text:
    STATE ex rel. Raymond JOHNSON v. STATE of Louisiana.
    No. 2007-KH-0253.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Johnson, Raymond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 246,658; to the Court of Appeal, Second Circuit, No. 41,650-KA.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Dang P. NGUYEN v. STATE of Louisiana.
    No. 2007-KH-0254.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Nguyen, Dang P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 02-3892; to the Court of Appeal, Fifth Circuit, No. 07-KH-12.

Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Kealo HIGGINS v. STATE of Louisiana.
    No. 2007-KH-0255.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Higgins, Kealo; — Plaintiff; Applying for Supervisory - and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 337854; to the Court of Appeal, First Circuit, No. 2006 KW 2257.

Denied.


text:
    STATE ex rel. Hubert ARVIE v. STATE of Louisiana.
    No. 2007-KH-0256.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Arvie, Hubert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. B, No. 9464946; to the Court of Appeal, Third Circuit, No. CW 06-01286.

Denied.


text:
    STATE ex rel. Donald MUSE v. STATE of Louisiana.
    No. 2007-KH-0257.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Muse, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-5901; to the Court of Appeal, Fifth Circuit, No.

Denied. Relator’s request for mandamus relief is denied and he should re-file his application in the court of appeal with a copy of the pleading he filed in the district court.


text:
    STATE ex rel. Rickey L. MCBROOM v. STATE of Louisiana.
    No. 2007-KH-0261.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re McBroom, Rickey L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. B, No. 31,881; to the Court of Appeal, Second Circuit, No. 42007-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Odis David SMITH v. STATE of Louisiana.
    No. 2007-KH-0262.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Smith, Odis David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 333759.

Denied.


text:
    STATE ex rel. Christopher HODGE v. STATE of Louisiana.
    No. 2007-KH-0263.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Hodge, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 300783; to the Court of Appeal, First Circuit, No. 2006 KW 2219.

Denied. Time-barred and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Ray SEALS v. STATE of Louisiana.
    No. 2007-KH-0265.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Seals, Ray; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 229,349; to the Court of Appeal, Second Circuit, No. KA 05-40597.

Denied. La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Darren D. SHIVERS v. STATE of Louisiana.
    No. 2007-KH-0266.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Shivers, Darren D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 175,533; to the Court of Appeal, Second Circuit, No. 42086-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Darryl F. HENDERSON v. STATE of Louisiana.
    No. 2007-KH-0267.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Henderson, Darryl F.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 229,044; to the Court of Appeal, Second Circuit, No. 41657-KA.

Denied.


text:
    Louis STEMLEY v. Wayne DESCANT, et al.
    No. 2007-CI-0268.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Stemley, Louis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2000-0985-A; to the Court of Appeal, Third Circuit, No. 06-716.

Denied.


text:
    STATE ex rel. Clarence SHAKESNIDER, Jr. v. STATE of Louisiana.
    No. 2007-KH-0269.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Shakesnider, Clarence Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. A, No. 02-K-4710; to the Court of Appeal, Third Circuit, No. KH 06-00886.

Denied.


text:
    STATE ex rel. Ricky PARKER, a/k/a Ricky Johnson v. STATE of Louisiana.
    No. 2007-KH-0270.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Parker, Ricky a/k/a; Johnson, Ricky; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 05-05-0110; to the Court of Appeal, First Circuit, No. 2006 KA 0508.

Denied.


text:
    Kelvin WELLS v. Lt. FLITTER, Officers A, B, C, D, E, F and G of the East Baton Rouge Sheriff's Department.
    No. 2007-C-0312.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Wells, Kelvin; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 531,394; to the Court of Appeal, First Circuit, No. 2005 CA 2525.

Denied.


text:
    STATE of Louisiana v. Quincy Vidal WILLIAMS.
    No. 2007-KO-0465.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Williams, Quincy Vidal; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. D, No. 233,113; to the Court of Appeal, Second Circuit, No. 41,731-KA.

Denied.

CALOGERO, C.J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Wayne J. GUIDRY, Jr.
    No. 2007-K-0661.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Guidry, Wayne Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 23,999; to the Court of Appeal, Second Circuit, No. 41,-694-KA.

Denied.


text:
    STATE of Louisiana v. Mark RILES.
    No. 2007-KO-0695.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Riles, Mark; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. D, No. 04-165,766; to the Court of Appeal, First Circuit, No. 2006 KA 1039.

Denied.


text:
    STATE of Louisiana v. Lamar JENKINS.
    No. 2007-KO-0699.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Jenkins, Lamar; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 03F2411; to the Court of Appeal, Second Circuit, No. 41,281-KA.

Denied.


text:
    STATE of Louisiana v. Mark JARAMILLO.
    No. 2007-K-0732.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Jaramillo, Mark; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 266,281; to the Court of Appeal, Third Circuit, No. 06-1377.

Denied.


text:
    STATE of Louisiana v. Clayton James GREENE.
    No. 2007-K-0734.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Greene, Clayton James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 03K2177B; to the Court of Appeal, Third Circuit, No. 06-1267.

Denied.


text:
    STATE of Louisiana v. Desiree A. MORRISON.
    No. 2007-K-0742.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Morrison, Desiree A.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 06-1153; to the Court of Appeal, Fifth Circuit, No. 07-KA-5.

Denied.


text:
    STATE of Louisiana v. Randy ROSE.
    No. 2007-K-0744.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Rose, Randy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 445-176; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0396.

Denied.


text:
    STATE of Louisiana v. Lloyd BLANKE, Jr.
    No. 2007-K-0786.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Blanke, Lloyd Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court of Jefferson, No. F1514625; to the Court of Appeal, Fifth Circuit, No. 07-KH-2.

Denied.


text:
    STATE of Louisiana v. James Lewis SERMONS, Jr.
    No. 2007-KO-0789.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Sermons, James Lewis Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 244773; to the Court of Appeal, Second Circuit, No. 41,746-KA.

Denied.


text:
    STATE of Louisiana v. Joseph H. BATISTE.
    No. 2007-KO-0817.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Batiste, Joseph H.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 106745; to the Court of Appeal, Third Circuit, No. 06-1322.

Denied.


text:
    Jessie Mae BROWN v. TULANE MEDICAL CENTER HOSPITAL AND CLINIC, Dr. Raoul Rodriguez, and Dr. Malcolm W. Marks.
    No. 2007-C-01542.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Brown, Jessie Mae;- — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 88-18687; to the Court of Appeal, Fourth Circuit, No. 2004 CA 0688.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.

JOHNSON, J., would grant.


text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. NATIONAL FINANCIAL SYSTEMS, INC.
    No. 2007-C-1600.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re National Financial Systems Inc.;— Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 501,507; to the Court of Appeal, First Circuit, No. 2006 CA 0957.

Denied.

