text:
    STATE of Louisiana v. Brian Ray BATISTE
    No. 06-KA-869.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Anthony G. Falterman, District Attorney, Twenty-Third Judicial District, Parish of St. James, Donald D. Candell, Assistant District Attorney, Gonzales, Louisiana, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, Louisiana, for Defendani/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Brian Ray Batiste, was convicted of manslaughter and sentenced to 40 years imprisonment at hard labor. He has now filed this appeal arguing the sentence imposed is excessive. For the reasons which follow, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

A grand jury in St. James Parish returned an indictment against the defendant, Brian Ray Batiste, charging him with second degree murder in violation of LSA-R.S. 14:30.1. The defendant pled not guilty at arraignment. On February 14, 2006, the defendant proceeded to trial before a twelve-person jury. The following facts were adduced at trial.

On December 27, 2003, at approximately 8:12 p.m., Deputy Brett Forsyth of the St. James Parish Sheriffs Office responded to a call of a shooting at Collins Road and LA Highway 18 in Vacherie. Upon arrival, he found the victim, Ronald Edwards, Jr., lying in a fetal position on the ground. The victim was gasping for air and had a faint pulse. The victim was transported to the hospital, where he died from the massive bleeding caused by the gunshot wounds he had sustained.

At trial, Kenneth Ross testified to the events leading up to the shooting. Ross said that his cousin, Curl Fletcher, called him to come outside of his trailer to intercede in a brewing fight between the victim and the defendant. When he went Lout, Ross heard the defendant accuse the victim of taking his jacket. The defendant did not believe the victim’s denial and said, “If you keep playing with me, I’ll kill you.” The victim replied, “Well, you got to do what you got to do.” Thereafter, the defendant removed a gun from his jacket, turned the gun sideways, and shot the victim. According to Ross, the defendant was three to four feet away from the victim when he fired the shots. The defendant entered his car, which had the engine running, and left the scene. Ross called the police to report the shooting.

The defendant was arrested later that night after he surrendered to the police. The police never found the gun used in the shooting and found no weapon on the victim’s person or at the scene. A gunshot residue test on the defendant taken four hours after the shooting was negative. According to the State’s expert in trace evidence investigation, it was not uncommon for the test results to have been negative, since four hours had elapsed after the shooting. It was determined that the victim had been shot with a 9 millimeter Lugar.

Following trial, the twelve person jury unanimously found defendant guilty of the responsive verdict of manslaughter. On July 10, 2006, the trial judge sentenced the defendant to 40 years imprisonment at hard labor. On July 18, 2006, the defendant filed a motion for post-verdict judgment of acquittal and a motion to reconsider sentence, which the trial judge denied. This timely appeal follows.

ASSIGNMENT OF ERROR NUMBER ONE

By assignment of error number one, defendant argues his sentence is excessive. The defendant contends that his 40-year sentence is excessive because neither the circumstances of the crime nor the defendant’s background justifies a maximum sentence. The State responds that the record supports the sentence.

I/The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992).

In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 868 So.2d at 880. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

The defendant was convicted of manslaughter, which is punishable by imprisonment at hard labor for not more than forty years. LSA-R.S. 14:31(B). The record contains the pre-sentence investigation report, which classified the defendant as a first-felony offender, but recommended a maximum 40-year sentence. The record reflects that the trial judge reviewed the pre-sentence ^investigation report, which contained statements from the defendant, and statements from the victim’s family and friends.

The report reflects that the defendant told the investigating Probation and Parole officer that he was in New Orleans at the time of the shooting. He said that his jacket containing $1,000 was stolen on December 25, 2003, while shooting pool and that he punched Jerome Gibson. The defendant said the victim’s name never came up during this incident. The defendant claimed that the last time he saw the victim was later on December 25th, when the victim brought him the missing jacket. The victim told the defendant he had found it in an abandoned trailer. There was no money in the jacket when the victim returned it. The defendant surmised that Jerome Gibson killed the victim and that the witnesses lied for him.

Prior to imposing sentence, the trial judge provided extensive reasons for his decision. In particular, the trial judge noted that the pre-sentence investigation report stated that the defendant, who was 24 years-old at the time of sentencing, shot the victim without provocation during an argument over a jacket. The judge stated that the defendant could have prevented the killing by merely walking away from the verbal argument. The trial judge noted that the defendant knowingly created a risk of death or great bodily harm to more than one person, since several other people were present during the commission of the crime. The trial judge stated that the defendant did not have an extensive criminal record, but found that the circumstances justified the maximum sentence.

In support of his argument on this assignment, the defendant contends that a maximum sentence is not justified because he “exercised very poor impulse control in using [a handgun] to end a dispute.” He also contends that the trial judge overstated the facts when he said that the defendant created a risk of harm to more | fithan one person. However, it does not appear that the trial judge overstated the facts. The defendant’s actions endangered the lives of Kenneth Ross and Curl Fletcher, who were standing near the victim at the time of the shooting. Kenneth Ross testified that, “if the Lord wasn’t with us that day, Brian Ray could have took my life and Curl [sic] life, too.”

Moreover, even though the defendant was convicted of manslaughter, we find the evidence supported a verdict of second degree murder. The trial evidence reflects that the defendant was three to four feet when he pointed the gun and shot the victim four times. Two of the victim’s wounds were in his chest and one of the wounds was in the lower abdomen. Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. See, State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, 1227, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

Further, jurisprudence reflects that the maximum penalty for manslaughter has been imposed under similar circumstances. In State v. Jones, 05-735 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, the defendant was charged with second degree murder, convicted of manslaughter and was sentenced to the maximum term of 40 years. Id. at 1114. This Court held the sentence was not excessive where the defendant armed himself prior to the killing because of a previous confrontation with the victim, shot victim four times in the face, and fled the scene [and later left the state] after the shooting. Although the record did not reflect Jones’ felony offender status, this Court found the sentence was not excessive, stating that the “jurisprudence supports imposing the maximum sentence for manslaughter, even for first felony offenders.” Jones, 924 So.2d at 1119.

The Louisiana Supreme Court has stated that the question on review is not whether another sentence would have been more appropriate, but whether the trial [ 7court abused its broad sentencing discretion. State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. While another judge might have weighed the circumstances in this case differently, the question on review is whether the trial judge abused his discretion in this case, not whether another sentence might have been more appropriate. See, State v. Jones, supra.

Considering that record shows that the defendant deliberately pointed a gun at the victim and shot him four times without provocation, we find the record supports the sentence imposed. As such, we find the trial judge did not abuse his broad sentencing discretion by imposing a grossly disproportionate term of imprisonment. We affirm defendant’s sentence of 40 years imprisonment at hard labor.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

Accordingly, we affirm defendant’s conviction and sentence of 40 years imprisonment at hard labor.

AFFIRMED.


source: Caselaw Access Project

author: CLARENCE E. MCMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dwayne CROSS.
    No. 06-KA-866.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Thomas S. Block, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKS. HOMBERG WICKER.
   CLARENCE E. MCMANUS, Judge.

|2The defendant, Dwayne Cross, pled guilty to distribution of cocaine, a violation of LSA-R.S. 40:967(A). As part of a stipulated plea agreement, the trial judge sentenced the defendant to five years at hard labor. The first two years of the defendant’s sentence were ordered to be served without benefit of parole, probation, or suspension of sentence. The remaining three years of the defendant’s sentence were suspended, and the defendant was given active probation, with special conditions, after he served the two years. At the request of the defendant, the execution of the sentence was deferred until June 27, 2006, at which time the defendant was ordered to report to jail.

The defendant failed to report as ordered, and the State requested a contempt hearing. At the hearing, after the defendant stipulated to the contempt charge, the trial judge made the defendant’s sentence executory. On the same day, the State exercised its right under the plea agreement (in light of the defendant’s failure to report as ordered) to file a habitual offender bill alleging that the defendant was a second felony offender. The defendant admitted to the allegations in the multiple offender bill and acknowledged, in both the colloquy before the judge and in the “Waiver of Rights — Plea of Guilty Multiple Offender — LA R.S. 15:529.1” that he was subject to a sentencing range of fifteen to sixty years at hard labor, and that his | ^sentence would be twenty years hard labor without benefit of probation or suspension of sentence. Thereafter, the trial judge found the defendant to be a second felony offender. The previous sentence was vacated, and the trial judge sentenced the defendant to twenty years at hard labor. The first two years of the defendant’s sentence were ordered to be served without benefit of parole, probation, or suspension of sentence, and the remaining eighteen years to be served without benefit of probation or suspension of sentence. The defendant now appeals.

