author: SUSAN M. CHEHARDY, Judge.

text:
    Lionel E. TURNER, Sr. v. DELTA BEVERAGE GROUP/PEPSI AMERICA.
    No. 07-CA-529.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      Diane K. Zink, Attorney at Law, La-Place, Louisiana, for Plaintiff/Appellee, Lionel E. Turner, Sr.
    Virgil A. Lacy, III, Jayme P. Smith, Blue Williams, L.L.P. Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant, Delta Beverage Group/Pepsi Americas, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| aThis is a worker’s compensation case in which the employer appeals a judgment in favor of the employee. We affirm.

Lionel E. Turner, Sr. claims he sustained back injury as a result of an on-the-job accident on February 5, 2004. He filed a disputed claim for compensation on January 25, 2005. He alleged he was injured while working as a filler operator for Delta Beverage Group/Pepsi Americas, Inc. (hereafter “Delta Beverage”). Turner asserted he was struck in the face by a pallet after the foreman hit a button to raise the pallet hydraulically; he claimed he was hit with such force that he was temporarily blinded and fell on his hip. He sought penalties and attorney’s fees for denial of medical expenses, but did not seek weekly indemnity benefits.

Delta Beverage did not deny either the existence of Turner’s back injury, nor its severity, but challenged his claim that the back injury is causally connected to the accident of February 4, 2005. Delta Beverage disputed Turner’s statement that he fell to the ground after the pallet struck him.

It is undisputed that Turner continued to work at full duty for approximately one month following the incident of February 5, 2004, and did not complain of [ aback pain to his supervisor or foreman at Delta Beverage. Turner’s last day of work was March 5, 2004.

The matter was tried on February 15, 2007. On March 26, 2007, the OWC court rendered judgment. In the judgment the court found the employee met his burden of proving a causal connection between the February 5, 2004 work-related accident and his current back condition. The court ruled that the employee sustained a work-related accident with injury on February 5, 2004 while in the course and scope of his employment with Delta Beverage Group/Pepsi Americas, Inc.; that his current back condition is the result of the work-related accident of February 5, 2004 and, as such, the employee is entitled to any reasonable and necessary medical treatment; and that the employer reasonably controverted the claim.

FACTS

Lionel Turner was the only person who testified at the trial. Testimony of other witnesses was submitted by deposition.

Turner testified his regular job duties were as a two-liter filler operator. He worked the evening shift, from 3:00 p.m. until 11:30 p.m. On the evening of February 5, 2004, he was not working on the two-liter filler, but on a palletizer machine instead. He knew how to operate practically any machine in the building, and occasionally he was asked to work on a different machine than the filler. The palletizer has a bin in which the forklift driver places loads of pallets. The machine automatically dispenses the pallets onto the conveyor to receive bottles in cases. The palletizer jams a lot, however, and when that happens the operator has |4to use a large steel crowbar (seven-to-eight feet long) to try to pry up the stuck pallets, because the palletizer works hydraulically.

At the time of the accident, Turner said, he was in front of the palletizer with the steel bar, trying to pry it up. He put the crowbar down while trying to push the pallet up manually. The night foreman, Darren St. Pierre, came from Turner’s “blind side” and started operating the buttons on the side of the machine while Turner was in front of it. When the machine released the stuck pallet, St. Pierre was operating it manually from the side. As a result, the pallet “jumped out” with a loud bang, struck Turner in the left side of his face, and knocked him down to the floor. Turner said St. Pierre didn’t see him at first. When he got around to where Turner was, Turner was in a kneeling position.

Turner said St. Pierre asked him, “What’s wrong with you?” and Turner told him, “Hold on a minute, I can’t see.” St. Pierre asked Turner if he wanted to go in to sit in the office. Turner did so. While there he looked at his face, and saw his lip was cut on the left side. St. Pierre came to check on him and asked whether he wanted to go to the doctor. Turner told him no. He said at trial he didn’t know to what extent he was hurt at the time. Turner said he sat for about an hour, then returned to work.

Asked about other employees who may have witnessed the accident, Turner said the forklift operator, Raymond “R.J.” Tamplain, was in the general vicinity. When Turner got up after the accident, R.J. came around and put his hand on Turner’s shoulder, and helped him get up.

Turner said after the pallet struck him he went down on his right cheek and hip. His eyes were wide open but he couldn’t see. He could feel a warm, hot-burning feeling, a “warm clammy moist feeling.” When he got up to his knees he was frightened because he couldn’t see, even with his eyes wide open. He was | .^concerned about his hip because he felt “that instantaneous burning sensation” on his back right hip.

His lip was split inside, all the way up to the gum, and a tooth was loose. By the next day, the lip was purple and swollen. He continued to work because he needed to work because of his responsibilities. He did not go to the doctor right away because he wasn’t anticipating not being able to work. He didn’t want any time off without a regular paycheck.

When he returned to work after the accident, he could not perform his job as well as before. As a filler operator, Turner had to load a bin with bottle caps every 20 to 30 minutes, which required him to walk about 25 feet and dump a box of caps into a bin. The boxes of caps weighed 40 to 60 pounds. He had to bend to lift the boxes of caps. He had to cut the box open, lift it up, and dump the caps in the bin. He had to oil the machine frequently, which required stopping it and reloading it with oil. Occasionally when the machine jammed, he had to go underneath a three to three-and-a-half-foot high rail to unjam it, and had to unjam the machine from twenty to forty times a day.

It got to the point where he couldn’t bend any more. He couldn’t go under the rail to check the filler. If he dropped something, a lot of times he couldn’t pick it up. He walked around for “a long time ... maybe three weeks” bent over, with everybody teasing him. He had to ask other people to pick up things he dropped. He had difficulty showering and dressing because he couldn’t pick up his feet or bend over to put on his pants and tie his shoes. He continued for several weeks until he “just couldn’t take it” any more. It was “very miserable.”

He admitted that between February 5, 2004 and March 8, 2004, he never asked anyone at his job for permission to see a doctor. He wanted to continue to work and he thought he would feel better. When the pain got to where he couldn’t | ¿function — he couldn’t bend either backward or forward, or stoop — he knew he had to do something. He last worked at the company on March 5, 2004.

Turner went to the East Jefferson General Hospital emergency room on March 8, 2004, because the pain had become “excruciating, unbearable.” He couldn’t sleep, couldn’t bend or stoop or move fast. He knew he couldn’t go to work and function any more. The pain was so great he was actually groaning.

Turner admitted that when he went to the emergency room, he did not report his injury as a workers’ compensation matter. He paid for it with his health insurance. He said that when asked if he had injured his back, he told them about the incident at work, and that the pain came about after that. He still wasn’t sure what was happening to him.

Turner admitted he reported at the emergency room that the onset of back pain occurred about a week prior to his emergency room visit. He said he stated it that way because that was when it got to the point he couldn’t take it any longer. That was the point when he couldn’t function in his job anymore.

He said he did not tell the emergency room staff he fell to the ground when he was struck in the face with a pallet, because they did not ask for details.

Turner was questioned about his answers on a patient worksheet form he filled out for Advance Rehabilitation, a physical therapy center, on April 5, 2004. In it he described the onset/injury as having taken place 41 days earlier (which would fall on February 23, 2004). Turner said that was when he really began to experience excruciating pain and numbness in his legs. He stated he was progressively getting worse ever since February 5, 2004. He could not recall whether he told his physicians that he related his back pain to the fall after being hit in the face by the pallet

17Turner said he applied for disability benefits rather than workers’ compensation benefits because he had never been involved with workers’ compensation before. In addition, he thought he was okay; he thought he was going to be out, but would come right back to work. He wasn’t trying to extend his time out from work, because he knew he needed to work. He had never previously had an on-the-job injury.

Turner never returned to work after March 2004. At the time of trial he was receiving Social Security disability benefits.

As for how the injury affected his ability to function, Turner stated he can’t do any of the things he used to do. He cannot drive far, because it hurts his back to drive. If he sits too long, it hurts. If he stands too long, it hurts. If he lies in bed too long, the pain wakes him after a while and he has to change position or sit up. When he wakes in the morning, he wants to get up and do something, but he can’t and “that is miserable.” He has two small children that he would love to spend time with, but he can’t do things that require him to stand too long.

Turner said an orthopedic surgeon has recommended he undergo surgery at the L4-L5-S-1 vertebrae. Turner had not agreed to the procedure because he knew the trial was pending and he didn’t want to be in a recuperating process that would have added pressure on him.