JOHNSON, J., would grant.


text:
    Kimberly PYLES v. Anthony WEAVER and RCI Entertainment Louisiana, Inc. d/b/a Rick’s Cabaret, A Division of Rick’s Cabaret International, Inc. Kimberly Pyles v. The Estate of Anthony Weaver, Easton Insurance Company, RCI Entertainment Louisiana, Inc., d/b/a Rick’s Cabaret, A Division of Rick’s Cabaret International.
    No. 2007-C-1674.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Pyles, Kimberly; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 01-15258; to the Court of Appeal, Fourth Circuit, No(s). 2006-CA-348, 2006-CA-0644.

Denied.


text:
    Jeanne LUNNY v. MARRIOTT INTERNATIONAL, INC. Siegen Lane Hotel II-1998 and CNA Financial Corporation.
    No. 2007-CC-1676.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Siegen Lane Hotel 11-1998 L.L.C.; Valley Forge Insurance Company; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 539527; to the Court of Appeal, First Circuit, No. 2007 CW 0830.

Denied.


text:
    Charles ALEXANDER, et al. v. Charles CORNETT, et al.
    No. 2007-C-1681.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Alexander, Charles; Alexander, Cindy; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 465,381-B; to the Court of Appeal, Second Circuit, No. 42,147-CA.

Denied.


text:
    Sherman AUGUSTINE v. DPSC-LOUISIANA STATE PENITENTIARY Sherman Augustine v. DPSC-Louisiana State Penitentiary.
    No. 2007-C-1682.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Augustine, Sherman; — Plaintiff; Applying for Writ of Certiorari and/or Review Louisiana Civil Service Commission, Nos. 15908, 15883,; to the Court of Appeal, First Circuit, No(s). 2006 CA 1847, 2006 CA 1846.

Denied.


text:
    Travis COOPER, et al. v. LOUISIANA DEPARTMENT OF PUBLIC WORKS.
    No. 2007-CC-1685.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Transportation and Development Department of; Louisiana Department of Public Works; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Catahoula, 7th Judicial District Court Div. A, No. 18,754-A; to the Court of Appeal, Third Circuit, No. CW 07-00489.

Denied. May be re-raised on appeal.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Mike D. COOLEY.
    No. 2007-KK-1689.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Cooley, Mike D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR143-2007; to the Court of Appeal, Third Circuit, No. KW 07-00545.

Denied.


text:
    Josh NASSIF v. STATE FARM AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2007-CC-1690.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Kaohu, Shane; AAA Cooper Transportation; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Rapides, Alexandria City Court, No. 105,476; to the Court of Appeal, Third Circuit, No. CW 07-00496.

Denied.


text:
    STATE of Louisiana v. Floyd and Guy BOUDREAUX.
    No. 2007-KK-1691.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Boudreaux, Guy; Boudreaux, Floyd; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 109,393; to the Court of Appeal, Third Circuit, No. KW 07-00919.

Denied.


text:
    Msgr. Ray P. HEBERT v. Stacy BROWN, Albert P. Miller and Albert Theodore Lausche.
    No. 2007-CC-1693.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Miller, Albert P.; Brown, Stacy et al.; Lausche, Albert Theodore; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 632-301; to the Court of Appeal, Fifth Circuit, No. 07-C-458.

Denied.


text:
    FAMILY WORSHIP CENTER CHURCH, INC., on Its Own Behalf and Derivatively on Behalf of Health Science Park, L.L.C. v. Gary N. SOLOMON, Stephen H. Jones, Terry D. Jones and Health Science Park, L.L.C.
    No. 2007-CC-1695.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Family Worship Center Church, Inc.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 537,353; to the Court of Appeal, First Circuit, No. 2006 CW 2142.

Denied.


text:
    FAMILY WORSHIP CENTER CHURCH, INC., on its Own Behalf and Derivatively on Behalf of Health Science Park, L.L.C. v. Gary N. SOLOMON, Stephen H. Jones, Terry D. Jones and Health Science Park, L.L.C.
    No. 2007-CC-1696.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Family Worship Center Church, Inc.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 537,353; to the Court of Appeal, First Circuit, No(s). 2006 CW 2143, 2006 CW 2143, 2006 CW 2143.

Denied.


text:
    STATE of Louisiana v. Jeremiah Ryan HASTINGS.
    No. 2007-KK-1697.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Hastings, Jeremiah Ryan; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 147,494; to the Court of Appeal, Second Circuit, No. 42,624-KW.

Denied.


text:
    Francis ROUSSELLE v. MURPHY EXPLORATION & PRODUCTION COMPANY.
    No. 2007-C-1714.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Rousselle, Francis; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2000-5072; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0125.

Denied.


text:
    Howard HUCKABY v. BELLSOUTH TELECOMMUNICATIONS, INC.
    No. 2007-C-1715.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Huckaby, Howard; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers Compensation, District 1-W, No. 05-02176; to the Court of Appeal, Second Circuit, No. 42,255-WCA.

Denied.


text:
    In Medical Review Panel Proceeding of Lois DAIGREPONT v. J. Louis TONORE, Jr., M.D.
    No. 2007-CC-1718.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Tonore, J. Louis Jr. M.D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 551,737; to the Court of Appeal, First Circuit, No. 2007 CW 0761.

Denied.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Kelli BOURGEOIS, Individually and as Natural Tutrix for and on Behalf of her Minor Children, Hillary Bourgeois and Shaye Bourgeois and as Administratrix for the Succession of Michael David Bourgeois v. Julie L. MEYER, State Farm Mutual Automobile Insurance Company and Louisiana Farm Bureau Mutual Insurance Company.
    No. 2007-CC-1725.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Bourgeois, Kelli et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. B, No. 39,739; to the Court of Appeal, First Circuit, No. 2007 CW 0998.

Denied.

KNOLL, J., would grant.


text:
    John H. BROWN v. LA RIVIERA RESTAURANT.
    No. 2007-OC-1728.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Brown, John H.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 05, Nos. 03-02046, 03-01147,; to the Court of Appeal, First Circuit, No(s). 2007 CA 0118, 2007 CA 0117.

Denied.


text:
    Jeanine LABORDE v. METAIRIE SMALL ANIMAL HOSPITAL, INC. and Massachusetts Bay Insurance Company.
    No. 2007-CC-1731.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re F.H. Myers Construction Corp.;— Other; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 618— 668; to the Court of Appeal, Fifth Circuit, No. 07-C-538.

Denied.


text:
    Randy James HENRY, et al. v. Danny L. BARLOW, et al.
    No. 2007-CC-1734.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Cleco Utility Group, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-5156; to the Court of Appeal, Third Circuit, No. CW 07-00751.

Denied.

KIMBALL, J., recused.


text:
    John C. WINGRAVE, II v. Kevin M. HEBERT, Donna Boehmer and Duane Abadie.
    No. 2007-C-1738.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Boehmer, Donna; Abadie, Duane; Whitney National Bank; Bergeron, Paul; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 99-17291; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1240.