During the plea colloquy, the defendant acknowledged that he was pleading guilty to one count of distribution of Cocaine occurring January, 5, 2005. The State informed the court that the defendant distributed one rock of cocaine to an undercover officer in exchange for twenty dollars.

In this appeal, the defendant alleges that the sentence imposed is excessive. The defendant argues that the trial court failed to consider the criteria in LSA-C.Cr.P. art. 894.1 and any mitigating circumstances, and to state a factual basis for the sentence imposed. In addition, the defendant raises a Dorthey claim alleging that the imposition of a twenty-year sentence under the habitual offender statute was a punitive measure for his failure to appear as ordered to start serving his sentence and, thus, is excessive punishment resulting in the needless imposition of pain and suffering. The defendant also claims that the sentence he received was disproportionate to the crime he committed and his status as a second felony offender.

The State relies on State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, in arguing that the defendant is precluded from appealing his sentence as excessive, because his sentence was imposed in conformity with his plea [ ¿agreement. Additionally, the State argues that the defendant’s sentence is not excessive, because it falls within the statutory range of fifteen to sixty years. The State claims that the defendant did not receive the imposed sentence as a punitive measure; rather, it was imposed because of the defendant’s violent history involving children.

LSA-C.Cr.P. art. 881.2(A)(2) states “[a] defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Therefore, a defendant is precluded from raising a claim of excessiveness on appeal when the imposed sentence is the product of a plea agreement. State v. Jones, 05-840, p. 14 (La.App. 5 Cir. 3/28/06), 927 So.2d 514, 528. This prohibition includes sentences imposed pursuant to plea agreements setting specific sentences, as well $s plea agreements with sentencing caps. State v. Bolton, 02-1034, p. 7 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La.11/14/03), 858 So.2d 417. This Court has also applied this provision to cases in which a defendant admits to the allegations in a habitual offender bill, as part of a sentencing agreement. Id. The defendant is precluded from raising a claim of excessiveness on appeal when his sentence was imposed in conformity with a sentencing agreement, which is set forth in the record at the time that he admitted to the allegations in a multiple bill. State v. Stewart, supra; State v. Dixon, 03-382, (La.App. 5 Cir. 9/16/03), 858 So.2d 16, writ denied, 04-1567 (La.4/22/05), 899 So.2d 566.

In the present case, the defendant argues that his sentence is excessive. For the first time on appeal, the defendant claims that the trial court failed to follow the sentencing guidelines in LSA-C.Cr.P. art. 894.1 including any mitigating circumstances. Also for the first time on appeal, the defendant raises a Dorthey |sclaim alleging that the minimum sentence mandated by the Habitual Offender Law is excessive because it is grossly out of proportion to the severity of his crime.

Before the defendant’s admission of guilt to the multiple offender bill was accepted, the defendant was informed during the colloquy with the trial judge and in the waiver of rights form that his sentence would be twenty years. In addition, the defendant signed and initialed the waiver of rights form in conjunction with the admission to the multiple bill. Also, the defendant initialed by the sentence he would receive and signed the bottom of the form along with his attorney and the trial judge. Since, the defendant’s sentence was imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea, the defendant is precluded from raising a claim of excessiveness on appeal. State v. Stewart, supra; State v. Dixon, supra. Accordingly, we find no merit to defendant’s allegation that his sentence is excessive.

Next, the defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

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


author: GREG G. GUIDRY, Judge.

text:
    Johanna Durel PEELER and Beatrice Dural Clouatre v. Michael J. DURAL and Barbara Durel Rystrom.
    No. 06-CA-936.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Harold E. Molaison, New Orleans, Louisiana, for Plaintiff/Appellee.
    Warren P. Villemarette, Metairie, Louisiana, for DefendanVAppellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡«This appeal arises from a dispute between the Defendants, Michael Durel and Barbara Durel Rystrom, and their siblings, Plaintiffs, Johanna Durel Peeler and Beatrice Durel Clouatre, relative to distributions from a Sheriffs sale of their deceased parents’ estate property. We affirm in part and remand for further proceedings.

In 2001, in the succession of Rene J. Durel, the executor applied for authority to enter into an environmental remediation process to remedy problems on the property owned by the deceased. Two of the legatees, the Plaintiffs here, initially objected, but the parties subsequently entered into a consent judgment. Among other items, the parties agreed that if, in the future, the property was partitioned by licitation and purchased by one or more of the heirs, the | ^purchasing heir(s) would pay reimbursement to the other heirs their pro-rata one-fourth individual shares of the estate funds that had been expended for the remediation ($22,091.40).

Three years later, in January of 2004, the Plaintiffs filed a petition for partition by licitation of the property, which was granted. The judgment was presented to the Sheriff to sell the property. Due to the request of the Sheriff for more information and instructions, in September of 2004, the parties entered into a consent judgment (hereinafter referred to as the second consent judgment) clarifying the terms and instructions for the sale. Included among the terms of the second consent judgment, the parties agreed that any party to the litigation acquiring the property was to be given a credit for their individual 25% interest in the property; for the Defendants’ share of the funds to be paid to First American Exchange Company for the purpose of perfecting a 1031 Tax Deferred Exchange; and for Plaintiffs’ funds to be paid directly to them, without being subject to a 1031 Tax Deferred Exchange. However, the case and court numbers were incorrect, and the judgment was subsequently amended to correct the errors.

The property was subsequently sold at a Sheriffs sale to the Plaintiffs for $400,000. Following receipt of the proces verbal of sale prepared by the Sheriff, the Defendants filed a motion to rescind the sale, or to amend the calculations of the proces verbal due to numerous alleged errors in the Sheriffs calculations of assessments and costs. The Defendants further asserted that the Plaintiffs owed them $11,045.70 for the remediation reimbursements from the sale proceeds, pursuant to the consent judgment of 2001.

|4In August of 2006, the Plaintiffs filed exceptions of res judicata and no cause of action. The Plaintiffs argued that the Defendant should have raised the right to the $11,000 for their pro-rata share of the remediation expenses in response to the petition for partition by licitation and/or prior to the Sheriffs sale when the second consent judgment to clarify the Sheriffs terms of sale was confected.

On March 29, 2006, the trial judge granted the exception of res judicata, and denied the Defendants’ motion, for the reason that the Defendants failed to reserve their rights to the reimbursements in response to the petition for partition, or in any other manner prior to the Sheriffs sale.

On appeal, the Defendants contend that the trial judge erred in granting the peremptory exception of res judicata, because the exception is inapplicable to these facts. They further contend that the first consent judgment is final and enforceable by summary proceeding, and that their right to enforce the judgment was not waived.

1) Res Judicata

La.R.S. 13:4231 states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of 'the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to |Kany issue actually litigated and determined if its determination was essential to that judgment. [Emphasis added.]

In Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053 the Supreme Court set forth five criteria that must be met for a matter to be considered res judicata:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. [Emphasis added.]

The motion in this case is not a second litigation, but arises from the events of the instant suit. Thus, we find that exception of res judicata does not apply.

Furthermore, the Defendants are not contesting either the judgment ordering the partition, or the second consent judgment. They are raising, by summary proceedings (in a motion), the enforcement of the first consent judgment of 2001. The only question here is whether the Defendants waived their right to demand enforcement of the first consent judgment by not reserving their rights, or otherwise making a claim prior to the Sheriffs sale.

2) Consent Judgment of 2001

A judgment is a solemn adjudication of a court, settling the rights of the parties, as disclosed by the record, and which passes on the matters presented for determination. Breaux v. Laird, 230 La. 221, 88 So.2d 33, 39 (1956); Cheramie v. Vegas, 468 So.2d 810, 812 (La.App. 1st Cir.1985).

LA consent judgment is a bilateral contract in which parties adjust their differences by mutual consent, thereby putting an end to a lawsuit with each party balancing hope of gain against fear of loss. La.C.C. art. 3071; Plaquemines Parish Government v. Getty Oil Co., 95-2452 (La.5/21/96), 673 So.2d 1002, 1006; Preston Oil Co. v. Transcontinental Gas Pipe Line Corp., 594 So.2d 908, 913 (La.App. 1st Cir.1991). Whether a judgment results from the assent of the parties or is the result of a judicial determination after a trial on the merits, it is accorded sanctity under the law. Preston Oil Co., 594 So.2d at 913.