On cross examination, Turner said that St. Pierre was the foreman. He said St. Pierre did not fill out any report on the accident that evening. He admitted he did not say anything to St. Pierre about his back that evening, although he felt the burning and the clammy, moist feeling, because the extent of the injury was new to him and he had no idea what was going on. He had no idea what would be forthcoming.

[sTurner didn’t speak to St. Pierre the next day, because the supervisor, Warren Lambert, took Turner off the production line to make an accident report. Lambert filled out a form and told Turner to call a toll-free telephone number to report the accident. Turner was not aware of St. Pierre having filled out an accident report. Turner could not recall what questions he was asked when he made the telephone report. He never received a copy of any reports.

Turner said after the accident, while he was working but feeling pain, he ran the filler machine while in a leaning-over position, because he couldn’t stand up straight. He braced himself against a stool he had brought from home. Asked why he did not tell anyone he was having problems with his back, he said it was obvious and “they knew that.” No one ever came to him and asked whether he wanted to take some time off. He needed to work and wasn’t looking to have time off. He had never been in a situation like that before. Any days he missed from work would offset his income to the point where it disrupted his whole household.

Turner admitted he did not tell the emergency room personnel he had fallen down in the accident at work, nor about hurting his back in the accident. He said the notation “no recent trauma” was correct, because it wasn’t recent. He also admitted that he did not call anyone at Delta Beverage to let them know he was going to the emergency room. He admitted that from the time of the accident on February 5 until he went to the emergency room on March 8, 2004, he never went to any doctors for anything having to do with his back. He didn’t report any back injury to anyone at Delta Beverage. He went to see Dr. Larkin after the emergency room visit because East Jefferson referred him to Dr. Larkin. He admitted that in completing the patient information form for Dr. Larkin, he checked “no” in response to the question whether the injury was work-related and, for date of injury, he put “not applicable.”

| ^Turner stated he applied for short-term disability while still working at Delta Beverage because they told him to do so. He said, “I didn’t know how things like this worked. I had never been out on sick leave before. I wasn’t going to apply for unemployment because I wasn’t unemployed. So I applied for short-term disability.” He said a lady in the office told him he was probably going to be out for a while and needed to apply for short-term disability. That was after he had been to see Dr. Larkin.

Asked why Dr. Sheldon Hersh’s report said there was no history of trauma, Turner responded that Dr. Hersh didn’t quiz him about any history. Turner did not recall being asked about whether he had an accident. He did not tell the doctor how he had been hurt. He admitted he told the doctor the problem began in March 2004. He said the comment on Dr. Larkin’s record that he had been having back pain for about a week was because “the severity of it was within that time.” He said prior to that it was severe but not intolerable, but then it became intolerable.

Asked why he had not called as witnesses any of his former coworkers whom he said saw him working in pain, Turner responded that the one person he asked to testify, R.J. Tamplain, refused to do so because he felt he had been “blackballed” when he was fired shortly after Turner’s accident. Turner said, “I didn’t want to make his life any more miserable than it is out there.”

Asked further about the differences in the dates the various doctors reported as to his onset of pain, Turner said he has a high tolerance for pain and has always bragged about how much pain he could tolerate, but by March he couldn’t tolerate his pain any more.

Delta Beverage challenged Turner’s testimony by pointing to various documents filed in evidence, as well as deposition testimony of other witnesses, that contradicts Turner’s version of events.

1 inDarren St. Pierre testified in deposition that on February 5, 2004, he was production foreman at Delta Beverage. At the time of Turner’s accident, St. Pierre was sitting on a forklift, which he used to move materials around. The forklift was parked at the time. Turner was operating the palletizer. The palletizer was sticking, as usual, which required the operator to stick a shaft in and pry the pallets loose. A pallet hit Turner in the mouth. He was standing directly in front of where the pallets go into the machine. He looked in, the pallet got pushed up, and it popped him in the mouth. His lip and gum were bleeding, and a tooth was loose.

St. Pierre asked Turner whether he wanted to go to the hospital, but he declined. St. Pierre denied seeing Turner fall down. Asked whether Turner ever indicated he had hurt his back in the incident, St. Pierre said no. St. Pierre said he called the manager, then he filled out an accident report in Turner’s presence. St. Pierre acknowledged there were additional notations on the form that he did not make. He did not know who made them. He said Turner showed him his cut lip and loose tooth, but never said anything else. St. Pierre did not recall whether he asked Turner what his specific injuries were. He based his notes on the form on what he observed for himself. He did not recall whether Turner’s face later became swollen or discolored, nor did he recall whether Turner subsequently made any complaints after returning to work. St. Pierre did not recall ever asking Turner whether he had problems as a result of the incident.

St. Pierre also said he did not recall whether he himself hit a switch on the machine while Turner was trying to unjam the pallets. He admitted, “I might have to help him.... So whenever he pried it with the pipe, the bar, the pallets would break loose.” He saw Turner get hit by the pallet, but did not recall seeing Turner go down to the floor on one knee. He did not know what he said to Turner afterwards. He did not recall if Raymond Tamplain was in the vicinity.

|nSt. Pierre agreed that from where he was located he could see Turner standing in front of the palletizer, from an angle that would be the back of his head and the right side of his body. Asked again whether Turner fell down when the palle-tizer hit him in the face, St. Pierre said no. He admitted, however, that if Turner was standing at the front of the palletizer, while St. Pierre was operating the buttons, St. Pierre would not have seen Turner. However, he said he did not recall whether he was operating the buttons when Turner was injured, but he did recall seeing the pallet hit Turner in the mouth.

As Turner testified, he first sought medical help at East Jefferson General Hospital’s emergency room on March 7, 2004, complaining of back pain. The triage form indicates under “hx of complaint,” “onset over 1 week with back pain pt reports unable to stand ‘unbearable constant pain’ cannot stand for longer than 1 min.” Under “past medical hx,” the form states “none.” It also states, under “examination,” “History obtained from patient.” In handwritten notes in the lower part of the form, “No recent trauma [illegible] 3-4 wk ago (struck in head [with] pallet at work).”

The printed Emergency Department Record by Ivan Sherman, M.D., states, “This 57 year-old black male presents to the emergency department with right sided lower back pain now for a week. He denies any recent trauma, however, he says 3 to 4 weeks ago, he was struck in the head with a pallet while at work. There was no loss of consciousness. He denies any blurred vision or dizziness. He says the back pain improves on standing and bending over.”

Dr. Keith Larkin, an orthopedic surgeon, first saw Turner on March 9, 2004. Turner complained of soreness in lower back for two weeks. He worked at a bottling plant and couldn’t do it because of his pain. He had no prior history of pain in his back. The doctor’s notes did not express the patient reporting a fall at 112work, and the doctor did not recall his mentioning that. The doctor probably would have made a note if the patient had indicated he had had a fall or something else precipitating the onset of the pain.

The patient’s report of when his back pain started would put the onset at about two weeks before he saw Dr. Larkin. Larkin said if the patient was hit in the face by a pallet in early February, but not knocked to the ground and did not fall down and did not have back pain until the last week of February, the doctor would not relate the pain to the accident. Assuming he did fall down, but did not report any back pain or injury until sometime in the last week of February, the doctor would still feel the back pain was not related. He would expect the symptoms to arise sooner than two-and-a-half to three weeks.

Dr. Keith Larkin referred Turner to Parish Pain Specialists, where he was treated by Dr. David Shawa. The Pain Assessment Form, dated 5/19/04, lists “Feb. 2004” under “When did it begin?” and continues, “3-4 wks prior to pain struck in face by pallet -> fell to his knees.” The Evaluation & Management Report by Dr. David Shawa, dated 5/19/04, states, “His pain started in February of 2003. He does not recall the precipitating events, but states that three to four weeks prior to the onset of his pain, he was struck in the face at work by a pallet causing him to fall backwards and then to his knees.”

Dr. Robert Lesser, accepted by both parties as an expert in internal medicine, examined Lionel Turner on April 11, 2006. Turner told the doctor he was injured in 2/2004 on the job at Pepsi. Tests showed that by April 2006 Turner’s degenerative disc disease with bulging discs, diagnosed in April 2004, had progressed to a ruptured disc with an extruded disc fragment. Dr. Lesser said it is possible and also medically probable that Turner’s being struck in the face by the palletizer and knocked onto his right side could have caused the findings.

| t 3According to Dr. Lesser, the fall could have caused the disruption despite the patient’s not complaining about it until a month later, because people have different pain tolerances. He said, “A lot of what pain registers as is the meaning of the pain, and he may have played football or something, got whacked a bunch of times and said: Okay, this will be better in a day or two .... and it just persisted ... and got gradually worse until it went past some threshold and he decided: Okay, this is not okay.”