Denied.


text:
    Kelli BOURGEOIS, Individually and as Natural Tutrix for and on Behalf of her Minor Children, Hillary Bourgeois and Shaye Bourgeois and as Administratrix for the Succession of Michael David Bourgeois v. Julie L. MEYER, State Farm Mutual Automobile Insurance Company and Louisiana Farm Bureau Mutual Insurance Company.
    No. 2007-CC-1739.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Louisiana Farm Bureau Mutual Insurance Company; Southern Farm Bureau Casualty Insurance Company; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. B, No. 39,739; to the Court of Appeal, First Circuit, No. 2007 CW 0651.

Denied.


text:
    William ALCORN, Jr., et al. v. CITY OF BATON ROUGE, Through the BATON ROUGE CITY POLICE DEPARTMENT Albert Burns v. City of Baton Rouge, Through the Baton Rouge City Police Department.
    No. 2007-CC-1740.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Baton Rouge, City of et al.; Baton Rouge City Police Dept.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, Nos. 431,647, 432,170; to the Court of Appeal, First Circuit, No. 2007 CW 1014.

Denied.

TRAYLOR, J., would grant.


text:
    Randy James HENRY, et al. v. Danny L. BARLOW, et al.
    No. 2007-CC-1854.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Cleco Utility Group, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-5156; to the Court of Appeal, Third Circuit, No. CW 07-00598.

Denied.

KIMBALL, J., recused.

TRAYLOR, J., would grant.


text:
    Randy James HENRY, et al. v. Danny L. BARLOW, et al.
    No. 2007-CC-1855.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Cleco Utility Group Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-5156; to the Court of Appeal, Third Circuit, No. CW 07-00756.

Denied.

KIMBALL, J., recused.

TRAYLOR, J., would grant.


text:
    Randy James HENRY, et al. v. Danny L. BARLOW, et al.
    No. 2007-CC-1872.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
   In re Cleco Utility Group Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-5156; to the Court of Appeal, Third Circuit, No. CW 07-00547.

Denied.

KIMBALL, J., recused.

VICTORY, J., would grant.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Jay CUCCIA v. BOARD OF ZONING ADJUSTMENTS OF/AND the PARISH OF JEFFERSON.
    No. 07-CA-152.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2007.

      Richard D. Tiemann, Jr., Attorney at Law, Gretna, LA, and Timothy J. Falcon, Attorney at Law, Marrero, LA, for Plaintiff/Appellant.
    Thomas G. Wilkinson, Philip A. Gattuso, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1 ^Plaintiff, Jay Cuccia, appeals a judgment of the trial court that upheld a decision by the Jefferson Parish Board of Zoning Adjustments (Board) to deny Mr. Cuccia a variance from the maximum height allowance for a new accessory building partially constructed on his property. The question here is whether, in the factual context of this case, Jay Cuccia acquired a property right to the structure as originally permitted and constructed before the permit was rescinded. We find that he did. Accordingly, we reverse.

Mr. Cuccia filed suit against the Board alleging in his petition that the Jefferson Parish Department of Inspections and Code Enforcement (DICE) issued a building permit upon review of the plans and specifications submitted for the construction of a new two-story garage and patio, allowing a portion of the structure to exceed the maximum height of thirteen feet provided by the Jefferson ^Parish Building Code. Mr. Cuccia further alleged that the structure was substantially complete, and nearing the final phase of construction, when DICE suspended the permit and required him to submit new plans or file for a variance of the building code.

Mr. Cuccia maintains he was advised that suspension of the permit was not a stop work order, and that he did not receive a stop work order until nearly two months after the building permit was suspended. Mr. Cuccia’s appeal to the Board for a variance was denied, and he filed this action in the trial court asserting that the Board, “acted contrary to law, abused its discretion, and acted in an arbitrary and capricious manner in denying the variances concerning the maximum height requirement.”

The Board answered the petition with a general denial and filed an exception of no cause of action. The trial court rendered judgment affirming the decision of the Board and dismissing the plaintiffs petition. It is this judgment that forms the basis of this appeal.

FACTS

During the process of restoring the home he had purchased from his grandparents’ succession, Jay Cuccia sought a permit to construct a two story accessory building which included a garage and patio. DICE reviewed Mr. Cuccia’s plans three times, requiring necessary changes. Mr. Cuccia made the necessary changes each time and resubmitted the plans to assure compliance with the building Code. When the building permit was issued Mr. Cuccia began construction. He poured the slab, and roughed in the plumbing. At the inspection |4which occurred at that point DICE did not notify Mr. Cuccia that the permit was issued in error. Thereafter Mr. Cuccia framed the building according to the original permit. Apparently after the building was framed, various neighbors made complaints that the building height did not comply with the Jefferson Parish building code. At issue was a part of the second story nearest the street which was measures 11 feet by 5 feet in dimension. The balance of the second story is in code.

On March 22, 2005, thirty-seven days after the building permit was issued and after the building had been framed, DICE informed Mr. Cuccia by letter that the building permit was suspended because had been issued in error as the structure exceeded the maximum height allowed of thirteen feet. The letter further instructed Mr. Cuccia to either file for a variance of the code requirement, or submit drawings that comply with the code. Mr: Cuc-cia became aware of this letter about two weeks later when he returned from vacation. At that time he telephoned the building permit office and was told the letter was not a stop work order and that he could apply for a variance. Mr. Piglia, a representative of DICE also told Mr. Cuccia that he could close up the building in order to render it water tight. On May 16, 2005, a stop work order was posted on Mr. Cuccia’s door. On the next day Mr. Cuccia filed a request for a variance with the Board.

■ The board conducted several public hearings on this matter. John Piglia and Paul Pham of DICE explained to the board that the permit had been issued, that it was only a few weeks later, after the slab had been poured and the building framed, that DICE realized that a part of the second floor violated the maximum height requirement and' suspended the building permit. They testified that the balance of the second floor was in code. John Piglia also testified that because construction |5had begun before DICE realized its error, DICE gave Mr. Cuccia permission to make the building “water tight.”

At the public hearings both neighbors and board members testified and argued in opposition of the variance. A Beverly Knoll Civic Association petition opposing the project was admitted into evidence. Witnesses testified that Mr. Cuccia continued construction after the stop work order was issued. They testified that they complained to DICE in response to no avail; that after building inspectors came out in response to their complaints the work continued. Board members and neighbors testified that after the stop work order was. posted they confronted the workers themselves about working in violation of the stop work order without response. DICE, while admitting its error, argued that Mr. Cuccia’s request for variance should be denied as untimely and, in the alternative, that the Board was correct in it decision to deny the variance.

In brief to this Court, Mr. Cuccia argues that he should have been allowed to rely on the building permit issued by DICE. He maintains that after he submitted his plans to DICE, he made eyery change DICE demanded before receiving his building permit. Further, he asserts that he began construction in good faith, relying on the fact that DICE had reviewed the plans on more than one occasion, and had ultimately approved the changes and issued a building permit. At oral argument he argued that he was so far along in the construction before DICE rescinded the building permit so as to have acquired a property interest in the building as originally permitted. Plaintiff also argues the Board was arbitrary and capricious in its decision to deny his variance given the facts.