A consent judgment has binding force from the presumed voluntary acquiescence of the parties and not from adjudication by the trial court. Martin Forest Products v. Grantadams, 616 So.2d 251, 253 (La.App. 2nd Cir.1993), writ denied, 619 So.2d 580 (La.1993). It is simply a judgment which recognizes that the parties have entered into an agreement which will end the dispute in the lawsuit and authorize its dismissal. It has attributes both of contracts and of judicial decree. Deville v. Rapides Area Planning Com’n, 97-1437, p. 9 (La.App. 3rd Cir.6/17/98), 715 So.2d 577, 581.

A consent judgment can be enforced by summary proceedings. Preston Oil Co., 594 So.2d at 914. A summary proceeding can be commenced by the filing of a contradictory motion, or by rule to show cause. La.C.C.P. art. 2593. Exceptions shall be filed prior to the hearing and shall be disposed of on the trial. Id. Although a defendant can file an answer in a summary proceeding, an answer is not required. C.C.P. art. 2593. However, since there is no law mandating that the consent | .¿judgment can only be enforced through summary proceedings, enforcement of the consent judgment could also be brought under ordinary proceedings.

The 2001 consent judgment in this case is an aleatory contract, which simply means it depended upon the uncertain act, i.e. the future purchase of the property by one of the heirs. See: La.C.C. art. 1880. Because this was an uncertain act, the right to enforce it did not arise until the Plaintiffs purchased the property at the Sheriffs sale. Since a consent judgment is enforceable at any time by way of summary proceeding, but can also be brought by ordinary proceedings, we find the Defendants were not required to reserve their rights or otherwise make a demand prior to the occurrence of the Sheriffs sale, the uncertain event contemplated in the 2001 consent judgment.

Furthermore, the second consent judgment was not a substitution, or novation, of the original agreement. Under the Civil law, a novation of an agreement takes place when the parties agree to substitute a new obligation for an existing obligation. La.C.C. art. 1879. The new agreement extinguishes the first obligation. Id. However, “The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.” La. C.C. art. 1880. Mere modification of an obligation, made without intention to extinguish it, does not effect a novation. La. C.C. art. 1881. In this case, there is no express intent by the parties to novate the first consent judgment.

|sWhile we find that the Defendants’ have not lost their right to enforce the terms of the first consent judgment, we also find that the money due under that agreement is not to be deducted from the Sheriffs sale. The second consent judgment was confected for the sole purpose of informing the Sheriff what funds to collect at the sale, and how to disperse those funds after the sale. Since the $11,000 for the Defendants’ proportional share of the remediation expenses were not included in the list of possible disbursements, the Defendants are not entitled to recover the remediation reimbursements from the sale proceeds.

Nevertheless, as we have already stated, the summary proceeding for enforcing the terms of the 2001 consent judgment to obtain the remediation reimbursements is still viable, and is, therefore, pending in the trial court. Thus, we will affirm the judgment insofar it denies the Defendants’ demand for the remediation reimbursements from the proceeds of the Sheriffs sale, but will remand for further consideration by the trial judge of the motion to enforce the consent judgment of 2001. See; La.C.C.P. art. 2164.

Accordingly, the judgment is affirmed insofar it denies the Defendants’ demand for the remediation reimbursements from the proceeds of the Sheriffs sale. The case is remanded for consideration by the trial judge of the pending motion to enforce the consent judgment of 2001. Costs of the appeal are to be divided between the parties.

AFFIRMED IN PART; CASE REMANDED FOR FURTHER PROCEEDINGS.

      . Durel's wife predeceased him.

      . La.C.C. art. 811. Under the article, the proceeds of a partition by licitation are to be distributed to the co-owners in proportion to their shares.

      . R.S. 13:4231 and amended La.C.C.P. art. 1061 are to be read together. C.C.P. art. 1061 B states that the defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action (emphasis added).

      . A valid compromise can form the basis of a plea of res judicata because a compromise has the legal efficacy of a judgment. Brown v. Drillers, 93-1019, p. 6 (La.01/14/94), 630 So.2d 741, 747; Hamsa v. Hamsa, 05-219, p. 5 (La.App. 5th Cir.12/27/05), 919 So.2d 776, 778. The 2001 consent judgment is res judi-cata, since it is now final.

      . A consent judgment is generally not appeal-able, unless the judgment lacked the prerequisite consent. La. C.C.P. art. 2085; In re Succession of Sewell, 39,275, p. 4 (La.App. 2nd Cir. 12/22/04), 895 So.2d 14, 17; Pittman v. Pittman, 01-2528, pp. 3-4 (La.App. 1st Cir. 12/20/02), 836 So.2d 369, 372 writ denied, 03-1365 (La.9/19/03), 853 So.2d 642. The lack of prerequisite consent can be evidenced by the filing of a motion for new trial. Sewell, 39,275 at p. 4, 895 So.2d at 17; Polk v. Polk, 98-1788, p. 4 (La.App. 3rd Cir.3/31/99), 735 So.2d 737, 739. A consent judgment can also be challenged for fraud, or for vices in either form or substance. La.C.C.P. art. 2001 et seq.; Preston Oil Co., 594 So.2d at 913; Cheramie v. Vegas, 468 So.2d at 813.

      . A novation can be objective or subjective. Pertinent here, an objective novation takes place when the parties agree to substitute a new performance or a new cause for the original obligation. But, the entire obligation must be changed. La.C.C. art. 1881. There is no novation if any substantial part of the original performance is still owed. Id. Furthermore, the parties' intent to novate an obligation must be expressly declared. C.C. art. 1881.

      . Novation applied to all types of obligations. See: Albarado v. State Farm Mut. Auto Ins. Co., 05-1084 (La.App. 3rd Cir.4/5/06), 926 So.2d 94 [settlement agreements]; LaGrange v. Dynamic Industries, Inc., 04-100 (La.App. 3rd Cir.6/9/04), 875 So.2d 1059, 1061 [employment contract]; Bradford v. Onshore Pipeline Const. Co., Inc., 37,421 (La.App. 2nd Cir.8/22/03), 853 So.2d 756, [breach of mineral leases]; Sandi v. Palmer, 98-34 (La.App. 5th Cir.5/27/98), 713 So.2d 822, [contract for trust fund]; Jordan v. Louisiana Gaming Control Bd., 98-1122, 98-1133 (La.5/15/98), 712 So.2d 74 [casino gaming contract],

      .La.C.C.P. art. 2164 authorizes the appellate court to render any judgment which is just, legal, and proper upon the record on appeal.


author: SUSAN M. CHEHARDY, Judge. GUIDRY, J.,

text:
    STATE of Louisiana v. Edward MOORE.
    No. 06-KA-875.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux (Appellate Counsel), Anne Wallis (Appellate Counsel), Laura Schneidau (Trial Counsel), Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Edward Moore.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2The defendant, Edward Moore, appeals his conviction of distribution of cocaine within one thousand feet of a school and his enhanced sentence as a third-felony offender. We affirm.

On February 15, 2005, Edward Moore was charged by bill of information with violation of La.R.S. 40:981.3, distribution of cocaine within one thousand feet of a school. The defendant was arraigned on February 16, 2005 and pleaded not guilty. On May 31, 2005, the defendant’s request for another attorney was denied. On June 2, 2005, the State amended the bill of information to state that the offense occurred on September 1 rather than September 11, 2004 as stated in the original bill, and to state that the offense occurred at Ames Elementary School.

The case was tried on June 2 and 3, 2005 before a twelve-member jury, which found the defendant guilty as charged. The defendant filed a motion for new trial that was denied on June 13, 2005. He also filed a motion asking the trial court to consider State v. Dorthey, 623 So.2d 1276 (La.1993), prior to sentencing. After denial of his motion for new trial, the defendant waived sentencing delays by stating, “We are ready for sentencing.” The trial court sentenced the defendant to laimprisonment at hard labor for thirty-five years, with the first two years to be served without benefit of parole, probation, or suspension of sentence.

On that same date, the State filed a habitual offender bill alleging the defendant to be a third felony offender, and the defendant stipulated to the multiple bill. The trial court vacated the original sentence and resentenced the defendant to imprisonment at hard labor for thirty-five years, to run concurrently with the sentence in case number 04-6678. In addition, the trial court denied the defendant’s motion for Dorthey consideration as moot. The defendant filed a timely motion for appeal.

FACTS

Michelle Simmons of the Jefferson Parish Sheriffs Office (JPSO) testified that on September 1, 2004, she was working as an undercover agent in order to purchase illegal narcotics from street-level narcotics dealers. On that day, while driving an unmarked vehicle equipped with video and audio recorders, she observed a man, whom she later identified as the defendant, standing at the corner of Field and Eise-man Streets, a known drug area.