Dr. Lesser agreed it can be said that Turner has a higher tolerance for pain than the average back injury patient, because the amount of medication he was taking was less than many people take for that type of injury. He stated further he has seen patients whose back pain developed after the acute event, and he thought such pain could develop anywhere from several days to weeks later. The doctor also agreed that pain from being struck in the face could have overshadowed pain in other regions of the body such as the back.

An August 17, 2004 report from Dr. Seymour Hersh directed to the Disability Determinations Service stated in pertinent part, “Problem. Back pain. Patient states this began in March 2004. There is no history of trauma.”

Dr. Warren Bourgeois saw Turner on a referral from Dr. Larkin on November 29, 2004. Dr. Larkin had treated Turner from a conservative standpoint and referred him to Dr. Bourgeois for possible treatment by more invasive methods. The history Turner gave Dr. Bourgeois was that he had fallen on his right side when he was hit by a pallet in the left side of the face. Subsequently he had low back pain radiating to the right lower extremity. Dr. Bourgeois obtained that history from talking to Turner directly. Based on the history Turner gave, Dr. Bourgeois related his back pain to the event he described. Asked whether three weeks is normal for an onset of back pain in someone fell on their side as related |14by Turner, Dr. Bourgeois said it’s possible for a disc injury to progress over time. However, it would be very unusual for there to be no pain for four weeks, and then all of a sudden pain if it’s related to the injury that occurred four weeks before. He would expect there to be some pain that may gradually increase and become more evident over time. If there were no pain for four weeks after an injury, and all of a sudden there were pain, he would have trouble making a connection. However, he said he couldn’t really answer the question without a history of when the pain began. Normally pain could start within an hour, within 24 hours, or within a couple of days, but not four weeks. If a fall caused the pain, Dr. Bourgeois would expect him to start noticing it within probably three days, a week at the outside.

On the other hand, if he was having a lot of facial pain or headaches, it could have made him overlook the back pain early on, until the other, more acute pain started to subside. After hearing counsel describe the action of the palletizer on Turner, the doctor said it’s possible that amount of trauma could mask a secondary source of pain until the acute trauma healed. Within a week he should have had some stiffness, some achiness, and trouble moving around, and he would have noticed something by then.

Dr. Bourgeois said further that because the initial MRI showed degenerative changes, it’s possible he had experienced some low back pain at some point before, so that could have played into his possibly ignoring any new or increased low back pain he felt initially after the accident. A fall such as was described by Turner could aggravate the progress of degenerative disc disease.

Shown Dr. Larkin’s patient information sheet, which indicated the injury was not work-related, Dr. Bourgeois commented, “[T]he patient’s interpretation of whether or not it’s work related I don’t think is— I’m not saying it’s irrelevant. What’s more relevant is the time line and the data of what actually occurred. This hsdata doesn’t sway my opinion or really add much to my opinion.” He acknowledged, however, that assuming Turner was involved in an accident on February 4, 2004, he would have expected back injuries to have occurred before March 2004.

Dr. Bourgeois stated he recommended the patient undergo a lumbar microscopic diskectomy, which does not require a fusion. Turner declined the surgery and elected to continue conservative care under Dr. Colvin. Based on the data given him at the deposition, Dr. Bourgeois said he could not relate the back problems to the incident on February 4, 2004. Under a scenario in which Turner fell after being struck by the pallet, however, he could relate it. He agreed it’s possible for trauma in one part of the body to mask pain from another injury. However, Dr. Bourgeois felt it unlikely that he could have sustained a serious enough injury to not recognize a herniated disc in his back.

Dr. Meda Colvin, who is board-certified in physical medicine and rehabilitation, and practices pain medicine, first saw Lionel Turner on July 18, 2006. His complaint was low back pain and right leg pain since 2004. Her notes indicate it was from an accident at work with Pepsi. In addition, he had an exacerbation of it when he was thrown to the ground in an altercation with police on May 8, 2006.

Dr. Colvin had no opinion about whether Turner could have gotten a herniated disc from a blow to the mouth. After an injury that would result in a herniated disc, she would expect him to experience back pain by the next day at least. If he did not experience pain for several weeks after the incident, she would believe it less likely the incident is related to the back pain. Dr. Colvin said you would expect pain from a herniated disc to exhibit itself sooner than three weeks after an incident, but it doesn’t always exhibit itself. She said you certainly could |1figet a herniated disc from being struck in the head with a pallet, but it’s hard to know without knowing the amount of force with which he was hit. She would not render an opinion on whether the February 5, 2004 accident was the cause of Turner’s back problems. She noted he had the herniation before the 2006 altercation with police. She also said it can be very common for one injury to mask or override another injury. She agreed a lot of trauma to the face and mouth could override a back injury.

Dr. John Steck, a neurologist, saw Lionel Turn on July 27, 2006 for problems related to a herniated lumbar disc. He had been seeing Dr. Steck’s associate, Dr. Colvin, who had treated him conservatively and felt he might need surgery. Dr. Steck did not document the patient’s history, but simply referred to Dr. Colvin’s history in his notes. Dr. Steck understood he had a back complaint related to a work incident, and then was in an altercation when he either fell or was thrown to the ground and developed increasing radicular pain. Dr. Steck said that after a traumatic incident that resulted in a herniated disc, he would expect the back symptoms to start within days, several days at longest. Asked whether being hit in the mouth with a pallet can cause a herniated disc in the back, the doctor replied, “Probably not.” If the incident was February 4, Dr. Steck said, he would have difficulty relating it to the emergency room complaint on March 4.

ASSIGNMENTS OF ERROR

On appeal Delta Beverage assigns the following errors: (1) The trial court was clearly wrong and manifestly erroneous in finding that the employee established a causal connection between the February 5, 2004 work-related accident and his subsequent back condition; (2) the trial court erred in finding that Lionel E. Turner, Sr.’s back condition resulted from the work-related accident; (3) the trial court erred in disregarding the opinions of the initial treating physicians, 117who were specialists in the field, regarding whether the back injury could be causally related to the February 5, 2004, accident.

Delta Beverage argues the overwhelming weight of the evidence shows that Turner’s back condition was neither caused by nor related to the February 5, 2004 accident. The defendant asserts that Turner’s claim he suffered a back injury from the accident was established as a medical improbability by Turner’s various treating physicians and is contradicted by St. Pierre’s testimony, the medical evidence, and by Turner’s own accounts as provided to multiple individuals, including medical professionals on various occasions.

The defendant argues that St. Pierre’s deposition testimony was neither impeached nor discredited. His testimony was taken after he left the defendant’s employ and there was no showing he had any reason to give an inaccurate account of the incident. Further, defendant points out that Turner did not miss any work during the month after the accident, despite the physical nature of his work. He never complained of back pain to any supervisor, co-worker, or medical professional during the month following the accident, prior to his seeking treatment at the emergency room.

The defendant states that Turner’s testimony, the documents he admits to filling out himself, and the story given to his doctors are “glaringly inconsistent” with his claim at trial that the onset of his back pain was contemporaneous with the accident and that he suffered in misery, evident to all around him, for over a month prior to seeking medical attention. The defendant contends there is nothing beyond Turner’s self-serving, uncorroborated testimony to support his version of the facts, while numerous records and eyewitness testimony stand in contrast to his version of events and his claims of the severity of his injuries following the accident. |1sBased on these arguments, the defendant asserts the trial court’s ruling must be found to be manifestly erroneous and should be reversed.

Delta Beverage also argues that less weight should be given to the opinion of Dr. Lesser, who stated it is possible the fall could have caused the disruption without the patient complaining until a month later, because people have different pain tolerances. Delta Beverage points out that Dr. Lesser is an internal medicine specialist, not an orthopedist or neurologist, and did not begin to treat Turner until over two years after the accident. The defendant contends the opinion of a specialist is entitled to greater weight when the subject at issue concerns the particular field of the specialist’s expertise.