DICE argues that Mr. Cuccia’s request for a variance was untimely and, in the alternative, the Board was correct in its decision to deny the variance.

lain order to decide this matter we must first decide whether Mr. Cuccia had a right to rely on the building permit issued in error. And, if so at what point did that reliance confer a property right in the structure build in good faith based on reliance on the building permit.

The plaintiff relies on Jefferson Parish v. Davis, in support of his argument that he should have been able to rely on the building permit. Mr. Davis sought and was granted a variance from the maximum height allowed in the building code before the building permit was issued and construction began. The variance allowed the building to be two feet higher than the maximum code height. During construction Mr. Davis sought an extension of the variance to raise the building to a height of nineteen or twenty feet, which was denied.

We are mindful that our jurisprudence holds that the mere fact that a building permit was issued in error and contrary to the laws of the city does not vest an irrevocable right to proceed under that permit if there is subsequent action canceling the permission previously granted. However, fairness and our jurisprudence confirms that when a homeowner relies in good faith and to his detriment on a building permit issued by DICE, and incurs expense as a result, he has a vested right.

In Jefferson Parish v. Davis, this Court stated:

It has been generally held that a municipal building permit or license may not arbitrarily be revoked by municipal authorities, particularly where, on the faith of it, the owner has incurred material expense. Such a permit has been declared to be more than a mere license revocable at the will of licensor. When, in reliance thereon, work upon the building is actually commenced and liabilities are incurred for work and material, the owner acquires a vested property right to the protection of which he is entitled. Citing; Dunn v. Jefferson Parish, 256 So.2d 664, 667 (La.App. 4th Cir.1972), writ denied, 256 So.2d 382.

Id. 716 So.2d 428, 433.

[7In the matter before us, Mr. Cuc-cia presented his plans and specifications to DICE three times, on each occasion Mr. Cuccia made the changes demanded by DICE to make certain the plans were in conformance with the building code. He did not begin construction until the building permit was issued. He roughed in the plumbing and poured the slab. At that inspection, DICE gave no indication that the building permit was issued in error. It was not until the structure was framed that DICE suspended the permit, and not until two months later that a stop work order was posted by the Parish. During this time, the Parish, through its agent, granted plaintiff the right to make the structure water-tight, which he did after the stop work order was issued. Under these facts we believe Mr. Cuccia is correct in his assertion that he acquired a vested property right to the protection of which he is entitled in accordance with the above cited jurisprudence.

There is a prima facie presumption of validity which attaches to zoning board action. To overcome that presumption, a plaintiff must show the zoning board acted arbitrarily. The opponent must show that the board’s action bears no relation to health, safety or the public’s general welfare. The burden is on the appellant to affirmatively show the board abused its discretion or its decision was in excess of its jurisdiction or otherwise erroneous as a matter of law. A reviewing court cannot substitute its own judgment or interfere absent a showing by the appellant or relator that the Board was arbitrary and capricious or abused its discretion.

|sOur review of the decision of the Board shows that it did not consider Mr. Cuccia’s argument that he should have been allowed to rely on the issuance of the building permit through which he acquired a vested property right. The decision of the Board on review in the trial court is contained in the record and shows that the board members:

. unanimously agreed, if they were to allow an accessory building to exceed the maximum 13' allowance in height by 11-1/2', the variance would certainly set an extremely undesirable legal precedent in which the adjoining property values would be adversely affected; and, the variance would- not meet the -‘standards’ listed in-the Jefferson Parish Comprehensive Zoning Ordinance . the variance would have a negative' impact on the essential character of the locality; and, it would not tend to preserve and advance the prosperity and general welfare of the neighborhood nor the community.

The Board also referenced the considerable opposition to the project from neighbors. The record of the Board’s proceedings bears out the opposition, as it contains numerous letters in opposition as well as signed petitions.

While we recognize the presumption of validity afforded the Board in its decision regarding the issuance of variances, we find that under the facts of this case, the plaintiff met his burden of proof that the Board acted arbitrarily.

We must analyze this case in the context in which it existed in March, 2005 when DICE told Mr. Cuccia it had made an error in its original permit and that he could make the building - “water tight” since it was DICE’S mistake. By that time the land,had been prepared, a slab had been poured, plumbing had been roughed in and the building had been framed up. By then, in order for Mr. Cuccia to construct-the building as originally designed and without a variance, Mr. Cuccia would have had to tear down the frame, rip out the plumbing and jackhammer the slab. Alternatively, Mr. Cuccia could rip out the portion of the second floor frame which [flwas in conflict with the code. Any alterations would be costly and unnecessary had DICE correctly reviewed the application before construction began.

We recognize that Mr. Cuccia cannot benefit from the argument that the building is “substantially complete” if the work performed to make the building “substantially complete” was performed in violation of the stop work order. On the other hand, Mr. Cuccia was given permission to render the structure water tight because he had begun significant construction on the building in good faith and consistently with the building permit which DICE issued. He cannot be penalized for doing what DICE permitted and what was necessary to minimize the damages occasioned by DICE’S error. Since we are looking at the structure as it existed in March, 2005 when Mr. Cuccia first received notice of the error and before he made the structure water tight, this is of no consequence.

At what point, then does Mr. Cuc-cia gain a property right in the structure which was originally permitted? While we do not set a bright line standard that this occurs at a particular point in time, certainly, when the home owner acts in good faith reliance upon the building permit which was issued after multiple occasions of interaction with the permitting authority, and that homeowner has prepared the lot, poured the slab, roughed in the plumbing, undergone a subsequent inspection and framed the structure, that homeowner has gained that property right.

Since Mr. Cuccia had gained his property right in the structure which had been constructed before the first written notice was sent in March, 2005, the issue of the timeliness of the variance is moot.

For reasons set forth in this opinion, we reverse the decision of the Board of Zoning Adjustments and the judgment of the trial court affirming that decision.

REVERSED.

      . There is no indication in the judgment or elsewhere in the record that the trial judge ruled on the exception of no cause of action before making its determination on the merits of the case. However, neither party suggests that the motion is still outstanding. As a general rule, where a judgment is silent with respect to any demand which was at issue in the case under the pleadings such silence constitutes a rejection of that demand. Overton v. Overton 97-45 (La.App. 5 Cir. 4/29/97), 694 So.2d 491; writ denied, 97-1876 (La. 10/31/97), 703 So.2d 26.

      . 97-1200 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, writ denied, 98-2634 (La.12/11/98), 730 So.2d 460

      . Parish of Jefferson v. Davis, 97-1200 (La. App. 5 Cir. 6/30/98), 716 So.2d 428, writ denied, 98-2634 (La.12/11/98), 730 So.2d 460.

      . Merrihue v. St. Charles Parish, 496 So.2d 1232 (La.App. 5th Cir.1986), writ denied, 497 So.2d 1019 (La.1986).