Agent Simmons made a hand motion indicating she wanted to purchase drugs, and the defendant approached the passenger side of her vehicle. She told the defendant she was looking for some “twenties.” (She testified that is street slang for crack cocaine). Defendant said “okay” and told Agent Simmons to “make the block” (i.e., drive around the block). Agent Simmons complied, but |4when she returned, the defendant only had one crack cocaine rock. She told the defendant that she wanted two rocks, so the defendant told her to make the block again. When Agent Simmons returned, the defendant came back and handed her two crack cocaine rocks. Agent Simmons, in turn, gave the defendant forty dollars, twenty for each rock.

After the transaction, Agent Simmons departed the area and went to a safe location. She removed the videotape of the transaction from the video recorder and conducted a chemical field test on the substance the defendant gave her which was positive for cocaine. Following the test, Agent Simmons put the drugs in a bag and sealed it, retrieved her police radio, and provided the detectives monitoring the transaction a description of the defendant. She indicated that the defendant had braids in his hair and was wearing a red and blue bandana tied around his head, a jersey-style red, white, and blue shirt, blue jean shorts, and tennis shoes.

At some point later, Agent Simmons positively identified the defendant in a photographic lineup shown to her by Agent Corey Wilson. Agents Simmons and Wilson testified that the transaction occurred within one thousand feet of Ames Elementary School. The videotape of the transaction was played for the jury.

JPSO Agent Corey Wilson testified that on September 1, 2004, at approximately 4:00 p.m., he observed the transaction between Agent Simmons and the defendant. He was parked nearby in the event something went wrong. Agent Wilson testified that after Agent Simmons drove off the first time, he observed the defendant conduct a transaction with another black male, later identified as Kerry Williams. When Agent Simmons returned to the area, the defendant walked up to her vehicle and conducted a transaction with her. After Agent Simmons drove off, |Bthe defendant went back and conducted another transaction with Williams. Agent Wilson opined that Williams was the drug supplier.

Agent Wilson left the location but returned later. He spotted the defendant again on Field Street headed toward a Shell gas station where Deputy Perry Travis’ marked unit was parked. Agent Wilson contacted Deputy Travis, gave him a description of the defendant, and told him that the defendant was riding a bicycle in Deputy Travis’ direction. Agent Wilson subsequently observed Deputy Travis meet with the defendant, so he knew that Deputy Travis had stopped the right individual.

JPSO Deputy Perry Travis testified that on September 1, 2004, at 5:00 p.m., he was parked at the Shell gas station in a marked unit a half a block from the intersection of Field and Eiseman when Agent Wilson radioed him. After he conversed with Wilson, he observed a man whom he believed to be the defendant ride a bicycle to the station, park it, and walk inside where Deputy Travis was located. Deputy Travis told the defendant he was going to conduct a field interview with him, and that he was going to check the computer to determine whether the defendant had any outstanding attachments. Deputy Travis subsequently took a Polaroid picture of the defendant, obtained his identification card, and wrote down pertinent information on a field interview card. When Deputy Travis learned that there were no outstanding warrants, he released the defendant.

Agent Wilson testified that the defendant was arrested on the instant charge at a later date.

Charles Krone, an expert in the field of the examination and identification of controlled dangerous substances, testified that the two off-white rock-like objects |fihe tested in connection with this case were positive for cocaine and weighed 0.25 grams.

After the State concluded its case, the defendant rested without calling any witnesses.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment, the defendant asserts, “It was error for the trial court to improperly advise appellant concerning his right to represent himself with the result that the trial court effectively denied to appellant his constitutional right to represent himself.”

The defendant argues the trial judge erred by giving improper advice to him after he indicated he wanted to represent himself. He contends that the trial judge erred by telling him that if he elected to represent himself, his movement in the courtroom would be restricted, and he would lose all of his appellate rights. He contends the trial court’s errors effectively denied him his constitutional right to represent himself.

The State responds that the defendant failed to make a clear, unequivocal, and timely request to represent himself. The State further responds that the trial judge’s advice to the defendant was proper, and that the defendant knowingly waived his right to self-representation.

According to the record, on February 16, 2005 the defendant was represented by Richard Tompson, an Indigent Defender Board (IDB) attorney, for the arraignment only. On that same date, the trial court ordered the appointment of another IDB attorney. On March 17 and April 18, 2005 the defendant appeared for trial with attorney John E. Benz, but the trial was continued both times at the request of defense counsel. On April 20, 2005 the defendant appeared for a motion hearing and a videotape viewing with Mr. Benz, but the hearing and viewing were | continued at the request of defense counsel. The defendant appeared again with Mr. Benz on May 19, 2005 for trial, but the trial was continued at Mr. Benz’s request.

On May 31, 2005, the defendant appeared in court for trial with Mr. Benz; however, he gave the trial judge a letter requesting another IDB attorney. In that letter, the defendant said he was requesting another attorney because his current attorney had only been to see him twice in the nine months he had been in jail. The defendant also said in the letter that his attorney had done nothing to help him and that his attorney was only interested in him pleading guilty instead of “observing all the issues dealing with” his case. The trial court denied the defendant’s request.

On the morning of trial, June 2, 2005, after the jury had been selected, defense counsel informed the trial judge that the defendant wanted to represent himself, and he moved that the defendant be allowed to do that. Defense counsel then requested a Faretta hearing to ascertain whether the defendant understood that he was waiving his rights. The trial judge advised the defendant that he would be at an “extraordinary” and “extreme” disadvantage if he chose to represent himself. The judge pointed out to the defendant that the defendant did not know the rules of evidence and would not know appropriate times to object.

When the defendant interrupted him, the trial judge said that he was going to deny his motion unless the defendant listened to him. The trial judge continued by telling the defendant that he would not allow him to introduce inadmissible evidence simply because he was acting as his own attorney. He told the defendant it was his experience that the defendants who choose to represent themselves later regret that they waived their right to an attorney.

|sThe judge then held an off-the-record bench conference with defense counsel and the prosecutor. The judge told counsel it was his understanding that, under Faretta, it was his duty to ensure that the defendant understood the rights he was waiving and the implications. Defense counsel agreed. The judge stated he was concerned that the defendant did not fully understand the implications of waiving his rights, and he noted that the defendant was intentionally looking away as though he was “not hearing.” When the judge asked defense counsel if the defendant had responded, defense counsel replied that the defendant had responded “affirmatively” to each question.

The trial judge stated he was concerned that the defendant could not provide himself an adequate defense, but that the jurisprudence indicated the court had to give the defendant that opportunity even if he thought it was not in the defendant’s best interest. The prosecutor opined, after observing the defendant over the prior two days, that the defendant was trying to obstruct the case from going forward, and that he was attempting to represent himself in the hope of getting his conviction overturned on appeal. She also noted that the defendant would be a security or flight risk if he had the opportunity to move about the courtroom as his own counsel.

Defense counsel said he thought the defendant had a “problem” with him and that was the defendant’s motive in not talking to him and in asking for another attorney. He did not think the defendant was trying to subvert the system. The judge remarked that the defendant did not have a problem with defense counsel, and that the defendant was simply fearful, having seen the evidence. Defense counsel responded that the defendant wanted to make specific arguments about his case, and he did not think defense counsel would make them.

IsThe trial judge believed that the defendant’s complaints were baseless and that the defendant was more “disgusted with his predicament” than he was with defense counsel. He also believed that the defendant was “totally frustrated” and “perhaps despairing” that there was nothing he could do to extricate himself from his situation. Defense counsel said he thought the defendant had a right to represent himself as long as he was not disruptive and fully understood what he was doing.

When the prosecutor asked how they were going to do that, noting that the defendant would “basically be standing on top of me when he’s questioning witnesses,” defense counsel responded, “[l]et him do it from the table.” The judge noted that the defendant was facing an “enormous” amount of time if he was convicted, especially as a multiple offender. He further noted they had been warned that the defendant was “dangerous” and a “flight risk” and that his history indicated that they should be “concerned.”