In opposition, Turner asserts the court’s determination that he met his burden of proof to establish a causal connection between the accident and his back injury has a reasonable factual basis in the record, and the record establishes the finding is not manifestly erroneous. The plaintiff had immediate onset of back pain at the time of the accident, which continued to become progressively worse until he sought treatment a month later. Further, Turner contends the court was not bound by the opinion of any expert because all the medical experts in this case treated back injuries. Thus, the court was entitled to accept or reject the opinion expressed by any of the experts, based on the court’s evaluation of the qualifications, credibility, and testimony of that expert. Accordingly, Turner argues the court did not err in accepting the opinion that his back injury was causally-related to the February 5, 2004 accident.

LAW AND ANALYSIS

Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether |13the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. “Thus, ‘if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” [Citations omitted.]

Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 8-9 (La.3/4/98), 708 So.2d 375, 380-381.

Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. [Citations omitted.]

Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

“A jury is not required to disregard testimony merely because the witness may be interested or biased. It is within the province of the trier of fact to place more probative value on the testimony of an interested witness than that of a disinterest [sic] one.” Rosell, 549 So.2d at 848.

Experts’ testimony may be given differing weights by the trier of fact depending on their qualifications and the facts upon which their opinions are based. For example, the general jurisprudential rule is that the diagnosis of the treating physician is entitled to more weight than that of a physician consulted solely for the purpose of litigation. Similarly, the testimony of a specialist is entitled to greater weight when the subject at issue concerns the particular field of the specialist’s expertise. The trier of fact, however, “is not bound to accept the testimony of an expert whose testimony is presumptively given more weight if he finds the opinion is less credible than that of other experts.” [Citations omitted.]

\20)McClendon v. Keith Hutchinson Logging, 96 2373, pp. 11-12 (La.App. 1 Cir. 11/7/97), 702 So.2d 1164, 1172, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995.

[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions.

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992). Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

Where a factfinder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650.

Here, the workers’ compensation judge clearly found Lionel Turner’s testimony as to how the accident happened and whether he fell after being struck credible, despite the conflicts with the testimony of Darren St. Pierre. We do not |¾1 find manifest error in that determination. St. Pierre admitted he could not recall several crucial facts: whether he was on the forklift the entire time Turner was trying to unjam the palletizer; whether he may have operated the switch on the side of the machine, a location from which he admitted he would not have been able to see Turner at the time Turner was struck; what he said to Turner after the accident, although he remembered seeing Turner’s bleeding mouth, bleeding gum, and loose tooth. St. Pierre testified he filled out an accident report, but could not explain several notations and completions on the report that he admitted were not in his handwriting. He did not recall whether he asked Turner what his injuries were; he only listed the injuries he himself observed.

Further, regarding the history of back pain given by Turner on the emergency room report and to the various doctors, as well as the doctors’ testimony regarding the likelihood of causation, we find no manifest error in the court’s conclusion that the injury was causally related to the February 5, 2004 accident. The court obviously concluded that Turner was telling the truth about working in pain following the accident, until his pain became so great he sought emergency room treatment a month after the accident. The hypothetical questions posed to the various physicians varied as to the scenario of the accident and how the back pain might be related. The doctors’ opinions were divergent.

Both Dr. Colvin and Dr. Lesser, however, indicated that the back injury could be related. Turner indicated he consistently had back pain following the accident, which only became intolerable three weeks later, and the court found him credible. Hence, there is no inconsistency in any of the opinions as to the causal relationship of the back condition to the accident.

| a¡.For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Delta Beverage Group/Pepsi Americas, Inc.

AFFIRMED

      . He is receiving Social Security disability payments.

      . The judgment repeatedly lists the date of the accident as February 5, 2005, which clearly is a typographical error. We list it correctly in this opinion.

      .The depositions submitted are of Doctors Robert Lesser, Keith Larkin, Warren Bourgeois, John Steck, and Meda Colvin, as well as the claimant's coworker, Darren St. Pierre.


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Damon D. ADAMS.
    No. 07-KA-355.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellant.
    Juan C. Labadie, Attorney at Law, Gret-na, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ?-The State of Louisiana appeals from the guilty plea conviction and sentence of the Defendant, Damon Adams, on Count One, for possession with intent to distribute MDNA, with a sentence of eight years at hard labor, suspended, with the Defendant placed on five years of active probation. For the reasons which follow, we set aside the sentences on Count One and Count Five and remand.

The Defendant in this case pled guilty to the charges against him. As a result, the facts leading up to the charges are minimal and not relevant to this appeal. Following the plea on all counts, and particularly on Count One, to possession with intent to distribute MDNA, in violation of La. R.S. 40:966(A), pin accord with the Defendant’s written waiver of rights form, the Defendant was sentenced “to 8 years in the Department of Corrections.” That sentence was suspended and Defendant was placed on five years of active probation.

Following the imposition of sentence, the State filed a timely Motion to Reconsider/Correct Sentence. In the motion, the State argued that the sentence imposed on Count One was illegally lenient. More specifically, it was argued that the statute under which the Defendant was convicted and sentenced, La. R.S. 40:966(A) and (B)(2), respectively, required a mandatory five year sentence to be served at hard labor and without benefit of parole, probation, or suspension of the sentence. Thus, the sentence imposed by the trial court, suspending the eight year term, was illegally lenient and thereby invalid.

At the hearing on the State’s motion, the trial court noted that the State had been in agreement with the suspended sentence during plea negotiations and when imposed. The promise of suspended sentences formed part of the agreement upon which the plea was based, as evidenced by the Defendant’s waiver of rights form and the colloquy between the Defendant and the trial court. Further, the trial court noted that the Defendant had been doing well on probation for the past nine months between sentencing and the hearing on the motion. For these reasons, the trial court denied the State’s motion. It is from this ruling, as well as the imposition of sentence, that the State appeals.

On appeal, the State argues that the trial court erred in imposing an illegally lenient sentence and, as such, it must be vacated. The State argues that its consent to, or even advocacy for, an illegally lenient sentence cannot excuse or diminish that illegality. Whatever its initial position, the State argues, if the State timely moves, in writing, to reconsider an illegally lenient sentence, it is entitled to the relief sought.

|4The Defendant argues in opposition that since the State agreed to the sentence, illegally lenient or not, as an inducement for the guilty plea, and the Defendant did plead guilty, the State should not thereafter be entitled to have the sentence increased.

It is well settled that a plea bargain that affords a defendant an illegally lenient sentence is a nullity which cannot be affirmed on appeal. State v. Fairman, 06-366, p. 4 (La.App. 5 Cir. 10/31/06), 945 So.2d 783, 785, citing, State v. Chisley, 03-426, p. 10 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 51, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874. However, it is equally well settled that a plea is considered constitutionally infirm when a defendant is induced to enter the plea by a plea bargain or by what he justifiably believed was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984); State v. Ebright, 04-0972, p. 4 (La.App. 5 Cir. 1/11/05), 894 So.2d 359, 360-361.

In this case, the Defendant pled, in Count One, to possession with intent to distribute MDMA, in violation of La. R.S. 40:966(A). The penalty for violating this Subsection, as applicable in this case, provides:

(2) Except as otherwise provided in Paragraph (3) of this Subsection, any other controlled dangerous substance classified in Schedule I, shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence, and pay a fine of not more than fifty thousand dollars.

La. R.S. 40:966(B)(2).

Defendant was sentenced to eight years at hard labor, and his sentence was suspended, without consideration, as requested by defense counsel, of a downward departure, under State v. Dorthey, 623 So.2d 1276 (La.1993), from the statutorily | ^provided sentence. As imposed, the sentence is illegally lenient and must be vacated.

However, as the record presently stands, remanding for resentencing in accord with La. R.S. 40:966(B)(2) would seem to require the imposition of a sentence that would not conform with what was intended by the parties at the time the guilty pleas were accepted and the original sentences were imposed. Such action would render the plea constitutionally infirm and require the plea to be vacated. The Supreme Court has cautioned us, in State v. Robinson, 06-1406 (La.12/8/06), 943 So.2d 371, against setting aside guilty pleas resulting in dispositions favorable to the defendant on the basis of defects about which the defendant does not complain. Therefore, rather than vacate the plea at this juncture of the case, we will remand the case to the district court with instructions to conduct an evidentiary hearing before resentenc-ing, to determine what was intended by the plea agreement upon which Defendant relied in pleading guilty, and whether a legal sentence can be imposed in conformity with the plea. The trial court must then either sentence Defendant to a legal sentence in conformity with what was intended or vacate the guilty plea if it is found that Defendant’s pleas were induced by a promise that cannot be kept. See. State v. Lewis, 628 So.2d 247 (La.App. 5 Cir.1993).