      . Prescott v. Parish of Jefferson, 96-1058 (La. App. 5 Cir. 4/9/97), 694 So.2d 468, 470

      . Parish of Jefferson v. Davis, supra.


text:
    STATE of Louisiana v. Gary McCRAY.
    No. 07-KA-143.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Martin Belanger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.The defendant, Gary McCray, was charged by bill of information with six counts of distribution of cocaine within 1000 feet of a church in violation of La. R.S. 40:981.3. At the arraignment, the defendant entered a plea of not guilty. After a defense motion to suppress the identification was denied by the trial court, and the defendant was tried by a jury on counts 1 and 3. The jury found the defendant guilty as charged on counts 1 and 3, and the State dismissed the charges on counts 2, 4, 5 and 6. In due course, the defendant was sentenced to serve twenty years on each count with the first five years to be served without the benefit of parole, probation, or suspension of sentence. ■ The sentences were ordered to run concurrently.

The State filed a multiple offender bill of information, which initially alleged defendant was a third felony offender. However, the bill was later |aamended to allege that the defendant was a second felony offender based on a 1995 conviction for attempt or conspiracy to distribute cocaine.

The defendant stipulated to his status as a second felony offender. The trial court set aside the original sentence on count 1 and re-sentenced the defendant as a multiple offender to serve twenty years without benefit of probation or suspension of sentence. The sentence was ordered to be served concurrently with any other sentence the defendant is serving.

The defendant filed this timely appeal to argue that his convictions were based on a tainted identification, and that the trial court erred in denying his motion to suppress the identification.

FACTS

In our consideration of the defendant’s assertion that the trial court incorrectly denied his motion to suppress the identification, we have considered the evidence introduced at the hearing to suppress as well as the pertinent evidence given at trial.

At the hearing on the motion' to suppress the identification, Agent Josh Bell testified that he was involved in the surveillance team which gathered evidence ultimately resulting in the arrest of the defendant. Agent Bell stated that the transaction between members of the surveillance team and the defendant was videotaped. Agent Bell further stated that he was shown a photo lineup consisting of six similar looking black males. From that lineup, Agent Bell recognized the defendant.

Agent Jackson also testified at the hearing. He stated that he made two photo identifications about fifteen minutes apart. Agent Jackson was shown six photos at a time and the only difference in the two lineups were that the photos 14were placed in a different order. Agent Jackson testified that he positively identified the defendant without hesitation in both photo lineups.

At trial Agent Jackson testified that he gave a description of the person from whom he purchased the cocaine to his surveillance team after the first drug transaction. After the second transaction, Agent Jackson confirmed that he purchased drugs from the same person again. Thus, prior to viewing the photo lineup, Agent Jackson had established that both transactions involved the same person. Further, Agent Jackson positively identified the defendant at trial.

Given the record before us, we do not find the identification procedure in this case resulted in a substantial likelihood of misidentification under the Manson factors. Agent Jackson came face-to-face with defendant on two separate occasions in the middle of the afternoon while he was conducting undercover drug buys for the purpose of identifying street level drug dealers for subsequent arrest. Therefore, his degree of attention on defendant was presumably high. After the first transaction, Agent Jackson gave an accurate detailed description of defendant on the videotape. He made the identification the day after the second drug transaction, he was positive in his identification, and he made the identification without hesitation.

At trial, the court heard testimony from Agent Corey Wilson, an undercover agent in the Narcotics Division of the Jefferson Parish Sheriffs Office who conducts surveillance and undercover narcotics purchases. He testified that, after receiving complaints about drug activity around an apartment complex in the Bunche Village area next door to a church, his team began an investigation. Fellow undercover agents were provided with cash to purchase crack cocaine, while other agents were nearby to assist as necessary. The vehicle used for the | investigation is equipped with a video camera and a microphone. A transmitter is worn by the undercover agent making the buy. On the day drugs were purchased from the defendant, Agent Wilson was observing the purchases and Agent Dion Jackson made the purchase.

Agent Wilson explained that Agent Jackson made purchases on two occasions from the defendant. Agent Wilson heard the first transaction over the transmitter and actually observed the second transaction over the camera.

Agent Jackson also testified at trial. He stated that at about 3:00 p.m. he was walking in the Bunch Village area when the defendant came up to him and asked if the agent “needed some weed.” Agent Jackson answered affirmatively. The defendant told Agent Jackson that only “hard” drugs were available. Agent Jackson told the defendant he wanted a “twenty”, which the agent explained was one rock of cocaine. The defendant left, but returned shortly after with the cocaine and gave it to Agent Jackson. When Agent Jackson left the area, he transmitted the location, the description of the defendant and other pertinent information to fellow officers. Agent Jackson then returned to his office and gave the evidence to Agent Wally Davis.

A few days later Agent Jackson returned to the Bunche Village area and encountered the defendant again. On this occasion the defendant told Agent Jackson to park on the side of an apartment complex at 1001 South Sibley. When the agent complied, the defendant inquired as to how many rocks of cocaine the agent wanted. Agent Jackson purchased two “twenties.” After receiving the money, the defendant went to the stairwell of the building and did a “hand to hand” with another male and then returned to the agent’s car to give him two rocks of cocaine. On both occasions, the defendant asked for two more dollars, which Agent Jackson gave him. Again Agent Jackson met with Agent Davis to give him l^the evidence. Subsequently, Agent Jackson identified the defendant in a photo lineup prepared by Agent Davis, and the defendant was arrested.

The record before us also- includes evidence introduced by the State that verifies the substance purchased by Agent Jackson was cocaine. There is also photographic evidence which shows that Calvary Baptist Church is next door to the site of the purchases, and video tapes of the two transactions between Agent Jackson and the defendant.

LAW

In brief to this Court, the defendant asserts that his convictions were highly suspect due to a tainted identification. The defendant argues ' that the photographic lineups were unduly suggestive so as to taint the in-court identification. His argument is twofold. He argues that, except for race and sex, he has no common characteristics to the other men in the photo lineups. Because of that, the defendant argues his photograph was prominently displayed in the lineups. Further, he argues the manner in which the photo lineups were conducted was prejudicial. The defendant asserts that Agent Jackson viewed two lineups; however, the only difference in the second lineup was that the same photos were put in a different order and shown to Agent Jackson shortly after he viewed the first lineup. Consequently, the defendant argues that the two photo lineups for the two drug buys were in reality only one photo lineup.

The defendant also contends that, at trial Agent Jackson could not recall the description of the defendant he gave to fellow members of the surveillance team. Further, the defendant notes that no description was given of his prominent physical characteristics which included a scar on his bicep and large lumps on his back shoulder. The defendant argues that those significant physical features were |7not mentioned at trial ■ for comparison purposes. The defendant contends that all of these issues related to his identification warrant reversal of his convictions.