Following the bench conference, defense counsel conferred with the defendant and then informed the court that the defendant said he “understands.” The judge subsequently told the defendant that he would not be free to move around the courtroom as his lawyer would. The defendant indicated he understood. The following exchange then occurred between the trial judge and the defendant:

THE COURT:
And do you understand, sir, that once you do this, this isn’t going to allow you simply to raise an appeal assignment of error or to raise on appeal that you didn’t have a lawyer, you understand that?
MR. MOORE:
Yeah.
|inTHE COURT:
You will have waived your counsel and all of those claims are going to be out the window, claims related to not having a lawyer or not liking your lawyer or feeling that your lawyer is insufficient or that you don’t have adequate assistance of counsel. Once you do this, you will have waived all of that, do you understand that, sir?
MR. MOORE:
You mean that I can’t appeal it?
THE COURT:
Well, of course. You can’t make the decision and then appeal your own decision which I’ve advised you—
MR. MOORE:
That’s all right. I’m going to let Mr. Benz go on and do it.
THE COURT:
All right. I think you’re very wise to do that.
MR. MOORE:
Yeah.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant in a criminal prosecution the right to represent himself. However, because an accused managing his own defense relinquishes many of the traditional benefits associated with the right to counsel, he must knowingly and intelligently forego those benefits in order to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

A waiver of counsel, in order that an accused may enter into self-representation, must be clear and unequivocal. State v. Ormond, 00-1371 (La.App. 5 Cir. 4/24/01), 786 So.2d 187, 191. Requests which vacillate between self-representation and representation by counsel are equivocal. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, 147. A defendant who vacillates between self-representation and representation by counsel cannot be said to have waived his right to learned counsel. State v. Treadway, 97-901 (La.App. 5 Cir. 03/25/98), 710 So.2d 1121, writs denied, 98-1634 (La.09/25/98), 725 So.2d 490, 00-1197 (La.1/12/01), 780 So.2d 1067. Courts must indulge in every reasonable presumption against a waiver of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The right to self-representation is not absolute. A defendant must voluntarily and intelligently reject representation by an attorney and elect to conduct his own defense and must do so in a timely manner. Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000).

Once a defendant has clearly requested to represent himself, the trial court must determine whether the defendant is competent to waive counsel and is “voluntarily exercising his informed free will.” State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, 321, quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The competency at issue is a defendant’s competence to waive the right to counsel and not his competence to represent himself. State v. Santos, supra at 321.

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges and of the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Strain, 585 So.2d 540, 542-543 (La.1991). Additionally, the trial court should inquire into the defendant’s age, education and mental condition and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Strain, 585 So.2d at 542. In order to | ^sufficiently establish on the record that defendant is making an intelligent and knowing waiver, the inquiry should involve more than an interchange of “yes” or “no” responses from the defendant. Id.

There is no inflexible criteria or magic word formula for determining the validity of a defendant’s waiver of the right counsel. Rather, the validity of the waiver must take into account the totality of the circumstances in each case. State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 845. The failure of the trial court to secure a valid waiver of counsel constitutes reversible error. State v. Price, 96-680 (La.App. 5 Cir. 2/25/97), 690 So.2d 191, 196.

The first issue in the instant case is whether the defendant’s request to represent himself was timely, clear, and unequivocal.

In State v. Lee, 39,969 (La.App. 2 Cir. 8/17/05), 909 So.2d 672, 680-681, writ denied, 2006-0247 (La.9/1/06), 936 So.2d 195, the defendant argued that he was denied the right to self-representation. In that case, the defendant appeared in court with IDB counsel numerous times over a 14-month period and never complained about his attorneys. On the day of trial, before the jury was selected, the defendant filed a pro se motion for self-representation in which he asked that his new trial IDB co-counsel be dismissed and that he be allowed to represent himself with court-appointed standby counsel. Id. at 680. The trial court denied the motion as untimely and disruptive to the trial process. The appellate court declined to second-guess the trial court’s ruling. Id. at 681. It noted that the defendant had acquiesced in representation by the IDB throughout pretrial procedures, and that he waited until the morning of trial to assert for the first time his right to represent himself. The appellate court found that these circumstances indicated that the defendant’s request was a delaying tactic and untimely. Id.

Lain State v. Hegwood, 345 So.2d 1179, 1182 (La.1977), the Louisiana Supreme Court held that a criminal defendant who has acquiesced in the representation of counsel throughout pretrial proceedings, who for the first time requests to represent himself the morning of trial under circumstances which indicate that the request was a delaying tactic, and who makes no showing at all of any particular reason for his delay in asserting his right to self-representation, has impliedly waived that right.

In State v. Batchelor, 35,478 (La.App. 2 Cir. 5/10/02), 823 So.2d 367, 374-377, writ denied, 2002-2247 (La.3/14/03), 839 So.2d 32, the defendant argued that his conviction was obtained in violation of his right to self-representation. In that case, on the date that his trial was to begin, the defendant filed a motion to dismiss his counsel and to represent himself. Id. at 375. On that same date, defense counsel asked the court to appoint co-counsel or another attorney. Id. at 376. Prior to selecting the jury, the trial court held a hearing on those motions and found that nothing would adversely affect defense counsel’s ability to proceed as effective counsel for the defendant.

The appellate court in Batchelor noted that the hearing was focused on the effectiveness of counsel and an alleged conflict of interest, and that the defendant did not assert a desire to represent himself at the hearing. Id. at 377. The appellate court found that the defendant’s motion was a dilatory tactic as it was filed on the date trial was to begin. The appellate court also stated that it was questionable whether the defendant actually sought the right to represent himself. However, assuming the defendant did seek that right, the appellate court concluded that his vacillation between wanting to be represented by counsel and desiring to undertake his own defense, together with his failure to specifically assert this right at the hearing, constituted an implicit waiver of his request. Id.

luIn the instant case, we find that the defendant’s request to represent himself was untimely, unclear, and equivocal. The defendant acquiesced in representation by the IDB throughout pretrial procedures until two days before trial, when he requested another attorney, and he waited until the day of trial after the jury was selected to request that he be allowed to represent himself. These facts suggest that the defendant’s request for self-representation may have been a dilatory tactic. Additionally, the defendant’s request occurred even later than the request in Lee, supra, where the appellate court found that the request was untimely. It is questionable whether the defendant wanted to represent himself, considering that he vacillated between wanting to be represented by IDB counsel, requesting another attorney, and then asking to represent himself.

Accordingly, we conclude the defendant impliedly waived his right to self-representation when he agreed to allow Mr. Benz to continue to represent him, so there is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant contends the trial court imposed an excessive sentence. He argues that his thirty-five-year enhanced sentence is constitutionally excessive and that, considering his age, the sentence amounts to life imprisonment. He points out that he is a drug addict convicted of assisting a person he believed to be a fellow drug addict to acquire a small amount of a controlled substance. He contends he is not the most blameworthy of individuals, nor is the offense the most horrific.

The State responds that the sentence was not constitutionally excessive, as it was on the lower end of the sentencing range. The State further responds that the defendant had an extensive criminal history, and that the jurisprudence supported the sentence.

|1sThe transcript of the plea colloquy indicates that the defendant agreed to the thirty-five-year enhanced sentence before he stipulated to being a third felony offender. Additionally, the waiver of rights form reflects that the defendant was advised and understood he would receive a thirty-five-year sentence in exchange for admitting his status as a third felony offender.

Under La.C.Cr.P. art. 881.2(A)(2), a defendant “cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to pleading guilty. State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, 1277. Because the defendant received the same sentence that was “imposed in conformity with a plea agreement which was set forth in the record at the time of the plea,” he is barred from challenging the excessiveness of his multiple offender sentence on appeal. State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 59. Accordingly, there is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent, regardless of whether the defendant makes such a request. The review reveals errors patent in this case, none of which require corrective action.

The record does not contain the jury’s written verdict, which apparently simply was not included in the record. However, “[t]here is no statutory or jurisprudential requirement that a written verdict be included in the record in a criminal case.” State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 165. Further, an omission from the record is not cause for reversal if that |1fiomission is immaterial to a proper determination of the appeal. State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, 669, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999). The omission of the written verdict is not material to a proper determination of this appeal, because the jurors were polled in open court, and the trial judge stated that all twelve had concurred in reaching the verdict. Additionally, a review of the polling slips confirms the trial judge’s statement. In light of the foregoing, this patent error needs no correction. State v. Champ, 01-434 (La.App. 5 Cir. 11/27/01), 803 So.2d 167, 170-171.

The State asserts in its brief that the trial court failed to properly inform the defendant of the prescriptive period for filing post-conviction relief, pursuant to La.C.Cr.P. art. 930.8. The record reflects that on June 13, 2005, the trial judge informed the defendant of the provisions of La.C.Cr.P. art. 930.8 after he imposed the original sentence. As the State noted in its brief, the trial judge did not inform the defendant of those same provisions after the defendant stipulated to the multiple bill and was re-sentenced. However, after the defendant subsequently pleaded guilty to an unrelated possession of cocaine charge in case number 04-6678 and was sentenced, the trial judge stated, “[0]n all matters today, I want to inform you that you have two years from the date your conviction and sentences or your convictions and sentences become final in which to file for post-conviction relief.”