ERROR PATENT

The record was reviewed for errors patent, according to La.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 the following error.

In sentencing the Defendant on Count One to eight years imprisonment, suspended with five years active probation, the trial court ordered that the same sentence would apply to Count Five. In Count Five, the Defendant was charged Rand pled guilty to possession of clonazepan, in violation of La. R.S. 40:969(C). The penalty provision for that offense provides for imprisonment “with or without hard labor for not more than five years and, in addition, may be required to pay a fine of not more than five thousand dollars.” La. R.S. 40:969(0(2). Accordingly, we find that Defendant’s sentence for that offense, to eight years imprisonment, is illegally harsh, because it is beyond the maximum allowed by law. An illegal sentence, whether too lenient or too harsh, cannot be affirmed on appeal. Therefore, we vacate the illegal sentence imposed on Count Five.

Based on the foregoing, the sentences imposed on Count One, for possession with intent to distribute MDMA, and Count Five, for possession of clonazepam, to eight years imprisonment at hard labor, suspended, with five years active probation, are vacated. The case is remanded to the district court for a hearing to determine what was intended by the plea agreement, whether a legal sentence can be imposed in conformity with that intent, and to sentence the Defendant accordingly or allow him to withdraw his plea.

SENTENCES ON COUNTS ONE AND FIVE VACATED; CASE REMANDED.

      . MDMA is the common name for 3, 4-methy-lenedioxymethamphetamine, a non-narcotic controlled dangerous substance classified in Schedule I.

      . At the time Defendant pled and was sentenced on Count One, he also pled and was sentenced to three other counts: Count Three, possession of cocaine, sentenced to five years; Count Four, possession of dextroampheta-mine, sentenced to five years; and Count Five, possession of clonazepan, sentenced to eight years at hard labor, all sentences were ordered to run concurrent and suspended, with the Defendant placed on five years active probation. Count Two related to a charge against a co-defendant.

      . According to the police report, the Defendant was stopped for a traffic violation and, in plain view, a clear plastic bag of green vegetable matter was observed by the officer. Defendant was placed under arrest and a search incident to the arrest of his person as well as the vehicle revealed the other drugs.


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

text:
    STATE of Louisiana v. Judy A. MARIE.
    No. 07-KA-397.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Adrea F. Long, Thomas S. Block, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡.The Jefferson Parish Grand Jury returned an indictment on December 12, 2002, charging defendant, Judy Marie, with one count of aggravated rape in violation of LSA-R.S. 14:42 and one count of indecent behavior with a juvenile in violation of LSA-R.S. 14:81. She pled not guilty and filed numerous pre-trial motions, including a motion to quash the indictment, motion to suppress her statement, and motion to suppress the evidence, all of which were denied after a hearing. Defendant subsequently entered into a plea agreement with the State whereby she withdrew her not guilty pleas and pled guilty to the amended charge of forcible rape and the charged offense of indecent behavior with a juvenile. In accordance with the plea agreement, the trial court sentenced defendant on count one to twenty-eight years at hard labor, the first two years being without benefit of parole, probation, or suspension. As to count two, the trial court sentenced defendant to seven years at hard labor and then ordered that the two sentences run concurrently.

| ¡/Thereafter, the State filed a multiple offender bill of information alleging defendant to be a second felony offender based on the underlying forcible rape conviction and a previous conviction for possession of hydrocodone and alprazolam. As part of the plea agreement, defendant stipulated to the allegations contained in the multiple bill. Her sentence on count one was vacated and she was resentenced as a second felony offender to twenty-eight years without the benefit of probation or suspension of sentence and the first two years being without parole, probation, or suspension of sentence. The enhanced sentence was ordered to run concurrently with defendant’s sentence on count two.

Defendant now appeals, seeking to withdraw her guilty plea on the basis it was obtained under duress. We first note that in her appellate brief, defendant points to no evidence and makes no argument to support her claim that her guilty plea was obtained under duress. She merely cites one case that sets forth the general standard for the withdrawal of a guilty plea. Pursuant to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v, Lauff, 06-717 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819. In State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770, this court found that the defendant failed to brief his position where he merely asserted his position, but failed to include argument or any legal citation in support thereof. The Fernandez court found that the assertions presented nothing for review on appeal. Likewise, defendant’s simple assertion in this case that her plea should be withdrawn because it was obtained under duress presents nothing for our review.

|4Even though we find that this assignment was abandoned, we note the record indicates that prior to accepting her guilty plea, the trial court conducted a plea colloquy with defendant advising her of her right to a jury trial, right to confront her accusers and right against self-incrimination. The trial court specifically advised defendant that no one could force her to plead guilty and asked if anyone had used force, intimidation, coercion, or promise of reward against her or any member of her family for the purpose of forcing or making her plead guilty to which defendant responded, “No, sir.” Additionally, defendant executed a waiver of rights form where she was advised of her rights and indicated she wished to waive them. The form also advised her that no one could force her to plead guilty and asked if anyone had used force, intimidation, coercion, or promise of a reward in an attempt to force her to plead guilty. In accepting defendant’s guilty plea, the trial court specifically stated that it found her plea to be knowing and intelligent and free and voluntary.

We have also reviewed the record 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 no errors patent.

For the reasons set forth herein, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.


text:
    STATE of Louisiana v. Derrick LONDON.
    No. 07-KA-473.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, (Appellate Counsel), Anne Wallis, (Appellate Counsel), Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Derrick London.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2Derrick London appeals his conviction of second degree murder. We affirm, but remand for correction of a patent error.

On August 18, 2005 Derrick London was indicted for violation of La.R.S. 14:30.1 by second degree murder of Otis Mitchell. On August 19, 2005 the defendant entered a plea of not guilty. On September 27, 2006, the defendant’s motion to suppress statements was denied, but his oral motion for mistrial was granted. The trial was re-set. The second trial commenced on December 13, 2006 and concluded on December 14, 2006. The jury returned a verdict of guilty as charged.

On March 9, 2007, the trial court denied the defendant’s motion for new trial and sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. This timely appeal follows.

FACTS

Dr. Susan Garcia, an expert in the field of forensic pathology, testified she performed an autopsy on the body of Otis Mitchell on June 13, 2005. Dr. Garcia said the victim had multiple gunshot wounds, consisting of four entrance wounds [3and one exit wound. Two of the entrance wounds and the exit wound were on his torso; one entrance wound was to his left arm, from the back; and the fourth entrance wound was above his left buttock. Dr. Garcia could not determine the order in which the wounds were received. She said they were distance-range wounds, but could not determine the distance, which could have been from three feet to 300 feet.

Dr. Garcia testified three impact projectiles were recovered from the body. Because of the exit wound, no fourth projectile was found in the body. The doctor identified State’s Exhibits 1 through 5 as pre-autopsy photographs of the body that accurately depict the location of the entrance wounds. She identified State’s Exhibits 7, 8 and 9 as the projectiles recovered from the body: Exhibit 7 is a fully copper-jacketed medium-caliber projectile. Exhibit 8 is a deformed projectile with a copper wash, with a clearly identifiable base that she would refer to as medium caliber. Exhibit 9 is a slightly deformed copper-jacketed medium-caliber projectile.

Dr. Garcia testified a toxicology screen disclosed there was cocaine in the victim’s urine and blood, and cocaine metabolites in his urine that indicated the victim probably ingested cocaine within two hours prior to his death.

Tim Scanlan, assistant director of the crime laboratory and a firearms examiner expert, testified he was given the projectiles recovered in the autopsy and was asked to determine the general class of those projectiles. Because no murder weapon was recovered, the ballistic evidence included what was recovered at the scene and during the autopsy.

DScanlan identified State’s Exhibit 7 as a copper-jacketed projectile, State’s Exhibit 8 as an unknown caliber lead-like projectile, State’s Exhibit 9 as another metal-jacketed projectile, and State’s Exhibit 10 as an unknown caliber metal-jacketed projectile. He determined that the metal-jacketed projectiles, State’s Exhibits 7, 9 and 10, were consistent with .38-caliber class ammunition and possessed six lands and grooves with a right twist. Scanlan explained this was most consistent with revolver-type ammunition, most likely from a .38 special or a 357 magnum. State’s Exhibit 11 was an unfired .25 caliber cartridge, which Scanlan said was not recovered at the scene but through a search warrant. He said it was a loose cartridge found at a residence.

