith[v. Brown, 147 So.2d 452 (La.App. 2 Cir.1962) ] case, reasoned that an act of misconduct committed in off-duty personal activity had no connection with the employment. This ratiocination is tenuous because it necessarily results in the conclusion that the act of misconduct must occur during working hours or in the course of the employment, whereas R.S. 23:1601(2) declares Rmerely that the misconduct be connected with the employment. This, we think, is a phrase of broader scope-comprehensive enough to include any act of misconduct which renders the employee ineligible to perform the tasks of his employment, as in this case, or unable to report for work and perform the duties of his employment for any unseasonable length of time by reason of his confinement in jail,.... It will not do to say that, because an act of misconduct relates to the ‘private life’ of the employee, it is essentially not connected with his employment for in these cases the question for determination must always be whether the result of the misconduct has adversely affected the employee’s ability and capacity to perform his duties in an appreciable degree. If it has, then it follows that it is contrary to the employer’s interest and in ... disregard of standards of behavior which the employer has the right to expect of his employee.... Thus, by this criterion alone there is nexus.

There is an obvious connection between an arrest and absenteeism. The issue for this court is whether there was adequate misconduct by Tolliver. Grimble, supra.

Appellants’ position is based upon the ALJ’s decision which states:

The testimony and evidence in this case indicates the claimant was terminated from employment due to violation of company’s attendance policy as a result of incarceration. The claimant was incarcerated and did violate the company’s policy. However, the claimant was later exonerated when charges were dropped. It cannot be concluded that his discharge was for misconduct connected with the employment. He did not willfully violate any rule of the employer. The agency determination should not be upheld.

The City submitted a copy of its employee incarceration policy regarding attendance which provides:

1. Incarceration for any reason which causes an employee to be absent from work is an unexcused/unauthorized absence.
2. The employee shall notify his Division director of the facts and circumstances surrounding his/her incarceration within seventy two (72) hours of the occurrence.
|43. Failure to notify your Division Director within seventy two (72) hours of the occurrence will result in your termination from the City’s work force.
4. If you have accrued vacation time, tell your Division Director that you wish to use same while incarcerated, until it is exhausted.
5. If the employee does not wish to take advantage of # 4 above, a five (5) day leave of absence without pay will be granted. At the end of this period termination will ensue.
6. If the employee does use the provision of # 4, a five (5) day leave of absence without pay will be granted after all vacation time has been exhausted. At the end of this period termination will ensue.

Judicial review by the district court in unemployment proceedings is limited by La. R.S. 23:1634(B), which states that “findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Thus, judicial review in cases such as this one requires a determination of whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the action taken. Banks v. Administrator, Dept. of Employment Security of the State of Louisiana, 393 So.2d 696 (La.1981); Marchand v. Forster, 37,-222 (La.App. 2d Cir.06/25/03), 850 So.2d 941.

The basic facts in the present case are not in dispute. Tolliver was absent from work for almost five months because he was arrested and jailed on charges which were ultimately not pursued by the prosecuting authority. Because he was unable to work, Tolliver’s arrest impacted his job. Although the ALJ stated that Tolliver was “exonerated,” there is nothing in this record indicating the reasons behind dismissal of the charges. Tolliver testified that he was arrested, had a bond hearing, and then was arraigned. ^Tolliver stated that the charges were dropped, but he offered no explanation of why they were dropped nor was any information presented about the incident(s) or action that led to his arrest.

The City had a policy addressing absences due to incarceration which allowed Tolliver to exhaust his vacation time and granted him an additional five days of leave without pay before any absences from work would be deemed unexcused. There is no dispute that this policy had been complied with by the City before it discharged Tolliver.

The trial court determined that Tolliver was disqualified from receiving unemployment benefits pursuant to La. R.S. 23:1601(2)(a), which defines disqualifying misconduct as “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.” (His emphasis).

In the instant case, the employer’s rule is that an employee’s absenteeism because of incarceration is inexcusable. La. R.S. 23:1601(2)(a) defines misconduct as an employee who violates a reasonable rule of his employer. This court has held that the legislative definition of misconduct in unemployment compensation matters requires either intentional wrongdoing or negligence to such an extent as to manifest culpability or a showing of intentional and substantial disregard of the employer’s interest. Lafitte v. Rutherford House, Inc., 40,395 (La.App. 2d Cir.12/14/05), 917 So.2d 684; Wood v. Louisiana Dept. of Employment Security, 25,545 (La.|App.2d Cir.02/23/94),6 632 So.2d 899; Hardeman v. Blache, 605 So.2d 671 (La.App. 2d Cir.1992).

We do not take issue with the district court’s findings that: (1) the City was well within its rights to discharge the claimant due to his prolonged absence from work; and (2) it would be unreasonable to require the City to hold the position open for the defendant indefinitely. However, the fact that the City’s employment decision was legitimate, justifiable, and reasonable does not necessarily classify the conduct giving rise to the discharge as “misconduct” which would disqualify the employee from receiving unemployment benefits. The supreme court has held that an employee’s behavior can be unsatisfactory to the employer without constituting disqualifying misconduct; an intent to do wrong must be present. Banks, supra.

While the record supports the fact that a violation of the City’s employee policies occurred so as to justify Tolliver’s termination, the record before us also supports the ALJ’s findings that: (1) claimant was arrested on charges that were eventually dropped; (2) he was unable to post bond prior to his July 14, 2005, release; and (3) he advised the City of his circumstances. As noted previously, exactly what conduct or actions gave rise to probable cause for his arrest was not shown. Therefore, the evidence of the employee’s conduct in regard to the circumstances leading to his termination does not indicate any intentional wrongdoing or negligence to such an extent as to manifest either culpability or a showing of intentional and substantial disregard of the employer’s interest.

|7Because of the remedial purpose of unemployment compensation, the term “misconduct” should be construed to favor the awarding of benefits rather than disqualification. Wood, supra. Furthermore, in cases where the employer seeks to deny unemployment compensation benefits to an employee because of misconduct, the burden of proof as to such misconduct is upon the employer. Banks, supra. Whether Tolliver was in fact exonerated of the charges brought against him or if his actions amounted to misconduct of some lesser degree than charged is not evidenced from the record. However, because the City produced no evidence tending to suggest that Tolliver’s arrest was a result of unacceptable conduct on his part, the record does not support the district court’s finding of misconduct. This appears to be the rare case where an employer had good cause to discharge an employee but the record evidences no culpability on the part of the employee in bringing about that good cause.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is rendered directing the Board of Review, Office of Regulatory Services, State of Louisiana, to issue an order directing payment to plaintiff, Yancy Tolliver, of the unemployment compensation benefits to which he is entitled.

REVERSED AND RENDERED.

      . The last day Tolliver reported to work was February 24, 2005.