In State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389-390, the defendant alleged that the trial court failed to completely advise him of the prescriptive period for post-conviction relief at the multiple offender sentencing. However, the defendant acknowledged that the trial judge correctly advised him of the applicable prescriptive period at his original sentencing, but nevertheless requested that this Court require the trial court to give him the correct advice in 117writing. This Court found that La.C.Cr.P. art. 930.8 did not require a trial court to advise the defendant of the time limitations for filing post-conviction relief more than once and, therefore, remand in order for the trial court to provide the defendant with written instructions on La.C.Cr.P. art. 930.8 was unnecessary. Id.

In the instant case, because the trial judge properly informed the defendant twice on the same day of the provisions of La.C.Cr.P. art. 930.8, no corrective action need be taken.

The State asserts in its brief that the trial court faded to inform the defendant of the allegations of the multiple bill. La.R.S. 15:529.1 provides, inter alia, that the trial court shall inform the defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true.

The record indicates that on June 13, 2005 the prosecutor advised the trial judge that she was filing a multiple bill alleging that the defendant was a triple offender. The prosecutor then informed the court that the defendant had two prior felony convictions, one being for possession of cocaine in Division I, case number 00-1772, where the defendant pleaded guilty on January 7, 2002 and received a two-and-a-half year sentence, and the other one for felony theft of goods, $100 to $500, in Division G, case number 97-0190, where the defendant pleaded guilty on February 20, 1997 and received a two-year suspended sentence and two years’ active probation.

After being advised of those prior convictions, defense counsel said he had received a copy of the bill, and that the defendant wanted to stipulate to being a triple offender. Defense counsel said he had gone over the Boykin form with the | isdefendant and explained it to him, and that he felt that the defendant understood it. The trial judge then entered into a colloquy with the defendant wherein he advised the defendant, inter alia, that the defendant had a right to a hearing and the right to remain silent.

Because the prosecutor listed the allegations contained in the multiple bill in open court with the defendant and his counsel present, immediately prior to the defendant stipulating to the multiple bill, we find the defendant was properly advised of the allegations of the multiple bill in accordance with La.R.S. 15:529.1.

The State correctly notes in its brief that the trial court did not impose the first two years of the enhanced sentence without benefit of parole, probation, or suspension as required by the underlying statutes, La.R.S. 40:981.3(E) and La.R.S. 40:967(B)(4)(b). The restrictions on parole eligibility imposed on habitual offender sentences under La.R.S. 15:529.1 “are those called for in the reference statute.” State v. King, 05-553 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, 1215, writ denied, 2006-1084 (La.11/9/06), 941 So.2d 36 (citations omitted). The State also correctly notes in its brief that the trial court did not order the enhanced sentence to be served without benefit of probation or suspension of sentence in accordance with La.R.S. 15:529.1 G.

Nevertheless, these errors need not be corrected on remand. Under State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790, 799, and La.R.S. 15:301.1(A), the “without benefits” provision is self-activating. State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78-79, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

Finally, the State argues that the trial court failed to give the defendant credit for time served. However, failure of the trial court to give credit for time served requires no corrective measures. State v. Pascual, 98-1052 (La.App. 5 Cir. 3/30/99), 735 So.2d 98, 105. La.C.Cr.P. art. 880, as amended by Act 788 of 1997, effective August 15, 1997, makes credit for time served self-operating even on a silent record. Id. Therefore, although the trial judge did not state that the defendant was given credit for time served, credit will be given pursuant to La.C.Cr.P. art. 880 as amended. Id.

DECREE

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

AFFIRMED.

GUIDRY, J., concurs with reasons.

GUIDRY, J.,

concurs with reasons:

lil concur in the majority opinion. In my view, the advice given the defendant concerning his right to represent himself, when considered in context, was proper. Further, considering the minimal evidence presented to support the defendant’s argument that his sentence is excessive, as well as his rather extensive prior record, I find the defendant’s sentence to 35 years, at the lower end of the 30 to 90 year range, was not excessive.

      . The record does not reflect that the defendant was arraigned on the amended bill. However, because the defendant proceeded to trial without objection, he waived any irregularity in the arraignment. La.C.Cr.P. art. 555; State v. Echeverria, 03-898 (La.App. 5 Cir. 11/25/03), 862 So.2d 163, 169.

      . Although the trial judge failed to impose the mandatory fine of $50,000.00 under La.R.S. 40:981.3, this defect became moot once the original sentence was vacated before the defendant was sentenced as a multiple offender. State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 647. Further, the habitual offender statute, La.R.S. 15:529.1, does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La.1991) (per cu-riam ).

      .After the defendant's conviction and original sentencing, but before his sentencing as a multiple offender, the defendant orally advised the court he was going to file a motion for appeal. The record reflects that a written motion for appeal was filed on June 13, 2005, the same day the defendant stipulated to the habitual offender bill and was re-sentenced. The defendant’s motion for appeal was premature when it was filed after conviction and sentence on the offense but before he was adjudicated to be a multiple offender. However, that procedural defect was cured by the subsequent re-sentencing. State v. Lyons, 01-719 (La.App. 5 Cir. 11/14/01), 802 So.2d 801, 807.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . A petition for certiorari was filed with the U.S. Supreme Court on November 29, 2006. (No. 06-8170).

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


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

text:
    Denice Leblanc Ott, Wife of/and, Scott J. OTT v. Salvadore SANSONE, Jr., Patricia A. Sansone and Linda Sansone Lott.
    No. 06-CA-696.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.

      Darrin M. O’Connor, Donovan & Lawlar Law Firm, Covington, Louisiana, for Plain-tifftAppellee.
    Richard A. Tonry, Michael C. Ginart, Jr., Kim C. Jones, Cullen A. Tonry, Jeremy Lee, Tonry & Ginart Law Firm, Chal-mette, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On October 21, 2005, plaintiffs, Denice and Scott Ott (“the Otts”) filed a Petition for Specific Performance of Contract to Sell Immovable. In their petition, the Otts alleged they had entered into a contract with Salvadore Sansone, Jr., Patricia A. Sansone, and Linda Sansone Lott (“the Sansones”) on July 18, 2005 for the purchase of the Sansones property located at 3116 41st St., Metairie, LA. The Otts paid a $1,000 deposit to the Sansones per the purchase agreement. According to that agreement, the Act of Sale was to take place by September 1, 2005. Hurricane Katrina then hit on August 29, 2005, therefore, the Act of Sale did not occur.

The Sansones offered to proceed with the sale by written letter dated October 5, 2005 and the Otts accepted that offer on October 6, 2005. The parties then agreed to appear on October 19, 2005 for the Act of Sale at Bayou Title. Linda Lott was the only defendant to appear on that date and she had power of attorney for the other two owners. The Otts claim they appeared with certified funds for the down payment, but their lender advised that the balance of the funds would not be available until the morning of October 20, 2005. According to the Otts petition, Linda Lott declined to execute the act of sale until all funds were | ¡¡available. The Otts allege they all agreed to appear the morning of October 20, 2005 to execute the act of sale, exchange keys and disburse funds. However, later on the evening of October 19, 2005, Lott went to the Otts home and returned their deposit and advised the Otts they would not sell the property to the Otts. Lott then went to Bayou Title on October 20, 2005 and informed them she would not execute the act of sale.

The Otts allege they were ready to perform their obligation under the contract, but the Sansones refused to appear and execute the act of sale. Therefore, the Otts sought specific performance and damages.

The Sansones filed an Answer and Re-conventional Demand on November 9, 2005. In their reconventional demand, the Sansones alleged that after Hurricane Katrina, they tried to contact the Otts without success. They finally reached the Otts and the Otts committed to going forward with the Act of Sale. The act of sale was scheduled for October 14, 2005, but was cancelled by the Otts at the last minute because the Otts had not given the homeowner’s insurance declaration to the lender. The act of sale was rescheduled for October 19, 2005. The Sansones allege they called before that date to make sure everything was in order and they were assured it was. Then at the act of sale, Linda Lott, acting with power of attorney for the Sansones, was asked to sign the documents, but was told the funds were not available and would probably be available the next day. Lott then refused to sign the documents. The Otts filed an Answer to the Reconventional Demand on December 6, 2005.