The victim’s arm tested positive for gunshot residue. Scanlan testified it is common for a shooting victim to test positive for gunshot residue. He explained a positive result could be from a distant shooting, maybe up to seven or eight feet away. He could not give a more accurate distance determination without a murder weapon.

Scanlan distinguished gunshot residue from stippling, saying that three feet is the maximum for stippling because enough force is needed for the gunpowder to embed itself in the skin, while gunshot residue can be deposited at a greater distance. He explained that stippling is caused by gunpowder debris imbedding in the skin, as opposed to simply being deposited on the skin. He agreed that one possible explanation for the gunshot residue on the victim could be that the shooting occurred from a distance between three feet to seven or eight feet.

| r,Sergeant Billy Lewis testified he is assigned to the Jefferson Parish Sheriffs Office 911 center. He identified State’s Exhibit 12 as a cassette tape of the 911 call relating to the shooting in this case. Exhibit 12 was played for the jury.

Detective Roger Gorumba testified that on June 11, 2005, he responded to a 911 call about multiple gunshots fired and a murder in the 1100 block of Clydesbank, a neighborhood in Harvey. Police found a body in a breezeway between two sets of apartments that face each other, in front of Apartment B at 1157 Clydesbank. When Detective Gorumba arrived, the body had already been removed. There was a small amount of what appeared to be blood at the site where the body was found.

The victim’s clothing, which had been cut away when the medical technicians rendered aid, was still on the scene. Police discovered a projectile in the clothing. They also found a twenty-dollar bill, which Detective Gorumba said was unusual because of the foot traffic in that area. Police were unable to find any other evidence, such as projectile damage or bullet casings, in the area. Detective Gorumba identified State’s Exhibits 14 through 34 as photographs of the crime scene and said they depicted the scene as he found it.

By the following day, police had developed information that enabled Detective Gorumba to obtain an arrest warrant for Derrick London. The defendant was arrested and was taken to the Investigations Bureau for questioning about the incident. Gorumba said the defendant made several statements while being interviewed over the course of several hours. Two of the statements were recorded on audiocas-settes, and also were transcribed. These were played for the jury.

| fiIn the first statement, the defendant said that he, his cousin Ty Harell, his brother Gerald London, a girl named Nie-ka, and his friend Wesley were sitting outside at his mother’s house at 1108 Cly-desbank. The victim was causing a disturbance in front of the house. The defendant initially stated, “So a dude that jacked me my $40.00 and me and him had like a little word, word for word.” The defendant then said the victim was jacked and that they argued. (He explained “jacked” meant, “He wanted to buy drugs and he gave the dude the money, and the dude never came back with it.”)

The victim was told not to come back, but a few minutes later the defendant saw him walking back down the street, still aggravated. The defendant and five others were walking in the street when they saw the victim coming with a knife, which was “cuffed” along his forearm. He described the knife as longer than a kitchen knife, with a brown handle, another piece sticking out of the back, and a chip on the front of it. He could not remember which hand the knife was in.

The defendant said the victim kept coming towards him with the knife, saying, “[Bjitch, I just lost my $40.00, somebody jacked me, bitch. I want some money, bitch, come on, I want some money.” The defendant stated a “dude” gave him a gun, which he described as “big like a 40, between a 40 or a 45.” He thought the person who gave him the gun was named Trey. (In his second statement, the defendant referred to the person who gave him the gun as “Tory.”)

The defendant said he shot the victim about three times to defend himself. He explained that after the victim was shot he fell to the ground and dropped his knife; however, the victim got back up, cursing and holding the knife towards the defendant after picking it up. The defendant shot the victim two more times. Then, the victim ran through the “cut” and did not come out again. The defendant thought the knife might still be there on the sidewalk in the grass. The defendant |7explained that the shooting happened in an area where trees had been knocked down. He agreed to go to the scene and show the detective where the incident happened.

The defendant said that after the shooting, he gave the gun back to Trey. He then went to his house and smoked a cigarette while sitting on the step. He later saw the police respond. He told his sister Danielle what happened first and she told his mother and brother. According to the defendant, the victim recently stabbed him on his left forearm after the victim asked the defendant for a bag of weed. The defendant went to the hospital for treatment of the wound, but he did not press charges because he feared he would be killed. The defendant said he knew if he got stabbed again he would lose his life.

Detective Gorumba explained that the cousin and brother mentioned in the defendant’s first statement were reluctant to be interviewed. According to Detective Go-rumba, after the defendant’s first statement he was unable to understand exactly where the incident took place, so the defendant agreed to go there and demonstrate the incident for Gorumba.

Between the first and second statement, they went to the scene. Detective Gorum-ba testified the defendant was talking about the same area at 1157 Clydesbank, but about 100 or so feet further down in a vacant lot. The defendant described the alleyway where the victim’s body was found as the “cut,” and stated that the incident occurred next to a large tree. He showed the detective where he was alongside the sidewalk, and where the victim was standing by the tree, which Detective Gorumba estimated to be about 12 to 15 feet away, when the defendant |sfired the first shot. The defendant said the victim produced a knife and he felt threatened, so he was able to arm himself with a gun.

Although the body, the blood, and the projectile were discovered in the alleyway, according to Detective Gorumba the search for evidence did include the vacant lot area including the area by the tree. The area with the tree was searched even before they received direct knowledge that the area was involved. The lot was searched with a metal detector. They never found a knife.

Detective Gorumba also testified the police report from the prior stabbing reflected that the defendant said his brother cut him with a box cutter while they were “horsing around.”

Deputy Alford McCoy testified he took the report on May 30, 2005 regarding the cutting. Upon arrival, Deputy McCoy talked to the mother, who advised him that her sons were playing in the living room with a box cutter and the defendant was cut by his brother. The defendant was taken to West Jefferson Hospital. Deputy McCoy went to the hospital, and the defendant said he and his brother were “horse-playing” when he received the unintentional cut, about two inches in length, to his left outer forearm. He did not want to press charges against his brother. Deputy McCoy did not speak to the brother. He was told the brother could not be located at the time.

The defendant’s second statement was as follows: The defendant went to the scene after his first taped statement and showed the detective where the shooting occurred. The defendant explained he was in the street and walked towards the sidewalk in the grass. He said the victim was coming towards him from behind the tree to which the defendant brought the detective. The victim was walking towards him with a knife which was held along his forearm with the blade facing down.

19The defendant stated he shot the victim once by the tree in the victim’s shoulder and the victim fell and dropped his knife. He stated that the victim got back up and ran towards the “cut.” The defendant said he did not know the victim “stayed” there. The defendant said he was running behind the victim because the victim was trying to kill him with a knife. The victim turned through a “cut” and the defendant shot him again in the breezeway of the two apartments. The defendant believed these shots hit the victim in his chest and in his side.

The defendant explained the “cut” was where the victim fell down between the apartment complex. The defendant stated when the victim went into the breezeway he believed he would try to jump the fence or turn the doorknob and defendant shot him again. He said a bald-headed man was standing outside and called the police. He stated he gave the gun to “Tory.” Defendant brought the detective to where Tory lived.

Detective Gorumba had the defendant’s body photographed, because the defendant indicated he received a previous injury from a confrontation with the victim which occurred less than two weeks prior to the shooting. Further, Detective Gorumba wanted to document any other injuries that may have occurred during the shooting.

Detective Gorumba testified he did not know how the defendant could claim self-defense when he shot the victim once in the back. He questioned how the defendant could be in immediate danger if the victim was not even facing him. He also pointed out that the victim was going into his house when he was shot in the back. He noted that the scene was searched and no knife was discovered. Detective Go-rumba testified there was no evidence to indicate the shooting was in self-defense.

|inDNA found under the victim’s right-hand fingernail was tested. The parties stipulated to the results, which indicated the DNA mixture was from the victim and from the defendant.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant asserts the evidence was insufficient to support the verdict, because the State failed to prove beyond a reasonable doubt that the killing was not in self-defense. The State responds that the jury was correct in concluding the defendant did not act in self-defense, based on the undisputed physical and testimonial evidence adduced at trial.

The standard of appellate review for a claim of sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Macon, 2006-0481, p. 7 (La.6/1/07), 957 So.2d 1280, 1285; State v. Holmes, 98-490, p. 3 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982); State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833.