The State responds that even if the photo lineups were suggestive, there was no substantial likelihood of misidentification. The State makes the points that the drug transactions occurred during the day, the undercover agent had full opportunity to view defendant and was focused on him, and the undercover agent described defendant immediately after the drug deal. The State further asserts that even if the out-of-court identifications were inadmissible, it was harmless error since the jury viewed the videotapes of the drug transactions and there were several in-court identifications.

The proper identification of a defendant is an essential element in the conviction of any crime. A defendant challenging an identification procedure has the burden to prove that the identification was suggestive and there was a substantial likelihood of misidentification as a result of the identification process. Strict identity of physical characteristics among the perSons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification.

In its determination of whether an identification presents a substantial likelihood of misidentification, a court must consider the totality of the circumstances. On appellate review, this court is not limited to the evidence adduced at the hearing on the motion; instead, it may also consider pertinent evidence given at trial, in determining whether the ruling on a defendant's motion to suppress is correct.

_kThe standard of review for identification procedures is fairness, and the linchpin in determining the admissibility of identification testimony is reliability. The factors to be considered in assessing reliability are: (1) the opportthiity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time. between the crime and the confrontation. Any corrupting effect of a suggested identification procedure is to be weighed against these factors.

In considering the defendant's arguments and in our application of the law in our review, we are mindful that the trial court's decision to deny a motion to suppress must be afforded great weight, and will not be set aside unless the preponderance of the evidence clearly favors suppression.

The photos used in both lin~ups are contained in the record, as are the videotapes of the transactions. Contrary to the defendant's assertion, the photos used in the lineup show six black males with similar facial features, and comparable amounts of facial hair. We do not find the lineups suggestive either in the other photos chosen for the lineup, or in the way the two lineups were presented.

Defendant further challenges Agent Jackson's identification on the basis that no description of the seller was presented, and Agent Jackson could not remember the description he gave of the perpetrator. We are not persuaded by this argument. Contrary to defendant's claim, Agent Jackson's detailed description of the seller was presented through the videotape of the first transaction, which was shown to the jury. In the videotape, Agent Jackson is heard describing the seller as an older-J2oking9 black male, taller than the undercover agent, with a medium complexion, light dirty brown hair in an afro style that was thinning in the back of his head, and wearing a dirty white, "wife beater" shirt and dirty blue jeans. Further, Agent Jackson identified the defendant at trial. Although, the defendant is correct in his assertion that Agent Jackson failed to describe defendant's distinct features, his identification of the defendant is consistent, and certain.

We find this assignment to be without merit.

This court has conducted a review of the record for errors patent in accordance with La.C.Cr.P. art. 920. We find several errors regarding the sentencing. First, we note that the trial judge has imposed an illegally excessive sentence which requires correction.

The trial court impermissibly imposed the first five years of the defendant’s sentence without parole, probation, or suspension of sentence, instead of the correct two year restriction.

The defendant was convicted of two counts of distribution of cocaine within I,000 feet of a church, a violation of La. R.S. 40:981.3(A)(3). La. R.S. 981.3(E) provides that a defendant “shall be punished by imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of La. R.S. 40:966 through 970.” La. R.S. 40:967 is the applicable provision for distribution of cocaine and subsection B(4)(b) provides that the first two years of the sentence is to be served without parole, probation, or suspension of sentence.

| ]0Although the sentence on count one was vacated in favor of an enhanced multiple offender sentence, the defendant’s sentence on count three remains illegally excessive and must be corrected. When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the Courts of Appeal;

. should not rely on La.R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence “at any time.” State v. Sanders, 04-0017 (La.5/14/04), 876 So.2d 42.

Accordingly, we hereby amend the defendant’s sentence on count three to reflect only the first two years of the sentence is to be served without the benefit of parole, probation, or suspension of sentence.

Further, the sentence on count one is illegally lenient because the trial court failed to impose a mandatory fine in accordance with La. R.S. 40:981.3(E), which requires that the court impose the “maximum fine” for violation of the applicable statute. La. R.S. 40:967 B(4)(b) provides that a fine of “not moré than fifty thousand dollars” may be imposed. An illegal sentence may be corrected at any time by an appellate court on review. The sentence is hereby amended to provide that the defendant shall pay a fine of fifty thousand dollars.

Additionally, we note that although the trial court imposed the enhanced sentence on count one without the benefit of probation or suspension of sentence, it did not impose the first two years of the enhanced sentence without benefit of parole as required by La. R.S. 40:981.3(E) and La. R.S. 40:967(B)(4)(b). Nevertheless, no remedial action is required because under State v. Williams, 172511 (La.11/28/01), 800 So.2d 790, 799, and La. R.S. 15:301.1(A), the without benefits provision of a statute is self-activating.

Finally, we find that the trial court failed to adequately inform the defendant of the time limitations within which he must apply for post-conviction relief. La.C.Cr.P. art. 930.8 provides that a defendant has two years from the date the “judgment of conviction and sentence has become final” in which to apply for post-conviction relief. We remand this matter to the trial court to properly inform defendant of the prescriptive period by sending him written notice within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice.

Accordingly, we amend defendant’s sentence on count two to reflect only the first two years of the sentence is to be served without the benefit of parole, probation, or suspension of sentence and imposes a fine of fifty thousand dollars. As amended, the defendant’s conviction and sentence is affirmed. The matter is remanded to trial court for correction of the commitment and compliance with the instructions herein.

AMENDED AND AS AMENDED AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . See: State v. Raines, 00-1941 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, writ denied 01-1906 (La.5/10/02), 815 So.2d 833.

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

      . Names given for undercover agents are false to protect their identity.

      . State v. Thomas, 06-654 (La.App. 5 Cir. 1/16/07), 951 So.2d 372.

      . State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134, 1145

      . State v. Singleton, 05-634 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 808, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532

      . State v. Raines, 00-194 1 (La.App. 5 Cir. 5/30/01), 788 So.2d 635

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

      . Id.

      . State v. Raines, supra. 788 So.2d at 640

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

      .Count three of the original indictment became count two for jury purposes when counts 2, 4, 5 and 6 were dismissed.

      . La.C.Cr.P. art. 882(A)

      . State v. Thomas, 06-654 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 381-382


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Herbert R. DERKINS, Jr.
    No. 07-KA-151.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Martin Belanger, Assistant District Attorneys, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney At Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|20n June 25, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Herbert R. Derkins, Jr., with distribution of cocaine, in violation of LSA-R.S. 40:967(A). Subsequent to pleading not guilty, defendant filed several pre-trial motions, including a motion to suppress identification which was denied. The matter proceeded to trial before a twelve person jury on December 14 and 15, 2004. After considering the evidence presented, the jury found defendant guilty as charged. Defendant filed a motion for new trial, which the trial court denied on March 9, 2005. On the same day, after defendant waived sentencing delays, the trial court sentenced him to ten years at hard labor with credit for time served.