On March 8, 2006, the Otts filed a motion for summary judgment arguing there was no dispute that the Sansones breached the contract. The Otts argued the offer made by the Sansones on October 5, 2005 to proceed with the sale did not set forth a certain period of time within which to proceed with the Act of Sale, so it |4must only be done in a reasonable amount of time. It was first scheduled for October 14, 2005, and then postponed until October 19, 2005. The Ott’s argued the act of sale would have actually taken place on October 20, 2005 if the Sansones would have performed their obligation. The Otts argue this was within a reasonable amount of time after the offer to proceed with the sale was made by the Sansones and accepted. The Otts claim that the Sansones did not go through with the sale because they wanted to take advantage of rising property values after Hurricane Katrina. The Otts point out that the Sansones re-listed an ad on ForSaleByOwner.com on October 19, 2005 to sell the property for $197,500.00, which is $30,500 more than the price to be paid by the Otts.

The Otts submitted several documents in support of their mofion for summary judgment including correspondence sent between the parties after the hurricane. The Otts submitted a copy of the letter sent from Patricia Sansone to the Otts dated October 5, 2005 stating all parties had agreed to proceed with the sale as is at the previously reduced price of $167,000. The letter also stated that the Otts should notify Linda Lott in writing by October 7, 2005 if they wished to proceed. If no response was received, Sansone indicated the contract would be considered null and void and the $1000 deposit would be returned.

Also submitted was an October 6, 2005 email from the Otts to the Sansones indicating a letter had been delivered to Linda Lott. The letter delivered to Lott confirmed that the Otts wished to continue with the purchase of the property and they attached an insurance policy and proceeds form. The letter also stated the Otts would be ready to close the early part of the following week, according to the lender and title company.

A letter from the Otts dated October 7, 2005 stated they agreed to proceed with a scheduled closing at Bayou Title on October 14, 2005. The Otts also ^attached copies of Requests for Admissions they had submitted to the Sansones and the Responses from the Sansones. The San-sones admitted that on October 5, 2005, the Sansones emailed the Otts and offered to sell the house. This email did not set a deadline for the purchasers to obtain a loan or a deadline for the act of sale to take place. The Sansones also admitted that the Ott’s accepted the offer on October 7, 2005. The Sansones denied that they agreed at the act of sale on October 19, 2005 to return on October 20, 2005 to proceed with the closing.

The Otts also presented a copy of a cashier’s check payable to Bayou Title for $39,721.22 dated October 19, 2005, which represented the down payment the Otts were prepared to pay to the Sansones on that date. The Otts did not provide any evidence of the remainder of the purchase price they claimed would be available on October 20, 2005.

On March 6, 2006, the Sansones filed an Opposition to the Ott’s motion and a motion for summary judgment seeking judgment in their favor. The Sansones included an affidavit of Linda Lott dated March 6, 2006 which stated that on the morning of October 14, 2005, she was informed by phone that the sale would not proceed because of a typographical error on the insurance papers. Lott received a call from the mortgage company on October 18, 2005 and was told that the Otts had to get a new lender. Lott further stated that Vance Ott of Bayou Title and the staff tried to get her to sign the closing papers even though they admitted the funds were not available. Ashley of Vance Ott’s office told Lott that three separate checks had been issued for the three sellers. Lott went to Ott’s office the morning of October 20, 2005 to get her original succession documents and Ott told her he could probably get the funds that day. No evidence was presented to show that the funds were available, other than the check for the down payment, or whether the Ott’s actually had financing in place to complete the transaction.

| A A hearing on the two motions for summary judgment was held on March 18, 2006. On March 27, 2006, the trial court issued a Judgment granting the motion for summary judgment on behalf of the Otts finding the Sansones breached the contract with the Otts to sell the property. The trial court ordered the Sansones to appear at Bayou Title within 30 days to execute the act of sale.

The Sansones filed a Motion for New Trial for Reargument Only and Requests for Written Reasons. The trial court denied that motion on May 26, 2006. The Sansones filed a Motion and Order for Suspensive Appeal on June 1, 2006.

For the reasons which follow, we reverse the judgment of the trial court granting the Otts’ motion for summary judgment and remand this matter to the trial court for further proceedings.

DISCUSSION

This is an appeal of a grant of a motion for summary judgment. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Bagley v. Professional Services Group, Inc., 03-461 (La.App. 5 Cir. 10/15/03), 856 So.2d 1286, citing, Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).

The original act of sale was scheduled to take place by September 1, 2005, but Hurricane Katrina forced the parties to cancel that act of sale. Through email and mail correspondence, the parties managed to reschedule the act of sale for |7October 14, 2005. The act of sale again had to be rescheduled to October 19, 2005 because of a problem with the Otts’ insurance papers. According to Lott’s affidavit, on October 18, 2005 she was told by the Otts’ mortgage company that the Otts had to get a new lender for the transaction. Lott further stated that she was told by Ashley of Vance Ott’s office that three separate checks had been issued for the sellers. Additionally, on the day of the closing, October 19, 2005, Lott claims Vance Ott and his staff attempted to get her to sign the closing papers even though they admitted the funds were not available. The Otts claim they would have had the money available the next morning, on October 20, 2005, and could have proceeded with the closing. However, Lott stated in her affidavit that on the morning of October 20, 2005, Vance Ott of Bayou Title told her that he “could probably get the funds that day.”

Based on the affidavit of Lott and other evidence presented with the motions for summary judgment, we find there are genuine issues of material fact regarding whether or not the Otts actually had the financing in place to proceed with the act of sale. Since we find there are genuine issues of material fact in this case, summary judgment is not proper.

Accordingly, we find the trial court erred in granting summary judgment in favor of the Otts. We find there are genuine issues of material fact that preclude the granting of summary judgment. Therefore, we reverse the judgment of the trial court and remand this matter for further proceedings.

REVERSED AND REMANDED.

DALEY J., concurs.

DALEY J.,

concurs:

hi concur with the majority’s result reversing the grant of summary judgment by the trial court, but for different reasons.

The evidence presented for this summary judgment shows that plaintiffs are not entitled to specific performance of this contract.

Purchasers/appellees argue that since the purchase agreement of October 5, 2005 did not specify a date upon which the closing was to take place, the Civil Code article allowed a reasonable time in which this was to take place. They argue that October 14th was only 9 days after the date of the purchase agreement. They point out that the original closing of September 1st was 43 days after the original purchase agreement was signed (which also contained the September 1st date of performance), and therefore, pushing the closing back to October 19th and then the 20th, was “reasonable” since it was much fewer than 43 days between the agreement date and the new closing, as evidenced by the time frame the parties contemplated in the original agreement. They also argue that the sellers could have gone through with the “dry closing,” that the funds would have been available the next day, and if they weren’t, the sellers could have sued the title company.

On appeal, the appellants/sellers argue, in a nutshell, that when the new closing date was selected by the purchasers, this made the term for the performance of the obligation certain, as opposed to uncertain. They argue that the |2agreement became null and void on October 19th, when all parties showed up for the closing, but purchasers did not have a fully funded loan and were not prepared to transfer the purchase price upon the execution of the papers. They point out that they agreed to one extension of the closing, to October 19th, but did not agree to a second extension to October 20th, the date unilaterally picked by the purchasers’ notary.

When the parties agreed on the new closing date of October 14th, which was proposed by the purchasers, and then agreed to extend it to October 19th, the term became “certain” and Civil Code art. 1778, which describes a “reasonable time” for performance of an obligation with no term, became inapplicable. When the funds were not available on the 19th, a fact that the Otts do not dispute, and therefore the sale could not be consummated, the purchasers, not the sellers, were in breach.

In deciding whether to grant specific performance on contracts to sell, the courts have focused on which party was responsible for delays when the closing failed to occur on a specified date. The cases generally have held that a party who causes the delay may not demand specific performance. Deleon v. WSIS, Inc., 31,-602 (La.App. 2 Cir. 2/26/99), 728 So.2d 1046, and cases cited therein. It is clear that in this case, the purchasers were in breach, since they could not perform their obligation at the October 19th closing. Therefore, they may not demand specific performance of this contract.

Additionally, the closing date need not have been in writing in the original purchase agreement. If it were originally in writing, it may be extended and evidenced by the conduct and agreement of the parties. Huger v. Morrison, 01-1864 (La.App. 4 Cir. 2/6/02), 809 So.2d 1140. It is true that parties to a closing sometimes mutually agree to extend a closing date; in fact, the parties agreed to one extension, from October 14th to the October 19th. But the sellers did not agree | sto another extension after the 19th, and they did not agree to sign over the house without the purchase money changing hands.

Accordingly, I concur in the reversal of the grant of summary judgment.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of S.L.W., B.J.W. and J.R.W.
    No. 2006-CA-1560.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2007.