When circumstantial evidence is used to prove the commission of an offense, La.R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Wooten, 99-181, p. 4 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208, citing | ^State v. Captville, 448 So.2d 676, 678 (La.1984). This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; therefore, the credibility of witnesses will not be reweighed on appeal. Macon, 2006-0481 at pp. 7-8, 957 So.2d at 1285-1286; State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052,1056.

In the present case, to prove second degree murder, the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1); State v. Pagan, 04-1478, p. 10 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 441, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013.

Specific intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). The determination of specific criminal intent is a question of fact. State v. Seals, 95-0305, p. 6 (La.11/25/96), 684 So.2d 368, 373, cert, denied, Seals v. Louisiana, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Gant, 06-232, p. 8 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. State v. Graves, 99-M3,is p. 3 (La.App. 5 Cir. 8/31/99), 740 So.2d 814, 816, writ denied, 99-3013 (La.3/31/00), 759 So.2d 68. “The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.” State v. Hidalgo, 95-319, p. 9 (La.App. 5 Cir. 1/17/96), 668 So.2d 1188,1197.

The defendant does not argue the State failed to prove the elements of second degree murder. Instead, he contends the homicide was justifiable because the shooting was committed in self-defense. A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La.R.S. 14:20(A)(1).

Further, “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21.

When a defendant claims self-defense in a homicide case, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. Gant, 06-232 at p. 8, 942 So.2d at 1111. In Gant this Court recognized the following principle:

The relevant inquiry on appeal is whether a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. The determination of Defendant’s culpability focuses on a two-fold inquiry, whether, from the facts presented, Defendant could reasonably have believed his life to be in imminent danger, and whether deadly force was necessary to prevent the danger.

06-232 at p. 9, 942 So.2d at 1111-1112.

| isln the present case, the court instructed the jury as to self-defense and the aggressor doctrine. Counsel presented the jury with two versions of the shooting: The State argued the defendant shot the victim without justification. The defense argued the homicide was committed in self-defense, that is, the victim had a knife on the day of the shooting and was coming toward the defendant. The defense further argued that the defendant’s fear for his life also stemmed from a previous altercation with the victim where he stabbed the defendant. According to the defendant’s taped statement, the defendant feared for his life since the victim had stabbed him less than two weeks before the shooting incident and then again displayed a knife on the day of the shooting.

The jury, however, apparently found the State’s version of events, as presented by its witnesses, more credible. The jury could have believed, from the testimony of Detective Gorumba and Deputy McCoy, that the victim was not even involved in the prior stabbing. According to their testimony, at the time of that incident both the defendant’s mother and the defendant stated the defendant’s brother was responsible for the defendant’s laceration.

Also, no knife was ever discovered, despite a search that involved a metal detector and included the location at which the defendant indicated the incident occurred. Even if a knife had been involved, according to the defendant the knife was dropped at some point. Further, according to the defendant’s statement, five other people were with him at the time of the incident. Thus, the victim was outnumbered.

In addition, applying the aggressor doctrine, even if the jury believed the defendant’s taped statements that the victim was the aggressor initially, they could have believed, also based on defendant’s statements, that at some point the | udefendant became the aggressor. See State v. Rick-ards, 06-1553, pp. 16-19 (La.App. 3 Cir. 5/2/07), 956 So.2d 160,171-172.

In the present case, the State demonstrated that the victim was running away and the defendant was chasing the victim. It appears the victim was trying to enter his apartment to escape the gunfire. In his second taped statement the defendant stated that when the victim went into the breezeway, the defendant believed the victim would try to jump the fence or turn the doorknob, and so the defendant shot the victim again. The jury could have believed that if the defendant feared for his life, he could have let the victim escape instead of using deadly force to stop him from retreating.

Further, the State demonstrated that the victim was shot multiple times. Although the order of the shots was not determined, the defendant admitted in his statement that the first shot he fired hit the victim’s shoulder. According to Dr. Garcia, the victim also received a gunshot wound just above his left buttock. Therefore, one of the shots that followed the first shot was fired when the victim was not facing the defendant.

In State v. Favorite, 03-425, p. 9 (La. App. 5 Cir. 11/25/03), 862 So.2d 208, 214, unit denied, 03-3529 (La.4/23/04), 870 So.2d 298, this Court recognized that the jury could have concluded the victim was the initial aggressor, but the defendant became the aggressor and his claim of self-defense was not supported by the facts of the case, including the findings that at least some of the bullets entered the victim from behind.

In this case, although the defendant’s DNA was present under one of the victim’s fingernails, the defendant did not claim he was injured by the victim, but [ 1fionly that the victim kept coming towards him. In the defendant’s second statement, he also stated he saw a man outside calling the police. The jury could have believed he should have waited for the police to tell them the homicide was justified. Instead, the defendant watched the police respond from his porch.

We find the jury reasonably could have concluded the defendant could not have believed he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary under the circumstances to save himself. Thus, the jury reasonably could have found beyond a reasonable doubt that the defendant did not commit the homicide in self-defense.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant requests an error patent review. This Court routinely reviews the record for patent errors regardless of whether defendant makes such a request, in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337, 338 (La.1975); State v. Weiland, 556 So.2d 175, 178 (La.App. 5 Cir.1990).

Although the commitment reflects that the trial judge informed the defendant of the prescriptive period for filing for post-conviction relief, the transcript does not reflect that the defendant was advised of the prescriptive period as required by La. C.Cr.P. art. 930.8.

When there is a conflict between the transcript and the minutes, the transcript controls. State v. Lynch, 441 So.2d 732, 733 (La.1983). Therefore, we remand the matter for the trial judge to inform the defendant of the prescriptive period for filing for post-conviction relief. See State v. Allen, 06-778, p. 23 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 758.

For the foregoing reasons, the conviction and sentence are affirmed. We remand the matter for the trial judge to inform the defendant of the prescriptive period for filing for post-conviction relief by sending appropriate written notice to lifithe defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTION.

      . The transcript of the hearing on the motion to suppress reflects that the matter was submitted and does not include a ruling on the motion. The September 27, 2006 minute entry reflects the motion was denied. The mistrial was granted because the State had just received the results of DNA testing and the defense requested time to review the results.

      . Dr. Garcia testified pathologists use four general classifications of range for gunshot wounds. The most common is tight contact or close range, when the muzzle of a firearm is a few inches away from the skin and can deposit smoke and soot on the skin that is easily visible. Intermediate range can be from 18 inches to three feet, depending on the type of weapon and ammunition used. It leaves marks on the skin called stippling, which are unburnt pieces of powder and lead that exit the barrel and impact the skin. Any farther away is considered a distance range. At distance range, the doctor said, she cannot determine whether it is three feet or 300 feet.

      . On objection by the defense, the court admonished the jury that the purpose of playing the tape was to establish the calls were made, not for the statements made on them. The court told the jury the statements are hearsay.

      . Detective Gorumba identified the defendant in court.

      . The court of appeal found the defendant’s actions were not justified under his version of events, because after the first stab he became the aggressor when he sought confrontation with the retreating unarmed victim, even though the victim may have been the initial aggressor in the altercation.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Claire G. ROBERTS.
    No. 07-KA-493.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Karla M. Baker, Regan & Associates, P.L.C., New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| gDefendant, Claire Roberts, appeals the trial court’s ruling that set restitution in this matter. On appeal, she argues the following Assignments of Error:

1. The restitution amount in this case was erroneously increased from $90,000.00 to $280,090.59.
2. The plea agreement in this case demands that restitution not exceed $90,000.00 and that this matter be remanded to set a determinate amount of restitution including monthly payments not to exceed $90,000.00.
3.The trial court should have granted a new trial.

We find merit to the defendant’s appeal. At a previous hearing in this matter, the trial court clearly capped defendant’s restitution at $90,000.00.