The State subsequently filed a bill of information pursuant to LSA-R.S. 15:529.1, alleging defendant to be a multiple offender. After being advised of his multiple offender rights, defendant stipulated to being a second felony offender. | ¡¡The trial judge vacated defendant’s original sentence and sentenced him as a second offender to twenty years at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

This case involves a narcotics transaction that took place on January 29, 2004, between defendant and Agent Josh Bell, an undercover officer with the Jefferson Parish Sheriffs Office. On that date, Agent Bell proceeded to 6613 Westbank Expressway in Jefferson Parish, an area known.for its drug activity. When Officer Bell arrived at that location, he circled the area looking for a person from whom he could buy narcotics. The officer saw an individual, subsequently identified as defendant, and asked him for a “twenty.” Defendant originally said “no,” but then called the officer back to make the sale. Agent Bell handed defendant a twenty dollar bill in pre-recorded U.S. currency, and in exchange, defendant gave the officer one off-white rock like substance. After driving out of the area, Officer Bell contacted the surveillance team that had been monitoring the transaction. He gave the surveillance team a description of the seller including the fact that he was wearing a Cowboys’ starter jacket. Agent Bell also informed them that the seller left in the backseat of a late 80’s Grand Marquis that went onto the expressway. Subsequently, Agent Bell gave the videotape of the transaction and the drugs he purchased to Agent Billy Matranga, lead agent in the case and part of the surveillance team. Agent Matranga performed a preliminary field test on the substance which revealed the presence of cocaine. Further scientific analysis confirmed that the substance contained cocaine.

^Immediately after the narcotics transaction was complete, Agent Matranga contacted patrol officer Deputy Ed Manix, gave him a description of the suspect, and asked him to get an identification through a field interview. The narcotics unit described the individual that neéded to be identified as a black male, wearing grey sweats, and a Dallas Cowboys’ football jacket, seated in the back of a beige late 80’s Mercury Marquis. In response to the call, Deputy Manix stopped the suspect vehicle about five or six blocks from the transaction as a “suspicious persons stop.” The vehicle was occupied by a male driver and two passengers, one male and one female, all of whom were black. Deputy Manix asked the occupants for identification, did a pat down for weapons, and ran a main check on N.C.I.C. for outstanding warrants and attachments. The N.C.I.C. check revealed an' outstanding attachment on defendant involving a traffic violation and resisting arrest. After Deputy Manix arrested defendant on the outstanding attachment, he .viewed the videotape of the drug buy and recognized defendant as the person that he stopped. Deputy Manix also identified defendant in court as the person he stopped on the date of the incident.

Approximately five weeks after the drug buy, on March 5, 2004, Agent Matranga compiled a photographic lineup for Agent Bell that included a picture of defendant. Agent Bell viewed the videotape of the drug transaction to refresh his memory before he viewed the photographic lineup. Thereafter, he identified defendant both in the photographic lineup and in court as the individual from whom he purchased the narcotics.

At trial, after the state rested, defense counsel called Sergeant Robert Harrison, a communications supervisor for 911, and Norman Donald, an alibi witness. Sergeant Harrison testified that the initial call from Deputy Manix, the |fiofficer who stopped defendant, was received at 3:09 p.m. Sergeant Harrison testified that he is confident that the times in the radio log are accurately kept.

Norman Donald testified that on January 29, 2004, he was driving his girlfriend and defendant to a restaurant when two Jefferson Parish police officers stopped him for a traffic violation. According to Donald, defendant was with him for about an hour before the traffic stop. He testified that defendant had not been selling cocaine prior to the stop, and he had not seen defendant with any cocaine that day. Further, although Donald could not remember what defendant was wearing at the time of the stop, he testified that defendant was not wearing a starter jacket with the hood up.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant challenges the sufficiency of the evidence used to convict him of distribution of cocaine. He specifically argues that the evidence presented at trial regarding his identification was tainted and, therefore, insufficient to prove his identity, which was necessary to convict him of distribution of cocaine.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. Where the key issue is identification, the State must negate any reasonable probability of misidentification to carry its burden of proof. State v. Cobb, 02-967 (La.App. 5 Cir. 1/28/03), 839 So.2d 235, 238, writ denied, 03-747 (La.10/17/03), 855 So.2d 758.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact can accept or reject the testimony of any witness. State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 650. An appellate court does not evaluate the credibility of witnesses, nor should it overturn the trial court on its factual determination of guilt. State v. Jackson, 00-1014 (La.App. 5 Cir. 12/13/00), 778 So.2d 23, 30, writ denied, 01-0162 (La.11/21/01), 802 So.2d 629.

In the present case, defendant’s challenge to the sufficiency of the evidence focuses on his identity as the perpetrator. He points to several facts to support his claim that he was misidentified as the seller of the narcotics. He also claims that the photographic identification by Agent Bell was suggestive and unreliable, leading to a likelihood of misidentification. We will first address defendant’s claims relating to the suggestiveness of the identification procedure.

The defendant claims that Agent Bell could not have identified him as the seller of the drugs from the brief encounter that only lasted thirty seconds, especially since the seller’s head was covered at the time. In addition, defendant contends that Agent Bell’s photographic identification was unreliable, because it was made five weeks later after twenty or thirty other drug buys, and after Agent Bell viewed the videotape of the transaction to refresh his memory. In addition, Agent Bell testified that a still photograph generated from the videotape indicated that the seller had deep lines around his chin, a facial feature that defendant alleges he does not possess.

In challenging an identification procedure, the defendant must prove to the court that it was suggestive and that there was a substantial likelihood of mis-identification. Even if the identification procedure is found to be suggestive, this alone does not violate due process. Rather, it is the likelihood of |7misidentification that violates due process, not the mere existence of suggestiveness. State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559; State v. Raines, 00-1941 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 639, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

The standard of review for identification procedures is fairness, and the linchpin in determining the admissibility of identification testimony is reliability. The factors to be considered in assessing reliability are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Any corrupting effect of a suggestive identification procedure is to be weighed against these factors. A court must consider the totality of the circumstances to determine whether an identification presents a substantial likelihood of misidentification. State v. Payne, 04-828 (La.App. 5 Cir. 12/14/04), 892 So.2d 51, 53; State v. Raines, 788 So.2d at 689; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

In this case, we find that the officer’s viewing of the videotape of the transaction before identifying defendant in a photographic lineup can be deemed suggestive; however, we conclude that it did not.cause a substantial likelihood of misidentification. Agent Bell testified that he makes a point of looking at the face of the person from whom he buys drugs, in the undercover transactions, because he knows he will have to pick that person out in a lineup or testify in court in the narcotics case. Also, the face-to-face transaction took place during daylight hours, and Officer Bell had the opportunity to view defendant both when defendant first refused to sell him the drugs and then when defendant sold him the drugs. In addition, five weeks between the drug transaction and Agent Bell’s photographic |8lineup identification apparently did not lead to the likelihood of misidentification. Agent Bell testified that he viewed the videotape of the drug transaction only to refresh his memory and he remembered the drug buy “pretty well” without viewing the videotape. Additionally, the fact that the transaction was recorded on videotape greatly reduces any risk of misidentification. We also note that the videotape was played for the jury at trial, and defense counsel was given the opportunity to cross-examine Agent Bell regarding the validity of his identification.