      Sherry Watters, Department of Social Services, Office of Community Services, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe State appeals the trial court’s denial of parental rights termination petition. After review of the record in light of the applicable law and the arguments presented by the State we affirm the judgment of the trial court.

Relevant Facts

On May 7, 2004, the Louisiana Department of Social Services, Office of Community Services (“the State”) placed seven-year old SLW and two-year old twins, BJW and JRW, in foster care. After an adjudication and dispositional hearing held on September 30, 2004, Section B of the 25th Judicial District Court for the Parish of Plaquemines sitting as a Juvenile Court (“the trial court”) issued an order on October 8, 2004, finding that it was in the children’s best interest to be continued in the State’s custody but that, in accordance with the State’s case plan dated June 6, 2004, a permanent plan of reunification was the most appropriate and in the best interest of the children.

|¡,0n June 23, 2005, the trial court held a case review and permanency review hearing and, finding that it was in the best interest of the children to remain in the custody of the State at that time, approved a new case plan dated May 24, 2005.

At the next case review hearing, held on January 26, 2006 and attended by both parents, the State filed a Petition for Termination of Parental Rights. On February 23, 2006, at the hearing to answer the petition, both parents and their attorneys were in attendance and a status hearing and trial date were selected (March 30, 2006, and April 27, 2006, respectively) with the parents receiving notice in court of both dates. At the status hearing on March 30, 2006, “on motion of the Defense” the status hearing was continued to May 25, 2006; both parents were absent but represented by counsel. On April 27, 2006, “[o]n written motion of Mr. Barbee [mother’s counsel]”, the status hearing was again continued until May 25, 2006. At the status hearing on May 25, 2006, both parents were absent from court but represented by counsel. The court set a termination hearing for August 31, 2006, “after an informal discussion” and notified “[a]ll parties [ ] in open court.” In August 2006, the trial court granted the motion for continuance filed by the mother’s counsel and set the termination hearing for September 28, 2006.

At the termination hearing on September 28, 2006, the court noted (1) that the father was not present for the hearing; (2) that Sherry Waters, attorney for the State, “stated that she can proceed in his absence”; and (3) the objection of Michael Clement, counsel for the absent father. After receiving the evidence, the trial court |atook the matter under advisement. On October 25, 2006, the district court issued a written judgment, denying the petition to terminate the mother’s parental rights and granting the father a new trial as to the termination of his parental rights.

Discussion

The State appeals this decision raising four assignments of error, arguing that the trial court made the following errors: (l)granting sua sponte a new trial for the father; (2) granting multiple continuances for the mother and then admitting evidence of her rehabilitation efforts which occurred after the date on which the termination petition was filed: (3) finding that the State did not prove any of the grounds for termination by clear and convincing evidence and misapplying the time frame allowed for rehabilitation or reformation under Article 1015(5) of the Louisiana Children’s Code; and (4) failing to find that proof of an Article 1015 violation created a presumption and that the totality of the circumstances showed that termination of the parents’ rights was in the children’s best interest or a preference for adoption.

New Trial

The State argues that the trial court erred in granting the father a new trial. The record indicates that prior to the hearing, the trial court noted the father’s absence, his counsel objected to proceeding without him, and the State insisted that the hearing could be held in the father’s absence. After the hearing, the trial court determined that its initial decision to proceed against the absent father was error, finding as follows:

As to the father’s rights, the father did not attend this proceeding. The record reflects that he appeared in court at all previous settings and was interested in defending his rights. He was [¿not notified of this court date and, despite being represented by counsel, was not afforded an opportunity to take part in these proceedings. To have proceeded against him in his absence, with no notice to him of this court date, was error on the part of this Court.

Because the permanent termination of the legal relationship existing between children and biological parents is one of the most severe and drastic actions the State can take against its citizens, procedural due process is particularly important in termination proceedings.

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see also Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court).

Accordingly, we find no merit in the State’s argument. The trial court did not err in sua sponte granting a new trial for the father to insure that he was provided with procedural due process in the termination proceedings.

Admission of Evidence of Rehabilitation

Next, the State contends that the trial court erred in continuing the petition hearing date on motion of the mother’s counsel and considering evidence of her rehabilitation efforts that took place after the termination petition was filed. Nothing in the record suggests that the trial court abused its discretion in ^continuing the hearing date and we find no jurisprudential or statutory support for the State’s contention that the mother’s post-petition improvements are irrelevant and should not have been considered by the trial court. A review of State in the Interest of A.D.S., A.T.S., and J.D.S., 04-0250 (La.App. 4 Cir. 9/29/04), 888 So.2d 913, cited by the State, clearly indicates that evidence regarding visitation dates and gifts given to the children after the filing date of the termination petition was excluded pursuant to specific statutory provisions, La. Ch.Code art. 1015(4)(b) and (c), that ex-elude such evidence from consideration relevant to the issue of abandonment. Abandonment is not the issue in this case and the statutory provisions applicable to abandonment, visitation dates, and gifts, do not apply to the mother’s rehabilitation efforts in this case. Accordingly, we do not find that the trial court erred in considering the mother’s post-petition efforts or progress.

Factual Findings of the Trial Court

In this case, the trial court made the following findings:

... the evidence in this matter established that there is, indeed, a reasonable expectation of significant improvement in [the mother’s] condition or conduct in the near future. In fact, she has improved tremendously and has been drug free for an extended period of time. She has a job and a place to live, and there is no evidence in this matter that her children don’t love her and want to live with her.
Un fact, the evidence establishes that, based on poverty [the mother] left her children with relatives; that she has a history of drug abuse; that all of the steps set forth in the case plan for reunification were contingent on her being drug free; that she has repeatedly and consistently attempted drug and mental-health counseling, always on a voluntary basis; that she has occasionally relapsed; that she has never indicated an intention of abandoning her children; and has now completed an in-patient substance abuse program, is drug-free; and has a job and a place to live in a supportive environment. Finally, there is no evidence that terminating her rights would be in the best interest of these children. As such, the petition is denied as to [the mother].

The State argues, however, that the trial court erred in finding that it did not prove any of the grounds for termination by clear and convincing evidence, that the trial court misapplied the time frame allowed for rehabilitation or reformation under Article 1015(5) of the Louisiana Children’s Code, and that the trial court erred in failing to find that proof of an Article 1015 violation created a presumption such that the totality of the circumstances showed that termination of the parents’ rights was in the children’s best interest or a preference for adoption.

We review the factual findings of the trial court in parental termination proceedings under the manifest error/clearly wrong standard. State ex rel. C.P., 00-0935 p. 14 (La.App. 4 Cir. 6/28/00), 768 So.2d 134, 141, reversed on other grounds, 00-2703 (La.1/17/01), 777 So.2d 470.

First, contrary to the State’s argument, Article 1015(5) does not impose a strict timeframe with regards to “significant improvement in the parent’s condition or conduct,” nor do alleged violations of Article 1015 create presumptions in favor of the State. Rather, the focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. La. Ch.Code art. 1001. Thus, the fundamental purpose of involuntary termination ^^proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. But, because the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens, the courts must proceed with extreme care and caution. State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811. Accordingly, while the prolonged proceedings in this case are problematic and, clearly, permanent or long-term foster care is not in the best interest of the children, after a careful review of the record we cannot say that the trial court was manifestly erroneous in denying the State’s termination petition at this time.

Conclusion

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

AFFIRMED.

      . No appellee briefs have been filed in this case.

      . Pursuant to Rule 5-2, Uniform Rules, Courts of Appeal, the initials of minors are used in lieu of their names.

      .Notably, the case plan indicates that, in the section titled “Parents' Recommendation for Permanency for the Child(ren)”, that the father "states his wishes are that the children be returned to [the mother].”

      . According to the case plan, the goal for SLW was "adoption/custody transferred to a non-relative" and the goal for the twins was "termination of parental rights/adoption,” but a decision had been made to put off, the filing of the parental termination order until September 2005 because the mother had entered a drug treatment program. It was noted, however, that the father "has not had contact with the agency since March 2005 and has had no visitation with his children since February 2005.”

      . The case review hearing was delayed in the aftermath of Hurricane Katrina.

      . La. Ch.Code art. 1015 provides in pertinent part:
      The grounds for termination of parental right are:
      ,(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:

        (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

      . We infer from the trial court's finding that there exists a reasonable expectation that the mother's condition or conduct will significantly improve in the near future that, while no definite time-frame has been imposed, the trial court is not inclined to continue the children's status in the State’s custody indefinitely should the mother’s rehabilitation efforts falter again.