The Statement of the Case was set forth in this Court’s previous opinion in State v. Roberts, 06-678 (La.App. 5 Cir. 1/18/07), 951 So.2d 1154, 1155-56, as follows (footnotes as found in the original):

Claire Roberts was charged in a bill of information on July 30, 2002 with twelve counts of theft of currency ranging from $16,000 to $43,000 in violation of LSA-R.S. 14:67 and one count of insurance l.ofraud in violation of LSA-R.S. 22:1243. She initially pled not guilty but later withdrew her not guilty plea and pled guilty as charged to all thirteen counts. On the same day as her plea, September 13, 2004, defendant was sentenced, which included being ordered to pay restitution.
A hearing to set restitution was held on January 13, 2005. Counsel for defendant objected on the record to the amount set in the hearing. The trial court set a status hearing on the restitution payments for September 15, 2005, which was heard on January 11, 2006 due to Hurricane Katrina.
At that status hearing, defendant challenged the trial court’s previous January 13, 2005 ruling setting the amount of restitution and determination that the defendant was solidarily liable for the entire amount. The trial court stated that it had previously set restitution and that defendant could have appealed the amount at the time but did not do so. Defendant’s objection was noted for the record. The trial court offered to allow defendant to withdraw her guilty plea, but she declined.
Thereafter, on January 13, 2006, defendant filed a Motion for New Trial, arguing that the trial court erred in setting restitution in an amount over $90,000. She asserted other errors as well. A hearing on the Motion for New Trial was held on April 27, 2006. Defense counsel stated that the general basis of the Motion was to determine the proper sum of restitution owed by defendant. The trial court denied the Motion.
On February 8, 2006, between filing her Motion for New Trial and the hearing, defendant filed a Motion for Appeal. The appeal was lodged in this court on September 22, 2006. On November 22, 2006, the State of Louisiana, appellee, filed a Motion to Dismiss Defendant’s appeal as untimely.

On January 18, 2007, this Court dismissed defendant’s appeal as untimely and advised defendant that she had until February 12, 2007 to file an Application for Post Conviction Relief in the district court seeking reinstatement of her appeal rights. On February 12, 2007, defendant filed a Petition for Out-of-Time Appeal that was denied.

|4On March 19, 2007, defendant filed a Notice of Intent to seek writs from the denial of her Petition for Out-of-Time Appeal. On April 30, 2007, this Court granted the writ and remanded the case to the district court with an order to grant defendant an out-of-time appeal. On June 11, 2007, the trial court granted defendant’s out-of-time appeal.

ASSIGNMENT OF ERROR NUMBER ONE

Whether the restitution amount in this case was erroneously increased from $90,000.00 to $280,090.59?

ASSIGNMENT OF ERROR NUMBER TWO

Whether the plea agreement in this case demands that restitution not exceed $90,000.00 and that this matter be remanded to set a determinate amount of restitution including monthly payments not to exceed $90,000.00?

DISCUSSION

Defendant argues that the trial court erred by increasing her restitution from $90,000.00 to $280,090.59. She contends that her liability is less than $90,000.00, and that the $90,000.00 stipulation was put in place as an inducement for her to plead guilty in September of 2004. She further contends that she is entitled to enforcement of the original plea agreement wherein the trial court capped restitution at $90,000.00. Defendant asserts that the evidence presented at the January 2005 hearing was insufficient to show that she was responsible for $280,090.59 in restitution. She also asserts that the trial court’s use of the law regarding joint and solidary obligors is improper in this case.

^Defendant next argues that the trial court imposed an indeterminate sentence because it failed to set a specific amount to be paid monthly toward restitution and failed to order a payment plan tailored to her ability to pay. Therefore, she asks this Court to remand for a hearing for that amount to be determined.

The State responds that the record does not show that entry of the guilty plea was predicated upon the amount of restitution to be paid. The State further responds that the trial court conducted a thorough hearing and did not abuse its discretion in determining the amount of restitution owed by defendant. The State contends that, if this Court determines that the trial judge erred by failing to fix a payment schedule, the appropriate remedy would be remanded for a determination as to the manner in which the $280,090.59 is to be paid based upon defendant’s assets and earning capacity.

A plea bargain is a contract between the State and one accused of a crime. In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. The validity of any guilty plea depends on the circumstances of the case.

The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. The party demanding performance of a contract has the burden of proving its existence. It is well settled that a guilty plea is constitutionally infirm when a defendant is induced to | fienter that plea by a plea bargain or by what he justifiably believes was a plea bargain and that bargain is not kept.

Under substantive criminal law, there are two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea. State v. Bishop, 96-694 (La.App. 5 Cir. 12/30/96), 686 So.2d 1053. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Louis, 645 So.2d at 1149-50. See also State v. Tanner, 425 So.2d 760, 763 (La.1983).

ANALYSIS

Defendant pleaded guilty on September 13, 2004. The transcript shows that the trial judge conducted a Boykin colloquy with the defendant and accepted her guilty plea. The transcript also shows that at the time of the plea in September of 2004, the parties had not reached a firm agreement as to the amount of restitution owed. The State asserted defendant owed $84,000.00, to which defense counsel replied “[w]e haven’t agreed.” The court responded, “[it] is not to exceed $90,000.” Defense counsel then stated he would like two weeks within which to meet with the State and work out restitution.

The Waiver of Rights form shows that defendant pleaded guilty to the offenses listed in the Bill of Information, and that her sentence would be two years at hard labor, suspended, two years of probation, 12 months of home incarceration, and restitution not to exceed $90,000.00. Defendant was advised of her constitutional rights and she waived them, according to the form. Additionally, 17defendant, defense counsel, and the trial judge all signed the form indicating their understanding of the plea agreement.

At the hearing on January 11, 2006, which was a status hearing on restitution, the trial court stated she disagreed that she had ever capped Roberts’s share of the restitution at $90,000.00; that at the previous restitution hearing on January 13, 2005, she found that Roberts’s “corporal share” of the restitution was $90,000.00, but that defendant was responsible “as the hub of the conspiracy for the entire amount,” which exceeded $280,000.00. The trial court stated:

“I did not order restitution on that date, and there was no meeting of the minds. Normally you would be right, not to exceed $90,000. The problem is you didn’t agree to anything, and then you had a — Nothing was agreed to on that date, because I said $90,000, which would have been for whatever reason. However, the defendant never agreed to $90,000. The defendant asked for time to work it out, and was given a date for a restitution hearing....”

This court has reviewed the transcript of September 13, 2004. The State asserted that defendant’s share was $84,000.00, to which defendant stated that there was no agreement. It is true that the defendant did not agree to a specific amount of restitution on that date, but the trial court did state that restitution was not to exceed $90,000.00. This statement was clear and explicit. Accordingly, the trial court erred in the hearing of January 13, 2005, when it set restitution at $280,160.59. We reverse this ruling, pursuant to the plea bargain set forth in the written Boykin form signed by the defendant, the Assistant District Attorney, and the judge. The restitution obligation in this criminal sentence cannot exceed $90,000.00.

1 ¡¡ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that the trial court abused its discretion by denying her Motion for New Trial. She contends that the ruling regarding restitution in January of 2005 was contrary to the plea agreement and the evidence. She further contends that the ends of justice would be better served by granting a new trial to set the total restitution amount and to impose a determinate sentence regarding restitution including monthly payments.

The trial judge did not err in denying the Motion for New Trial, as the jurisdiction of the trial court was divested and that of the appellate court attached upon the entering of the order of appeal. LSA-C.Cr.P. art. 916. Nevertheless, defendant’s request for a new hearing on restitution is fully addressed in the discussion of Assignments of Error Numbers One and Two.

CONCLUSION:

The Restitution Order of January 13, 2005 is vacated. The matter is remanded to the trial court for imposition of a Restitution Order not to exceed $90,000.00, and for the court to set a restitution payment plan as condition of probation.

RESTITUTION ORDER VACATED; MATTER REMANDED.

      . Defendant's theft convictions resulted from a scheme wherein she received money by presenting false death certificates to insurance companies in order to collect life insurance proceeds.

      . There are co-defendants in this case, but this appeal concerns only Roberts,

      . Defendant filed a Supplemental and Amending Motion for New Trial on April 12, 2006, but it was duplicative of the first one she filed.

      . State v. Roberts, 06-678 (La.App. 5 Cir. 1/18/07), 951 So.2d 1154.

        .State v. Roberts, 07-KH-249 (La.App. 5 Cir. 4/30/07) (unpublished writ disposition).

      . State v. Lewis, 539 So.2d 1199, 1204 (La. 1989).

      . See State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144, 1148 (citing State v. Nall, 379 So.2d 731 (La.1980); State v. Lewis, 539 So.2d 1199 (La.1989)).

      . State v. Richard, 00-0659 (La.9/29/00), 769 So.2d 1177.

      . Louis, 645 So.2d at 1149; LSA-C.C. art. 1927.

      . Louis, 645 So.2d at 1149.

      . State v. Dixon, 449 So.2d 463 (La.1984)

      . September 13, 2004.