Having determined that the identification procedure did not lead to a substantial likelihood of misidentification, we will now address' defendant’s remaining claims relating to the sufficiency of the evidence. In one of his arguments, defendant asserts that there was a discrepancy at trial between the time of the drug sale and the time of the stop, making it impossible that it was defendant who sold the drugs. In addition, defendant claims that when he was later stopped he was not wearing a starter jacket with a hood like the one that covered the drug seller’s head, nor did he have the pre-recorded bill used to make the undercover buy. He notes that the starter jacket and the twenty dollar bill used in the undercover buy were never recovered as part of his property, regardless of the fact that the police did not check for these items at the jail. The defendant also notes that Agent Bell did not get the license plate of the vehicle in which the suspect rode, nor could he describe the other occupants of the vehicle.

We have reviewed these specific arguments and find them to be without merit. Regarding the time discrepancies, the jury was presented with the testimony of Agent Matranga that he set up the surveillance for the undercover buy at approximately 3:00 p.m. or 3:10 p.m. that day. Agent Bell testified that the undercover drug buy took place at exactly 3:13 p.m., according to the videotape |flrecorded in his vehicle. Sergeant Robert Harrison, Communications Supervisor for the Jefferson Parish Sheriff’s Office’s 911 Center, testified the call for assistance came in at 3:09 p.m., but that times were approximate based upon the operator’s typing skills. Deputy Ma-nix testified that he responded to the call for assistance, at approximately 3:10 p.m. or 3.T5 p.m. His recollection was that the stop occurred at 3:12 p.m. That was also the time of the stop stated on his arrest report, because that was the time that he was given by headquarters. However, Agent Matranga testified that the times given in the police report were approximate, because they were taken off the videotape. The manually operated surveillance video equipment they used was unable to be calibrated. In addition, he suggested that the watches used by the other police officers involved in the undercover buy were likely to all have different times.

The jury was also presented with evidence about the starter jacket. Agent Bell testified that immediately after the transaction, he gave a description of the person who sold him the drugs, including that he wore a starter jacket. He also informed his surveillance team that the seller left in the backseat of a late 80’s Grand Marquis that went onto the expressway. Agent Manix received a call for assistance concerning an individual that was described as a black male, wearing grey sweats, and a Dallas Cowboys’ football jacket seated in the back of a late 80’s Mercury Marquis. Deputy Manix stopped the vehicle that matched the description approximately five or six blocks from the location of the trans- ■ action. At the time of the stop, defendant, seated in the back seat, was wearing grey sweats and a Cowboys’ starter jacket. After he arrested defendant on the outstanding attachment, Deputy Manix viewed the videotape of the drug buy and identified defendant as the individual that he stopped.

ImAlso, while there was no evidence presented at trial that defendant was in possession of the pre-recorded twenty dollar bill used in the undercover buy, Agent Bell testified the pre-recorded money is rarely recovered; therefore it is not necessarily photocopied for identification purposes. Rather, the money is pre-recorded so that it can be used as an exhibit in court. Agent Matranga testified that the money was photocopied in order to allow them to affect an immediate arrest, or to keep track of the money. He responded that it was not customary for officers to go into the correctional center to recover items when there is a videotape of the drug buy.

In the present case, the jury was presented with the direct testimony of Agent Bell that he purchased one off-white rock object from defendant. Agent Bell subsequently identified defendant both in a photographic lineup and in court as the person who sold him the drugs. The transaction was videotaped and played for the jury. Finally, the substance that Agent Bell bought from defendant was tested and proved positive for the presence of cocaine. The jury also heard the evidence regarding the discrepancies in the time of the stop and the time of the transaction, as well as any conflicting testimony about the description of defendant. In reaching the guilty verdict, the jury obviously found the State’s witnesses to be more credible, a determination which lies solely with the trier of fact. Under the circumstances, we find that the jury, after listening to the evidence and viewing the videotape, could have found beyond a reasonable doubt that defendant was guilty of distribution of cocaine.-

In the present case, we have considered all of defendant’s arguments involving the sufficiency of the evidence and his identification as the perpetrator of the offense and find them to be without merit.

|, ^ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues that the State failed to prove conclusively that the “rock” was cocaine. He admits that the lab report, which stated that the substance submitted for testing was cocaine, was accepted into evidence without any objection by the defense. Defendant argues for the first time on appeal that the admission of the lab report without a stipulation or the testimony of lab analyst is unverified hearsay. He claims that the State should not have been able to rely on Agent Matranga’s testimony that he submitted the drugs purchased during the undercover transaction to the crime lab.

Pursuant to LSA-R.S. 15:499, “all criminalistics laboratories ... are authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made.” If the certificate from the laboratory contains the required statutory information, the certificate shall be prima facie proof of the facts shown thereon unless the defendant subpoenas the preparer of the certificate. State v. Matthews, 632 So.2d 294, 300 (La.App. 1 Cir.1993). This procedure relieves the proponent of the evidence of the burden of having to produce the person who performed any tests on the evidence but allows the opposing party to subpoena under cross-examination the person performing the tests. State v. Matthews, 632 So.2d at 302. The statutes pertaining to the submission of evidence from criminalistics laboratories do not unconstitutionally infringe upon defendant’s constitutional right to confrontation, because the defendant merely has to subpoena the person who performed the analysis of the evidence. State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, 1121. If the defendant fails contemporaneously to object to the introduction into evidence of the State Police |12Crime Laboratory reports, the defendant is precluded from raising this issue for the first time on appeal. State v. Matthews, 632 So.2d at 300.

In the present case, like State v. Matthews, supra, the crime lab report -was received into evidence without any objection from the defense. In addition, the record does not show that defendant subpoenaed the analyst who prepared the report. Therefore, defendant is precluded from raising this issue for the first time on appeal pursuant to LSA-C.Cr.P. art. 841. This assigned error is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that the record does not contain a ruling on defendant’s motion to reconsider sentence. Normally, the trial court’s failure to rule on a timely filed motion for reconsideration of sentence requires a remand. State v. Evans, 02-1108 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 114. Although the record does not contain a ruling on the motion, this court has received a copy of the March 28, 2007 minute entry, which stated that the trial court denied defendant’s motion to reconsider sentence. Accordingly, for completeness purposes, we order that the record be supplemented with a ruling on defendant’s motion to reconsider sentence.

For the reasons set forth herein, we affirm defendant’s conviction and sentence and order the district court to supplement the appellate record with the ruling on defendant’s motion to reconsider sentence.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Josh Bell is not the officer’s actual name. His real name is not used for the officer's safely.

      . Agent Bell testified that a "twenty” is slang for twenty dollars worth of crack cocaine. Agent Matranga testified that a "twenty” is one rock of crack cocaine.